Four years after California's genetically engineered (GE) food labeling initiative was defeated, but just days before Vermont's GE law is to go into effect, the U.S. Senate is poised to impose such labeling nationwide. The proposed legislation is the result of a compromise of interests between Senate Agriculture Chairman Pat Roberts, R-Kansas, and ranking Democrat Debbie Stabenow of Michigan, and will need 60 votes to pass the Senate.


The bill expressly preempts all state laws relating to GE labeling of food or seed in interstate commerce. This broad preemption clause would effectively put an end to the patchwork of state legislation that has been led by Vermont.

Labeling Options

The bill would allow food companies to label GE food with a text label, a symbol, or electronic label accessible by smartphone. With this latter option, consumers would be directed to "scan here for more food information" with a smartphone to find information about the food they want to buy. This option has garnered criticism from some GE labeling proponents, who argue that it defeats the purpose of labeling by requiring the consumer to hunt for the information and is discriminatory towards those Americans with no or limited access to the internet.

As a nod to this criticism, the bill would require the U.S. Department of Agriculture (USDA), within one year of enactment of the legislation, to conduct a study to determine the effectiveness of the proposed labeling methods. If the study finds that the electronic disclosure methods fall short, the USDA may provide additional disclosure options. The bill would give the USDA two years to draft GE labeling rules.

Applicability and Exclusions

The new law would define genetic engineering in a manner that could exempt the newest biotech methods, such as gene editing. It also calls for the USDA to determine the amounts of GE in a food that would trigger a disclosure requirement. Generally, foods that have meat, poultry, and egg products as main ingredients would be exempted.

Vermont Senators, whose state is on the eve of requiring its own GE labeling scheme, oppose the deal. Senator Bernie Sanders said he would do "everything I can" to defeat it. GE labeling advocates also oppose the deal, primarily because they do not believe the disclosures are clear and accessible enough.  But the USDA appeared to endorse the legislation, issuing a statement encouraging members of the House and Senate to move quickly on the deal. Grocery manufacturers and most farm interests also support the bill.

Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Morrison & Foerster LLP. All rights reserved