Vermont Legislature SmartTranscripts:

[Rep. David Durfee (Chair)]: Compliance, we had the health department in earlier in the week and they suggested a language change that would direct consumers who had a concern not to the health department, but to the AG's office. So Justin, we're happy to have you here and appreciate any feedback that you can give us. And we're not hearing you. I should have noticed earlier that we weren't hearing you. Not muted from our side.

[Justin Culver, Chief, Environmental & Public Protection Division (Consumer Protection Unit), Vermont Attorney General’s Office]: How's this? Anything?

[Rep. David Durfee (Chair)]: That's good. Yeah,

[Justin Culver, Chief, Environmental & Public Protection Division (Consumer Protection Unit), Vermont Attorney General’s Office]: I've got several audio options to choose from. Okay, thank you for having me. Happy to be here. So I heard you mentioned the Department of Health was in and now maybe there's an open question of where to refer initial consumer concerns or complaints. So maybe we could put a pin in that and talk about that at the end. But I'm happy to just kind of walk through an overview of our office's thoughts of the bill and our perspective and go from there.

[Rep. David Durfee (Chair)]: That sounds good.

[Justin Culver, Chief, Environmental & Public Protection Division (Consumer Protection Unit), Vermont Attorney General’s Office]: Great. So yes, I'm Justin Culver. I'm chief of our Environmental and Public Protection Division, which includes our Consumer Protection Unit. I apologize if anything that I say is duplicative of things you already know. Our office, we deal with consumer protection enforcement in a wide variety of contexts. So this is very familiar to us to be brought into something like this. And I can say that looking at the bill, certainly from consumer policy and values, it's positive. We support it. I don't have specific language changes just yet, but we can talk about some of those provisions as I go through it. My understanding of what the bill does, it's requiring monthly testing of baby food manufacturers for the four main heavy metals of concern, lead, arsenic, cadmium, mercury. Post those results to the website, follow the FDA limits, link to the FDA rules and guidance. I'll note that it doesn't interfere with FDA mandated labeling. You're So not forcing companies to change their shelf packaging or anything. And that's a good thing, because I'll explain why in a moment. And then failure to comply would be a violation of the Consumer Protection Act. So that's subpart G, that's the section that the chair referenced. And yeah, we're familiar with that kind of provision that our office gets sort of tagged with the responsibility of enforcing violations of these kinds of bills. And that is something that we're happy to do. That's our classic role. So the next thing I can walk through is potential legal risks of which I see very little, but that's something our office is usually asked about is what would be any constitutional challenges to a bill like this. And I'm sure this committee already knows about the California law that was passed AB eight ninety nine, right? That's been in effect for two years now. And that's very similar to this Vermont bill. It requires monthly testing of the same four elements and it requires public disclosure. So I know this committee already knows that the status of that, as far as I have been able to tell them, no company has sued California over that bill. So their law has been in effect since 2024, It seems to be working. From my understanding, over 30 companies have been complying with California law. Beach nut, for example, they have a QR code on their packaging now, and they have a website. I noted that Consumer Reports did send a letter to California earlier last fall and noted that some companies appear to be complying better than others. They asked for enforcement. The California AGO and the California Department of Health both responded that to their mind, companies were complying. So I see that as positive that no one has been sued over that law and the companies seem to be compliant. So it seems like if Vermont were to follow suit, I don't see any different hurdles that Vermont would face. If we were to get sued, I can just briefly walk through those. The typical challenges to a law like this would be things like preemption, dormant commerce clause, and the first amendment. We call them the big three. They're common in cases like this. And I can just briefly walk through why we see very little risk for this kind of bill by using the example of the genetically modified foods litigation. I'm not sure how much the committee is aware of that case, but it's very similar to this law. It was a disclosure law. We have a great legal precedent on it. So in 2014, Vermont became the first state to require disclosure of genetically modified food ingredients. It also banned the use of the term natural if you were using genetically modified food ingredients. And the Grocery Manufacturers Association sued Vermont over that law. And that would be probably the litigation over a bill like this. The Grocery Manufacturers Association typically brings those cases. And the State of Vermont prevailed. Our law was upheld on the three different grounds. First on preemption, that was under the Food and Drug Cosmetics Act. So as I'm sure this committee knows, national companies that are selling food products, they have to follow the classic FDA label, right? The ingredients list and the nutrition facts and all of that. And states really can't do anything different than that. But the court held that you have to have a labeling requirement that is forcing the companies to do more or something different. And so in our genetically modified food case, giving more information or even different information, it didn't conflict with requirement. There was no federal labeling requirement for genetically modified food. So we weren't changing anything that the companies had to do for the federal government. So that would be similar here. There's no federal rule or law on disclosing the presence of heavy metals. The FDA has its closer to zero action program, which I'm sure the committee knows about, but it doesn't require any sort of packaging labeling that our bill would interfere with. And that's a good thing because again, as I noted, this bill doesn't require any changes to the packaging. It's just requiring public posting to a website. So we see very limited risk on preemption grounds. Similarly for the dormant commerce clause, companies might say, well, now that Vermont has this law, you're treating out of state companies differently. It's gonna be a burden on us to comply with just Vermont since it's not a national law. Again, we see low risk there because California has already done the same thing. California is obviously a much larger market. And when it comes to the dormant commerce clause, you really have to be singling out out of state companies to benefit your own. And this bill doesn't do that. This bill doesn't say anything about Vermont baby food manufacturers have a different requirement. This bill is