TO THE HOUSE OF REPRESENTATIVES:
The Committee on Agriculture to which was referred House Bill No. 722 entitled “An act relating to the labeling of food produced with genetic engineering” respectfully reports that it has considered the same and recommends that the bill be amended by striking all after the enacting clause and inserting in lieu thereof the following:
Sec. 1.  FINDINGS
The general assembly finds and declares that:
(1)  U.S. federal law does not provide for the necessary and satisfactory regulation of the safety and labeling of food that contains genetically engineered ingredients, as evidenced by the fact that:
(A)  U.S. federal labeling and food and drug laws do not require manufacturers of food produced from genetically engineered ingredients to label such food as genetically engineered.
(B)  As indicated by the testimony of Dr. Robert Merker, a U.S. Food and Drug Administration (FDA) Consumer Safety Officer, the FDA does not have statutory authority to require labeling of foods produced with genetic engineering.
(C)  The FDA has adopted a policy regarding the labeling of food produced from genetic engineering based on a conclusion that these products are generally regarded as safe with no material difference from conventional products.  The FDA does not require genetically engineered foods to be labeled as such.
(D)   Instead of specifically regulating the safety and labeling of food produced from genetic engineering, the FDA regulates genetically engineered foods in the same way it regulates foods developed by traditional plant breeding, but, according to Dr. James Maryanski, FDA biotechnology coordinator (1985−2008), the decision to regulate genetically engineered food in this manner was a political decision not based in science.
(E)  Under its regulatory framework, the FDA does not independently test the safety of genetically engineered foods.  Instead, manufacturers submit safety research and studies, the majority of which the manufacturers finance or conduct.
(F)  There is a lack of consensus regarding the validity of the research and/or science surrounding genetically engineered foods.  The result is public uncertainty about the nutrition, health, safety, environmental impacts, and the proliferation of genetic engineering technology that is not fully understood or proven to be safe.
(G)  There have been no long-term studies in the United States that examine the safety of human consumption of genetically engineered foods.
(2)  Genetically engineered ingredients are increasingly present in foods available for human consumption, as evidenced by the fact that:  
(A)  it is estimated that 70 to 80 percent of the processed foods sold in the United States have at least one genetically engineered ingredient.
(B)  According to the U.S. Department of Agriculture, in 2011, genetically engineered soybeans accounted for 94 percent of U.S. soybean acreage, genetically engineered corn accounted for 88 percent of U.S. corn acreage, and genetically engineered sugar beets accounted for 95 percent of U.S. sugar beet acreage.
(3)  Genetically engineered foods have an effect on health, safety, agriculture, and the environment, as evidenced by the fact that:
(A)  Independent studies in laboratory animals indicate that the ingestion of genetically engineered foods may lead to health problems such as gastrointestinal damage, liver and kidney damage, reproductive problems, immune system interference, and allergic responses.
(B)  Trends in commodity agricultural production practices are toward monocultured crop production, which may result in genetic homogeneity, loss of biodiversity, and increased vulnerability of crops to pests, diseases, and variable climate conditions.  Genetically engineered crops are one tool used in commodity agricultural production.
(C)  Genetically engineered crops that include pesticides may adversely affect populations of butterflies and other nontarget insects.
(D)  Organic food certification, which is generally construed not to include ingredients produced from genetic engineering, can be adversely affected by contamination from genetically engineered crops.
(E)  Cross-pollination from genetically engineered crops may have an adverse effect on wild plant species.
(F)  The proliferation of patented genetically engineered crops reduces the options of farmers who may want to save their own seed.
(4)  Vermont and other states do have the authority to regulate the labeling of genetically engineered foods as evidenced by the fact that:
(A)  Under the Tenth Amendment to the U.S. Constitution and the U.S. Supreme Court’s ruling in Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132 (1963), states may regulate the retail sale of food in the interest of consumers where such regulation does not conflict with federal law.
(B)  Under Holk v. Snapple Beverage Co., 575 F.3d 329 (3d Cir. 2009), the Federal Food, Drug, and Cosmetic Act and the FDA policy for labels using the word “natural” do not preempt states from regulating the use of the word “natural.”
