DARK Act Basics

    You may know that H.R. 1599, the "Safe and Accurate Food Labeling Act of 2015" passed the House of Representatives a couple of weeks back and has been referred to committee in the Senate. You may also know that the bill would ban states from requiring labeling of foods containing genetically engineered (GE) ingredients, and that its opponents have dubbed it the Denying Americans the Right to Know Act, or DARK Act. But what all is in the bill? More than you might think.

    First, the basics. The bill passed the House of Representatives on July 23 by a vote of 275 to 150, with support from 94% of House Republicans and 25% of House Democrats. The engrossed (i.e., passed) House bill has been referred to the Senate Agriculture Committee, though there is as yet no corresponding Senate bill.

    If enacted in its current form, the bill would, broadly speaking, do three things, only one of which focuses specifically on labeling of GE foods. First, it would define when GE plants can be sold for use in foods and preempt any state law restrictions on such sales. Second, it would limit the ability of food manufacturers to label their foods as either free from or containing GE ingredients, and it would preempt state labeling requirements for GE foods. And third, it would require development of federal standards for labeling foods marketed as "natural" and preempt state laws on that subject as well.

    (1) As to the sale of foods with GE plant ingredients, the bill would essentially write into law the existing (and currently voluntary) "consultation" process developed by the FDA to assess the safety of GE foods, under which the FDA generally takes the position that GE foods have the same properties as conventional foods and are safe. The bill would provide that a GE plant can be sold for use in food (and that foods containing that GE plant can be sold) only if the GE plant has gone through the consultation process and the FDA has said it has "no objection" to the manufacturer's view that food produced from the plant will be safe.

    The FDA would be able to require labeling of such GE foods only if it concluded that there was a material difference between the GE foods' attributes and comparable non-GE foods. Currently, the FDA generally sees no such differences, and there's no reason to think that is likely to change. The FDA would, however, at least be required to  publish on the internet a list of all GE plants that have undergone the consultation process and are permitted to be sold for food. (The FDA already does that under its voluntary process.)

     Importantly, the bill provides that on its effective date, states and their political subdivisions would be barred from establishing, directly or indirectly, any requirements concerning the sale of GE plants for use in food that are not identical to the requirements just discussed. Thus, the bill would essentially preempt any limits on the sale of GE foods. The extent of the ban on "indirect" requirements about sale of GE plants is unclear, and might also reach bans on the growing of GE crops that have been passed in some local jurisdictions.  

    (2) The second major part of the bill addresses GE labeling requirements. Here, the scope of the law might surprise people who've heard only news coverage of it. The bill doesn't just say states can't require labeling of GE foods; it actually prohibits anyone from labeling a food as either free from GE ingredients, or as containing them, unless the food has been certified as free from or containing GE ingredients under a voluntary certification program to be established by the Secretary of Agriculture. The certification program will require promulgation of detailed regulations by the Secretary, but pending its establishment, labeling of foods with respect to whether they contain GE ingredients will be prohibited, as the prohibition comes into effect on the effective date of the law regardless of how long it takes to establish the certification program.

    Among the many complicated provisions regarding the certification program and what labels for GE and non-GE foods may and may not contain, the law prohibits the use of labeling or advertising materials that "suggest either expressly or by implication" that products without GE ingredients are safer or of higher quality than GE foods. (Would "GE Free!" in an ad violate the law? Who knows?) In fairness, the law also says that foods with GE ingredients can't be billed as safer or of better quality, but it seems unlikely that that will be a big problem, as food manufacturers so far have shown no inclination to tout GE foods as superior.

    Again, the labeling provisions have a broad preemption section: No state or local jurisdiction would be able to have any requirements for labeling foods as containing GE ingredients.

    (3) Finally, the third part of the bill would address the labeling of so-called "natural" foods. It would require the FDA to promulgate regulations defining natural foods within 30 months of the law's enactment, and, once those regulations were in place, prohibit labeling or advertising a food as natural unless it complied with those regulations. It would also immediately preempt any state or local requirement concerning labeling of natural foods that is not identical to the federal requirement.

    If you're like me, you may find foods labeled "natural" or "all natural" appealing even though you know the term has no defined content. Requiring an actual standard may not be a bad thing, but preempting state law from regulating such claims, no matter how fraudulent, until federal regulations come into effect seems like a step in exactly the wrong direction, probably motivated by a desire to eliminate lawsuits challenging claims that foods containing manmade chemicals and other artificial ingredients are "all natural."

    That's it in a nutshell, but the bill is nearly 40 pages long, so the nutshell can't possibly be complete. As for what comes next, it seems doubtful that the Senate will pass the bill as is. As George Kimbrell of the Center for Food Safety recently said, "the Senate is an entirely different body" from the House. Thank heavens for that. There is a lot of potential mischief in this bill.

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