For months, the Senate has struggled to reach agreement on a “GMO labeling bill”, which would determine if and how genetically modified organisms (GMOs) are marked on food packaging. The pressure became especially intense as legislators worked to beat pending mandatory GMO labeling legislation in Vermont, which officially became effective July 1, 2016. After defeating a weak version of the bill  on July 7, the Senate voted 63-30 to pass a somewhat stronger compromise bill, which was hammered out behind closed doors by Senate Agriculture Committee Chair and Ranking Member Pat Roberts (R-KS) and Debbie Stabenow (D-MI) in consultation with industry groups. While amendments to the measure were filed, the Senate was largely operating under a procedure in which there was no room for modifications, and thus none were offered or voted on.

What Will the Senate GMO Bill Do?

The Senate GMO labeling bill, if passed into law, would preempt state authority across the country and nullify Vermont’s first-of-its-kind mandatory GMO labeling law.

In place of state authority, the Senate bill would establish a complex federal “bioengineered food” disclosure system, which would give large food companies three options for labeling GMO ingredients: a barcode or QR code on packages that would require a smartphone app in order for consumers to find out more information about a product, a symbol (to be created by USDA) denoting GMO ingredients on the package, or an actual on-package statement that the product contains GMOs. The bill defines what types of biotechnology and what types of products, albeit vaguely, that will need to be labeled or have the QR code option, lacks any effective enforcement mechanism to make sure such labeling takes place.

The Senate bill also gives the U.S. Department of Agriculture’s (USDA) Agricultural Marketing Service (AMS) two years to develop rules and regulations for the national labeling systems. Such a long time frame would provide an ample opening for opponents of labeling to attach an amendment, or policy “rider” to annual funding legislation that would block USDA from implementing the legislation. That scenario has played out numerous times in the past, including on Country of Origin Labeling and on implementation of farm bill provisions supporting fair competition and contract reform with respect to the Packers and Stockyards Act.

House Action?

Last July, the House passed (275-150) a bill that would have made GMO labeling a purely voluntary system, while also preempting states from enacting their own GMO labeling laws. Now, with Senate passage of a quite different measure, Chair Michael Conaway (R-TX) and Ranking Member  Collin Peterson (D-MN)of the House Agriculture Committee have both expressed reluctant support for the compromise measure. Chairman Conaway has indicated that the House will very likely take up the Senate bill next week, and he expects to have the votes to pass the Senate bill.

If the House does indeed adopt the Senate bill, the White House has signaled that President Obama will sign the legislation into law, marking the end of one long roller-coaster ride and the beginning of another.

The Regulatory and Legal Fights to Come

It’s not over yet. In addition to being lambasted by a slue of GMO critics, holes in the compromise bill have also been flagged by the federal Food and Drug Administration (FDA). A June 27 Technical Assistance Document prepared by FDA for Congress raised a number of concerns about confusing language in the Senate bill – particularly the bill’s definition of “bioengineering”. According to the FDA, the Senate’s definition would too severely limit the types of products that would require labeling. The FDA report went on to say that the bill’s statement on food “that contains genetic material” would likely mean that many foods from GMO sources, such as oil made from GMO soy, would not be labeled because they do not contain genetic material.

Pushing back against the FDA analysis, Senator Stabenow touted a letter from USDA’s General Counsel, which asserted that USDA would have the authority to regulate the labeling of all products that contain bioengineered ingredients. While USDA assertions were very helpful in getting a super majority of the Senate to vote for the bill, they did not substantively address the legal issues raised by FDA and others.

If nothing else, two things seem certain. First, there will be a major battle over the course of the next two years as AMS attempts to write draft and then final rules for GMO labeling options – including what will no doubt be big debates over definitions, exemptions, and technologies. Second, regardless of how the rules turn out the issue is likely to be litigated in the courts; a process that could add more years to the clock before any labeling law goes fully into effect.