United States District Court, D. Vermont
GROCERY MANUFACTURERS ASSOCIATION, SNACK FOOD ASSOCIATION, INTERNATIONAL DAIRY FOODS ASSOCIATION, AND NATIONAL ASSOCIATION OF MANUFACTURERS, Plaintiffs,
WILLIAM H. SORRELL, PETER E. SHUMLIN, TRACY DOLAN, AND JAMES B. REARDON, Defendants
For Grocery Manufacturers Association, Snack Food Association, International Dairy Foods Association (IDFA), National Association of Manufacturers, Plaintiffs: Catherine E. Stetson, Esq., Hogan Lovells U.S. LLP, Washington, DC; E. Desmond Hogan, Esq., Mary H. Wimberly, Esq., PRO HAC VICE, Hogan Lovells U.S. LLP, Washington, DC; Matthew B. Byrne, Gravel & Shea PC, Burlington, VT.
For William H. Sorrell, in his official capacity as the Attorney General of Vermont, Peter E. Shumlin, in his official capacity as Governor of Vermont, James B. Reardon, in his official capacity as Commissioner of the Vermont Department of Finance and Management, Tracy Dolan, in her official capacity as the Interim Commissioner of the Vermont Department of Health, Defendants: Alan D. Strasser, Esq., Daniel N. Lerman, Esq., Lawrence S. Robbins, Esq., Lee Turner Friedman, Esq., PRO HAC VICE, Robbins, Russell, Englert, Orseck, Untereiner & Sauber LLP, Washington, DC; Jon T. Alexander, Esq., Kate T. Gallagher, Office of the Attorney General, Montpelier, VT; Kyle H. Landis-Marinello, Esq., Megan J. Shafritz, Esq., Naomi Sheffield, Vermont Office of the Attorney General, Montpelier, VT.
OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS AND DENYING PLAINTIFFS' MOTION FOR A PRELIMINARY INJUNCTION
(Doc. 24, 33)
Christina Reiss, Chief United States District Judge.
Pending before the court are a motion to dismiss (Doc. 24) filed by Defendants William H. Sorrell, Peter E. Shumlin, Tracy Dolan, and James B. Reardon (collectively, " the State" ) and a motion for a preliminary injunction (Doc. 33) filed by Plaintiffs Grocery Manufacturers Association (" GMA" ), Snack Food Association (" SFA" ), International Dairy Foods Association (" IDFA" ), and National Association of Manufacturers (" NAM" ) (collectively, " Plaintiffs" ).
The State's motion asks the court to dismiss Plaintiffs' Amended Complaint in its entirety for failure to state a claim for which relief may be granted. Fed.R.Civ.P. 12(b)(6). Plaintiffs' motion asks the court to enjoin the State's enforcement of Act 120 in its entirety pending a resolution of the case at trial. Fed.R.Civ.P. 65(a). The court heard oral argument on January 7, 2015, at which point the court took the pending motions under advisement. Because the State's motion to dismiss winnows the claims for which Plaintiffs may seek a preliminary injunction, the court addresses that motion first. In the course of analyzing the motion to dismiss, the court considers whether Plaintiffs are likely to prevail on the merits of their claims at trial, which is an essential component of their request for preliminary injunctive relief.
Plaintiffs are represented by Catherine E. Stetson, Esq., E. Desmond Hogan, Esq., Mary H. Wimberly, Esq., and Matthew B. Byrne, Esq. The State is represented by Alan D. Strasser, Esq., Daniel N. Lerman, Esq., Lawrence S. Robbins, Esq., Lee Turner Friedman, Esq., Vermont Assistant Attorney General (" VTAG" ) Megan J. Shafritz, VTAG Jon T. Alexander, VTAG Kate T. Gallagher, VTAG Kyle H. Landis-Marinello, and VTAG Naomi Sheffield.
The following Amicus Curiae have filed briefs in support of Act 120: the Vermont Public Interest Research Group and the Center for Food Safety, which are represented by Laura B. Murphy, Esq.; The Vermont Community Law Center, which is represented by Jared Kingsbury Carter, Esq. and William B. Peard, Esq.; and the Free Speech For People, Inc., which is represented by Ronald A. Fein, Esq. and Anthony N. L. Iarrapino, Esq.