what we call facially neutral, and that applies to any manufacturer equally. So we don't see any risk there that another out of state company could claim. It's a burden on them while giving a benefit to a Vermont company, because that's not what this bill does. And then lastly is the First Amendment. That's another typical legal challenge you might see in a law like this. Since you're requiring disclosure of information, you're basically forcing companies to provide speech and that could face a First Amendment challenge. Government cannot compel speech or restrict speech, except in certain circumstances. So here with this kind of bill, we're dealing with commercial speech, right? These are companies that are selling their products for a profit. So that puts it in the bucket of commercial speech, which is a much lower tier of protection as opposed to like political speech. So that right there gives us more comfort on a bill like this. And again, in the genetically modified food litigation, that same argument was raised that, well, you're forcing us to say, if we use genetically modified corn, well, you're forcing us to do speech. And the court said, Yes, that's true, but it's commercial speech. It's not entitled to any special protection and it's only a mandate to convey factual information. It's not opinion. It's not really up for debate, even when the companies try to suggest, Oh, there's still controversy around genetically modified foods. The court said the mere presence of a genetically modified food is a fact. It's a yes or no question. And so conveying fact information is not really compelling someone to give speech. And so I would, our office would view this bill as very similar. You're conveying factual information. In fact, it's information the companies already know, as this committee knows, the companies are already doing a lot of their own testing on these levels. They've doing been it for years, sort of behind closed doors, and they know this information. And it's just asking them to make public what they've already known for years. So it would be a similar requirement to just convey the factual information. So with all of that, we see very little legal risk. And again, we can take comfort that California's law has already been in effect and no one has sued over that. So the last part I'll just mention is just the policy and the values of this bill. We like it. We like the values enshrined in this bill. It's about disclosure and disclosure is, it's a bedrock of consumer protection. It's good for consumers to have more information and more choice. The companies already know this information, as I've said, and they're already doing it for California. And I'll just note here, just from our personal perspective, this is an important issue when it comes to toxic heavy metals contamination. This is something we take as a priority. Our office has been heavily involved in trying to reduce lead poisoning for children. For us, that has come up more in the housing context. That's the largest source of lead exposure to children in Vermont. It's still in housing. But our office has a very robust program that we work with the Department of Health to address lead paint in housing. And one of the things we've heard from companies in the baby food context is, well, our food levels are safe, right? There may be levels in lead levels in our mashed carrots or our mashed sweet potatoes, but those are no different from the general food supply. It's a safe amount or it's the same amount you'd find, and I've heard this from companies as well that say, you know, you're no better off making your own mashed carrots or mashed sweet potatoes than buying our product because a lot of food just comes from similar soil from around the world and will have these levels in it. My response to that argument, what I think this bill does nicely is that still doesn't allow consumers to have full information and choice. So going back to the lead paint and housing situation, if there's a parent living in rental housing and their child had elevated levels of lead, they may wanna make more choices around avoiding any and all exposures, even if it may be considered safe or minimal. And so we want consumers to be able to have that option and that's what this bill would do. And then the same is true for mercury, cadmium, arsenic. There are no SATE levels for those as well. There are levels in drinking water, it's not something that you want accumulated in your body. These are all toxic chemicals. And particularly for babies and children, they are much more susceptible to the neurotoxic effects of these chemicals. The last thing I'll note is the FDA, they're continuing to work on their Closer to Zero Action Program. My information of where they're My understanding of where they're at now is they're still in rulemaking. They passed action levels, which this committee has noted. The bill would require the companies to comply with those action levels. I think they're at 10 to 20 parts per billion for various of the food products. And that's a good thing that this bill is saying you have to comply with the FDA limits. I don't have much more Vermont specific data. I looked at our consumer complaint database. We haven't gotten any consumer complaints from parents around this kind of issue. That doesn't mean that Vermonters don't care about it. It's just something that hasn't risen to a formal complaint with our office. We do know generally from the Department of Health Vital Statistics that around five thousand babies are born in Vermont and around one in seven children in Vermont are living with food insecurity. And I think this bill is important in that area. It can be very challenging for parents to be discerning about baby choices. And it could definitely disproportionately impact lower income as well. In fact, we know from studies that poverty and poor nutrition and educational outcomes are all correlated together. So I think this bill is an important step to provide that kind of information to consumers, particularly for low income Vermonters who may have to rely more on the mass marketed baby food products. So that's kind of my overview. I can give my wrap up, which is to say, we think this bill is good policy. It's good values. It's good for consumers. It doesn't seem to cause harm. It's not a major burden to the manufacturers. And in fact, they're already doing it for California and we see very little constitutional risk. So again, have no particular word changes. I think subpart G makes a lot of sense. And then as to the question of where consumer complaints would go, I think that is a question I have is what is the Department of Health anticipating would be those concerns? If it's an enforcement complaint, that's something I think our office would be familiar with. But I guess I'd like to maybe hear from the committee if you have any suggestions or recommendations for us to deal with consumer complaints. I can say that the consumer assistance program handles consumer complaints. That's typically around personal scams, that kind of thing. But I guess I need to hear more about what the nature of the complaints are that we're anticipating for this.

