WASHINGTON, May 8, 2014 – Vermont’s Democratic Gov. Peter Shumlin on Thursday afternoon signed the country’s first law (HB 112) requiring the labeling of genetically modified (GM) foods. But some legal experts say the measure may never actually go into effect. The bill’s $1.5 million legal defense fund – established within the text of the legislation – shows even labeling proponents know that they have a tough court battle ahead of them.
“It looks like this might be a ‘softball over the plate’ kind of law, because you really just hammer it,” said Thomas Redick, principal attorney with the Global Environmental Ethics Counsel, a law practice that deals exclusively in emerging technologies like agricultural biotech. “The food industry is in a really strong position.”
Legal challenges would probably begin with action by the Grocery Manufacturers Association (GMA), which represents the food industry. “[GM] ingredients are safe and materially no different than conventionally produced products,” the group said in a statement after Vermont’s bill cleared the state legislature.
“Consumers who prefer to avoid GM ingredients have the option to choose from an array of products already in the marketplace labeled ‘certified organic.’ The government therefore has no compelling interest in warning consumers about foods containing GM ingredients, making (the law’s) legality suspect at best.”
GMA said it would make a “determination about whether litigation is the appropriate response to this misguided legislation” in the near future. But in the meantime, the group’s statement indicates a number of routes to legal challenges.
The first is through the First Amendment. The text on food labels isn’t quite the kind of “free speech” American students learn about in elementary school, but U.S. law considers the act of compelling a company to label a product a free speech violation.
A 1996 case law before the Second Circuit Court of Appeals in New York involved a – you guessed it – Vermont law requiring that dairy companies label products containing the growth hormone rBST. In making its case for labeling, the court said, Vermont did not “claim that health or safety concerns prompted’’ the law’s passage, “but instead [defended] the statute on the basis of ‘strong consumer interest and the public's ‘right to know.’”
Accordingly, the court found “consumer curiosity alone is not a strong enough state interest to sustain the compulsion of even an accurate, factual statement,” and determined the labeling constituted a violation of dairy companies’ First Amendment rights because it forced them to “speak when they would rather not.”
The preamble to Vermont’s GM labeling measure clearly attempts to at least sidestep this decision by including multiple justifications for mandatory labeling, not just the consumers’ “right to know.” The bill asserts that allowing companies to continue without labeling exposes the public to “potential health risks” and “environmental effects of food produced from genetic engineering.” It also cites more general “consumer confusion and deception,” and says current labeling requirements don’t give consumers enough information to sufficiently “protect religious practices.”
Many of these objections hinge on the assumption that genetically modified foods could adversely affect human health – a conclusion that a number of organizations, including the American Medical Association, say hasn’t been shown. Given the absence of hard data supporting the legislation’s thesis, then, it’s difficult to see the court coming out for the bill, several experts said.
That opinion is far from universal, however. A widely disseminated memo by Virginia-based law firm Emord & Associates argues there is precedent for labeling containing “purely factual information in support of a legitimate government interest.” Because the government has “legitimate interest” in informing consumers about the contents of the food they consume, the law firm argues, it should permit mandatory labeling. At the very least, it says, the government should be interested in the “undeniable public interest in natural food ingestion as a way of life,” which, it says, is “on balance healthy.”
That argument, of course, also hinges on the nutritional value of GM foods. If a court decides that the food technology has a neutral effect on human health, then it may rule against the Vermont legislation.
There are other grounds for legal dispute. The Commerce Clause of the Constitution prohibits state laws that privilege commerce within a state over commerce between states. Proponents of the Vermont measure say the legislation equally inconveniences food companies both inside and outside the state, and thus should not violate this prohibition.
A Commerce second test, often used by the Supreme Court, might be trickier. Labeling supporters must show that the benefits the law produces outweigh the burdens it will impose – in other words, the cost of labeling.
A report released last week by the Council of Agricultural Science and Technology argues that the cost of labeling is, in fact, fairly prohibitive. Though the report declines to pace a dollar figure on mandatory labeling, it argues the costs would go well beyond the money paid for ink.
Food manufacturers will have to spend heavily during processing, if they choose to keep GM ingredients separate from similar but non-GM ingredients, the Council says. In that case, the cost of labeling may outweigh any benefit consumers reap from simply knowing that their food has undergone some sort of biotechnical process.
Then there’s the Supremacy Clause. The Constitution mandates that federal law always supersede state law. Bill proponents say this is fine – the FDA, they argue, hasn’t made a final decision on the labeling of GM foods, so the Vermont legislation does not violate any federal rulings.
But not so fast, says Redick, with the Global Environmental Ethics Council. The FDA has actually written quite a bit about the GM labeling issue. In a draft guidance released in 2001, but never finalized, FDA said it was “not aware of any data or other information that would form a basis for concluding that the fact that a food or its ingredients was produced using bioengineering” is materially different from other foods. For that reason, FDA has found that voluntary labeling – but not mandatory labeling – is permitted.
Whatever the legal basis for any challenge of the labeling law from the food industry, it’s sure to get messy. “It’s a mess of a bill,” food safety journalist Dan Flynn wrote in an editorial for Food Safety News. “Or the bill is a mess.”
Vermont’s legislation, which is supposed to go into effect in June 2016, would require labeling only for packaged foods containing GM ingredients and sold through retail. It would not apply to meat and dairy products produced from animals that consume GM feed.
In addition to expected court challenges, the Vermont legislation could be rendered moot by a bill now in the U.S. Congress that would allow food makers to label products containing genetically modified ingredients, but not requiring such labels.
“The biotech industry is committed to providing information about how our food is grown and fully supports the voluntary labeling of products to meet specific demands of consumers,” Cathleen Enright, executive vice president for food and agriculture for the Biotechnology Industry Organization (BIO), said in a statement.
Enright charged proponents of the Vermont legislation and similar measures with attempting to promote non-GM foods over conventional agriculture, and said the “additional cost burden (of labeling) is placed on the state’s farmers, food manufactures grocers and consumers.”
BIO says mandatory labeling increasing food costs on the average household by as much as $400 per year.
Connecticut and Maine passed GM labeling bills last year, but their laws require contiguous states to implement similar bills before they go into effect. More than a dozen states are also considering such measures.
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