Vermont Proposes Excluding Supplements From GMO Labeling

MONTPELIER, Vermont--The dietary supplement industry may not have to agonize over a Vermont law that requires labeling of genetically engineered (GE) foods. That is because a draft rule released earlier this month by the Vermont Attorney General’s Office would exempt “dietary supplements" from the definition of food.

“Most regulatory structures nationwide and even among the states differentiate between dietary supplements and foods," said Todd Daloz, an Assistant Attorney General, in a phone interview Wednesday with Natural Products INSIDER.  

During hearings, the Vermont legislature “discussed the definition of food and the contours that they perceived it as," added Daloz, who is working on implementing Vermont’s law through rulemaking. “We drew on that and a broader range of regulatory structures."

Vermont’s groundbreaking and controversial law, Act 120, defines food broadly as “food intended for human consumption." A separate state statute (18 V.S.A. § 4051(4)) on the labeling of foods, drugs, cosmetics and hazardous substances uses the same definition of food as the one found in the Federal Food, Drug & Cosmetic Act (FD&C): “(1) articles used for food or drink for man or other animals, (2) chewing gum, and (3) articles used for components of any such article."

Whether other states would exclude dietary supplements from GE labeling obligations is an open question because only Vermont has gone so far as to draft a rule. In fact, only Vermont, Connecticut and Maine have genetically modified organism (GMO) labeling laws on the books—and the food industry in the latter two states won’t need to adopt regulations immediately because the GMO labeling statutes in Connecticut and Maine don’t go into effect unless neighboring legislatures adopt similar laws.

Connecticut’s Public Act 13-183 includes a definition of food similar to the one contained in the FD&C, and although it excludes certain foods from the labeling requirements, dietary supplements aren’t specifically mentioned.

Justin Prochnow, a Denver-based lawyer with a focus on regulatory and business issues in the food industry, pointed out that dietary supplements are a food subset. “Generally, dietary supplements are food unless they are specifically excluded," said Prochnow of the law firm Greenberg Traurig, LLP.

Dave Murphy, founder and executive director of Food Democracy Now, a group in favor of GMO labeling, said the “main fight" is not over whether supplements should be labeled.

“People are going into grocery stores and really having no idea what they are feeding their families," Murphy said in a phone interview. “We believe that people are eating food three times a day. Mothers and families eating their food should know how it’s produced."

Daloz, the Assistant Attorney General in Vermont, anticipates his office will formally propose a GMO labeling rule by the beginning of next year. Effective July 1, 2016, the law requires food manufacturers to label foods produced through genetic engineering.

State authorities could face hurdles in the rulemaking process, as a lawsuit aimed at overturning Act 120 progresses. The Grocery Manufacturers Association and three other associations filed suit over the summer to block the nation’s first GE labeling law from taking effect. Last month, the food groups moved in federal court to prohibit Vermont authorities from implementing the law until the litigation has run its course.

The trade groups—including the Snack Food Association, International Dairy Foods Association and National Association of Manufacturers—have argued Act 120 will severely burden the food industry because most foods at grocery stores contain GMOs.

The extent to which mandatory labels would affect the supplement industry is unclear. However, certain ingredients in supplements have likely been genetically modified, such as products made from corn and soy, and cotton used to keep tablets fresh. The majority of U.S. corn (85 percent), soybeans (91 percent) and cotton (88 percent) are genetically engineered, according to the Center for Food Safety.

The natural products industry has largely remained on the sidelines amid a national debate on whether GMOs should be labeled.

Mike Greene, vice president of government relations with the Council for Responsible Nutrition (CRN), said the association’s executive committee made a decision last year that it would not be actively involved in GMO issues. CRN is a member of a working group formed by GMA, the Coalition for Safe and Affordable Food. That coalition touts the safety of GMOs and states that 70-80 percent of foods are genetically modified.

“It’s a larger food issue," Greene said of GMO labeling. “We are very much aware this is an issue in many states and we certainly would prefer a federal approach to a state patchwork of laws."

Daniel Fabricant, executive director and CEO of the Natural Products Association (NPA), said his organization did not lobby the Vermont Attorney’s General’s Office to exclude dietary supplements from food.

NPA also is in favor of one national law or standard governing GMO labeling.

“We don’t want there to be 900 different labeling laws," Fabricant said.

More than a decade ago, the American Herbal Products Association (AHPA) began encouraging herbal companies to reveal use of GMO herbs, according to AHPA president Michael McGuffin.

“AHPA is also advocating for a federal standard for the voluntary labeling of absence of GMO ingredients in products," McGuffin said in a statement. “AHPA believes that this is the most pragmatic approach because it will prevent a patchwork of different state policies and ensure consumers can buy products that don’t include GMOs."

That the nation would adopt a patchwork of state labeling laws is not some far-fetched notion. Murphy of Food Democracy Now said there are GE labeling bills in more than 26 states. And next month, voters in Colorado and Oregon will decide whether to require labeling of GMOs.

Advocates of GE labeling say consumers have a right to know if the foods they are eating have been genetically engineered. Vermont’s law also cites an absence of consensus concerning the validity of research on the safety of GMOs, notes “genetic engineering of plants and animals may cause unintended consequences," and references religious objections to GMOs.

“Because both the FDA and the U.S. Congress do not require the labeling of food produced with genetic engineering, the State should require food produced with genetic engineering to be labeled as such in order to serve the interests of the State, notwithstanding limited exceptions, to prevent inadvertent consumer deception, prevent potential risks to human health, protect religious practices, and protect the environment," Act 120 declares.