Vermont GMO labeling bill heads to governor's desk. But can it withstand a First Amendment challenge?

By Elaine WATSON

- Last updated on GMT

Attorney: 'Do I expect a First Amendment challenge to this bill if it is signed into law? Absolutely.'
Attorney: 'Do I expect a First Amendment challenge to this bill if it is signed into law? Absolutely.'

Related tags Genetically modified organism Law Genetically modified food

A bill requiring foods produced with genetic engineering be labeled in Vermont has passed the house and the senate, and now just needs Governor Peter Shumlin’s signature to be signed into law. However, legal experts say a First Amendment challenge could be tough to defend.

The progress of H112 ​is being watched carefully by the trade, as unlike other state GMO labeling initiatives (eg. bills that have passed in Maine and Connecticut), it has no ‘trigger clause’ and will take effect on July 1, 2016 regardless of action from other states - should the governor sign it.

H112 ​does not require meat or milk from animals fed genetically engineered feed to be labeled, and excludes medical foods and foods sold in restaurants. However, it does includes some of the controversial clauses enshrined in failed Californian GMO labeling initiative Prop 37, including the stipulation that foods containing genetically engineered ingredients cannot be marketed as ‘natural’.

A ‘historic day for the people's right to know’

Anti-GMO groups welcomed the news that the bill has passed in the House of Representatives by such a large majority (114:30), with the Center for Food Safety (CFS) describing this as a “historic day for the people's right to know” ​and promising to help defend H112 should it face a legal challenge.

Jean Halloran, Director of Food Policy Initiatives at Consumers Union, the advocacy arm of Consumer Reports, praised Vermont lawmakers “for having the courage to stand up to corporate bullying", ​adding: “If Vermont is sued, we intend to use all the resources at our disposal to support Vermont in its groundbreaking effort.”

However, Biotechnology Industry Organization (BIO) food and agriculture communications director Karen Batra said it was “disappointing” ​to see lawmakers approve such a “costly and confusing food labeling program… despite unequivocal scientific evidence” ​supporting the safety of GMOs.

The Grocery Manufacturers Association, meanwhile, said the government "has no compelling interest in warning consumers about foods containing GM ingredients, making HB 112’s legality suspect at best".

First Amendment challenge likely, predict lawyers

Legal experts, meanwhile, predict a challenge to H112 on First Amendment grounds, should it become law.

Peter Shumlin
Vermont Governor Peter Shumlin is expected to sign GMO labeling bill H112, which passed the House of Representatives and the Senate by a large majority

Indeed, the best-known example of a successful First Amendment challenge to a state food labeling 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.

A First Amendment challenge to H112 would therefore be tough to defend, say attorneys, as the defense (ie. the state) would have to prove that failure to label GMOs would harm consumers.

H112 has some high profile industry supporters including Ben & Jerry’s co-founders Jerry Greenfield and Ben Cohen who argue that consumers have a right to know what they are eating. However, it has been criticized by other industry groups, which argue that labeling foods containing GE ingredients erroneously implies that there is something wrong with them.

A First Amendment challenge to H112 would be tough to defend

And proving there are known or probable risks to human health as opposed to possible risks, could be difficult, Arnold Friede, senior food and drug law attorney with Sandler, Travis & Rosenberg, P.A in Miami, ​told FoodNavigator-USA.

How does a disclosure law protect health and safety, particularly when FDA has concluded that there is no health or safety difference between a GMO product and non-GMO product? The law​ [H112] doesn’t explain why there is a safety issue, it just addresses a consumer preference issue based on a belief​ that GMOs in food are not safe.

“If the government could compel disclosure of all things that some consumers want​ to know… then each food package, due to space constraints, would have to be accompanied by an unreadable package insert of the kind that is required for prescription drugs.”

He added: "There are very credible arguments that under a heightened standard of constitutional review, the bill would be held to violate the First Amendment."

Defending GMO labeling easier if focus is on consumer deception rather than safety

The state might have a better chance of defending the legislation if it focuses on consumer deception rather than safety issues, said Friede: “It will be important to know if the state will argue that consumers are ‘deceived’ by the absence of a GMO disclosure.

“I can imagine a variety of arguments about deception. If a court were to conclude that preventing deception is a legitimate rationale for the law, then the state would have an easier time of defending the law.”

However, leading food law attorney Jonathan Emord reckons H112 could​ withstand a First Amendment challenge. To read his analysis explaining why, click HERE​.

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