• by Thom Forbes  @tforbes, March 17, 2016

The U.S. Senate yesterday sent packing a bill that would have prevented states such as Vermont from enacting legislation that requires food labels that indicate if ingredients contain genetically modified organisms (GMOs). 

Dubbed “the DARK Act” by opponents — Deny Americans the Right to Know — “the procedural vote to close debate on the controversial legislation, which provided no federal alternative for mandatory on-package GMO designation, fell short of the 60 votes needed to move the bill to an approval vote,” Jim Spencer reports for the Minneapolis Star Tribune.

Vermont’s Act 120, which requires that any food offered for sale must be labeled a GMO if it is “entirely or partially produced with genetic engineering,” passed in 2014 and goes into effect July 1. Connecticut and Maine have also passed GMO-labeling laws but neither will take effect unless states they border do the same.

The 48-to-49 vote on the bill sponsored by Sen. Pat Roberts (R–Kan.) “was a defeat for the Grocery Manufacturers Association and the major food and biotech companies that are its members, which have spent hundreds of millions of dollars fighting labeling requirements,” writes Stephanie Strom for the New York Times.

“Despite today’s vote, there continues to be a strong bipartisan consensus to protect American consumers from the increased food costs and confusion of a 50-state patchwork of labeling laws,” says GMA president and CEO Pamela G. Bailey in a statement cited by Strom.

The food industry maintains that “there are at least two major First Amendment problems with mandatory GMO labeling that must be taken seriously: ‘compelled speech’ and ‘vagueness,’” as Andrew Kloster, a legal fellow at Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation, outlines in a November 2015 memorandum.

“What happens next? We can’t be sure, but we hope that the Senate will do the right thing and move toward passing legislation to ensure federally mandated GMO labeling,” Environmental Working Group president Ken Cook wrote in an email to labeling supporters. “This vote is a HUGE win for our grassroots movement. We went up against millions of dollars from Monsanto and Big Food and stopped them in their tracks.”

“Consumers should have the right to choose,” says Scott Faber, executive director of Just Label It, in applauding the Senate vote. “They should have the right to know what's in their food and be trusted to make their own choices.”

Although the Food and Drug Administration says that GMO foods are safe to consume, “advocates for labeling say not enough is known about their risks. Among supporters of labeling are many organic companies that are barred by law from using modified ingredients in their foods,” the AP reports.

Consumers have indicated that “non-GMO” labeling is even more important than “organic” in their brand choice/purchase intent, as Marketing Daily’s Karlene Lukovitz reported. And advocates maintain that labels just provide information, not guidance.

“That argument — consumers' right to know — holds sway among many legislators,” reports Maria Godoy for NPR in an article that points out that the “battle has made for strange bedfellows” and that it will continue to be waged.

“Now, another GMO labeling bill is waiting in committee. This alternative bill calls for mandatory GMO labeling but offers companies four options for how to situate the label, none of which require the information to be on the front of the packaging,” writes Carolyn Heneghan for FoodDive. “Supporters argue that companies already change labels all the time as they make ingredient changes.”

Meanwhile, a Washington Superior Court judge ruled Friday that the Grocery Manufacturers Association broke the law by hiding the donors of $11 million — namely, PepsiCo, Coca-Cola, General Mills, ConAgra, Nestle and other food giants — for a campaign to kill a 2013 GMO-labeling initiative, Tamar Haspel reports for Fortune. Initiative 522 was narrowly defeated.

The GMA said the ruling “will hurt the constitutionally protected right of trade associations to engage in political debate.” It had maintained they the law was “vague” and it had been singled out. But “meeting notes, memos, and other internal GMA documents clearly show that shielding member identities was one of the primary purposes of the fund,” Haspel writes of Judge Anne Hirsch’s findings. 

A trial will determine whether the violation was intentional and, of so, what the penalty will be.