I. Factual and Procedural Background.
A. The Amended Complaint.
Plaintiffs' Amended Complaint challenges Act 120's requirement that certain manufacturers and retailers identify whether raw and processed food sold in Vermont was produced in whole or in part through genetic engineering (Act 120's " GE disclosure requirement" ) and which prohibits manufacturers from labeling or advertising GE foods as " natural," " naturally made," " naturally grown," " all natural," or " any words of similar import" (Act 120's " 'natural' restriction" ).
Count One of the Amended Complaint alleges Act 120's GE disclosure requirement violates the First Amendment; Count Two claims Act 120's " natural" restriction violates the First Amendment; Count Three asserts Act 120's " natural" restriction is impermissibly vague in violation of the First and Fifth Amendments; Count Four alleges Act 120 violates the Commerce Clause; and Count Five asserts Act 120 is preempted by various federal statutes. With regard to each claim, Plaintiffs allege a violation of the Fourteenth Amendment, as they are suing defendants for their actions under the color of state law. See U.S. Const. amend. XIV, § 1.
B. Act 120.
Act 120 was signed on May 8, 2014 and will be enforceable effective July 1, 2016 (the " effective date" ). It requires that " food [intended for human consumption] offered for sale by a retailer" after the Act's effective date " be labeled as produced entirely or in part from genetic engineering if it is a product: (1) offered for retail sale in Vermont; and (2) entirely or partially produced with genetic engineering." 9 V.S.A. § 3043(a). Genetic engineering (" GE" ) is defined as " a process by which a food 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 or protoplasts do not fall within the same taxonomic group, in a way that does not occur by natural multiplication or natural recombination.
9 V.S.A. § 3042(4).
Act 120 applies to raw agricultural commodities, which are defined as " any food in its raw or natural state, including any fruit or vegetable that is washed, colored, or otherwise treated in its unpeeled natural form prior to marketing." 9 V.S.A. § 3042(10). It also applies to processed foods, which are defined as " 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." 9 V.S.A. § 3042(8).
A GE manufacturer is subject to Act 120 if it:
(A) produces a processed food or raw agricultural commodity under its own brand or label for sale in or into the State;
(B) sells in or into the State under its own brand or label a processed food or raw agricultural commodity produced by another supplier;
(C) owns a brand that it licenses or licensed to another person for use on a processed food or raw commodity sold in or into the State;
(D) sells in, sells into, or distributes in the State a processed food or raw agricultural commodity that it packaged under a brand or label owned by another person;
(E) imports into the United States for sale in or into the State a processed food or raw agricultural commodity produced by a person without a presence in the United States; or
(F) produces a processed food or raw agricultural commodity for sale in or into the State without affixing a brand name.
9 V.S.A. § 3042(6).
1. Act 120's GE Disclosure Requirement.
Act 120 requires that a " packaged raw agricultural commodity" be labeled by GE manufacturers " with the clear and conspicuous words 'produced with genetic engineering.'" 9 V.S.A. § 3043(b)(1). If the " raw agricultural commodity" is not sold separately packaged, then a GE retailer must " post a label" on the shelf or bin " with the clear and conspicuous words 'produced with genetic engineering.'" 9 V.S.A. § 3043(b)(2). Packaged processed food must be labeled by a GE manufacturer with the words: " 'partially produced with genetic engineering,'" or " 'may be produced with genetic engineering,'" or " 'produced with genetic engineering.'" 9 V.S.A. § 3043(b)(3). Act 120 states it " shall not be construed to require" either " the listing or identification of any ingredient or ingredients that were genetically engineered" or " the placement of the term 'genetically engineered' immediately preceding any common name or primary product descriptor of a food." 9 V.S.A. § 3043(d).
2. Act 120's " Natural" Restriction.
Act 120 prohibits GE manufacturers from using labeling, advertising, or signage indicating that a GE food product is " 'natural,' 'naturally made,' 'naturally grown,' 'all natural,' or any words of similar import that would have a tendency to mislead a consumer." 9 V.S.A. § 3043(c). Act 120 does not define the term " natural" or the phrase " any words of similar import."
