In May, the Vermont House passed a controversial bill that would mandate labeling of foods that contain genetically modified organisms. The easy passage of House Bill 112 — the vote was 99-42 — shows that, as in 27 other states, there is broad interest in Vermont in labeling GMOs.
But when the legislation is taken up by the Senate in January, passage out of committee, let alone the full body, could be an issue. Three of five senators on the Senate Agriculture committee either oppose labeling or question its usefulness.
Meanwhile, experts say, labeling key ingredients in processed foods — such as vegetable oils, corn, soy and sugar — could have unintended implications that have not been adequately considered.
The idea, as pitched by advocates, is simple: Consumers ought to have the right to know what they are eating, and to that end, any food that contains genetically modified organisms from another plant or animal should be identified. The House bill addresses the Vermont Right to Know GMOs Coalition’s concerns about genetic changes to foodstuffs and cites “multiple health, personal, cultural, religious, environmental and economic” reasons for the label. And many of those who question the law agree on the right-to-know aspect.
Advocates say scientists don’t understand the long-term impact of genetically engineered foods on the human body and the environment and therefore consumers should have a warning when food contains GMOs.
A straightforward right-to-know issue, however, quickly grows complicated. The trouble is that genetically modified foods are ubiquitous, experts say, which could make labeling a challenge.
And even if the new rule went into effect, a Vermont food shopper looking for GMO-free food would be barraged by potentially confusing labeling. That’s because the bill does not draw a bright line between GMO foods and non-GMO foods. Instead, it broadly requires labeling of any food that “contains GMOs.”
Sen. Chris Bray, D-Addison, is on the Senate Agriculture Committee, which heard testimony about S.89, the Senate version of H.112 last session. Bray decided to evaluate the practicality of the labeling bill by doing a little shopping. He says he’s learned that at least 16 of 20 common processed foods contain GMOs, and under H.112 would be so labeled. To add to the confusion, some products are already voluntarily labeled “non-GMO.”
GMO-free items can have a variety of labels, including the plain and simple “Organic.” Or a package could be marked “Non-GMO project verified,” which is the identifier on foods that have been voluntarily labeled by the Non-GMO Project, “an initiative of independent natural foods retailers” that offers a third party verification program, largely for processed foods. Soon, under a recently passed federal law, meat from animals whose feed did not contain GMOs will have an FDA-approved “non-GMO” label. (Since 95 percent of feed corn grown in Vermont is from GE seed, that may become a difficulty for Vermont meat producers.)
Bray says that adding to the confusion is the fact that unless organic food is “100 percent organic,” there is no guarantee it doesn’t contain GMOs. Organic foods without the “100 percent organic” certification are allowed to contain up to 5 percent “non-organic” ingredients.
“The question is how you best inform consumers,” Bray said. “I’m coming to the conclusion that informing consumers is becoming a bit of a mess. However well-intentioned, this labeling law could have the effect of discouraging consumers, not making them happier and more well-informed.” While he says GMOs are “a gamble,” he doesn’t feel the bill addresses the labeling issue adequately.
Advocates see the labeling of food containing GMOs as the “common sense” answer to the consumers’ “right to know what’s in their food.” This is the push by Vermont Public Interest Research Group (VPIRG), Rural Vermont and NOFA-VT, under the umbrella of the Vermont Right to Know GMOs Coalition. They have gathered 8,000 signatures on a petition in support of labeling all products containing GMOs and the coalition began a statewide campaign this summer to gather more and raise money to support advocacy for the bill.
Dan Barlow, a lobbyist for Vermont Businesses for Social Responsibility who has advocated for H.112, said GMOs are a threat to the Vermont brand. “I think this move can only strengthen the Vermont brand going forward,” he said.
Even though the legislation does not require that products be labeled non-GMO, as Ben & Jerry’s will be doing by the end of 2013, founder Jerry Greenfield came to testify in support of the bill this year. Bray asked him what the bill would do for Ben & Jerry’s that they couldn’t do on their own. “Greenfield’s reply was ‘nothing,’” Bray reports.
The argument for “non-GMO” or “GMO-free” labels is that certification, with guidelines and standards, by the North American Non-GMO Project is already in place.
But non-GMO certification comes at a cost for producers say supporters of H.112 like Sen. David Zuckerman, P-Chittenden. He runs a small organic vegetable operation and wants large food producers to pay those costs because they can more easily absorb them. Supporters of “non-GMO” labeling counter that producers’ costs would be offset by higher sales.
There are adamant opponents of any mandatory labeling who have also had an impact on legislators. Margaret Laggis, a lobbyist for the two largest dairy groups in the state, testified against H.112, saying the bill is “deceptive” since it includes a number of exemptions that would be difficult for the consumer to detect.
The bill exempts restaurant food, GE foods made with “processing aids or enzymes,” such as cheese, and food prepared for immediate consumption. But in a recent interview, Laggis said her clients “would maybe even support Vermont putting out a list of non-GMO products, GMO-free products and ingredients that are likely to contain GMOs.”
