Unlike other GMO labeling laws that have passed in Maine and Connecticut, Act 120 will take effect in July 2016 regardless of action from other states, explaining why food industry associations have chosen Vermont as the venue to mount a legal challenge - and why all stakeholders in the GMO debate are watching this case so closely.
The clock is ticking…
The Grocery Manufacturers Association and other trade associations filed a lawsuit last June claiming Act 120 is unconstitutional and preempted by federal law. However, their immediate priority is to secure a preliminary injunction to prevent Vermont from implementing Act 120 until the lawsuit is resolved.
Unless the clock stops, they argue, their members will have to incur significant costs now in order to comply with a law that may later be overturned.
“The clock has already started to run on the time Plaintiffs have to comply with the Act,” said the GMA et al in court papers filed last month. “As several of Plaintiffs’ members explained in sworn declarations, they must act now in order to meet the July 2016 deadline.”
Speaking to FoodNavigator-USA Tuesday, Ronald Fein from non-profit group Free Speech for People Inc (which is supporting the state of Vermont), said the judge (U.S. District Court Judge Christina Reiss) would likely issue a written order on whether to grant an injunction “in a few weeks”.
GMA: GMO labeling violates the First Amendment
The GMA et al have multiple issues with Act 120, but their main argument is that it violates the First Amendment because it compels manufacturers to “convey messages they do not want to convey… without anything close to sufficient justification”.
However, Vermont state attorney general William H Sorrell claims that Act 120 does not violate the First Amendment because the disclosures it mandates are “purely factual” and the law “does not require manufacturers to state a particular viewpoint, such as whether GE foods are good or bad”.
He also argues that while firms worry that mandatory GMO labels might be seen as 'warning labels', there is nothing stopping manufacturers from adding additional information to provide context for consumers.
Vermont state AG: No it doesn’t…
But the GMA says mandatory GMO 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 that GMO labeling would erroneously imply to consumers that there is something wrong with foods made from GM crops, adding: “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.”
According to the Burlington Free Press, Judge Christina Reiss had tough questions for both sides at the hearing, asking attorneys representing the state of Vermont why manufacturers would go to the trouble and expense of determining whether their products have genetically engineered ingredients when they could just "slap on a label" saying they "may" contain GMOs - which arguably only tells consumers something they already know (which is that most soy and corn grown in the US is genetically engineered).
However, she reportedly also told the attorney representing the GMA that whether or not Act 120 was the result of the Legislature caving in to an "ill-informed minority", was irrelevant.
What does Act 120 mandate?
Act 120 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.
Click HERE to read some of the key legal documents filed in the case (5:14-cv-00117).