1 
 SUBJECT: CONSUMER PR OTECTION – LABELING FOODS PRODU CED WITH 
GENETIC ENGINEERING  
ATTORNEY GENERAL – PUBLIC PROTECTION DI VISION  
ADOPTED PURSUANT TO 2013, NO. 120 ( Adj. Sess .) § 3  
 
CONSUMER PROTECTION  RULE 121 
Effective Date: 7/1/ 16 
 
 
CP 121.01 Definitions  
CP 121.02 Labeling  
CP 121.03 Exemptions  
CP 121.04 Enforcement and Penalties  
CP 121.05 Purpose and Scope  
CP 121.06 Effective Date  
 
CP 121.01 Definitions   
Words used in this rule shall have the definitions given below.  
(1) “Clear and conspicuous ” means presented i n such a manner, given its font, size, color, 
contrast and proximity to other disclosures on the shelf, bin , container  or package as to be 
readily noticed and understood by consumer s.  A disclosure is not clear and conspicuous  
if, among other things, it is  obscured by the background against which it appear s. 
(2) “Commingle ” means permitting physical contact between unpackaged  food produced  
without genetic engineering  and unpackaged  food produced  with genetic engineering  
during production, processing, transporta tion, storage or handling, other than during the 
manufacture of a multi -ingredient product containing both types of food.  Unpackaged  
food in a closed container  identifying it as produced  without genetic engineering  is not 
commingled while the container  is intact.  
(3) “Consumer ,” as defined in 9 V.S.A.  §§ 2451a and 3042, means any person who 
purchases, leases, contracts for, or otherwise agrees to pay consideration for goods or 
services not for resale in the ordinary course of his or her trade or business but f or his or 
her use or benefit or the use or benefit of a member of his or her household, or in 
connection with the operation of his or her household or a farm whether or not the farm is 
conducted as a trade or business, or a person who purchases, leases, co ntracts for, or 
otherwise agrees to pay consideration for goods or services not for resale in the ordinary 
course of his or her trade or business but for the use or benefit of his or her business or in 
connection with the operation of his or her business.   
(4) “Enzyme ,” as defined in 9 V.S.A. §  3042, means a protein that catalyzes chemical 
reactions of other substances without itself being destroyed or altered upon completion of 
the reactions.  
(5) “Food” means  (1) articles used for food or drink for human s, (2) ch ewing gum,  and (3) 
articles used for components of any such article .  Food does not include dietary 
supplements, as defined in 21 U.S.C. §  321(ff) , or drugs , as defined in 21 U.S.C. 
§ 321(g) . 2 
 (6) “Genetic engineering ,” as defined in 9 V.S.A. §  3042, is a proce ss by which a food is 
produced from an organism or organisms in which the genetic material has been changed 
through the application of:  
(a) in vitro nucleic acid techniques, including recombinant deoxyribonucleic acid (DNA) 
techniques and the direct injection  of nucleic acid into cells or organelles; or  
(b) fusion of cells (including protoplast fusion) or hybridization techniques that overcome 
natural physiological, reproductive, or recombination barriers, where the donor cells 
or protoplasts do not fall within t he same taxonomic group, in a way that does not 
occur by natural multiplication or natural recombination.  
The term “genetic engineering” does not encompass a change of genetic material through 
the application of traditional breeding techniques, conjugatio n, fermentation, traditional 
hybridization, in vitro fertilization, or tissue culture.  
(7) “Genetically engineered material” means any component of a food not exempt under 
section 121.0 3, in which any aspect or portion of the component has been produced with 
genetic engineering.  
(8) “In vitro nucleic acid techniques ,” as defined in 9 V.S.A. §  3042, means techniques, 
including recombinant DNA or ribonucleic acid techniques, that use vector systems and 
techniques involving the direct introduction into the organisms o f hereditary materials 
prepared outside the organisms such as micro -injection, chemoporation, electroporation, 
micro -encapsulation, and liposome fusion.  
(9) “Know”  means (1) to have actual knowledge of the information; or (2) to act in deliberate 
ignorance or reckless disregard of the truth or falsity of the information.  
(10) “Knowingly” means (1) having actual knowledge of the information; or (2) acting in 
deliberate ignorance or reckless disregard of the truth or falsity of the information.  
(11) “Label ” (noun) means a display of written, printed, or graphic material on a packaged 
processed food or packaged  raw agricultural commodity  or any such material affixed to 
