On Dec. 10, 2014, the U.S. House Energy & Commerce Subcommittee on Health held a hearing on Examining FDA's Role in the Regulation of Genetically Modified Food Ingredients. The witnesses included Michael Landa, Director of the Center for Food Safety and Applied Nutrition (CFSAN) at the U.S. Food and Drug Administration (FDA); Alison Van Eenennaam, Animal Genomics and Biotechnology Cooperative Extension Specialist at the University of California-Davis; and Scott Faber, Senior Vice President of Government Affairs at the Environmental Working Group. 

One key subject of the hearing was legislation introduced by Reps. Mike Pompeo (R-KS) and G.K. Butterfield (D-NC), the Safe and Accurate Food Labeling Act of 2014 (H.R. 4432). The bill would establish a framework to allow food manufacturers to voluntarily label foods containing genetically engineered ingredients, or so-called "GMOs," among other things. The legislation would also establish a federal labeling standard, under exclusive FDA authority, thereby pre-empting a patchwork of state regulations that may arise through state legislation and ballot initiatives.

Generally, both Republican and Democrat legislators recognized the safety of genetically engineered foods during the hearing, and agreed with the stance of the FDA that such foods are not materially different. Even the full Committee Ranking Member Henry Waxman (D-CA), indicated that he did not support mandatory labeling, even if he did support the ability for states to pursue such laws as they choose.

State Initiatives

For the past few years, GMO labeling proponents have taken a state-by-state approach in advocating for laws that would require GMO foods to be so labeled. In 2012, Proposition 37 in California was defeated at the ballot box. In 2013, ballot Initiative 522 was defeated in Washington State. This year, similar ballot initiatives in Oregon (Measure 92) and Colorado (Proposition 105) were defeated, though the vote in Oregon was close enough to warrant a recount.

In other states, GMO labeling proponents have seen greater success with legislation. In 2013, Connecticut became the first state to pass a law requiring labeling, and Maine followed suit shortly thereafter. Both of those states' laws, however, are effective only if surrounding states with certain population parameters pass similar legislation. 

Earlier this year, Vermont became the first state to pass a GMO labeling law without such contingencies. Industry groups opposing the law filed suit shortly thereafter, arguing that it is pre-empted by federal labeling laws and regulations and violates the Constitution's prohibition on restrictions of interstate commerce and free speech rights by compelling manufacturers to comply with burdensome requirements that have no basis in health, science or safety. The industry groups' motion for a preliminary injunction to prevent the state from implementing the law, as well as Vermont's motion to dismiss the legal challenge, is set to be heard by the U.S. District Court for the District of Vermont on January 7, 2015.

Federal Action  

The Safe and Accurate Food Labeling Act will have to be introduced again in 2015 since the 113th Congress, and any legislation introduced during the 2012-14 timeframe, expires at the end of calendar year 2014. There is a high likelihood that President Barack Obama would veto this legislation if it were to pass Congress and make it to his desk. Nonetheless, the legislation — which enjoys some bipartisan support — and the hearing, combined with support from industry advocacy groups such as the Coalition for Safe Affordable Food, are indicative of a growing interest on the part of the federal government to take steps to address labeling to avoid potentially high costs from regulatory complication at the state level.  

In 2001, FDA issued draft guidance on this issue (Voluntary Labeling Indicating Whether Foods Have or Have Not Been Developed Using Bioengineering), though it was never finalized. Just last week, FDA Commissioner Margaret Hamburg said the agency intended to issue final guidance by the end of the year, although the agency has made similar claims about timing on similar issues, only to release decisions months or years later. It may be that this move by FDA to issue final guidance is prompted by increasing pressure felt by the agency to act decisively, given the federal legislation and state initiatives.

Moving Forward

On the same date as the Energy & Commerce hearing on Capitol Hill, the National Academy of Sciences Committee on Genetically Engineered Crops held a public meeting just down Constitution Avenue in Washington, D.C. to hear from scientists on genetic engineering techniques, and from staff at USDA, EPA and FDA regarding their experience in overseeing genetically engineered crop regulation. That these events took place concurrently may reflect the increasing attention the federal government is beginning to give the issue, and to the interest in a federal solution, which many prefer.

As 2015 approaches, it is reasonable to think that the food manufacturing industry, as well as GMO labeling proponents, will take steps to keep this issue at the fore of the discussion around food and nutrition. Labeling proponents will likely continue their state-by-state strategy, while opponents are likely to continue their push for a federal voluntary framework. Though the likelihood of the impending Republican-controlled Congress and the Democratic-controlled White House coming to agreement on stand-alone legislation on this issue is low, persistent activity from lawmakers, federal agencies, and stakeholder groups could prompt action from FDA, Congress or the administration in the form of final guidance, proposed rules or funding contingencies.