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September 2, 2016

GMO LABELING LAW What Does the New Federal Law Do?

By Dennis Nuxoll

On July 31, 2016, President Obama signed legislation into law that addressed a long running debate: Are genetically modified organisms (GMOs) safe and should genetically modified food be labeled?

The driving force behind a national labeling movement was a Vermont law requiring labeling for GMO products, excluding those in dairy and meat, which went into effect this past July with penalties and fines for violations slated to start January 1, 2017. In response to Vermont’s legislation, major food companies, such as Campbell’s and Kellogg’s and retailers like Walmart and Safeway, indicated they would comply in the absence of a federal fix. But adhering to the law would have presented some logistical problems.

While some of these companies have the ability to segregate and label applicable product (i.e., bread baked within individual Safeway stores), others were faced with production and labeling issues making it harder for them to comply (i.e., it’s more difficult to label boxes of cornflakes meant only to be sold in Vermont stores). With many other states debating labeling initiatives, there was a real fear that grocery stores would be overwhelmed with multiple labels. It’s against this backdrop of potential chaos that Congress enacted a federal fix.

Currently, 64 countries around the world label GMO products, including all European Union member states, Japan, Australia, New Zealand, South Korea, Brazil, Russia and China. In the United States, GMOs are regulated by the federal Food and Drug Administration (FDA) in conjunction with the U.S. Department of Agriculture (USDA) and the Environmental Protection Agency (EPA). FDA has responsibility over products that people eat, and has said for years that GMO foods are safe to eat. USDA makes sure that all new GMO plant varieties pose no pest risk to other plants. EPA regulates pesticides, including those bioengineered into food crops, to make sure that pesticides are safe for human and animal consumption and do not pose unreasonable risks of harm to human health or the environment.

What does the federal GMO labeling bill do?

The recently-signed bill necessitates labeling on all food packages that contain GMO ingredients, and immediately preempts all state-level labeling laws, including Vermont’s. The law directs USDA to begin the process of deciding what food manufacturers will be required to label within the statute’s terms. The agency is supposed to complete this process within two years.

The new national law is as important for the labeling it does NOT require as for the labeling it does require. Though it defines, for the first time, the foods that need to be labeled as GMO, it also acknowledges that not all crops produced by genetic manipulation need to be labeled. For example, if genetic manipulation is used to create a product that could “otherwise [be] obtained through conventional breeding or found in nature,” it does not have to be labeled. Clearly, this makes sense since traditional breeding has been hybridizing crops for centuries—the use of DNA technology to make that process more precise is merely an evolution of existing techniques. The law also exempts products from being labeled at retail food establishments (i.e., McDonald’s, Starbucks) and certain small food manufacturers.

The law also provides some flexibility to producers, allowing them to choose what type of label they use, though USDA has not finalized regulatory guidelines on this issue. The language in the law says producers can use simple text labels, like those that already appears on food packages, or a QR code that directs consumers to the company’s website when scanned with a smartphone. A company can also choose to set up a 1-800 number to answer consumer questions.

To ensure notifications are working as intended, USDA will conduct a study within one year of the bill’s enactment to determine if these non-food package options are technically achievable for most consumers. The study will explore if options like the QR code are providing consumers with necessary access to information about the product.

Additionally, the labeling law allows a producer to voluntarily label all certified organic food as GMO-free. However, producers must go through a verification process to voluntarily label any other foods as not containing GMOs. In prescribing the verification process, the law prevents producers who aren’t required to label products from enjoying a converse marketing advantage from labeling their products as GMO-free.

What does the bill mean for the produce industry?

As written, the law does not greatly impact the fruit and vegetable sector. Why? First, with a couple of rare exceptions (papaya), the fresh produce our members provide consumers today are not the result of genetic manipulation. The overwhelming majority of fruits and vegetables on the market today are products of decades—if not centuries—of conventional breeding. Accordingly, most of the produce SKUs in the grocery store today will never need to be labeled.

Secondly, as discussed, since organic regulations already prevent the use of GMOs in all organically-certified products, organic produce does not need to be labeled, eliminating involvement by fresh produce farmers.

Lastly, the law addresses both genetic and DNA manipulation processes, specifically defining which techniques are GMO and which are not. As referenced previously, DNA manipulations that produce a product that could have been created using standard breeding techniques do not require labeling. As an example, this means if a producer uses DNA technology to identify and implant drought resistant traits from a wild tomato into a commercial tomato variety, then the product would not have to be labeled as GMO since traditional breeding could achieve the same result. Such a technique is merely an evolution of existing breeding, allowing producers to do things with more precision than had previously been accomplished. On the other hand, the use of DNA technology that identifies and implants traits from spinach into a commercial citrus tree to produce a particular result, such as providing resistance to citrus greening, would need to be identified as GMO. Since most current or contemplated uses of DNA technology in the fresh produce industry involves the former technique and not the latter, it is likely our members will not need to label much in the future.

Western Growers will continue to keep members abreast of the regulatory implementation of this law or any proposed changes that might directly affect the fresh produce industry.