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Senate Passes GMO Bill Creating A National Bioengineered Food Disclosure Standard With Federal Preemption And Exclusion Information

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Courtesy of Bergeson & Campbell, P.C.

On July 7, 2016, the Senate passed a bill, An Act to Reauthorize and Amend the National Sea Grant College Program Act, and for Other Purposes (S. 764), through agreement to the House's amendment to S. 764, with further amendment. While the bill is being referred to as a genetically modified organism (GMO) labeling bill, there is no actual requirement to print GMO ingredients on labels. Instead, companies would be required to print information on the packaging (through text, a symbol such as a QR code, or an electronic link) directing consumers to a website or phone line for more information. The national bioengineered food disclosure standard includes a definition for 'bioengineering': 'a food - (A) that contains genetic material that has been modified through in vitro recombinant [DNA] techniques; and (B) for which the modification could not otherwise be obtained through conventional breeding or found in nature,' as well as specifics on how the new standard will be established through requirements and procedures. The new requirements and procedures include the following:

  • Prohibition of a food derived from an animal to be considered a bioengineered food solely because the animal consumed feed produced from, containing, or consisting of a bioengineered substance;
  • Determination of the amounts of a bioengineered substance that may be present in food for the food to be a bioengineered food;
  • Establishment of a process for requesting and granting a determination by the Secretary regarding other factors and conditions under which a food is considered a bioengineered food;
  • Provision of alternative reasonable disclosure options for food contained in small or very small packages; and
  • Requirements and procedures specific to small food manufacturers.

Subtitle F includes a section on federal preemption, which states that any state regulations on 'labeling of whether a food (including food served in a restaurant or similar establishment) or seed [in interstate commerce] is genetically engineered ... or was developed or produced using genetic engineering,' and also a section on exclusion from federal preemption -- that nothing in the subtitle, or in Subtitle E, 'shall be construed to preempt any remedy created by a State or Federal statutory or common law right.' The bill will allow producers with a U.S. Department of Agriculture 'certified organic' designation to display an additional 'non-GMO' label on their products. S. 764 is now back in the House and is expected to be taken up before Congress's seven week recess beginning July 15, 2016.

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