3. Act 120's Exemptions and Penalties.
Act 120 exempts certain products from its embrace, including alcoholic beverages subject to Title 7 of Vermont's statutory code and food not packaged for retail sale that is " a processed food prepared and intended for immediate human consumption" or that is " served, sold, or otherwise provided in any restaurant or other food establishment." 9 V.S.A. § 3044(4), (7)(A)-(B). It also exempts " [flood consisting entirely of or derived entirely from an animal which has not itself been produced with genetic engineering, regardless of whether the animal has been fed or injected with any food, drug, or other substance produced with genetic engineering." 9 V.S.A. § 3044(1).
A GE manufacturer or retailer may obtain an exemption from Act 120 for any food " grown, raised, or produced without the knowing or intentional use of food or seed produced with genetic engineering" by providing its own " sworn statement," or verification from an independent organization, that the 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." 9 V.S.A. § § 3044(2), (6); 3045(b). Act 120 provides that a " person" is liable for any " false statement" made in the course of obtaining this exemption. 9 V.S.A. § 3047.
Under Act 120, any " person" who violates its requirements is " liable for a civil penalty of not more than $1,000.00 per day, per product," which " shall accrue and be assessed per each uniquely named, designated, or marketed product." 9 V.S.A. § 3048(a).
C. Act 120's Legislative Findings.
In conjunction with its enactment of Act 120, the Vermont General Assembly promulgated certain " Findings." One such " Finding" is that federal law does not require the labeling of GE food, as evidenced by the following:
(A) Federal labeling and food and drug laws do not require manufacturers of food produced with genetic engineering to label such food as genetically engineered.
(B) As indicated by the testimony of a U.S. Food and Drug Administration (FDA) Supervisory Consumer Safety Officer, the FDA has statutory authority to require labeling of food products, but does not consider genetically engineered foods to be materially different from their traditional counterparts to require such labeling.
(C) No formal FDA policy on the labeling of genetically engineered foods has been adopted. Currently, the FDA only provides nonbinding guidance on the labeling of genetically engineered foods, including a 1992 draft guidance regarding labeling of food produced from genetic engineering and a 2001 draft guidance for industry regarding voluntary labeling of food produced from genetic engineering.
2013 Vt. Acts & Resolves No. 120, Sec. 1(1)(A)-(C).
Vermont's General Assembly's " Findings" include a finding that " [g]enetically engineered foods are increasingly available for human consumption" in light of estimates " that up to 80 percent of the processed foods sold in the United States" may contain ingredients produced from GE sources. Id. at Sec. 1(3)(A). They also include a " Finding" that federal law does not presently require independent testing of the safety of GE food and that:
(A) In its regulation of food, the FDA does not distinguish genetically engineered foods from foods developed by traditional plant breeding.
(B) 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. The FDA reviews the manufacturers' research and reports through a voluntary safety consultation, and issues a letter to the manufacturer acknowledging the manufacturer's conclusion regarding the safety of the genetically engineered food product being tested.
(C) The FDA does not use meta-studies or other forms of statistical analysis to verify that the studies it reviews are not biased by financial or professional conflicts of interest.
(D) There is a lack of consensus regarding the validity of the research and science surrounding the safety of genetically engineered foods, as indicated by the fact that there are peer-reviewed studies published in international scientific literature showing negative, neutral, and positive health results.
(E) There have been no long-term or epidemiologic studies in the United States that examine the safety of human consumption of genetically engineered foods.
Id. at Sec. 1(2)(A)-(E).
With regard to GE food safety, the General Assembly declared in its " Findings" that GE foods " potentially pose risks to health, safety, agriculture, and the environment," as evidenced by the following:
(A) There are conflicting studies assessing the health consequences of food produced from genetic engineering.
(B) The genetic engineering of plants and animals may cause unintended consequences.
(C) The use of genetically engineered crops is increasing in commodity agricultural production practices, which contribute to genetic homogeneity, loss of biodiversity, and increased vulnerability of crops to pests, diseases, and variable climate conditions.
(D) Cross-pollination of or cross-contamination by genetically engineered crops may contaminate organic crops and, consequently, affect marketability of those crops.
