Vermont AG issues memo clarifying scope of GM labeling safe harbor and enforcement discretion.

• As the July 1 effective date for Vermont’s labeling requirement for genetically modified (GM) foods approaches, many companies have had questions about the scope of the law’s 6-month “safe harbor” for foods that do not bear compliant labeling.

• On March 24, the Vermont Attorney General (AG) issued a memo clarifying the scope of the safe harbor and the state’s enforcement priorities. During the 6-month period between July 1 and December 31, 2016, the Vermont AG will not bring an enforcement action or seek fines for products that fail to bear GM labeling unless there is evidence that a manufacturer distributed a mislabeled product after the July 1 effective date.  Starting January 1, 2017, the AG’s position is that all products must bear required GM labeling regardless of their distribution date.  However, even after January 1, 2017, Vermont’s enforcement priority will be willful violations of the labeling law.  The AG does not expect to bring enforcement action based solely on a company’s failure to remove improperly labeled products that were distributed before July 1, 2016.

• Simply stated, companies may not distribute improperly labeled products in Vermont after July 1, 2016.  However, improperly labeled products that were distributed before July 1, 2016 and that remain on the shelf after January 1, 2017, should be granted enforcement discretion. To strengthen the argument that enforcement discretion is warranted, companies should consider retaining clear documentation detailing when their products were distributed in Vermont.  This may be of particular significance where products have a long shelf life and are likely to remain on shelves after the 6-month safe harbor ends.