any shelf or bin in which an unpackaged  raw agricultural commodity  or unpackaged 
processed food  is displaye d for retail sale .  
(12) “Label ” (verb)  means to affix a label or to print packaging that includes a label . 
(13) “Manufacturer ,” as defined in 9 V.S.A. §  3042, means a person who:  
(a) produces a processed food or raw agricultural commodity under its own brand or 
label for sale in or into the State;  
(b) sells in or into the State under its own brand or label a processed food or raw 
agricultural commodity produced by another supplier;  
(c) owns a brand that it licenses or licensed to another person for use on a processed food 
or raw commodity sold in or into the State;  
(d) sells in, sells into, or distributes in the State a processed food or raw agricultural 
commodity that it packaged under a brand or label owned by another person;  3 
 (e) imports into the United States for sale in or into  the State a processed food or raw 
agricultural commodity produced by a person without a presence in the United States; 
or  
(f) produces a processed food or raw agricultural commodity for sale in or into the State 
without affixing a brand name.  
(14) “Natural  or any words of similar i mport” means the word s nature , natural, or naturally.  
(15) “Organism ,” as defined in 9 V.S.A. §  3042, means any biological entity capable of 
replication, reproduction, or transferring of genetic material.   
(16)  “Packaged ” means offered for retail sale , fully or partially contained  or wrapped  in 
material , and upon which material a manufacturer  is identified.  For the purposes of this 
rule, “partially contained or wrapped ” means more than  one-third  of the food is covered 
by pack aging material . 
(17) “Processed food ,” as defined in 9 V.S.A. §  3042, means any food other than a raw 
agricultural commodity and includes any food produced from a raw agricultural 
commodity that has been subjected to processing such as canning, smoking, pressing, 
cooking, freezin g, dehydration, fermentation, or milling.  
(18) “Processing aid ,” as defined in 9 V.S.A. §  3042, means:   
(a) a substance that is added to a food during the processing of the food but that is 
removed in some manner from the food before the food is packaged in its fi nished 
form;  
(b) a substance that is added to a food during processing, is converted into constituents 
normally present in the food, and does not significantly increase the amount of the 
constituents naturally found in the food; or  
(c) a substance that is added to a food for its technical or functional effect in the 
processing but is present in the finished food at levels that do not have any technical 
or functional effect in that finished food.  
(19) “Produce ” (verb)  means to develop, grow or process food. 
(20) “Raw agric ultural commodity ,” as defined in 9 V.S.A. §  3042, means any food in its 
raw or natural state, including any fruit or vegetable that is washed, colored, or otherwise 
treated in its unpeeled natural form prior to marketing . 
(21) “Retail sale ” means offering  food for sale from a retail premises to a consumer  for any 
purpose other than for resale.  This term does not include isolated or occasional sales of 
food by a person who is not regularly engaged in the business of such sales.  
(22)  “Retail Premises” means the physi cal location in Vermont where  a retailer offers food 
for retail sale to consumers.  
(23) “Retailer” means a person located in Vermont offering any raw agricultural commodity 
or processed food for retail sale.  
(24)  “Segregate ” means to require physical separat ion of food produced  without genetic 
engineering  from food that is produced  with genetic engineering  during production, 
processing, transportation, storage or handling, other than during the manufacture of a 4 
 multi -ingredient product containing both types of food .  Un packaged  food in a closed 
container  identifying it as produced  without genetic engineering  is considered segregated  
while the container  is intact.  
(25) “Unpackaged” means offered for retail sale, but otherwise not “pa ckaged” as defined in 
this rule, provid ed that , for the purposes of subsection 121.0 2(a)(ii)  of this rule,  processed 
foods are considered unpackaged if a retailer removes the packaging that contains any 
information required by the United States Food and Drug Administration , as referenced 
in 21 C.F.R. §  101.2(b), or any disclosure required by section 121.0 2 of this rule, prior to 
offering the food for retail sale, even if the food would otherwise meet the definition of 
“packaged ” under this rule when offered for sale.  
 