[Rep. David Durfee (Chair)]: Yeah. So the language I think I've got here on page five, subsection f. If a consumer believes, reasonably reasonably believes that the baby food product is being sold in violation of this section, the consumer shall report the product to the Department of Health or the Attorney General's office. And I don't know that we have a strong feeling one way or the other, but want it to be reported in such a way that whoever takes the call, I guess, is going to be able to handle it expeditiously.

[Justin Culver, Chief, Environmental & Public Protection Division (Consumer Protection Unit), Vermont Attorney General’s Office]: Yeah. I mean, what comes to mind for me is the lead pay program, which is kind of a joint enforcement effort with our office and the Department of Health. And in that system, the first initial complaints do go to the Department of Health just because the Department of Health is more in the initial regulatory role. So they'll be able to just do the first pass to say yes or no, your landlord is in compliance. And if the landlord is in compliance, that would actually end the inquiry right there. It wouldn't need to be referred to the AGO. So something similar could happen here where a consumer complains, Earth Naturals is not in compliance and Department of Health would be maintaining that list presumably, and they would know right off the bat. They'd say, actually the company is in compliance. And so that could take care of that versus us being in the position of having to first do the compliance regulatory check. Our office is usually in the role of being referred to enforcement when the regulatory or overseeing agency already knows they're out of compliance.

[Rep. David Durfee (Chair)]: Okay, that's helpful distinction. Yeah. I also wanted to, I hope this doesn't come across as a curveball at all, but we're considering an amendment that would essentially remove the exclusion for formula. So, bill is consistent with, as you said, California legislation and then a couple of other states as well, which exempted formula. And our committee is feeling that we'd like to essentially remove the exemption, although delay the introduction of formula essentially for a year, an additional year beyond when we start here. We're looking at new dates as well, 01/01/2027 for the enactment and for the manufacturers to meet the requirements. I don't want you to have to answer any questions that you feel like you need more time to think about, but just wanted to say we're thinking about formula also.

[Justin Culver, Chief, Environmental & Public Protection Division (Consumer Protection Unit), Vermont Attorney General’s Office]: Yeah, I can share some early thoughts with the same caveat that I probably wanna check back with my office before we sort of commit to positions, but my personal understanding of this issue, and it is an issue that I have reviewed personally in my work as a consumer protection attorney is that infant formula has a lot of issues and challenges. If there are contaminants, there are additives to the infant formula and it's still not clearly disclosed. And I would say adding infant formula to this bill in my mind wouldn't raise more legal risk or challenge. I think, again, it's conveyed factual information. I see it as similar to solid food, that there are any additives of concern, consumers should know that information. So think it's kind of a good thing not to exclude it unless there's other reasons not to have it be regulated the same. But I know that infant formula carries a lot of same problems and risks, and we've heard complaints about that. And so if what we're trying to solve here is just clear factual information to benefit consumers, I think that would be treated the same.

[Rep. David Durfee (Chair)]: We won't be making any decisions on this bill this week and then we're off for a week, Justin. If in conversations you feel like there is something else that you'd want to let us know, you've got some time.

[Justin Culver, Chief, Environmental & Public Protection Division (Consumer Protection Unit), Vermont Attorney General’s Office]: Yeah, let me do some follow-up and if you don't hear from me, no news will be good news in the sense that I won't change my early remark.

[Rep. David Durfee (Chair)]: Good. Representative Nelson, we're running a little over time, but let's see if we've got a question or two.