(C)  The Supreme Court, in Milavetz, Gallop & Milavetz v. United States, 130 S.Ct. 1324 (2010), reaffirmed the proposition, first expressed in Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985), that “an advertiser’s [First Amendment] rights are adequately protected as long as disclosure requirements are reasonably related to the State’s interest in preventing deception of consumers.”
(D)  Under current First Amendment jurisprudence, expressed in National Electric Manufacturers Assn. v. Sorrell, 272 F.3d 104 (2d Cir. 2001),  states are free to compel the disclosure of factual commercial speech as long as the means employed by the state are rationally related to the state’s legitimate interest.
(E)  The decision of the U.S. Court of Appeals for the Second Circuit in International Dairy Foods Ass’n v. Amestoy, 92 F.3d 67 (2d Cir. 1996), is expressly limited to cases in which a state disclosure requirement is supported by no interest other than gratification of consumer curiosity. 
(5)  For multiple personal, health, religious, and economic reasons, the citizens of Vermont desire, require, and necessitate that food produced from genetic engineering be labeled as such, as evidenced by the fact that:
(A)  Public opinion polls conducted by the Center for Rural Studies at the University of Vermont indicate that a large majority of Vermonters want foods produced with genetic engineering to be labeled as such.
(B)  Given that 6 V.S.A. § 641(9) defines “genetically engineered seed” as “seed produced using a variety of methods . . . used to modify genetically organisms or influence their growth and development by means that are not possible under natural conditions or processes,” labeling foods produced with genetic engineering as “natural,” “naturally made,” “naturally grown,” “all natural,” or other descriptors of similar substance is inherently misleading and poses a risk of confusing and deceiving consumers and conflicts with the general perception that “natural” foods are not genetically engineered.
(C)  Vermont citizens with certain religious beliefs object to producing foods using genetic engineering because of objections to tampering with the genetic makeup of life forms and the rapid introduction and proliferation of genetically engineered organisms and, therefore, need food to be labeled as genetically engineered in order to conform to religious beliefs.
(D)  Requiring that foods produced through genetic engineering be labeled as such will create additional market opportunities for those producers who are not certified as organic and whose products are not produced from genetic engineering.  Such additional market opportunities will contribute to the vibrant and diversified agricultural community of Vermont.
(E)  Labeling gives consumers information they can use to make informed decisions about what products they would prefer to purchase.
(F)  On March 12, 2012, the Vermont congressional delegation, along with 52 other members of Congress, sent a letter to the Honorable Margaret Hamburg, commissioner of the FDA, asking that the FDA require labeling of food produced with genetic engineering.
(6)  Because both the FDA and the U.S. Congress have failed to require the labeling of food produced with genetic engineering, the state should exercise its authority to require food produced with genetic engineering to be labeled as such in order to serve the legitimate interests of the state to prevent inadvertent consumer deception, promote food safety, respect religious beliefs, protect the environment, and promote economic development.
Sec. 2.  18 V.S.A. chapter 82, subchapter 3 is added to read:
Subchapter 3.  Labeling of Food Produced with
Genetic Engineering
§ 4091.  PURPOSE
It is the purpose of this chapter to:
(1)  Consumer confusion and deception.  Reduce consumer confusion and deception and promote the disclosure of factual information on food labels to allow consumers to make informed decisions.
(2)  Food safety.  Promote food safety by allowing consumers to make informed dietary decisions when purchasing food, since:
(A)  genetically engineered food is considered to be generally recognized as safe by the Food and Drug Administration despite a lack of consensus about that fact in the scientific community;
(B)  scientific evidence indicates that foods produced using genetic engineering pose potential food safety and health issues related to allergenicity, antibiotic resistance, immune response, reproductive problems, and liver and kidney damage; and
(3)  Protecting religious and cultural practice.  Provide consumers with data from which they may make informed decisions for personal, religious, moral, cultural, or ethical reasons.