CP 121.02 Label ing 
(a) Unpackag ed Food  Label ing by Retailer s 
Any un packaged  food produced  with genetic engineering  and offered for retail sale in 
Vermont, unless a label is not required by section 121.0 3 of this rule, shall be labeled by 
the retailer as follows:  
(i) For any un packaged  raw agricultural commodity, retailer s shall post a label on or 
immediately adjacent to each sign that identifies the product or the product price with 
a clear and conspicuous  disclosure reading “ Produced  with Genetic Engineering .”  If 
there is no sign identifyi ng the product or product price, the retailer  shall post such 
label containing a clear and conspicuous disclosure reading “Produced with Genetic 
Engineering”  on the bin, shelf or container  in which the food is displayed.  
(ii) For any un packaged  processed food, retailer s shall post a label containing a clear and 
conspicuous disclosure reading “Produced with Genetic Engineering,” “Partially 
Produced with Genetic Engineering,” or “May be Produced with Genetic 
Engineering,” as appropriate  under subsection 121.0 2(b)(ii), on the bin, shelf , or 
container in which the food is displayed.  
(b) Packaged  Food  Label ing by Manufacturers  
Any packaged  food produced  with genetic engineering  and offered for retail sale in 
Vermont, unless a label  is not required by section 121.0 3 of thi s rule, shall be labeled  by 
the manufacturer  as follows:  
(i) Disclosures on packaged , raw agricultural commodities shall be clear and 
conspicuous  and shall read “ Produced  with Genetic Engineering .” 
(ii) Disclosures on packaged , processed foods shall read “Produced with Genetic 
Engineering,” “Partially Produced  with Genetic Engineering ,” or “May be Produced  
with Genetic Engineering ,” as appropriate.   
(A) The disclosure “Produced with Genetic Engineering” shall be used when food 
was produced with genetic engineering , provided that:  
(B) “Partially” may be used to modify “Produced with Genetic Engineering” only 
when a processed food contains less than 75%  genetic ally engineer ed material  by 
weight ; and  5 
 (C)  “May be ” may be used to modify “Produced with Genetic Engineering” only 
when  the food’s manufacturer does not know , after reasonable inquiry,  whether 
the food is, or contains a component  that is, produced with genetic engineering.  
(iii)Disclosures on packaged, processed foods required by section 121.0 2(b) shall be 
located on the packag e so as to be easily found by consumer s when viewing the 
outside of the package.  Such disclosures shall be in any color that contrasts with the 
background of the package so as to be easily read by consumers , and shall be either : 
(1) in a font size no smal ler than the size of the word s “Serving Size ” on the Nutrition 
Facts  label  required by the United States Food  and Drug Administration  in 21 C.F.R. 
§ 101.9 (d), or (2) in a font size no smaller than the Ingredient List  required by 21 
C.F.R. § 101.4(a) and pr inted in bold type -face.  A disclosure that satisfies the font 
and color requirements of this rule and is located on the same panel as the Nutrition 
Facts Label or Ingredient L ist shall be presumed to satisfy the “easily found ” 
requirement.  
(c) Label ing Practi ces 
(i) The manufacturer  of a food that is  produced  entirely or partially with genetic 
engineering  and offered for retail sale  in Vermont shall not make any statement  about 
the food t hat contain s the word natural  or any words of similar import : (1) in 
advertis ing at or in the retail premises , (2) on signs identifying the product at the point 
of display  in the retail premises , or (3) on the label  of the food.   This prohibition does 
not apply to  a food’s  trade , brand , or product  name , or any information required by 
the United States Food and Drug Administration , as referenced in  21 C.F.R. 
§ 101.2(b).   
(ii) Subject to other applicable legal requirements, including subsection 121.0 2(c)(i)  of 
this rule, a person may, in connection with offering food produced  with genetic  
engineering  for retail sale  in Vermont, make other disclosures about the food on its 
packaging, including that the United States Food  and Drug Administration does not 
consider food produced  with genetic engineering  to be materially different from other 
foods. 
(d) Nothing in this  section shall be construed to require the listing or identification of any 
ingredient or ingredients that were genetically engineered; or require the placement of the 
term “genetically engineered” or a similar phrase immediately preced ing or following 
any common name or primary product descriptor of a food ; or require the placement of 
any disclosure required under section 121.0 2 of this rule as “intervening material” under 
21 C.F.R. § 101.2(e); or otherwise require adding to or amending  the information 
required by the United States Food and Drug Administration , as referenced in  21 C.F.R. 
§ 101.2(b). 
 