(E) Cross-pollination from genetically engineered crops may have an adverse effect on native flora and fauna. The transfer of unnatural deoxyribonucleic acid to wild relatives can lead to displacement of those native plants, and in turn, displacement of the native fauna dependent on those wild varieties.
Id. at Sec. 1(4)(A)-(E).
Based upon its " Findings," the General Assembly concluded " that food produced from genetic engineering should be labeled as such," because " [l]abeling gives consumers information they can use to make decisions about what products they would prefer to purchase," because public opinion polls indicate labeling is relevant to consumers, and because " [p]ersons with certain religious beliefs object to producing foods using genetic engineering [and object] 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." Id. at Sec. 1(5)(A)-(B), (D)-(E).
In support of Act 120's " natural" restriction, the General Assembly found:
Because genetic engineering, as regulated by this [A]ct, involves the direct injection of genes into cells, the fusion of cells, or the hybridization of genes that does not occur in nature, labeling foods produced with genetic engineering as " natural," " naturally made," " naturally grown," " all natural," or other similar descriptors is inherently misleading, poses a risk of confusing or deceiving consumers, and conflicts with the general perception that " natural" foods are not genetically engineered.
Id. at Sec. 1(5)(C).
" For multiple health, personal, religious, and environmental reasons," the General Assembly ultimately found that " 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." Id. at Sec. 1(5), (6).
D. Act 120's Legislative Purpose.
Act 120's " Purpose," as declared by the General Assembly, is to:
(1) Establish a system by which persons may make informed decisions regarding the potential health effects of the food they purchase and consume and by which, if they choose, persons may avoid potential health risks of food produced from genetic engineering;
(2) Inform the purchasing decisions of consumers who are concerned about the potential environmental effects of the production of food from genetic engineering;
(3) Reduce and prevent consumer confusion and deception by prohibiting the labeling of products produced from genetic engineering as " natural" and by promoting the disclosure of factual information on food labels to allow consumers to make informed decisions; and
(4) Provide consumers with data from which they may make informed decisions for religious reasons.
9 V.S.A. § 3041(1)-(4).
E. Evidence In Support of the Pending Motions.
The parties have submitted competing expert witness declarations and reports, examining the science, safety, efficacy, economics, and impacts of GE food production. They nonetheless acknowledge that their submissions cannot be considered in adjudicating the State's motion to dismiss Plaintiffs' Amended Complaint pursuant to Fed.R.Civ.P. 12(b)(6).
The parties further acknowledge that because Plaintiffs do not seek either an evidentiary hearing or a consolidation with the merits for their preliminary injunction motion, the court cannot rely on contested evidence to resolve any factual disputes. See Kern v. Clark, 331 F.3d 9, 12 (2d Cir. 2003) (" 'The existence of factual disputes necessitates an evidentiary hearing . . . before a motion for a preliminary injunction may be decided.'" ) (alteration in original) (quoting Commodity Futures Trading Comm'n v. Incomco, Inc., 649 F.2d 128, 131 (2d Cir. 1981)).
For purposes of adjudicating the pending motions, the court is therefore confined to the factual and procedural background set forth herein and does not determine whether the General Assembly erred in its " Finding" that " [g]enetically engineered foods potentially pose risks to health, safety, agriculture, and the environment." 2013 Vt. Acts & Resolves No. 120, Sec. 1(4).
In support of their motion for a preliminary injunction, Plaintiffs submitted the declarations of the Coca-Cola Company (" Coke" ), PepsiCo, Inc. (" Pepsi" ), General Mills, ConAgra Foods, Inc. (" ConAgra" ), and Kraft Foods Group, Inc. (" Kraft" ), as well as declarations from the SFA, Michaud Distributors (" Michaud" ), and the Council of Supply Chain Management Professionals (" CSCMP" ). The court refers to these entities as " Plaintiffs' GE manufacturers."
The State submitted competing declarations from Ben & Jerry's, Clif Bar and Company (" Clif Bar" ), and Beanfields Snacks (" Beanfields" ). These entities are referred to as " the State's declarants."