(4)  Environmental impacts.  Assist consumers in making informed decisions about food purchases that have potential effects on the environment, including:
(A)  displacement of native flora and fauna;
(B)  transfer of unnatural DNA to wild relatives and organic crops;
(C)  creation of herbicide-resistant “super weeds” and pesticide resistant insects;
(D)  ecosystem disruptions such as loss of biodiversity, increased herbicide and pesticide use, and adverse effects on nontarget insects such as butterflies.
(5)  Promoting economic development.  Create additional market opportunities for those producers who are not certified organic and whose products are not produced using genetic engineering and allow consumers to make informed purchasing decisions.
§ 4092.  DEFINITIONS
As used in this subchapter:
(1)  “Enzyme” means a protein that catalyzes chemical reactions of other substances without itself being destroyed or altered upon completion of the reactions.
(2)  “Genetic engineering” means a food or food ingredient that is produced from an organism or organisms in which the genetic material has been changed through the application of:
(A)  in vitro nucleic acid techniques, including recombinant deoxyribonucleic acid (DNA) techniques and the direct injection of nucleic acid into cells or organelles; or
(B)  fusion of cells (including protoplast fusion) or hybridization techniques that overcome natural physiological, reproductive, or recombination barriers, where the donor cells/protoplasts do not fall within the same taxonomic group, in a way that does not occur by natural multiplication or natural recombination.
(3)  “In vitro nucleic acid techniques” means techniques, including recombinant DNA or ribonucleic acid (RNA) techniques, that use vector systems and techniques involving the direct introduction into the organisms of hereditary materials prepared outside the organisms such as micro-injection, chemoporation, electroporation, micro-encapsulation, and liposome fusion.
(4)  “Organism” means any biological entity capable of replication, reproduction, or transferring of genetic material.
(5)  “Processed food” means any food other than a raw agricultural commodity and includes any food produced from a raw agricultural commodity that has been subjected to processing such as canning, smoking, pressing, cooking, freezing, dehydration, fermentation, or milling.
(6)  “Processing aid” means:
(A)  a substance that is added to a food during the processing of such food but that is removed in some manner from the food before the food is packaged in its finished form;
(B)  a substance that is added to a food during processing, is converted into constituents normally present in the food, and does not significantly increase the amount of the constituents naturally found in the food; or
(C)  a substance that is added to a food for its technical or functional effect in the processing but is present in the finished food at levels that do not have any technical or functional effect in that finished food.
(7)  “Raw agricultural commodity” means any food in its raw or natural state.  It includes any fruit that is washed, colored, or otherwise treated in its unpeeled natural form prior to marketing.
§ 4093.  LABELING OF FOOD PRODUCED WITH GENETIC
              ENGINEERING
(a)  Except as set forth under section 4094 of this title, food shall be labeled as produced entirely or in part from genetic engineering if it is a product:
(1)  offered for retail sale in Vermont;
(2)  entirely or partially produced with genetic engineering; and
(3)  entirely or partially produced with genetic engineering, but such fact is not disclosed:
(A)  in the case of a raw agricultural commodity, on the package offered for retail sale, with the clear and conspicuous words, “produced from genetic engineering” on the front of the package of such commodity or in the case of any such commodity that is not separately packaged or labeled, on a label appearing on the retail store shelf or bin in which such commodity is displayed for sale;
(B)  in the case of any processed food, in clear and conspicuous language on the front or back of the package of such food, with the words, “partially produced with genetic engineering” or “may be partially produced with genetic engineering.”
(b)  Except as set forth under section 4094 of this title, a food produced entirely or in part from genetic engineering shall not be labeled on the product, in signage, or in advertising as “natural,” “naturally made,” “naturally grown,” “all natural,” or any words of similar import that would have a tendency to mislead a consumer.