CP 121.03 Exemptions and Exceptions  
Section 121.0 2 of this rule does not apply to  the following:  
(a) Animal Products  and Foods Bearing USDA App roved Labels  6 
 (i) Food s consisting entirely of or derived entirely from an animal that is itself not 
produced  with genetic engineering , regardless of whether the animal has been fed or 
injected with any food, drug, or other substance produced  with genetic engin eering . 
(ii) Packaged , processed food containing meat or poultry, the label of which requires 
approval by the United States Department of Agriculture, under 21 U.S.C. §§  451-
472, 601-695, or the state equivalent, under 6 V.S.A. § § 330 2-3318 .   
(b) Foods Certified a s Not Produced with Genetic Engineering  
(i) Food  for which  the person otherwise responsible for complying with section 121.0 2 
of this rule obtains a sworn statement  from who mever sold the food to that person.  
The sworn statement must affirm  that the food (1) was made or grown from food or 
seed that has not been knowingly or intentionally produced  with genetic engineering  
and (2) has been segregated  from and has not been knowingly or intentionally 
commingled with food or seed that may have been produced  with genetic 
engineering . 
(ii) When providing a sworn statement under this rule, a  person may rely solely on a 
sworn statement that contains the above affirmation by  whoever sold the food to that 
person .  
(c) Processing Aids  
Processed foods that would be required to be labeled  under section 121.0 2 of this rule 
solely because the food includes  one or more processing aid s or enzyme s produced  with 
genetic engineering . 
(d) Alcoholic Beverages  
Beverages regulated under the provisions of Title 7 of the Vermont Statutes . 
(e) Foods with Minimal Genetically Engineered Content  
Processed foods that would otherwise be require d to be labeled  under section 121.0 2 of 
this rule, if the  aggregate weight of the  genetically engineered materials in the food is no 
more than 0.9 percent of the total wei ght of the food.   
(f) Foods Verifi ed by a Qualifying Organization  
(i) Food  that has been certified as “organic ” under 7 C.F.R. § 205.30 1 by an organization 
accredited to make such certifications under the USDA National Organic Program . 
(ii) Food  that has been verified  as not having been produced  with genetic engineering  by 
an organization that the Attorney General has authorized to make such verification . 
(g) Food  for Immediate Consumption  
(i) An unpackaged  processed food that is prepared and intended for immediate 
consumption .   
(ii) An un packaged  food that is served, sold, or otherwise provided in a restaurant or 
other establishment primarily  engaged in the sale of food prepared and intended for 
immediate consumption . 7 
 (iii)For the purposes of this rule, “prepared and intended for immed iate consumption” 
includes: (1)  food that is or may be purchased as a “taxable meal” as provided in 32  
V.S.A. §  9202(10)(A), (B), (C); and ( 2) food as described in 32 V.S.A. 
§ 9202(10)(D)(ii) except that food purchased under the Supplemental Nutrition 
Assistance Program as recognized in 32 V.S.A. §  9202(10)(D)(ii)(X) shall be subject 
to labeling  unless otherwise exempt under this section . 
(iv) For the purposes of this rule, a n establishment is “primarily engaged in the sale of 
food prepared and intended for imme diate consumption ” if more than 50% of the 
establishment’s total sales of food in the previous taxable year  is, or if the first taxable 
year is reasonably projected to be, food taxable under 32 V.S.A. §  9202(1 0)(B) and 
food taxable under 32 V.S.A. §  9202(1 0)(C) and food not exempt from taxation under 
32 V.S.A. §  9202(1 0)(D).  
(h) Medical Food  
Medical food, as that term is defined in 21 U.S.C. § 360ee(b)(3 ). 
 
