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 chose Vermont as the venue to mount a legal challenge - and why stakeholders in the GMO debate are monitoring events here so closely.
The GMA and other trade associations filed a lawsuit last June claiming Act 120 was unconstitutional and preempted by federal law. It also sought a preliminary injunction to prevent Vermont from implementing Act 120 until the lawsuit is resolved.
Judge: The court grants in part and denies in part the state’s motion to dismiss Act 120
However, in an 84-page order filed on April 27, judge Christina Reiss dismissed the GMA et al’s motion for a preliminary injunction, arguing that the plaintiffs had failed to prove that not granting it would cause 'irreparable harm'.
As to the merits of the lawsuit itself, Reiss supported some of the GMA’s arguments but rejected many others.
Specifically, she dismissed claims that Act 120 was preempted by federal law, and that it violated the Constitution’s Commerce Clause, and that the Plaintiffs’ 1st Amendment Claims were subject to strict scrutiny; and held in the state’s favor on the remaining 1st Amendment claims, but did not dismiss the Plaintiffs’ complaint.
However, she said the GMA et al had made a plausible claim that the law’s restrictions on what could be called ‘natural’ were invalid under the 1st Amendment.
Plaintiffs' plea for GE labeling uniformity reflects economic sense, and perhaps common sense as well
Addressing the GMA's argument that having different rules for Vermont and everywhere else would cause chaos, and federal law should prevail, she added: “While Plaintiffs' plea for GE labeling uniformity reflects economic sense, and perhaps common sense as well.... regulation of food and beverages is an area in which Congress has long expressed its awareness of state legislation and has consistently tolerated the states' competing interests and regulatory control."
As for the GMA's claim that GE labeling violates the First Amendment because it compels manufacturers to “convey messages they do not want to convey… without anything close to sufficient justification”, she added:
"At first blush, Plaintiffs' characterization of the GE disclosure requirement as mandating a 'controversial' disclosure appears unassailable. Act 120's GE disclosure requirement was enacted in the midst of public and political controversy regarding the safety and benefits of GE and GE food. Courts, however, have not affixed the 'controversial' label lightly, and the fact that Plaintiffs would prefer not to make the required disclosure is insufficient to render it 'controversial'."
Meanwhile, if a manufacturer or retailer believes the GMO label will give "rise to a negative connotation regarding the safety of GE foods, Act 120 does not prohibit "correction" of this allegedly erroneous impression", she added, and also rejected arguments that the GMO disclosure was merely there to satisfy consumer curiosity.
"The court cannot conclude that Act 120's GE disclosure requirement is supported only by a desire to gratify consumer curiosity.
The court grants in part and denies in part the state’s motion to dismiss.”
What does Act 120 mandate?
Under Act 120 - which comes into force on July 1, 2016 - 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.
It 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’.
GMA: Manufacturers are being harmed, and they are being harmed now
So how have stakeholders responded?
Predictably, both sides sought to claim the initiative on the PR front on Monday night, with supporters of GMO labeling such as the Center for Food Safety (CFS) hailing the decision as a victory for consumers, and opponents noting that while Reiss would not grant an injunction to stop the clock, she had supported some of the GMA’s arguments.
The GMA, meanwhile, said it was reviewing Reiss’s decision and considering its legal options as it fundamentally disagreed with her arguments against granting an injunction.
Unless the clock stops, it insisted, it members would have to incur significant costs now in order to comply with a law that may later be overturned.
“Manufacturers are being harmed, and they are being harmed now,” said the GMA.
“Act 120 is unconstitutional and imposes burdensome new speech requirements on food manufacturers and retailers. It will also set the nation on a path toward a 50-state patchwork of GMO labeling policies that will be costly and confusing for consumers.”
More reaction to follow…
The case is: 5:14-cv-00117-cr Grocery Manufacturers Association et al v. Sorrell et al.