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Preemption – Lessons from the Federal GMO Disclosure Law

posted on Fri, Aug 12 2016 10:40 am by Alicia Corbett

On July 14, 2016, Congress passed S.764, a bill requiring that foods containing genetically modified organisms (GMOs) display a federally-mandated disclosure. Presumably targeting Vermont’s state-level GMO labeling law that took effect on July 1, 2016, S.764 includes a provision expressly preempting all state and local GMO labeling regulation that is not identical to the new federal standard. The bill has been signed by President Obama. 

Preemption can impact state and local public health measures, just as it can impact other state and local regulatory actions. Many state and local public health innovations (e.g., paid sick leave ordinances and residential fire sprinkler requirements) have faced preemption-based challenges. Thus, an understanding of how preemption operates can be of great value to public health practitioners. 

What is preemption?  Preemption is a legal concept, based in the U.S. Constitution, whereby federal laws trump conflicting laws enacted at lower levels of government. For example, the Federal Cigarette Labeling and Advertising Act and the Patient Protection and Affordable Care Act are two federal laws that preempt many state and local laws regulating the advertising of cigarettes and menu labeling of nutritional information, respectively. State laws can also preempt local laws. 

The federal GMO disclosure law illustrates both the positive and negative possibilities inherent in preemption. On the positive side, presumably there are states that, left to their own devices, might never mandate any disclosure for GMO-containing foods. By setting a nationwide standard, the federal law ensures consumers in these states are provided with at least a minimum level of information about the presence of GMOs in their food. Industry groups have also argued that a uniform nationwide standard may help keep food prices lower than if the industry has to invest resources in complying with multiple, differing state-level requirements, which could benefit lower-income consumers in particular. These are two potential advantages of preemption.

However, states like Vermont that are inclined to require GMO labeling may not be happy with the federal standard. They may prefer to enact a stricter standard, a more lenient one, or simply one that is more customized to the needs of that state’s residents. Vermont did exactly that, enacting a law with tougher standards than those in the recent federal law. But those requirements become unenforceable with the new federal law’s effectiveness. 

In addition to outright preemption of differing state standards, there are also more subtle potentially negative impacts of preemption to consider. S.764 delegates authority to the U.S. Department of Agriculture (USDA) to establish rules implementing the new law, and gives USDA two years to complete this process. Until rules are promulgated and take effect, GMO-containing foods do not need to carry any disclosure, but state-level GMO labeling requirements are immediately preempted with the federal law’s effectiveness, unless they are identical to the federal standard.

USDA will also have discretion to set a threshold amount of GMOs that must be present to require disclosure. If the threshold is set at a high level, many foods that contain a small amount of GMOs will avoid the disclosure requirement altogether. Depending on the outcome of USDA’s rulemaking process, the federal GMO disclosure law may result in beneficial regulation, or could be largely ineffectual. 

The federal GMO disclosure law, and its impact on Vermont’s GMO labeling law, provides an outline of how preemption can operate in both positive and negative ways. Those in public health should be aware of the potential impact of preemption on state and local attempts to improve the public’s health through new legislation and regulatory initiatives.

This guest post was prepared by Alicia Corbett, J.D., Adjunct Faculty and Affiliated Professional, Public Health Law and Policy Program, Arizona State University.

The Network for Public Health Law provides information and technical assistance on issues related to public health. The legal information and assistance provided in this document does not constitute legal advice or legal representation. For legal advice, readers should consult a lawyer in their state.

Support for the Network is provided by the Robert Wood Johnson Foundation (RWJF). The views expressed in this post do not necessarily represent the views of, and should not be attributed to, RWJF.

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