The authors of the Vermont bill do not appear to have sought the advice of anyone familiar with label design, label approval, or product distribution.
The final Rule (the Act as it was passed) is so incomplete that the Grocery Manufacturers Association sent the Vermont Attorney General a list of 32 questions, to which a frequent answer is, "There is no guidance from the State on this issue." Some answers were sent by email as a current judgment or interpretation from the office, and are not actually included in the Rule. While these questions may not seem relevant to consumers, they are incredibly important to food producers—they are not trivial.
All week I've been seeing news stories about the new VT labeling law, and of course the impending federal label regulation for GMO's. I was especially curious to learn why 3,000 products are suddenly no longer available in Vermont. So, out of curiosity, I found the actual Vermont draft bill. I didn't want to read the whole thing, I just had a few questions about the approval process—which, as it turns out, is completely ignored in the bill. I couldn't find the answers in the Vermont Attorney General's website page about the bill either, so I read the bill itself.
Here is the bill as originally drafted, ACT120. Most of my comments are directed to this version. However, since the original draft has received comments and annotations, it has now been passed and become Consumer Protection Rule 121.
The first thing that surprised me is that the original bill is only 18 pages long. Huh. I could write a white paper on food labeling longer than that. So my first thought was, "really, this is it?" I've used a wet Kleenex longer than it took to read this bill.
The "Findings", which consume the first 5 pages, are basically an activism-based scolding of the FDA; "Definitions" take up another 4 pages; and rules for creating a "Special Fund" for the AG's office, another 2. That leaves 7 pages, puffed up with legalese, for actual rules.
That's pitiful. And that's just my first impression. Here are 8 situations where I see serious flaws in the bill (and later the Act, as passed):
1. The most glaring problem, to me, is the bill's insistence that labels must contain the text "produced with genetic engineering".
This is semantically, technically, and logically incorrect! And it's misleading.
"Genetic engineering" is a process. The food is not grown with genetic engineering. It is not harvested, ground, or blended with genetic engineering. It is not baked with genetic engineering. Labeling any food with this phrase is going to put a picture in people's heads that hazmat-suited ghouls are shooting every box of cereal with gene guns as they go by on a conveyor belt. Do you doubt this? Just put Jimmy Kimmel's crew on the sidewalk and have them ask pedestrians.
Regardless of the average city-dwellers poor grasp of botany and food production, the phrase is totally incorrect in this usage and any decent copyeditor worth her salt and pepper would have caught it.
The correct language should be: "may contain genetically modified ingredients". With optional versions of the same, including "may contain GM ingredients". This was not corrected in the Act.
Which leads to the next problem.
2. There is no option for producers to substitute more specific language.
For instance, let's say you and I own a biscotti bakery. You are the baker, and you're selling packaged biscotti made from mostly all-natural ingredients, but you can't vouch for the corn starch. There is no accommodation for you to list your ingredients and then asterisk or append the message that only the "cornstarch (may contain GMOs)". And have that fulfill the labeling requirement.
Instead, your entire product must still be branded with the full text "produced with genetic engineering".
Even the annotated version of CP121 makes no correction for this.
3. There is also no option to substitute a symbol in lieu of text.
On a family-size bag of chips, there may be ample room to add text. But what about a tiny bottle of hot sauce or other condiments? With all the other required language, including ingredients, various pregnancy, sulphite, allergy, dairy and nut warnings, producer address, and every thing else, a wordy text inclusion can be a near-impossible puzzle. (The EU, South America and Australia all permit the use of transgenic symbols.) It's painfully clear that the authors of this bill have never, not once, gone through the headache of label redesign and repeated (and costly) approval reviews and submissions.
Also no consideration for this in the CP121 annotated version, although it suggests that maybe you can add a foldover or wallet flap to hold all the extra required language.
Which leads me to my next point.
4. Where's the label guidance?
One reason I was so shocked by the brevity of this bill is that food labeling requirements are incredibly precise. Vermont is insisting on the inclusion of text, but nowhere in the bill is there any specificity. What is the minimum font size? Can the statement go on the front or back label, or either? Must it be in a specified proximity to other label elements like ingredients or brand name? What text colors and backgrounds are permitted or not permitted?
Food and beverage label review is an industry in itself. Independent third-party companies who review labels prior to submission charge upwards of $800 per label. You can't just design a food product label any old way you think is attractive. The rules are as rigid, onerous and capricious as a wizard's handbook.
And yet this bill has zero guidance. The CP121 annotated version, thankfully, has some guidance on this, although if I were a biscotti baker I would contest the requirement that the font size must be different than other ingredients. That seems prejudicial.
After all, isn't that the whole point? To precisely identify certain ingredients as GMO?
Also, the information is incomplete. For instance, the information should not be placed between the Nutrition Panel and Ingredients or it will not conform with FDA regulations. I should think the information could easily be incorporated into the Ingredients panel, but neither the original 120 or the annotated CP121 version allow for that.
5. Is there a new or revised process for submitting food products for sale? Who handles approvals?
If there is a process, I can't find it. There's nothing listed on the Attorney General's site or online.
The burden for compliance seems to be falling on the shoulders of the wholesalers and retailers. The "Special Fund" created by the bill benefits only the AG's office, and is dedicated for the express purpose of doing nothing other than defending this poorly written bill.
