18 V.S.A. § 4091: Baby food products [Effective January 1, 2027]

(a) As used in this section:

(1) “Baby food product” means any food manufactured, packaged, and labeled in a jar, pouch, tub, or box sold specifically for babies and children younger than two years of age. “Baby food product” does not include infant formula.

(1) “Baby food product” means any infant formula or food manufactured, packaged, and labeled in a jar, pouch, tub, or box sold specifically for babies and children younger than two years of age.

(2) “Final baby food product” means the finished baby food product and not the constituent ingredients.

(3) “Infant formula” means a commercially available milk-based or soy-based powder, concentrated liquid, or ready-to-feed substitute for human breast milk that is intended for infant consumption.

(4) “Production aggregate” means a quantity of product that is intended to have a uniform composition, character, and quality and is produced according to a master manufacturing order.

(5) “Proficient laboratory” means a laboratory that:

(A) is accredited under the standards of the International Organization for Standardization or the International Electrotechnical Commission pursuant to standard ISO/IEC 17025:2017;

(B) uses an analytical method as sensitive as the analytical method described in the U.S. FDA’s Elemental Analysis Manual for Food and Related Products; and

(C) demonstrates proficiency in quantifying each toxic element to at least six micrograms of the toxic element to kilogram of food through an independent proficiency test by achieving a z-score that is less than or equal to plus or minus two.

(6) “QR code” means a two-dimensional matrix barcode consisting of blocks arranged in a grid that can be read by an imaging device.

(7) “Representative sample” means a sample that consists of a number of units that are drawn based on rational criteria, including random sampling, and intended to ensure that the sample accurately portrays the material being sampled.

(8) “Toxic heavy metal” means arsenic, cadmium, lead, and mercury.

(9) “URL” means a uniform resource locator.

(10) “U.S. FDA” means the U.S. Food and Drug Administration.

(b) A person shall not sell, distribute, or offer for sale any baby food product in the State that contains a toxic heavy metal that exceeds the regulatory limits established by the U.S. FDA. The provisions of this subsection shall not restrict the continued sale of inventory in stock before January 1, 2027.

(c) A manufacturer of a baby food sold or distributed in the State shall test a representative sample of each production aggregate of the manufacturer’s final baby food product for toxic heavy metals. Testing of a baby food product shall be conducted by a proficient laboratory at least once a month. A manufacturer of baby food may test the final baby food product before packaging individual units for sale or distribution. Upon request of the Office of the Attorney General, a manufacturer shall provide the results of the test conducted pursuant to this subsection.

(d)(1) Without requiring the provision of a universal product code or proof of purchase, for each baby food product sold, manufactured, delivered, held, or offered for sale in the State, a manufacturer of baby food shall make publicly available on its website for the duration of the product shelf life of a final baby food product, plus one month:

(A) the name and level of each toxic heavy metal in the final baby food product as determined by the testing conducted pursuant to subsection (c) of this section;

(B) sufficient information, including the product name, universal product code, or lot or batch number, to enable consumers to identify the final baby food product; and

(C) a link to the U.S. FDA’s website that provides the most recent U.S. FDA guidance and information about the health effects of toxic heavy metals on children.

(2) A baby food product that is sold online to a consumer in Vermont by either a retailer or directly by the manufacturer shall contain on the product’s web page a clearly labeled link to an information page containing the information required pursuant to subdivision (1) of this subsection.

(e) If a baby food product sold or distributed in the State is tested for a toxic heavy metal subject to an action level, regulatory limit, or tolerance established by the U.S. FDA under 21 C.F.R. § 109, the manufacturer shall display on the baby food product:

(1) a label stating in a clear, legible, and conspicuous manner that more information about toxic element testing on the product is available by scanning the QR code; and

(2) a QR code or other machine-readable code that directs the consumers to the manufacturer’s website or the baby food product information page providing:

(A) the test results for the toxic heavy metal; and

(B) a URL to the web page on the U.S. FDA’s website that includes the most recent guidance and information about the health effects of toxic heavy metals on children.

(f) If a consumer reasonably believes, based on the information provided on the baby food product, that the baby food product is being sold in the State in violation of this section, the consumer may report the baby food product to the Office of the Attorney General.

(g) A violation of this section shall be deemed a violation of the Consumer Protection Act, 9 V.S.A. chapter 63. The Attorney General has the same authority, and private parties have the same rights and remedies, as provided under 9 V.S.A. chapter 63, subchapter 1.

(h) Nothing in this section shall be construed to conflict with federal law or regulation.

(g) The Attorney General, in consultation with the Commissioner of Health, shall suspend the application of this section to infant formula if the Attorney General verifies that there is insufficient infant formula in the State to meet the need or evidence of a declining supply. If the Attorney General suspends application, the Attorney General shall post notice on the Office of the Attorney General’s website containing specific dates that the suspension is in effect.

(h) A violation of this section shall be deemed a violation of the Consumer Protection Act, 9 V.S.A. chapter 63. The Attorney General has the same authority, and private parties have the same rights and remedies, as provided under 9 V.S.A. chapter 63, subchapter 1.

(i) Nothing in this section shall be construed to conflict with federal law or regulation.