This article first appeared on my Green Building Law Update blog. The Green Building Law Update blog is intended for the entire environmental industrial complex (not just lawyers).

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Only slightly less fun than a Dan Aykroyd and Jane Curtin Point Counterpoint on Saturday Night Live, the fight over labeling food produced from a bioengineered organism is being waged in a Federal courtroom in Vermont. Given modern interstate commerce, we may all find all of our food labeled “produced with genetic engineering.”

On April 27, 2015, Judge Christina Reiss of the U.S. District Court for the District of Vermont issued a preliminary opinion and order in a case where the Grocery Manufacturers Association, Snack Food Association, International Dairy Foods Association, and National Association of Manufacturers are challenging Vermont’s Act 120’s requirement that manufacturers and retailers identify whether raw and processed food sold in Vermont was produced in whole or in part through genetic engineering and which prohibits manufacturers from labeling or advertising genetic engineered foods as “natural,” “naturally made,” “naturally grown,” “all natural,” or “any words of similar import”.

The Opinion and Order granted in part the State of Vermont’s motion to dismiss and denied the plaintiffs’ motion for a preliminary injunction. And while the media have largely reported that the Opinion mostly favored the State of Vermont and the positions of GMO labeling advocates, a review of the 86 page Opinion suggests matters are largely unsettled and this decision was the product of the heightened standards for motions to dismiss and preliminary injunctions.

Act 120 was signed on May 8, 2014 and will be enforceable effective July 1, 2016 requiring that “food [intended for human consumption] offered for sale by a retailer” .. “be labeled as produced entirely or in part from genetic engineering if it is a product: ( 1) offered for retail sale in Vermont; and (2) entirely or partially produced with genetic engineering.” Genetic engineering is defined as “a process by which a food is produced from an organism or organisms in which the genetic material has been changed” .. 9 V.S.A. § 3043(a).

The Act requires that the affected food be labeled by manufacturers “with the clear and conspicuous words ‘produced with genetic engineering.”‘ 9 V.S.A. § 3043(b)(l). Packaged processed food must be labeled with the words: “‘partially produced with genetic engineering,”‘ or “‘may be produced with genetic engineering,”‘ or ‘”produced with genetic engineering.”‘ 9 V.S.A. § 3043(b)(3).

Act 120 also prohibits manufacturers from using labeling, advertising, or signage indicating that a genetic engineered food product is “‘natural,’ ‘naturally made,’ ‘naturally grown,’ ‘all natural,’ or any words of similar import that would have a tendency to mislead a consumer.” 9 V.S.A. § 3043(c). Act 120 does not define the term “natural” or the phrase “any words of similar import.” Many commentators have suggested these provisions “natural” will not survive the court challenge.

The Act authorizes the Attorney General to issue regulations and those regulations were issued, confirming that Act 120 does not prohibit a person from disclaiming on a food’s packaging that the FDA “does not consider food produced with genetic engineering to be materially different from other foods”. Final Rule §121.02(c)(ii).

Maybe most telling from the Court’s Opinion is that it quotes the Vermont legislature’s finding that “that up to 80 percent of the processed foods sold in the United States” may contain ingredients produced from genetically engineered sources. So, we may all find all of our food labeled “may be produced with genetic engineering”.

This Vermont law must be considered against the reality that less than 20 years ago, in more than half the states, it was not legal to label organic or hormone free milk.

This blog rarely suggests that government regulation is the solution, but unless we all want to be regulated by the Vermont legislature’s piques on food labeling, either Congress needs to act on a uniform national voluntary standard for bioengineered organism labeling authorizing USDA enforcement or USDA needs to act itself to create a voluntary program through the Agriculture Marketing Service, much as exists for organic labeling today.