Labeling Genetically-Engineered Foods: An Update from One of the Front Lines of Federalism

By Craig, Robin Kundis | Environmental Law, Summer 2017 | Go to article overview

Labeling Genetically-Engineered Foods: An Update from One of the Front Lines of Federalism


Craig, Robin Kundis, Environmental Law


Consumers in the United States have increasingly demanded that manufacturers of foods that are either directly genetically engineered or that contain genetically-engineered (GE) ingredients label their products as such. In general, federal law--in the form of the Food, Drug, and Cosmetic Act (FDCA)--lodges primary authority for approving and regulating the labeling of GE foods in the Food and Drug Administration (FDA), but FDA has been reluctant to mandate labeling of GE foods. In light of this federal regulatory void, states have proposed their own GE food labeling requirements, generating protests from manufacturers and federalism challenges in the form of federal preemption claims.

In July 2016, Congress settled this federalism conflict, mandating that the Secretary of Agriculture promulgate federal regulations to govern GE food labeling and preempting state labeling requirements. This Article explores the history of GE food labeling federalism in the United States, concluding that the 2016 statute leaves the relationship between state and federal authority fairly clear, but creates new ambiguities regarding the relationship of FDA and the FDCA to the United States Department of Agriculture and the new law.

I.    INTRODUCTION                                                  610
II.   A BRIEF HISTORY OF GENETICALLY-ENGINEERED FOODS               614
III.  THE FOOD AND DRUG ADMINISTRATION'S AUTHORITY OVER
      GENETICALLY-ENGINEERED FOODS                                  619
      A. The Basics of Food Regulation Under the Federal Food,
         Drug, and Cosmetic Act                                     620
      B. FDA's Treatment of Plant-Based GE Foods                    621
      C. The New GE Food in the Market: Animal-Based GE Food        624
IV.   STATE ATTEMPTS TO REQUIRE GENETICALLY-ENGINEERED FOOD
      LABELING, FEDERAL PREEMPTION BATTLES IN COURT, AND
      CONGRESS'S JULY 2016 RESPONSE                                 626
      A. State Statutes Affecting GE Food Labeling                  626
      B. Federal Preemption Litigation Before 2016                  628
         1. State-Law Liability for Bt Com Co-Mingling and
            Preemption Claims Under the Federal Insecticide,
            Fungicide, and Rodenticide Act                          629
         2. State-Law Liability for Labeling GE Foods "Organic"
            and Preemption Claims Under the Federal Organic Foods
            Production Act                                          631
         3. State-Law Liability for Labeling GE Foods as "Natural"
            and Preemption Claims Under the FDCA                    632
         4. Comprehensive Preemption Challenges to Vermont's
            2014 GE Food Labeling Law                               633
      C. Congress's 2016 Preemption of State Laws                   635
V.    WE'RE NOT DONE YET: LEGAL ISSUES REMAINING UNDER
      THE SAFE AND ACCURATE FOOD LABELING ACT                       640
      A. The Division of Authority Over GE Foods Between
         the Secretary of Agriculture and FDA                       640
      B. The Future Role of State Laws in GE Food Labeling          641
VI.   CONCLUSION                                                    645

I. INTRODUCTION

Genetically-engineered (GE) plants (1) and, recently, animals (2) are increasingly common components of the human food supply in the United States, resulting in what this Article will refer to as "GE foods"--that is, human foods that are either directly genetically engineered themselves or that contain GE ingredients. As reported in 2016, about 75%-80% of foods in the United States contain GE ingredients, usually derived from genetically modified corn and soybeans. (3)

Especially because genetic modification of foods is often effectively "hidden" in "popular processed food ingredients such as cornstarch, soybean oil or high-fructose corn syrup," (4) consumers in the United States have increasingly demanded that GE foods be labeled as such. …

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