When a pair of agribusiness-funded Senators introduced last-minute, fast-tracked legislation to outlaw Vermont’s new labels for foods containing genetically modified ingredients, they claimed that their new national standard would close the so-called “pepperoni pizza loophole” in the Vermont rules — referring to a confusing clause that would apply the labeling rule to frozen cheese pizza, but not to pizza with any meat toppings. However, a look at the federal bill that was fast-tracked through Congress and appears to be destined for a quick vote by the House, shows that the legislation creates more loopholes than it closes.

When the text of the bill, written by Sen. Pat Roberts (KS) and Sen. Debbie Stabenow (MI) — who have received a total of more than $2.1 million in campaign contributions from agribusiness donors this year alone — was first released, the Food and Drug Administration responded with a Technical Assistance Memo [PDF] that outlines the potential for new loopholes.

The memo, which reiterates the FDA’s stance that the science on GMO foods thus far indicates that these products are safe, nevertheless takes issue with the bill’s definition of “bioengineering” which the agency contends “would result in a somewhat narrow scope of coverage.”

For example, the legislation says that the food products that receive these labels must contain genetic material. However, some ingredients and final food products are treated in such a way that they do not ultimately contain any genetic material. Thus, a food producer could use oil made from genetically engineered soy plants, but that ingredient would not trigger the requirement for a GMO label.

“Likewise, starches and purified proteins would not be covered,” notes the FDA memo.

A second potential loophole lies in a clause that limits the use of GMO labels to cover ingredients where the genetic modification “could not otherwise be obtained through conventional breeding or found in nature.” That is, if there’s a chance this sort of change to an ingredient’s genetic material could happen naturally or through old-fashioned breeding, the GMO label is not required.

“It may be difficult to demonstrate that a particular modification could not be obtained through conventional breeding (or even that it could not occur in nature),” cautions the FDA, which raises additional concerns about the lack of detail on what exactly would be considered conventional breeding.

The FDA not only notes that the bill leaves open Vermont loophole by exempting all meat, poultry, or eggs from the labels, but that the writers of the legislation have gone about exempting these items in the wrong fashion by seeming to incorrectly imply that the Federal Meat Inspection Act, the Poultry Products Inspection Act, or the Egg Products Inspection Act are not covered by the Food Drug & Cosmetics Act.

In addition to the technical issues raised in the memo, the FDA voices some of the same general concerns brought up by opponents of the legislation.

For instance, the bill will allow food producers to use barcodes or website URLs on packaging instead of the simple, one-sentence “Produced With Genetic Engineering” label required by Vermont.

The FDA says that this lax labeling requirement would be “in tension with FDA’s statute and regulations, which require disclosures on food labels. For example, under FDA’s provisions, information such as Nutrition Facts and the list of ingredients must be displayed directly on the label.”

Lawmakers behind this bill have effectively ignored the FDA’s input on the legislation, and they have been able to do so because Senate leadership helped to expedite the debate process, essentially skipping over all of the steps that would have allowed FDA and others to push for changes to the law.

Rather than go through the traditional process of introducing the bill in committee, where lawmakers hold hearings with interested parties, and then mark up the legislation before deciding on whether to bring it to the full Senate, the Senate Majority Leader Mitch McConnell (KY) took a piece of legislation previously passed by the Senate (a bill to reauthorize the National Sea Grant College Program Act), gutted it and substituted the text written by Stabenow and Roberts.

This allowed the bill, which has been opposed by our colleagues at Consumers Union, to avoid the committee process and instead go directly to the Senate floor, where it glided through in a matter of a few days.

The House is expected to take up the legislation as early as this afternoon.

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