The GMA wants the Second Circuit Court of Appeals to reverse a decision made by US district court judge Christina Reiss in April (Reiss refused to grant an injunction blocking the Vermont law), and says that unless the clock stops, its members will incur huge costs and supply chain challenges in order to comply with an unconstitutional and impractical law that may later be overturned (or superseded by federal legislation).
Oral arguments from the GMA and other trade associations plus Vermont attorney general William Sorrell will begin at the Second Circuit Court of Appeals in Manhattan on Thursday morning.
Time is running out
However, the GMA’s executive vice president, strategic communications, Roger Lowe, acknowledged that time was running out, as the judges would not likely make a ruling on the injunction for weeks or even months.
In the meantime, food manufacturers and retailers remain stuck between a rock and a hard place, because whatever happens regarding the lawsuit, the Vermont GMO legislation (Act 120) will likely come into effect first (July 1, 2016), meaning they will have to make a decision now as to how to label their products in order to comply.
Not surprisingly, therefore, the GMA and other opponents of the Vermont law are now focusing all of their efforts on getting a federal GMO labeling law through Congress that would trump state laws such as Act 120.
Other irons in the fire
The most advanced option on the table is Rep. Mike Pompeo’s Safe and Accurate Food Labeling Act (H.R. 1599), which would pre-empt state laws that mandate GMO labeling and set up a federal voluntary 'non-GMO' labeling system run by the USDA.
Under HR1599 - which recently passed in the House of Representatives and has been dubbed the DARK Act ('Denying Americans the Right-to-Know') by its detractors - labeling of a food made with GE ingredients would only be required if two conditions are met:
1. There is “a meaningful difference in the functional, nutritional, or compositional characteristics, allergenicity, or other attributes between the food so produced and its comparable food”;
2. The labeling is “necessary to protect public health and safety or to prevent the label or labeling of the food so produced from being false or misleading”.
While no companion bill has yet been introduced in the Senate, and the GMA did not say whether Sen. John Hoeven (R-ND) has secured any support from Democrats for a bill he is rumored to be preparing, it says it remains confident that a bill will be introduced in the Senate and passed this year.
GMO labeling: The legal debate
The GMA has multiple issues with Act 120 in Vermont, but its main argument 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, state attorney general William H Sorrell says 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.”
Senate Ag committee hearing on GMO labeling set for Oct 21
Lowe told FoodNavigator-USA: “Senate action is urgently needed this fall to pass common-sense legislation with national standards instead of a patchwork of different state labeling laws.
“More than 130 people – representatives of farming groups, co-ops, seed producers and food companies from 21 states are coming to Washington DC on Wednesday to urge Republican and Democratic members of the Senate to take up and pass the federal legislation this fall.
“The Senate Agriculture Committee announced last week that it will hold a hearing on this issue on October 21.”
What does the Vermont GMO labeling law mandate?
Under Act 120 firms supplying foods for sale in Vermont must declare that they are: ‘Produced with genetic engineering’ or ‘partially produced with genetic engineering’ or ‘may be produced with genetic engineering’ unless they can prove otherwise.
It also 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’.
However, 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.