1. The Costs of Compliance with Act 120.
Generally, food manufacturers offer items for retail sale by identifying them through a " stock-keeping unit" (" SKU" ), which is a unique number for purposes of manufacturing, packaging, storage, sales, and distribution. A single product can have several SKUs that reflect each size of the product offered for sale, such as a six-pack or a twelve-pack, as well as the type of packaging used, such as a cardboard box or plastic. A SKU is typically not state-specific because manufacturers often do not have separate product lines for individual states, but, rather, distribute their products nationwide.
Plaintiffs' GE manufacturers distribute a large number of SKUs, ranging from approximately 1,700 SKUs (Pepsi) to tens of thousands of SKUs (ConAgra). None of Plaintiffs' GE manufacturers currently label their products in accordance with Act 120's GE disclosure requirement. They have considered whether to " reformulate" their products to be GE-free and have concluded that it is virtually impossible to manufacture many foods with non-GE sources for several reasons, including the prevalence of GE crops nationwide and the unavailability of non-GE ingredients in relation to demand, as well as an inability to change existing planting patterns, crops cycles, and contracts for production before Act 120's effective date. ( See, e.g., Doc. 33-4 at 6-7, ¶ ¶ 20-23.) Plaintiffs' GE manufacturers therefore represent that if they continue to distribute non-exempt food products in Vermont, they will have to re-label the " vast majority" of their products. ( See, e.g., Doc. 33-8 at 4, ¶ 12; Doc. 33-10 at 5, ¶ 16.) They contend that re-labeling will require " a costly, time and resource-intensive effort" because they source from hundreds of ingredients that are made from or with GE crops in order to produce and distribute a large number of products. (Doc. 33-8 at 5, ¶ 15; see also Doc. 33-7 at 3-4, ¶ ¶ 11, 15.)
To comply with Act 120's GE disclosure requirement, Plaintiffs' GE manufacturers represent that they will incur " significant" costs, although the total costs of compliance are " difficult or impossible to quantify." (Doc. 33-10 at 10, ¶ ¶ 33-34.) They explain that compliance will require them to evaluate whether their products contain or likely contain GE ingredients, including an investigation of all " upstream components," (Doc. 33-10 at 5, ¶ 18), which will be followed by an evaluation of " the feasibility of designing, producing[,] and implementing Vermont-specific labels for all affected products." (Doc. 33-8 at 5, ¶ 17; see also Doc. 33-9 at 7, ¶ ¶ 22-24.)
In addition to the impacts of designing new packages and/or labels for Vermont-bound products, Plaintiffs' GE manufacturers assert they will need to expend resources for dual-inventory, production, and distribution systems for Vermont-bound products, which will require additional plant and storage space for producing and handling separate inventories of Vermont-specific labels and products. They point out that while larger manufacturers will have more SKUs to change, smaller manufacturers may not be able to incur the expense of designing, reviewing, and creating new labels for their Vermont-bound products. They contend that this, in turn, may reduce competition in Vermont to a few multi-category, multinational companies that can afford product segregation.
2. The Timing of Compliance with Act 120.
Plaintiffs' GE manufacturers claim that they may not be able to implement product changes in time to comply with Act 120's effective date because the process of " designing the packaging, conducting a compliance review, and making new plates would take 20 to 26 weeks," without accounting for additional lead times for production of new labels and newly-labeled products, distribution, and to " clear non-compliant products from commerce." (Doc. 33-4 at 4, 10, ¶ ¶ 14, 33; see also Doc. 33-3 at 12-13, ¶ ¶ 40-41.) The lead times required for Plaintiffs' GE manufacturers vary based on the number of GE products that must be re-labeled and on the shelf lives of those products, which range from " months, if not up to two years." (Doc. 33-8 at 7, ¶ 22; see also Doc. 33-6 at 6-7, ¶ ¶ 20-22.) Some of Plaintiffs' GE manufacturers estimate they will have to begin distribution by at least July 1, 2015 to comply with Act 120's GE disclosure requirement. ( See Doc. 33-10 at 11-12, ¶ ¶ 40-41.)
