Lawsuit Challenging Vermont Labeling Law Fired – Not the First Time!

As I reported back in April, Vermont’s legislature and governor signed into law a bill that requires all As predicted, some industry groups, including the Grocery Manufacturer’s Association, the Snack Food Association, the International Dairy Foods Association and the National Association of Manufacturers, have filed suit against the state asking the courts to issue an injunction from the law being enforced.

Vermont manufacturers to label any items that contain genetically modified crops.

The lawsuit argues that the labeling law is unconstitutional and cites various authorities, including the FDA, which have concluded that GMOs are perfectly safe. They’re also challenging the use of a third-party fund which the state will use to defend the law. (Ben & Jerry’s pledged to help raise money for the fund.)

But this isn’t the first time Vermont has been in this position. That’s right: they’ve been sued before on mandatory labeling measures.

The best part? Vermont lost.

In the case of International Dairy Foods Associate MIF v. Amestoy, the Plaintiffs filed the lawsuit for temporary injunctive relief to prevent Vermont from enforcing a mandatory labeling of dairy products from cows given a growth hormone, rBST. In the case, the Supreme Court of Vermont held for the Plaintiffs, because it stated the law violated the industry’s free speech rights. Important to the court was the fact that the FDA has approved the hormone for safe use and that the end product was indistinguishable from similar products made without the hormone.

Sound familiar?

Just as in Amestoy, the FDA has found that biotechnology is completely safe and also that GMO products are indistinguishable from non-GMO products.

First, the Plaintiffs had to show that they had been dealt in “irreparable harm” from the law. On that point the Court held:

We need not resolve this controversy at this point;  even assuming that the compelled disclosure is purely commercial speech, appellants have amply demonstrated that the First Amendment is sufficiently implicated to cause irreparable harm. . . The dairy manufacturers have clearly done more than simply “assert” their First Amendment rights:  The statute in question indisputably requires them to speak when they would rather not.

You can imagine a similar argument by the groups bringing suit against the GMO labeling law. They are being forced to speak on production methods when they have no real incentive to do so.

The harder hurdle for those challenging the law may be a second test which, in part, requires the state to prove it has a “substantial interest” in enforcing the law. In Amestoy, Vermont had no claimed that health or safety concerns prompted the law. Instead, Vermont indicated that the statute was passed on the basis of “stronger consumer interest and the public’s ‘right to know.'”

In this case, there isn’t any scientific data to support an argument that GMOs are harmful to humans or the environment. However, how much “proof” is needed may be the problem.

There are also several different avenues the industry groups could take to overturn the law, including using the Commerce Clause and federal law pre-emption. I will definitely continue to follow this case, because it is certainly a fascinating one. Hopefully, common sense and science can rue the day.