Defending Act 120 - due to come into force in July 2016 - against a lawsuit recently filed by the Grocery Manufacturers Association (GMA) et al will be costly, according to a ‘motion to intervene’ in the case filed by CFS and VPIRG on Monday.
Vermont has serious financial concerns regarding the cost of this litigation
The motion cites the applicants' expertise in GE labeling and Vermont's apparent lack of resources to mount an adequate defense.
“First, Vermont has serious financial concerns regarding the cost of this litigation, an important factor that courts recognize in assessing whether the state's representation may be inadequate,” they note in a memorandum accompanying the application.
It is “wholly uncertain how much money will be voluntarily donated to the State to help with its defense”, notes the application, which claims that defending the law could cost between $1m and $5m, but that as of June 9, just $15,000 had been donated to the defense fund.
Second, notes the application, the “significant financial disparity [between the state and the GMA et al] and uncertainty [created by protracted and costly legislation] may make settlement more appealing for the State.”
Paul Burns, executive director of VPIRG, added: "VPIRG will do whatever we can to defend the GMO labeling law from corporate bullies who would rather keep consumers in the dark about what’s in their food.”
It just gives us the opportunity to play a larger role
Laura Murphy, associate director of the Environmental & Natural Resources Law Clinic at Vermont Law School, told FoodNavigator-USA that CFS/VPIRG are not seeking to duplicate efforts, but simply offering to pool resources and expertise.
Asked why a formal application to intervene was required given that such assistance could presumably be offered in an informal fashion, she said: “If the application is approved, for example, we could present witnesses.
“It just gives us the opportunity to play a larger role. We have considerable expertise in the GE labeling area and we have done a lot of research on the legal issues surrounding it.”
I can’t see any good reason why the Court should deny intervention
Arnie Friede, senior food and drug law attorney with Sandler, Travis & Rosenberg, P.A in Miami, told FoodNavigator-USA that intervention by interested parties on either side of a case against the government is not unusual, although he was surprised that the state apparently lacked resources given that it had allocated up to $1.5m to defend the law.
He added: “I can’t see any good reason why the Court should deny intervention. But even if it denies intervention as a formal, procedural matter, it will undoubtedly allow the public interests to participate in the defense of the case as non-parties. Intervention versus participation as a non-party, at least in the context of a case like this, is a distinction that is largely without a difference.”
However, Rebecca Cross, an attorney at San Francisco-based law firm BraunHagey & Borden LLP, noted: "While this kind of intervention is not unusual, the Court may likely strike it down for lack of standing. The Supreme Court had held in somewhat similar circumstances that interest groups lack standing to enforce state law. See Hollingsworth v. Perry, finding that proponents of Proposition 8 lacked standing to defend the measure.
"Here, Vermont's Attorney General has already indicated its readiness to defend the law and created a fund to do so."
The court will have to agree that financial issues are significant enough to justify intervention for their motion to be granted
Bethany Kennedy, an associate at law firm Emord & Associates, added that it was certainly possible that the application might be denied, noting that: "Unlike California officials [in the Prop 8 case], the Vermont officials want to defend the law.
"The court will have to agree with CFS and VPIRG that the financial issues are significant enough to justify intervention for their motion to be granted. Additionally, the court will have to determine that intervention will not unduly delay or prejudice the original parties’ rights."
GMA: Law forces food manufacturers to convey messages they do not want to convey
According to a lawsuit filed on June 12, the Grocery Manufacturers Association (GMA) and other trade associations argue that Act 120 is pre-empted by federal labeling laws.
They also believe that it violates the first amendment because it is compelling manufacturers to “convey messages they do not want to convey, and prohibiting manufacturers from describing their products in terms of their choosing, without anything close to sufficient justification”.
As the FDA has consistently rejected calls to mandate special labeling for GMOs on the grounds that there is no safety or nutritional basis to do so, says the GMA, Act 120 is also “impeding the federal government’s interest in uniform nationwide standards for food labeling prescribed by duly authorized expert federal agencies.”
Meanwhile, revising thousands of product labels by July 2016 would be “difficult if not impossible”, adds the complaint. “To comply... some companies may have no choice but to revise the labels for all their products, no matter where they might be sold in the US.”
Defending the First Amendment challenge will be tough
Coincidentally, the best-known example of a successful First Amendment challenge to a state food labeling law was in Vermont, when the 2nd circuit court concluded that a 1994 statute mandating labeling of milk treated with artificial growth hormones (rBST) was unconstitutional, as it compelled food companies to choose speech instead of silence.
Currently, federal law does not require the labeling of genetically engineered foods as the FDA has consistently argued that they do not differ from other foods "in any meaningful or material way" or present any different or greater safety concerns than foods developed by traditional plant breeding methods.
Defending the First Amendment challenge could therefore be tough, say attorneys, as defendants will have to prove that failure to label GMOs would harm consumers.
Act 120 - signed into law on May 8 - does not require meat or milk from animals fed genetically engineered feed to be labeled, and excludes alcohol, processing aids/enzymes, medical foods and foods sold in restaurants.
However, it does includes some of the controversial clauses in failed Californian GMO labeling initiative Prop 37, including the stipulation that foods containing genetically engineered ingredients cannot be marketed as ‘natural’.
The case is: 5:14-cv-00117-cr Grocery Manufacturers Association et al v. Sorrell et al
Click HERE to read more about the Center for Food Safety, a Washington DC-based activist group that is strongly opposed to genetically engineered crops.
Click HERE to read more about VPIRG, which claims to be the largest nonprofit consumer and environmental advocacy organization in Vermont.