Vermont legislators have given up on passing a law this year mandating labeling of genetically engineered (GE) food, but activists have not given up pressuring them. And around the country, activists and legislators are heartened about the momentum gained in the last year.
Activists point to what they call unprecedented support for action at the federal level, plus attempts at other action in up to 20 states — even though the legislation appears to have stalled or been blocked in most of those states and the Food and Drug Administration is responding at glacial speed.
Senate President John Campbell had said he would accept the bill from the House Agriculture Committee after the March 16 crossover day deadline. Two weeks later, however, the Agriculture Committee still has not agreed on a draft, and it will be taking further testimony, including at a public hearing on April 12. The bill’s proponents now say the bill needs scrutiny for its constitutional merits by the Judiciary Committee before it gets to the House floor, in light of threats of an industry lawsuit over the bill.
Rep. Bill Lippert, chair of the House Judiciary Committee, could not be reached for comment about time available on that committee’s calendar.
Agriculture Committee member Rep. Will Stevens, I-Shoreham, said the discussion in the Legislature is beneficial, regardless of the outcome.
“For me the importance of this is as much about awareness and education as it is about putting a piece of legislation together in hopes that the governor will sign it. … I’d love this discussion to turn on marketing opportunities,” Stevens said.
Stevens said members of Vermont Specialty Products say the proposed law would raise costs or limit marketing opportunites for them.
“Suddenly somebody who might otherwise be sympathetic to this proposal discovers that the canola oil they’re using could be GE,” he said.
Rep. Carolyn Partridge, D-Windham, explicitly cited Vermont’s place in the national effort to achieve labeling of genetically engineered food.
“We’re very disappointed that the committee chose to wait so long before taking up this bill. It’s not a terribly complicated bill. It’s a pretty straightforward citizens-right-to-know bill. ~Andrea Stander”
“I’d like to have legislation crafted that potentially would be a model for other jurisdictions, other states, so that going forward, other states might feel empowered or encouraged to do the same thing that we have done. If enough states were to pass this that there might be less interest on the part of the biotech industry in suing,” she said.
H.722 applies to all food sold in Vermont and amends the definition of “misbranded” food to include food that is produced with genetic engineering but not labeled as such. The bill defines genetic engineering to include a number of breeding techniques that breach normal barriers between species, and it applies to both raw agricultural commodities, like vegetables and processed foods that contain genetically engineered ingredients. It would also prohibit any labeling of genetically engineered food as “natural.” Not included in the law would be meat, milk and eggs from animals fed genetically engineered feed or treated with genetically engineered drugs such as bovine growth hormone.
Stevens said that Legislative Council told the committee there are three potential constitutional grounds for attacking the bill: it may pre-empt powers of the federal Food and Drug Administration; it may regulate commercial speech in violation of the First Amendment; and it may impede interstate commerce.
“Those are high bars,” Stevens acknowledges.
“My feeling is that what’s really driving this [slow work on the bill] is the state’s concern about passing any legislation that will immediately subject it to litigation, which this definitely will,” said Andrea Stander, executive director of Rural Vermont, which has been advocating for the labeling bill.
Stander said Rural Vermont worked with a national consortium.
“The Organic Consumers Association, the Center for Food Safety, they did a lot of the heavy lifting on the legal front,” she said.
Stander said she expects the present bill to withstand legal challenge.
“We’ve researched this very carefully. It’s kind of sad if Vermont is going to start turning away from progressive legislation that consumers and voters want because some big corporation threatened to sue us,” she said.
Stander said that the current bill was introduced in the second year of the biennium, making timing for passage more difficult. At the same time, she said, “We’re very disappointed that the committee chose to wait so long before taking up this bill. It’s not a terribly complicated bill. It’s a pretty straightforward citizens-right-to-know bill.”
While activists have trumpeted a significant number of states working on labeling GE food — the number cited has been 14 or 19 or 21 — many of those bills failed or died last year. Activists consistently identified Vermont, Connecticut and California as the states currently having any advanced work done on GE labeling. Biotechnology Industry Association spokeswoman Karen Batra also said that none of the bills introduced last year amounted to anything. She did note, however, “We are seeing this issue taking a little more spotlight than it has in previous years.”
