With Senate Agriculture Committee Chair Pat Roberts (R, KS) having this week successfully run his federal solution to state genetically engineered (GE) food/feed labeling laws through his committee in near-record time on a 14-6 vote, the dash for the Senate floor was complicated this week when Sen. Jeff Merkley (D, OR) introduced his own labeling bill, saying the bill was designed to delay the process so opposition to the Roberts' bill could build.

Merkley, ranking member of the Senate Appropriations Committee Subcommittee on Agriculture/FDA, was joined by three Democratic members of his subcommittee in introducing the bill:  Sens. Dianne Feinstein (D, CA), Patrick Leahy (D, VT) and Jon Tester (D, MT), who's an organic farmer.  Already in the hopper is Sen. Barbara Boxer's (D, CA) bill to federally mandate labeling of every food/feed containing a GE ingredient, which would lead, critics say, to 85-90% of all food labels carrying a GE ingredient "warning."

In a related development, Dr. Richard Califf, newly approved FDA Commissioner, appeared this week before the Merkley subcommittee, chaired by Sen. Jerry Moran (R, KS), and reaffirmed in an exchange with subcommittee member Sen. Steve Daines (R, MT) that FDA has determined there is no legal justification to require biotech food labeling given the safety and the equivalence of the foods are well established.   

Meanwhile, Roberts continues to court his committee's ranking member Sen. Debbie Stabenow (D, MI) in hopes that the two of them can come to an agreement on how to provide consumer access to food product ingredient information.  Roberts wants a voluntary system; Stabenow wants on-pack information to be mandatory.  The three committee Democrats who voted for Roberts' proposal were Sen. Amy Klobuchar (D, MN), Sen. Heidi Heitkamp (D, ND), and Sen. Joe Donnelly (D, IN).  Klobuchar and Heitkamp said they voted "aye" because a patchwork of state laws is unworkable, and they understand a compromise with Stabenow is forthcoming.

Also in the disclosure option mix is ag committee member Donnelly, who spoke during committee consideration of Roberts' plan about an amendment he plans to offer to modify the bill in hopes of providing a labeling regime Stabenow can embrace.  After the markup, Stabenow stopped short of endorsing the Donnelly approach, but did not reject it, saying it provided additional ideas for discussion.

Roberts, this week, briefed Senate Majority Leader Mitch McConnell (R, KY) on his committee's action, with McConnell having pledged to Roberts "quick action" on the measure as a standalone bill.  No schedule was revealed - the Senate is on recess the week of March 7 - and the Kansas lawmaker stopped short of saying all Senate Republicans were on board with his approach. 

The Just Label It! coalition contends there aren't 60 votes in favor of Roberts' bill, the number needed to cut off debate and formally consider the bill.  However, if Stabenow embraces a bipartisan solution with Roberts, it's expected that agreement could pull as many as eight to 12 Democrats on board.  Boxer called the ag committee effort "a sham bill" denying consumers the right to know what "they're feeding their kids."   

Roberts' bill, formally introduced shortly after his committee approved it, would preempt state labeling laws while requiring USDA to develop a voluntary labeling program to provide on-pack sources of information for consumers, e.g., websites, 1-800 numbers, bar codes, etc.  The Donnelly hybrid approach would preempt the states and allow for voluntary labeling, but would review industry participation after four years, and if the percentage of the industry providing the ingredient source information is less than 85%, the packaging information would become mandatory.

While the food and agriculture industries dismissed Merkley's effort as "just another mandatory labeling bill in search of a non-existent problem," the bill was endorsed by Ben & Jerry's, Consumers Union (CU), the Just Label It! coalition and Campbell's Soup Co., which announced it will label all of its products containing GE ingredients. 

The Merkeley's Bill would amend the federal Food, Drug & Cosmetic Act (FDCA) - Donnelly and Roberts would amend USDA's Agriculture Marketing Act (AMA) - to require food makers to "disclose" the use of GE ingredients in one of four ways as part of the current on-label ingredient list:  Indicate an ingredient listed on the package is "genetically engineered;" identify GE ingredients with an asterisk, with an explanation at the end of the ingredient listing; apply a "catch-all statement" to the label stating the product was "produced with genetic engineering," or FDA would get authority to develop a symbol to be added to all labels - after consulting with the food industry - that would "clearly and conspicuously" disclose the use of GE ingredients.  None of the options would be a "warning" label or be required to be on the front label. 

Merkley said his bill is a "uniform federal GM labeling standard with sufficient flexibility to suit manufacturing operations of various sizes and markets, while also giving national manufacturers in compliance with the federal standard a safe harbor from the potential patchwork of state laws."

The Democrat commissioner nod goes to Georgetown University law professor Chris Brummer. Brummer, who has taught at Georgetown since 2009, was an academic fellow at the SEC in 2008-2009 during the financial crisis, focusing on international issues.  He also sits on a board of the Financial Industry Regulatory Authority (FINRA), a private corporation acting as a self-regulatory organization (SRO).  FINRA is the successor to the National Association of Securities Dealers, Inc. (NASD).