On Thursday, July 23, 2015, the U.S. House of Representatives passed a bill that would pre-empt state labeling laws for foods made from genetically engineered crops and establish a voluntary “non-GMO” (genetically modified organisms) labeling system. The Safe and Accurate Food Labeling Act passed by a vote of 275 to 150. I previously wrote about this on April 7 in a column titled Food Safety and GMO Labeling: Two Federal Bids to Reduce Patchwork Rules. As noted in that article:

[T]he bill amends the Federal Food, Drug, and Cosmetic Act to (1) set forth standards for any food label that contains claims that bioengineering was or was not used in the production of the food, (2) preempt any state and local labeling requirements with respect to bioengineered food, (3) require the U.S. Food and Drug Administration (FDA) to issue regulations setting standards for natural claims on food labels, and (4) preempt any state or local regulations that are not identical to the requirements of the Act. Certification would be voluntary and would allow companies to advertise their foods as GMO-free.

With respect to the federal standards for labeling, these would, in practice, pertain to claims that a product is free of GMO ingredients. Any company wanting to make such a claim would have to follow a standardized certification process. Organic foods would automatically be certified because they are, by definition, free of any GMO ingredients.

If passed by the Senate and signed into law by President Barack Obama, the new law would overturn Vermont’s law which requires the labeling of foods with GMO ingredients, which is scheduled to take effect in July 2016. Connecticut and Maine also have laws requiring the labeling foods with GMO ingredients but these do not take effect unless neighboring states also enact similar laws.

The bill did attract some bipartisan support. It was sponsored by Rep. Mike Pompeo (R-Kan.) and 45 Democrats voted in favor of the bill. Rep. G.K. Butterfield, a Democrat, stated during the floor debate that the bill “gives consumers certainty while taking into account the delicate balance and sheer size and complexity of the food supply chain that...is responsible for feeding the country.” Accordingly, some proponents of GMO labeling might view the bill pragmatically as a second-best approach that at least applies a national standard for GMO labeling and replaces the voluntary consultation process with the requirement that the FDA examine the safety profile of new GMO crops. In addition, the requirement for the FDA to issue rules on use of “natural” claims has broad appeal.

But Rep. John Conyers Jr., also a Democrat, argued on the House floor that the bill “makes it impossible for people to know what they are purchasing and eating” and is thus “an attack on transparency.” Moreover, anti-GMO activists have labeled the bill the “Deny Americans the Right to Know” or DARK Act. Their condemnation of the bill echoes the same themes as recent proposals to mandate GMO labeling, namely, polls showing that “90% of Americans” are in favor of GMO labeling and that the science on GMOs and health is mixed. And Gary Hirshberg, chairman of Stonyfield Organic and a supporter of GMO labeling, stated, “We are disappointed but not surprised that the majority of House members have sided with large chemical and food companies to protect corporate interests.” Although support of GMO labeling by the organic food industry is a logical extension of the organic farming ideal, the industry has been accused of protecting their own corporate interests by seeking to profit from the “scarlet letters of a GMO label” on non-organic foods.

Presently, no similar bill has been introduced in the Senate. But Sen. Pat Roberts (R-Kan.), who chairs the Senate agriculture committee where a senate version would likely originate, praised the efforts of his “fellow Kansan …Mike Pompeo” and the bipartisan support the bill received. In a prepared statement, Sen. Roberts also stated that he expects the Senate to discuss the issue in the “near future” and that “[i]t is important that any federal legislation on this topic consider scientific fact and unintended consequences before acting.” Accordingly, the lobbying efforts have only just begun and this will likely become an issue for the Democratic presidential candidates. 

David L. Ter Molen is partner and member of the Food Industry Team at Freeborn & Peters LLP (Chicago).