§ 4094.  EXEMPTIONS
The following foods shall not be subject to the labeling requirements of section 4093 of this title:
(1)  Food consisting entirely of or derived entirely from an animal which has not itself been produced with genetic engineering, regardless of whether such animal has been fed or injected with any food or drug produced with genetic engineering;
(2)  A raw agricultural commodity or food derived therefrom that has been grown, raised, or produced without the knowing and intentional use of food or seed produced with genetic engineering.  Food will be deemed to be as described in the preceding sentence only if the person otherwise responsible for complying with the requirements of subsection 4093(a) of this title with respect to a raw agricultural commodity or food obtains, from whomever sold the commodity or food to that person, a sworn statement that such commodity or food has not been knowingly or intentionally produced with genetic engineering and has been segregated from and has not been knowingly or intentionally commingled with food that may have been produced with genetic engineering at any time.  In providing such a sworn statement, any person may rely on a sworn statement from his or her own supplier that contains the affirmation set forth in the preceding sentence.
(3)  Any processed food which would be subject to subsection 4093(a) of this title solely because it includes one or more processing aids or enzymes produced with genetic engineering.
(4)  Any beverage that is subject to the provisions of Title 7.
(5)  Until July 1, 2019, any processed food that would be subject to subsection 4093(a) of this title solely because it includes one or more ingredients that have been produced with genetic engineering, provided that:
(A)  no single such ingredient accounts for more than one-half of one percent of the total weight of such processed food; and
(B)  the processed food does not contain more than ten such ingredients.
(6)  Food that an independent organization has determined has not been knowingly and intentionally produced from or commingled with food or seed produced with genetic engineering, provided that such determination has been made pursuant to a sampling and testing procedure approved in regulations adopted by the department.  No sampling procedure shall be approved by the department unless sampling is done according to a statistically valid sampling plan consistent with principles recommended by internationally recognized sources such as the International Standards Organization (ISO) or the Grant and Feed Trade Association (GAFTA).  No testing procedure shall be approved by the department unless:
(A)  it is consistent with the most recent “Guidelines on Performance Criteria and Validation of Methods for Detection, Identification and Quantification of Specific DNA Sequences and Specific Proteins in Foods,” (CAC/GL 74 (2010)) published by the Codex Alimentarius Commission; and
(B)  it does not rely on testing of processed foods in which no DNA is detectable.
(7)  Food that has been lawfully certified to be labeled, marketed, and offered for sale as “organic” pursuant to the federal Organic Food Products Act of 1990 and the regulations promulgated pursuant thereto by the United States Department of Agriculture.
(8)  Food that is not packaged for retail sale and that either:
(A)  is a processed food prepared and intended for immediate human consumption; or
(B)  is served, sold, or otherwise provided in any restaurant or other food establishment, as defined in section 4301 of this title, that is primarily engaged in the sale of food prepared and intended for immediate human consumption.
(9)  Medical food, as that term is defined in 21 U.S.C. § 360ee(b)(3).
§ 4095.  SEVERABILITY
If any provision of this subchapter or its application to any person or circumstance is held invalid or in violation of the constitution or laws of the United States or in violation of the constitution or laws of Vermont, the invalidity or the violation shall not affect other provisions of this section which can be given effect without the invalid provision or application, and to this end, the provisions of this section are severable.
§ 4096.  PENALTIES
A person who violates the requirements of this subchapter shall be subject to penalty under section 4054 of this title.  Notwithstanding any other provision of law, no violation of this subchapter shall give rise to any cause of action under 9 V.S.A. chapter 63.
Sec. 3.  18 V.S.A. § 4060 is amended to read:
§ 4060.  MISBRANDED FOOD
A food shall be deemed to be misbranded:
(1)  If its labeling is false or misleading in any particular.
(2)  If it is offered for sale under the name of another food.
* * *
(13)  If it is labeled in violation of section 4093 of this title. 

Sec. 4.  EFFECTIVE DATE
In order to allow food producers time and opportunity to properly label products in accordance with this act and to avoid disruption in the supply chains of food producers, grocers, and other markets, this act shall take effect 365 days after California and two of the following other states have enacted substantially comparable requirements for the labeling of food produced from genetic engineering:  Connecticut, Maine, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, or Rhode Island.
 
 
 
 
 
 
 
(Committee vote: ___________)
                                                                           _______________________       Representative Partridge                                                                                FOR THE COMMITTEE
 
Will Stevens
Representative, Addison-Rutland-1
serving Benson, Orwell, Shoreham, and Whiting