Whether or not you agree with mandatory labeling for foods containing genetically modified or genetically engineered ingredients, the Vermont law requiring this information on food sold in that state will go into effect on the first of July. Some companies — including Mars, Campbell Soup, and General Mills — have announced decisions to implement these labels nationwide, while PepsiCo appears to be quietly putting labels on its products.

Our colleagues at Consumers Union recently spotted this can of Pepsi at a store in New Hampshire. It carries a notice that the beverage was “Partially Produced With Genetic Engineering.”

And it’s not just Pepsi beverages. The company’s snack foods are also getting the new labels, which, as you can see from the soda can example, are not the invasive in-your-face bursts or banners that opponents of the labels have made them out to be.

Not far from Consumer Reports HQ in New York, CU also found some Lay’s potato chips — produced by the folks at PepsiCo subsidiary Frito-Lay — with similar language placed in an unobtrusive (arguably hard to find) spot on the back of the bag:

We’ve reached out to PepsiCo for comment and clarification on the extent to which it intends to introduce these labels, but have not yet heard back.

However, a Frito-Lay customer service rep did tell Consumers Union that the company does plan to label products on a nationwide basis, and that the “Partial” terminology can be used on any product that uses less than 75% of ingredients from GMO sources.

Why So Quiet?

PepsiCo’s reluctance to publicly announce the labeling may have something to do with the company’s tangential involvement in a pending lawsuit challenging the legality of the Vermont law.

Shortly after Vermont passed the labeling rules, a coalition of four trade groups — the Grocery Manufacturers’ Association, the Snack Food Association (of which Frito-Lay is a member), the International Dairy Foods Association, and the National Association of Manufacturers — filed a lawsuit claiming the labeling requirement is unconstitutional, and seeking an injunction barring Vermont from enforcing it.

As part of that lawsuit, Vermont attempted to subpoena records from three food producers (Frito-Lay, ConAgra, and Kellogg) and five agribusiness companies (Monsanto, Dow, DuPont, Bayer, and Syngenta).

The state is trying to get Frito-Lay to turn over the results of the company’s surveys on consumers’ attitudes toward the use of GMOs and “natural” food labels. Frito-Lay refused to comply with the subpoena, so in April the Vermont AG’s office filed a motion to compel [PDF] the company to turn over the documents. That issue is now being hammered out before the federal court in Vermont.

Meanwhile, the status of the larger lawsuit looms over the July 1 start date for the Vermont labeling rules. In April 2015, the district court denied the trade groups’ request for an injunction. As was expected, the groups appealed that decision. The Second Circuit Court of Appeals heard arguments on the matter in Oct. 2015 but has yet to issue a ruling.

The legal debate over the injunction has not yet stopped the rest of the case from moving forward toward trial. However, both sides recently asked the circuit court to delay the trial pending the outcome of the Second Circuit’s decision. That’s because the appeals court has been asked to chime in on the plaintiffs’ assertion that they are likely to win at trial. Whatever the appeals court rules will then color how the lawsuit is viewed in the trial court.

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