GMA et al launch first amendment challenge to Vermont GMO labeling law

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

Law compels manufacturers to convey messages they do not want to convey ​

According to the plaintiffs - the GMA, the Snack Food Association, the International Dairy Foods Association and the National Association of Manufacturers - Act 120​ is pre-empted by federal labeling laws and should be “invalid and unenforceable”.​

It also violates the first amendment because it is compelling manufacturers to “convey messages they do not want to convey, and prohibiting manufacturers from describing their products in terms of their choosing, without anything close to sufficient justification​”.

Noting that the US Food & Drug Administration (FDA) has consistently rejected calls to mandate GMO labeling, argue the GMA et al, Act 120 is also “impeding the federal government’s interest in uniform nationwide standards for food labeling prescribed by duly authorized expert federal agencies.”​

Meanwhile, revising thousands of product labels to meet the new requirements by July 2016 would be “difficult if not impossible​”, adds the complaint:  "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."​

Defending the First Amendment challenge will be tough   ​

The best-known example of a successful First Amendment challenge to a state food labeling law 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.

Defending the First Amendment challenge will therefore be tough, say attorneys, as defendants will have to prove that failure to label GMOs would harm consumers.

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 in a recent interview.

“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 (Act 120) 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.”​

Vermont has effectively conceded this law has no basis in health, safety, or science​

In a statement issued to the press this morning, the GMA said: “Act 120 exceeds the state’s authority under the United States Constitution and in light of this, GMA has filed a complaint in federal district court in Vermont seeking to enjoin this senseless mandate.​

 “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.“​

The complaint, filed in federal court on June 12, lists state attorney general William Sorrell, governor Peter Shumlin, dept of health commissioner Harry Chen, and finance and management dept commissioner James Reardon as defendants.

The plaintiffs are seeking a declaration that the act is invalid, an injunction barring the state from implementing the law, injunctive relief, and attorneys’ fees and costs.

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 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’.