PD_Packaging Digest

Packaging Digest, Fall 2016

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regulatory 26 TRENDS // FALL 2016 www.PackagingDigest.com Labeling of genetically modifed (GM) food products (so-called Franken foods, according to their critics) has been a hotly contentious issue for at least 20 years now. It has only been in the last few years, though, that momentum built at the state level to require label- ing and disclosure requirements for GM food. Vermont became the leader of this group with passage of a labeling law requiring disclosure of GM- containing food products sold in the state. Te result of Vermont's attempt to set standards that would afect the marketing of food in interstate commerce met with a strong reaction from the U.S. Congress with enactment of the National Bioengineered Food Disclosure Standard. Tis law establishes a federal framework for establishing a national standard to provide consumers with relevant information on GM food products and simultaneously preempting state labeling laws that are not identical to the federal standard. Te statute requires the U.S. Department of Agriculture (USDA) to publish a national mandatory bioengineered food disclosure standard and promulgate implementing regulations within two years. Interestingly enough, the statute allows the disclosure to be made in the form of "a text, symbol, or electronic or digital link" at the option of the food manufacturer. In other words, the disclosure can be provided by way of an internet link (or possibly other ways) and not just a label on the package. Importantly, it prohibits food manufacturers from collecting, analyzing or selling any personally identifable information about consumers through the link. Te GM labeling requirements will only apply to a food that is subject to labeling requirements under the Federal Food, Drug, and Cosmetic Act (FD&C Act). Meat and poultry products, and eggs, all of which fall within the jurisdiction of USDA, are all subject to labeling as well if: 1. Te most predominant ingredient of that food would independently be subject to the FD&C Act labeling requirements; or 2. Te most predominant ingredient of the food is broth, stock, water or a similar solution and the second most predominant ingredient would independently be subject to the FD&C Act labeling requirements. Importantly, this new federal law also preempts state laws, which would seek to regulate labeling for GM food products. In an odd sort of twist, the new law actually contains two preemption provisions. One just fat out prohibits a state from establishing or continuing in efect any labeling requirement as to any food or seed in interstate commerce relating to whether the food or seed is genetically engineered or was developed or produced using genetic engineering. Te other provision applies specifcally to food products that are subject to the national standard and allows states to enact disclosure requirements, provided that they are identical to the national standard. Tese provisions efectively put the kibosh on Vermont's law that went into efect in July of this year, and also preempts GM labeling laws passed in previous years in Connecticut and Maine (although these laws never became efective as they were contingent on similar laws being passed in neighboring states). A number of other states— such as California, New York and Illinois—have introduced GM labeling bills over the past few years, although none of those passed. Passage of such laws in these and potentially other states should no longer be an issue as this new federal labeling law ends the possibility of a patchwork of laws being enacted across the country. Federal genetically modified labeling standard preempts state laws Author George Misko is a partner at Keller and Heckman. Founded in 1962, the respected law frm has a broad practice in the areas of regulatory law, litigation and business transactions, serving both domestic and international clients. Reach him at misko@khlaw.com.

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