The future of the GMO-labeling bill
The House bill is likely to be significantly amended in the Senate, and it could well be completely rewritten. Zuckerman, the lead sponsor of S.89 and a member of the Agriculture committee, said that while the Senate version started out as a mirror of H.112, [but] it is now significantly different. “I have no doubt it will go to both the Judiciary and Agriculture committees,” he says, “and it will have difficulty, I’m sure, on both counts.” Still, he says, “the precedent they (the House) set with their language is a good foundation.”
Some describe the governor’s support as lukewarm. He has cited a bovine growth hormone case the state lost 17 years ago as a reason to go slow on the legislation, though he told VPR on March 28 he wants to “see the bill happen” and that “it just makes sense to let consumers know what they are buying.”
Legislators are also mindful of the 1996 federal court ruling against mandatory labels for milk from cows treated with rBGH. The court determined the state did not show the label was supported by an interest “other than gratification of consumer curiosity.”
The rBGH battle set a possible precedent for the GMO-labeling issue. After a struggle that went on for a decade or more, the courts ruled that labeling could only be voluntary, as former agriculture secretary Roger Allbee remembers.
But, as Bray observes, “as soon as consumers got interested in the issue, it drove rBGH out of Vermont milk. Agri-Mark said they wouldn’t accept milk that was produced with rBGH. The most powerful force is not regulators, it is consumers. We live in a free market, capitalist society, and the most powerful force is consumers. The most effective path forward, given the history of labeling, is to leave it to the consumer.”
In the end, farmers didn’t have trouble dropping rBGH, said Laggis, whose husband is a dairy farmer. Giving the whole herd a shot “was a real pain in the butt every two weeks, so it was not a big thing to say goodbye to.”
Legal challenges
Another possible roadblock in the Senate, if proponents stick to required labeling, is the worry that there will be a legal challenge. The House Agriculture Committee was acutely aware of this threat and carefully considered the language of H.112.
Carolyn Partridge, chair of the House Ag panel, is convinced the bill can withstand three potential federal legal challenges. The vulnerability most often mentioned is the “dormant Commerce Clause” of the Constitution—which gives the federal government the right to limit the commerce powers of the states. There are also First Amendment issues and possible federal preemption under the Federal Food, Drug and Cosmetic Act.
The House Agriculture Committee worked with the Vermont Public Interest Research Group and the Vermont Law School’s Environmental and Natural Resources Law Clinic to develop the final language of the bill.
“We feel we addressed all three of those issues, so that our legislation will stand up to any court challenge,” Partridge said. The Vermont Attorney General’s Office, she said, might have a “more nuanced response.”
Bridget Asay, an assistant attorney general, who lost a 2011 landmark prescription drug case at the U.S. Supreme Court, said she advised House Agriculture that “there is significant risk of litigation and expenses associated with it (H.112).”
Inconclusive science
Scientific research has not conclusively shown either the safety or danger of GMO foods. Len Bull, recently retired chair of the Vermont Agricultural and Forestry Products Board and a UVM research scientist in dairy and animal science testified before the Legislature. He asks why, “if these are really safe foods, the seed companies didn’t think it would be good to bring them to the marketplace with that information?”
But the seed companies didn’t make the studies public, and that means there must be more reliable, independent research that is made available to consumers, he says.
“If there are compounds or triggers in GMOs of foods that can cause any kind of reaction, then research needs to be done to clarify what causes the effects,” Bull said. “Then they should be corrected or taken off the market.”
Allbee, secretary of the Agency of Agriculture under Gov. Jim Douglas, says a voluntary labeling law is more practical. Like Bull, he questions the wisdom of labeling until the science of GE foods is publicly available. “The issue is balance and good and independent scientific review of data and analysis,” Allbee said.
Rep. John Bartholomew, D-Hartland, who supported H.112, concluded that it is better to highlight uncertainty than ignore it. “As I’ve said, significant disagreement remains among scientific experts about the safety of GE foods. There are unanswered health questions because the studies have not been done, but that is why labeling is needed – so we can potentially detect any adverse health effects from GE products. Labeling can serve as a risk management measure to deal with scientific uncertainty.”
Allbee and Bull back a national standard, as they believe it’s likely that the cost of compliance, if state labeling is imposed, would mean higher prices for consumers.
The European Union has funded $200 million in research on GMOs, according to a 2010 report on 50 recent projects involving 400 research groups. The research was conducted by independent scientists as well as interested parties — the corporations that produce the seeds.
The report concluded that it is not possible to determine the safety or danger of GMO foods at this juncture. Even so, the World Health Organization says the effect of genetic modification on health and the environment have not been fully explored. WHO has called for case-by-case “risk assessments” of GM seeds. Meanwhile, the EU adopted mandatory labeling regulations in 2004 but has not yet uniformly applied the rules. And labeling is not required on food with less than 1 percent DNA or protein resulting from genetic modification.