CP 121.04 Enforcement  and Penalties  
(a) Sworn Statements  
A sworn statement used to comply with  subsection 121.03(b) must be signed by the 
person otherwise responsible for complying with the requirement s of section  121.0 2, and 
must  contain the affirmations set forth in subsection 121.0 3(b)(i) .  A standard -form sworn 
statement  containing the se affirmations is provi ded in Appendix A.   Electronic or 
facsimile copi es of original sworn statements  are acceptable under this rule. 
(b) Manufacturer  and Retailer  Records Retention  
Manufacturer s shall retain records sufficient to demonstrate their compliance with this 
rule for three (3) years  from the date  the manufacturer sells the food. Retailers shall retain 
records sufficient to demonstrate their compliance with this rule for one (1) year from the 
date the retailer sells the food.   Manufacturers and retailers  shall make such re cords  
available to the Attorney General upon a request pursuant to 9 V.S.A. §  2460 .  Electronic 
copies of such records are sufficient to comply with this subsection.  
For the purposes of subsection  121.04 (b) only , the term  “retailer” means  any person who 
is primarily engaged in retail sales , regardless of whether they produce a processed food 
or raw agricultural commodity for retail sale.  
(c) Notice of Retailer  Violation  and Safe Harbor  
(i) If the Attorney General has reason to believe that a retailer  has failed to label a food 
as required by this rule, prior to issuing a civil investigative demand, filing a 
complaint, or otherwise commencing an enforcement action for such failure, the 
Attorney General shall issue a corrective action notice.   
(ii) If, after 30 days from issuance of the notice, the Attorney General continues to have 
reason to believe that a retailer  has failed to  label in accordance with subsection 
121.0 2(a), the Attorney General may commence an enforcement action.   8 
 (iii)If, during the 30 -day period, the retailer obtains and presents a sworn statement in 
accordance with subsection  121.0 3(b) of this rule certifying that  the food that is the 
subject of the notice of violation is exempt from section 121.0 2 of this rule, the 
Attorney General shall not issue a civil  investigative demand, file a complaint, or 
otherwise commence an enforcement action against the retailer  for failure to label  the 
food. 
(iv) Provisions of subsection  (c) are not applicable when a retailer  produces  a processed 
food or raw agricultural commodity . 
(d) Presumption of Manufacturer Compliance  
(i) Any packaged, processed food  subject to the provisions of this rule  and offered for 
retail sale in Vermont before January 1, 2017, that does not comply with this rule , is 
presumed to have been packaged and distribu ted prior to Ju ly 1, 2016,  and the 
manufacturer shall not be liable for failure to comply  with this rule unless there is 
evidence that the food was distributed on or after July 1, 2016.  
(ii) Upon written request of the Attorney General, any manufacturer of any packaged, 
processed food offered for retail sale before January 1, 2017, shall provide the 
Attorney General with documentation regarding the labeling and distribution  of such 
food within 10 business days of the date of the request . 
(e) Penalties  
(i) Except as prov ided in subsection 121.04(e)(ii),  any person who violates the 
requirements of this rule , including providing a false statement under subsection 
121.0 3(b) of this rule,  shall be liable for a civil penalty of not more than $1 ,000 per 
day, per product.  Calcu lation of this civil penalty shall not be made or multiplied by 
the number of individual packages of the same product displa yed or offered for retail 
sale, or by the number of identically labeled products with the same stock keeping 
unit.  Civil penalties assessed under this section shall accrue and be assessed per each 
uniquely named, designated, or marketed product.  
(ii) Any person who violates the requirements of subsection 121.04(b) shall be liable for 
a civil penalty of not more than $1,000 total for the fi rst violation.  Any subsequently  
violat ion of subsection 121.04(b) shall be subject to the penalties described in 
subsection 121.04(e)(i).  
 
CP 121.05 Purpose and Scope  
The purpose of this rule is to implement Act 120, and compliance with the requirements of this 
rule shall satisfy the requirements of Act 120. Nothing in this rule shall limit the rights or 
remedies available to the State of Vermont or to consumers under any other provision of 
Vermont law, including 9 V.S.A. §  2453.  
 
CP 121.06 Effective Date  
This rule shall become effective on July 1, 2016.  9 
 APPENDIX A  
 
Sworn Statement  Form  
Certifying Food NOT Produced with Genetic Engineering  
 
NAME OF MANUFACTURER  OR PRODUCER :   
ADDRESS:   
CITY: __________________________________ STATE:    
ZIP CODE : ______ _____ ___ 
AGENT  SIGNING ON BEHALF OF MANUFACTURER:   
AGENT  CONTACT PHONE NUMBER:   
AGENT EMAIL:   
NAME OF PRODUCT(S):    
UPC CODE , LOT NUMBER OR OTHER IDENTIFICATION NUMBER:  
   
I, ___________________________________ , as the authorized agent  of the Manufacturer / 
Producer  listed above, hereby depose and state as follows:  
The above named product(s) were made or grown from  food or seed that has not be en 
knowingly or intentionally produced with genetic engineering and has been segregated from 
and has not been knowingl y or intentionally commingled with food that may have been 
produced with genetic engineering.  
I declare  or affirm , under penalty of perjury, that the above statement is true and correct to the 
best of my knowledge.  
   
Agent  Signature : _____________________ ___________ ____  Date: _________________  
Agent Printed Name: _________________________________