The State's declarants challenge Plaintiffs' GE manufacturers' contentions regarding the costs of creating new packaging, as well as the timing and feasibility of compliance with Act 120. They point out that using stickers, adding labels, or using separate packaging for products requiring a GE disclosure present alternative methods of compliance that would be less costly and time-consuming than the methods suggested by Plaintiffs' GE manufacturers. Regardless of how a manufacturer chooses to comply, the State's declarants point out that compliance costs could be passed on to consumers or absorbed by the manufacturer, that " [c]hanging labels is simply part of the business," and that it is " common" to change a product's packaging or labeling for a host of reasons, including to further marketing objectives. (Doc. 63-9 at 4, ¶ 7; see also Doc. 63-8 at 4, ¶ ¶ 6-8.) They contend that most food manufacturers manage their inventory " in weeks, not months," (Doc. 63-7 at 4, ¶ 7), and maintain no greater than a 90 day supply of " packaging inventory." (Doc. 63-8 at 6, ¶ 13.) Accordingly, they assert that GE manufacturers will have the ability to use non-compliant packaging before Act 120's effective date and to use any non-compliant inventory thereafter for distribution outside of Vermont. ( See Doc. 63-8 at 6, ¶ 13.)
F. The Final Rule.
Act 120 provides that the Attorney General " may adopt by rule requirements for the implementation" of Act 120 that include: (1) " a requirement that the label required for food produced from genetic engineering include a disclaimer that the Food and Drug Administration does not consider foods produced from genetic engineering to be materially different from other foods" ; and (2) " a requirement that a label required under [Act 120] identify food produced entirely or in part from genetic engineering in a manner consistent with requirements in other jurisdictions for the labeling of food, including the labeling of food produced with genetic engineering." 2013 Vt. Acts & Resolves No. 120, Sec. 3(1), (2); see also 9 V.S.A. § 3048(b) (" The Attorney General shall have the same authority to make rules . . . as provided under subchapter 1 of chapter 63 of this title." ).
During the pendency of this case, the Office of the Attorney General filed a Final Rule on April 20, 2015. See Consumer Protection Rule 121 [hereinafter Final Rule] (Doc. 93-1). According to the State, the Final Rule is intended " to clarify the reach of the statute," (Doc. 63 at 27), and provides several definitions for terms used in Act 120, including that " [t]he term 'genetic engineering' does not encompass a change of genetic material through the application of traditional breeding techniques, conjugation, fermentation, traditional hybridization, in vitro fertilization, or tissue culture." Final Rule § 121.01(6). The Final Rule also provides definitions for " Clear and conspicuous," " Know," and " Knowingly." See Final Rule § 121.01(1), (9)-(10).
The Final Rule purports to " clarif[y] the scope" of Act 120's " natural" restriction, (Doc. 63 at 28), by stating that the phrase " '[n]atural or any words of similar import' means the words nature, natural, or naturally." Final Rule § 121.01(14). It limits Act 120's " natural" restriction on advertising or signage to a " retail premises" in Vermont:
The manufacturer of a food that is produced entirely or partially with genetic engineering and offered for retail sale in Vermont shall not make any statement about the food that contains the word natural or any words of similar import: (1) in advertising at or in the retail premises, (2) on signs identifying the product at the point of display in the retail premises, or (3) on the label of the food. This prohibition does not apply to a food's trade, brand, or product name, or any information required by the [FDA], as referenced in 21 C.F.R. § 101.2(b).
Final Rule § 121.02(c)(i); see also Final Rule § 121.01 (22)-(23) (defining " Retail Premises" to mean " the physical location in Vermont where a retailer offers food for retail sale to consumers" and " Retailer" to mean " a person located in Vermont offering any raw agricultural commodity or processed food for retail sale" ).
The Final Rule confirms that Act 120 does not prohibit " a person" from disclaiming on a food's " packaging" that the FDA " does not consider food produced with genetic engineering to be materially different from other foods," and it affirmatively provides that " a person may, in connection with offering food produced with genetic engineering for retail sale in Vermont, make other disclosures about the food on its packaging." Final Rule § 121.02(c)(ii).
The Final Rule provides that Act 120 shall not be construed to:
require the listing or identification of any ingredient or ingredients that were genetically engineered; or require the placement of the term " genetically engineered" or a similar phrase immediately preceding or following any common name or primary product descriptor of a food; or require the placement of any disclosure required under section 121.02 of this rule as " intervening material" under 21 C.F.R. § 101.2(e); or otherwise require adding to ...