WASHINGTON, July 6, 2016 - The Senate’s showdown over biotech labeling is finally here after months upon months of negotiations and debate. A cloture vote is scheduled this afternoon to move to a final vote on the compromise on mandatory GMO disclosure. The cloture motion requires a 60-vote majority.

A 68-29 procedural vote on June 29 indicates that the legislation should have enough support, but the bill has been taking heat from some proponents of biotechnology as well as anti-GMO activists. Nebraska Republican Ben Sasse, who voted for the procedural motion to move to the bill, told the Lincoln Journal-Star that he would nevertheless oppose the legislation.

But the watchword from industry representatives and the Senate Agriculture Committee staff is that they are cautiously optimistic that cloture will be invoked, which would limit debate to a maximum of 30 hours, clearing the way for a final vote before the end of the week.

The bill would still need approval from the House. House Majority Leader Kevin McCarthy, R-Calif., said Tuesday he has been talking to House Agriculture Chairman Mike Conaway about the measure and would decide how to proceed after the Senate acts. Conaway hasn’t taken a position yet on the legislation, but his options are limited since the Senate legislation represents a relatively delicate compromise needed to capture the necessary 60 votes.

Conaway won’t take a position before the Senate votes. He “continues to engage in discussions with industry and other stakeholders and will await the outcome in the Senate before making any public statements regarding his position on what action he believes the House should or should not take,” said spokeswoman Haley Graves. 

The House Agriculture Committee’s ranking Democrat, Collin Peterson, has expressed concern that the demands by House Democrats for a vote on gun regulations could derail other legislation. But McCarthy said the GOP leadership was intent on restoring discipline in the House following the Democratic sit-in in June. “We’ll continue to move forward on the floor. We expect members of Congress to adhere to the rules and the decorum of the House,” McCarthy said.

Time also is a factor. Vermont’s first-in-the-nation GMO labeling requirements took effect on July 1, and lawmakers have limited time to consider anything but the Senate bill before the November election. Congress will be out of session from July 15 until September and then in recess again during October. 

The American Soybean Association, whose members have contacted all 60 senators from states that have significant soybean production, on Tuesday was encouraging growers to keep the pressure on the Senate. “As you know, we are now five days into the implementation of the labeling law in Vermont. In that time, we’ve seen more than 3,000 products (pulled) from shelves in Vermont, which clearly outlines the impact of this law,” ASA said in an action alert. “With tomorrow’s vote, we are extraordinarily close, but we need each of you to continue your calls and emails to Senate offices.” 

Sasse’s announcement that he opposed the bill highlighted the challenge that Senate Agriculture Chairman Pat Roberts faces in avoiding GOP defections. Roberts only lost three Republican votes on the procedural motion – the two Alaska senators, who are demanding on-package labeling for genetically engineered salmon, and Rand Paul of Kentucky, who objects to preemption of state laws. That meant that 51 Republicans joined 16 Democrats and one Independent, Angus King of Maine, in voting for the procedural motion. 

Sasse told a home-state newspaper that he didn’t like the bill because it would require “mandatory labeling,” a term which has normally been taken to mean on-package text. The bill would require companies to disclose the presence of biotech ingredients but would allow the use of smartphone code, instead of text or a symbol. Products including some pizzas that are made up mostly of meat or egg products would be exempt from disclosure even if they have some biotech ingredients.

But Henry I. Miller, a Stanford University professor who founded the Food and Drug Administration’s biotechnology office, calls the bill “a weird, unscientific, politically motivated hodge-podge of requirements and exemptions. The scope of what is covered makes absolutely no sense.”

Miller, who is a molecular biologist, also argues in a statement to Agri-Pulse that a court could strike down the standard on the basis that there is no consumer safety justification for the disclosure requirement. Daren Bakst, an agricultural policy analyst for the Heritage Foundation, argues in a blog post that the federal mandate is no better than a state one and that there is no hurry to do anything about the Vermont law since citizen enforcement actions have been postponed until July 2017.

FDA critique illustrates discretion GMO bill affords to USDA

An FDA critique of the bill that consumer activists have been citing in their attacks on the legislation points to the important role the Agriculture Department would play in carrying out the disclosure requirements - if the measure becomes law. In its comments, the FDA said that many aspects of the bill are vague or open to interpretation. For example, the agency said that the bill’s definition of “bioengineered” foods, which says that they contain the “genetic material” of a biotech trait, would likely exempt oils and starches from disclosure. 

USDA, however, says in a statement to Agri-Pulse that the bill would give the department the authority for highly refined sugars and oils to be brought into the program. USDA also disagreed with FDA over whether the definition would cover new techniques such as gene editing. USDA said it would, but that’s an issue the department also would have to cover in a rule-making. 

USDA also would have to set up a process for determining whether foods fall under the definition of bioengineered and set a minimum amount of biotech material that must be present in the food for it be a GMO. (A threshold of 0.9 percent to 1 percent is typical in other countries.) The department would have to define what are “small” and “very small” businesses for purposes of the law. Small businesses would only be required to put a phone number or website address on product labels. Very small businesses would be exempt entirely. 

In addition, the department may have to propose additional disclosure options after it conducts a study into the “potential technological challenges” consumers face in using the digital disclosure option.

Ricardo Carvajal, a lawyer who specializes in food regulation with Hyman, Phelps and McNamara, said USDA would likely be sued over the regulations regardless of how they are written. 

Greg Jaffe, director of biotechnology for the Center for Science in the Public Interest, said the differing FDA and USDA interpretations of the legislation reflect the agencies’ differing missions. FDA is a regulatory agency, whose decisions must be based on scientific evidence, while USDA also has a marketing function, he said. The National Organic Program, for example, is run by USDA’s Agricultural Marketing Service, which the biotech disclosure program would be as well. (The Senate bill would be an amendment to the Agricultural Marketing Act of 1946.) 

Jaffe expects USDA to be guided in part by how countries have implemented labeling regulations. Those laws vary widely, both in what products are covered and in what is required on labels. Some countries exempt vegetable oil, for example. Brazil requires a symbol, but no text, on labels. “I don’t know that you need to start from scratch,” Jaffe said. 

An online world map posted by the Center for Food Safety, an advocate of mandatory on-package labeling, illustrates the differences in labeling requirements. Europe, Australia and Russia are among those with the most restrictive laws. China and Brazil are somewhat less restrictive, while India is among a third group that have numerous exemptions in their labeling laws, according to the group. 

The industry will be counting on USDA to keep to a tight definition of bioengineering that is largely limited to the techniques that have been used for products now on the market. “One of the big victories we have is that tight definition of GMOs,” said Chuck Conner, president of the National Council of Farmer Cooperatives. It “excludes a lot of products that some in the activist community would like to see as part of the label… It excludes a lot of things that are going to be coming down the pike in the future.”


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