In Connecticut and California
Connecticut is the one state with a labeling bill on roughly a parallel track to Vermont’s — and there the bill has passed out of the Environment Committee, which has members from both the House and the Senate. To pass, it needs a floor vote in the House and then the Senate, according to Environment Committee staff member Jason Bowsza. The votes have not yet been scheduled, he said, and the session ends May 2.
Connecticut state Rep. Richard Roy, chair of Connecticut’s Environment Committee, said in a phone interview that its bill uses language from an initiative in California that supporters hope to place on the November ballot. He hopes that language will pass constitutional muster, but he’s looking to Washington for real change.
“Essentially what we’re trying to do is set a table so that the federal government will move. If enough states move forward with this, we’ll get the federal government to reclaim its rightful place over the industries. They seem to have abrogated their constitutional duties, letting the industries set not only the rules as to what they will do, but also rules … that don’t allow us to inform United States citizens what is in the food they’re eating. … The people in the People’s Republic of China can get that information. But here in the U.S., where the company’s making all its money, we can’t get that information from them.”
Roy told with relish the story of Hudson, Quebec, which he said banned pesticides and successfully fended off a lawsuit by Dow Industries. He said he’s ready to take on the biotechnology industry in a court fight, if necessary.
In California, the initiative is in the form of an eight-page bill that organizers are hoping to put before voters on November’s ballot. Organizers hope to have 800,000 signatures by the April 22 deadline, according to Zuri Allen, a field organizer for the Organic Consumers Association.. She would not say how many they have collected so far, but she said the requirement is for 500,000 signatures, and they are “doing really well” in getting to their 800,000 goal.
Allen said she hasn’t seen much industry push-back. However, she added, for states that pass GE-food labeling bills, “It’s pretty much understood that you’re going to get sued.”
She added, “This is the first time we’ve gotten this much traction. If it passes in one state, it’s huge. And in over 10 years of organizing, I’ve never seen the level of coalition forming that we’re seeing around this issue.”
Kimbrell noted that activists can sue the FDA if it “drags its heels” too long, but the FDA would need to delay for years before a court would recognize it as “unduly delaying” action on the petition.”
At the national level, activists in the Just Label It coalition were heartened in March by two developments. The coalition claims hundreds of partner organizations representing food, faith, business, environmental and other interests. Just Label It released a survey last week that it commissioned from the Mellman Group showing 91 percent of respondents favored requirements for labels on food containing GE ingredients, and 81 percent strongly favored the requirement. The telephone survey was conducted in February of 1,000 people identified as “2012 general election voters” and claims a margin of error of 3.1 percent.
Just Label It also announced last week that it sent the Food and Drug Administration a million signatures on a petition asking the FDA to require labeling for GE food. Senior attorney George Kimbrell at the Center for Food Safety termed the number of signatures “stunning and unprecedented.”
The claim of a million signatures could not be verified — the federal government website showing comments only shows that attachments with thousands of pages were submitted by Just Label It, but the website says that the personal data will not be displayed. Sue McGovern, spokeswoman for Just Label It, said it was very frustrating — the only way for an outsider to confirm the number of signatures is to submit a Freedom of Information Act request. Calls to FDA spokespeople were not returned.
The 25-page petition to the FDA sets out a legal argument for why the FDA has both the authority and the duty to require labeling of GE foods. The petition was filed last year, and the FDA waited the maximum allowable time, 180 days, before responding to it. Its response was non-commital, basically acknowledging that it had received the petition.
The Biotechnology Industry Association’s Batra, who says she has worked in Washington, D.C., for 22 years and with the FDA for 10 years, said she didn’t expect a decision soon. “The government tends to move slowly on just about everything, and certainly on things that are controversial.”
Kimbrell noted that activists can sue the FDA if it “drags its heels” too long, but the FDA would need to delay for years before a court would recognize it as “unduly delaying” action on the petition.
Both Stander and Falko Schilling, VPIRG’s consumer protection advocate, acknowledge the hurdles but think Vermont can pass a bill this session.
“I think it’s a long shot,” said Stander, “but we’re not giving up. And there are thousands of Vermonters who are very adamant, very adamant that it’s more than time for this to be done.”