First Amendment challenge to Vermont GMO labeling law does not stand up, claims state AG

Unlike other state GMO labeling laws (eg. bills that have passed in Maine and Connecticut), the Vermont law (Act 120​​) has no ‘trigger clause’ and will take effect on July 1, 2016 regardless of action from other states.

As a result, opponents of GMO labeling have picked Vermont as the venue for a legal battle that will be watched by stakeholders in a raft of other states currently considering similar legislation.

GMA: Mandatory GMO labeling would imply that there is something wrong with GE crops​

The Grocery Manufacturers Association has multiple issues with Act 120, but its main argument - outlined in a lawsuit​​ challenging the Act filed in June - is that it violates the First Amendment because it compels manufacturers to “convey messages they do not want to convey” ​and prevents them from “describing their products in terms of their choosing, without anything close to sufficient justification​”.

However, in a motion to dismiss the  lawsuit, AG William H Sorrell said that while many firms worry that mandatory GMO labels would be seen by consumers as 'warning labels', there is nothing stopping them from adding additional information to provide context for consumers.

He added: “If a manufacturer believes that the mere disclosure of genetic engineering will convey a message about GE foods with which it disagrees, it is free to add onto its label its own views about the significance of genetic engineering or state that the FDA does not consider GE foods to be materially different from other foods.” ​

The required disclosures are ‘purely factual’​

While the required disclosures are “purely factual​”, however, the motivation behind the law is not simply ”consumer curiosity​” (as opponents allege), stressed Sorrell.

“The passage of Act 120 was expressly prompted by health and safety concerns - not to mention the goals of environmental protection, prevention of consumer deception, and religious accommodation.” ​

And as such, the benefits of labeling “easily outweigh any alleged burdens on interstate commerce”, ​he argued, responding to the GMA’s claim that revising thousands of labels by July 2016 would be “difficult if not impossible​” and that to comply by that deadline “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.”​

Describing foods made from GMOs as ‘natural’ is inherently misleading​

Meanwhile, the stipulation in the Act that foods containing GE ingredients cannot be marketed as ‘natural’ does not amount to a restriction of free speech because “misleading commercial speech” ​is not protected by the First Amendment, claimed Sorrell.

“When used to describe foods produced from genetic engineering, the word ‘natural’… is inherently misleading… And the fact that consumers can choose to purchase organic products does nothing to further the legislature’s legitimate goal of eliminating the misleading use of the term ‘natural’ on GE food.”​

GMA: This law has no basis in health, safety, or science​

But the GMA says mandatory labeling is a huge waste of time and money, given that every major scientific agency and regulatory body including the FDA has concluded that GM foods 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.

In a statement accompanying its lawsuit issued in early June, it said: “Act 120 imposes burdensome new speech requirements – and restrictions – that will affect, by Vermont’s count, eight out of every ten foods at the grocery store. Yet Vermont has effectively conceded this law has no basis in health, safety, or science.”​

Asked whether the law could survive the GMA's challenge, Bethany Kennedy, an associate at law firm Emord & Associates, told FoodNavigator-USA: "Yes, I think the points in the Vermont AG’s motion to dismiss are compelling. ​

"In particular, the argument that the VT law requires only the disclosure of factual information and is therefore subject to rational basis review in the Second Circuit is very strong and is one of the main reasons why the law has a chance of surviving a challenge."​

Attorney: 'Under existing precedent, the GMA’s challenge should be successful'​

However, Rebecca Cross, a San Francisco-based attorney at law firm BraunHagey & Borden LLP, noted that 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.

She added: "There the Court explained that Vermont’s stated interests in adopting the law – strong consumer interest and the public’s right to know – were not substantial enough to justify 'the functional equivalent of a warning about a production method that has no discernible impact on a final product'.​

"The Court noted that Vermont had not advanced any known or probable safety risks from rBST, nor could it even make such a case as the FDA had concluded that there is no significant difference between milk derived from rBST-treated and non-rBST treated cows. ​The situation with Act 120 and GMOs is very similar. The bill was touted as a 'right to know' law."​

What does Act 120 mandate?​

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 more controversial clauses in failed Californian GMO labeling initiative Prop 37, including the stipulation that foods containing genetically engineered ingredients cannot be marketed as ‘natural’.

Under the law, firms must declare that foods are: ‘Produced with genetic engineering’​ or ‘partially produced with genetic engineering’ ​or ‘may be produced with genetic engineering’​ unless they can prove otherwise.

The case is: 5:14-cv-00117 Grocery Manufacturers Association et al v. Sorrell et al (the other plaintiffs are the Snack Food Association, the International Dairy Foods Association, and the National Association of Manufacturers).