So who exactly is doing what, and when? Is there some kind of formal product filter, or a review process or not? Who is really carrying the financial burden of overseeing all this?
Which leads us to the grey zone. And it's a really big grey area.
6. What about the products that do not contain GMOs, but are not certified GMO-Free?
It costs upwards of $2,000 per year, per product, to get GMO-Free certification. That means our little biscotti business would have to pay $2,000 per year for each flavor of our biscotti, to earn the GMO-Free badge. Can we afford it?
Let's say you and I have decided to pop the extra money to buy organic cornstarch, so now we know we are GMO-free, but our bottom line just can't absorb the extravagant cost of GMO-Free labeling at our current boutique level of production. And like many entrepreneurs, we don't want to grow the business—we want to remain small to mid-size. You don't want to be a CEO, you want to be a baker, renowned for your seasonal and creative offerings. But we need the wholesale/retail markets to support our bottom line.
So where do we fall in accordance with Vermont Act 120 and Consumer Protection Act 121?
You, biscotti baker, must now submit a sworn statement that your food product contains—to your knowledge—no GMO ingredients. See Appendix A, Sworn Statement Form Certifying Food NOT Produced With Genetic Engineering.
Of course this language still has the stank of incorrect phrasing. And on top of everything else, now you have to defend your honorably sourced, blended, kneaded and baked biscotti to just one state. How many other states will require similar-but-different sworn statements? It's like a Game of Thrones nightmare.
And neither piece of legislation provides a symbol or language for those products that fall in between or, shall we say, undeclared for either throne.
Trust me, as someone who has navigated the psychedelic realms of interstate wine shipping for decades—each state with its own forms, reporting requirements and periods, taxes—food in the least friendly states will end up being under monopoly control by the state, with limited choices and much higher prices for consumers.
7. Does the Vermont bill protect you, or put you at risk?
Is the bill on the honor system? It only requires brands who use GM ingredients to indicate that on the label. What are the requirements, rights and protections of those who do not use GM ingredients?
There is absolutely no mention of them in the bill. In the original bill, there is no state enforcement agency to referee or adjudicate complaints and queries about specific brands or products.
In CP121, which was created "to implement Act 120," (see page 16 of 17), our biscotti company must provide sworn statements, not only for our own company and products, but also from every company that we purchase ingredients from.
And yet, there is no protection or identification offered for having done so. You are simply granted the opportunity to continue on to the grocer's shelves without any text or symbol.
This means that every dyspeptic activist or paranoid consumer who doesn't find language indicating one or the other (GM or GM-Free) is not only free to challenge the brand, but encouraged to do so directly—to the brand itself, the retailer or the wholesaler.
If that weren't bad enough, the Rule does not, apparently, protect producers from civil suits being brought directly against them. According to #6 on the GMA's list of questions and answers from the AG: "private suits by individuals ... are allowed."
8. Why does the compliance period penalize food producers?
Look at items #39 and #40 in the Vermont AG's FAQ page. What this says, basically, is that if your biscottis were purchased by a distributor before the bill went into effect, and is still on the shelf six months later, you will be fined $1,000 per day, per store, per product for non-compliance.
How can this make any sense? Once you've sold your product, it no longer belongs to you. You have no control over where it is warehoused, or to what markets the distributor sends it. A market may buy your biscottis, initially wooed by an enthusiastic sales rep, but then your product lies forgotten on a shelf in a non-prime position. You have absolutely no control over that because you no longer have ownership. You can beg, cajole, and wheedle wholesalers and retailers, asking for better placement and some product movement, but you cannot command. Okay, maybe you can bribe by offering a sweeter deal on newer products (and therefore losing money). But the bottom line is that once you have sold your biscottis, you have no control over that inventory movement.
And yet, according to the AG of Vermont, if your product remains on the shelf one day past the six-month grace period—it's you, the biscotti baker, who will be fined $1,000 per day, per store, per product. And based on my experience dealing with state bureaucracies, they'll let at least two weeks go by before even notifying you.
This is a horrifying scenario.
How can it make any sense at all to penalize a business entity that has no control over the inventory or shelf presence of a product?
That responsibility should fall on whomever owns the inventory—which would be the market, or the wholesaler. But that, of course, brings us back to the whole question of who is paying for the costs of oversight and management. The AG's FAQ page makes it abundantly clear that the "Special Fund" is only for defending this bill.
Which may explain why 3,000 products have been peremptorily pulled from Vermont shelves. No brand, large or small, can afford the exposure of being still on the shelf past the grace period.
However, thank the Food Gods, the Vermont Consumer Protection Act provides relief for both producers and retailers if there is a little slop-over in inventory. See CP121.04 (d) Enforcement and Penalties in the final rule.
It's no wonder that companies have pulled out of Vermont. Over 3,000 products are no longer available, within days of Act 120 enactment. Some of these products are ridiculously unrelated to the food chain—like paper towels, paper plates and napkins. (List of 3,000 products not available within days of Act 120.)
That may be because companies with little profit margin on food products don't see any upside to putting trucks on the road and paying for warehousing for ancillary products with even less profit margin, especially if their flagship products aren't represented to carry the brand's banner.
All in all, this Act/Rule was poorly thought out, poorly researched, and written with zero mentorship from anyone experienced in food or beverage labeling.
Vermont, you get a D-minus in GMO labeling.