April 19, 2014

As Maine Goes, So Goes The Nation? Labeling for Foods Made with Genetically Modified Organisms (GMOs).

As Maine goes, so goes the nation” was a phrase that described Maine’s reputation as a bellwether state for presidential elections from 1832 through approximately 1936.

On January 9, 2014, Maine’s governor Paul LePage signed a bill into law that would require labeling for foods made with genetically modified organisms (GMO).  Eighteen months from the effective date of the bill, any genetically engineered food offered for retail sale must have a packaging or store-shelf label stating, “Produced with Genetic Engineering”.  Otherwise, the distributor or retailer could face a fine of up to $1000 per day for each misbranded product at each sales location.  The bill has a qualifier, however.  It will only go into effect if four other states pass similar measures.

This triggering requirement is similar to the Connecticut GMO labeling bill that was passed in May, 2013.  The Connecticut bill, however, will only be triggered after four other states approved related legislation.  The Maine bill could also go to into effect if one or more of the states with a combined population of 20 million adopt similar measures.

Currently, GMO labeling campaigns are underway in Massachusetts, Vermont and New Hampshire.  It should be noted, however, that the voters in California and Washington have defeated such measures at the polls in 2012 and 2013.

The Maine bill makes an exception for foods made without the knowledge that genetically engineered ingredients were involved in their production, or if the distributor or retailer relied on the sworn testimony from the producer or grower stating that the food wasn’t subject to the disclosure requirements.  The disclosures don’t apply to restaurants, alcoholic beverages or medical foods.

The legislation also prohibits the labeling of any GMO foods as “natural.”  This aspect of the legislation is interesting especially in light of the FDA’s refusal on January 6, 2014 to provide a definition for the term “natural” as to foods containing ingredients produced using bio-engineered ingredients (see the FDA’s letter here).

Governor LePage has previously indicated that he anticipates that the bill will spark litigation since he himself has “significant reservations regarding the constitutionality of required labeling.”

At the federal level, in April, 2013, Senator Barbara Boxer, (D-CA) and Rep. Peter DeFazio (D-OR) introduced legislation that would require GMO labeling nationwide.  Both of these bills are currently in committee.

What happened in 1936? (Only Maine and Vermont were carried by Republican nominee Alf Landen.  Franklin Delano Roosevelt won the other 46 states in a landslide.)  FDR’s campaign manager, James Farley, in describing the landslide stated “As Maine goes, so goes Vermont.”

Whether Maine will be a bellwether for the GMO labeling remains to be seen.

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About the Author

Daniel Herling, product liability, attorney, Mintz Levin, law firm

Dan’s practice is focused on product liability issues relating to pharmaceuticals and medical devices, commercial litigation, and antitrust matters. His trial work also encompasses class actions, intellectual property litigation, patent infringement, and professional liability.


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