[Rep. Richard Nelson (Ranking Member)]: Justin, on the formula part, we dated that out to 01/01/2028. And according to people we heard from, that's when Maryland will start theirs as well. They're ready. They've got a similar language and they're gonna remove the formula exemption and they'd start 2028.

[Justin Culver, Chief, Environmental & Public Protection Division (Consumer Protection Unit), Vermont Attorney General’s Office]: That's helpful to hear. Yeah, you're giving the companies plenty of runway here. And yeah, and again, so, for the formula, it would be the same. You're not asking to change individual packaging. This is just posting information on a website. So as long as you're not running afoul of, yeah, packaging on the shelf, I see it as the same.

[Rep. David Durfee (Chair)]: Well, I mean, to be clear, I think there is a QR code on the packaging. Yep. So for what it's worth,

[Justin Culver, Chief, Environmental & Public Protection Division (Consumer Protection Unit), Vermont Attorney General’s Office]: That's right. Yeah. And I think that is similar to California that your QR code is still appropriate and that still upheld in the genetically modified food label. Think there was still a label on a package. The idea is that we can't, and I'm sorry if I'm not being as precise, we can't require conflicting labeling that the federal government already requires. So there's not a federal law on heavy metal disclosures. And then Vermont is saying do something different. So it's still okay to force a change in packaging as long as it's not already covered. But this isn't requiring a disclosure or a change to like their ingredients list. That's what I mean. That probably would be more susceptible to preemption challenge if we were gonna alter the box that says ingredients, but that's not what you're doing here. Because it's not really an ingredient, it's something different.

[Rep. David Durfee (Chair)]: Representative Burtt.

[Rep. Gregory "Greg" Burtt]: Yes, I have that I think is important to make sure that we get this right is that we look particularly with formula, is there any concern being that we might be the first state, maybe Maryland would join in, we don't know for sure. If we're the only state and being so small that would require certain labeling on packaging for formula and process that they would have to go through with that. I want to obviously, you know, baby food a mother could, if for some reason there's no baby food on the shelf, she can go get some carrots and create some baby food. Not so easy with formula. Is there any concern that maybe there's a chance that shelves might be empty in Vermont because we're requiring this new labeling and the company's just decided, well, we can't do that yet or we really don't want it. Just want to make sure obviously that isn't a concern.

[Justin Culver, Chief, Environmental & Public Protection Division (Consumer Protection Unit), Vermont Attorney General’s Office]: Right, we don't want an unintended consequence where products can't reach the shelves because the companies are claiming they have to do these changes that they're not gonna be able to roll out their products. So I think giving them plenty of runway should address that concern. I assume you're talking to stakeholders and should probably hear from them about their manufacturing processes. But in these kinds of situations, really time is the resource for them. They can make these kinds of changes. I will say that when a state like Vermont is the first to do something that is affecting national commerce, it certainly could elevate the possible risk of a challenge, particularly under the dormant commerce clause. You'll hear from large manufacturers, Gerber, and say, wait a minute, we already have a national system of how we're doing our packaging and our labels, and now we've got to change it for a little old Vermont. That may make them more inclined to bring a challenge. But the analysis, in my view, would still be the same that this is applying facially neutral to all companies. I still would see very little risk if they were to raise that challenge. And I think that kind of challenge is best avoided by giving them plenty of time and having that conversation with the stakeholders directly so that they know this is coming, so that they can make that change. That was something that in the genetically modified food bill, we certainly heard that from Mars, from Pepsi, from Frito Lay, they were going have to start stamping the Doritos bag and the M and M's bag contains genetically modified peanuts. And they said, Well, we have to do that just for Vermont. And the court said, Yeah, that's totally fine. That's appropriate for states to do. And you don't have to do it nationally. You can create a different manufacturing process for Vermont, but from a legal framework, it's appropriate for this committee and for the legislature to make those kinds of policy choices for companies. And yeah, I would say if we're giving them enough time, hopefully that staves off any potential challenge, but it probably does increase maybe even slightly a little bit of the risk that I mentioned, but still carries pretty low overall if a court were to analyze it.

[Rep. David Durfee (Chair)]: All right, thank you very much. We, so if we don't hear from you, we'll take it as good news.

[Justin Culver, Chief, Environmental & Public Protection Division (Consumer Protection Unit), Vermont Attorney General’s Office]: Yes, then I have no changes to my remarks and thank you for having us. We're always happy to help. And again, I just wanna personally applaud this bill. I think it's really good for consumers and it's exciting to see this kind of work.

[Rep. David Durfee (Chair)]: Thank you. Thanks for the support. Thank you very much.

[Justin Culver, Chief, Environmental & Public Protection Division (Consumer Protection Unit), Vermont Attorney General’s Office]: Yes, thank you.

[Rep. David Durfee (Chair)]: All right, we're gonna break for lunch and we'll be back at one.