UPDATE: This post, originally published on April 29, was updated on May 9 to reflect that the bill became law.
There’s no guarantee of legal action, of course, but legislators, officials and advocates are preparing for the state to be sued over the new law. Last month, state Attorney General Bill Sorrell told Vermont Public Radio that he would be “very surprised” if the state isn’t sued. And officials were so sure of a challenge that the measure itself creates a $1.5 million legal defense fund, to be paid for with settlements won by the state. They think it’s coming, but they also say they’re ready.
“The threat of a lawsuit worked for a while, but now it doesn’t work anymore,” says Ronnie Cummins, national director of the Organic Consumers Association, whose organization has for years worked with activists and lawmakers in Vermont on the issue. “I think they may go ahead and sue and do it rather quickly in the hopes that it may gather momentum,” he added, referring to biotech industry groups.
Other states have pursued similar measures, but Vermont’s law will be the first of its kind. Connecticut and Maine passed labeling requirements, but with trigger clauses requiring multiple other states to pass labeling requirements before their own go into effect. At least 25 states have considered such legislation, according to a recent report on labeling requirements from the nonprofit Council for Agricultural Science and Technology. And advocates are hopeful they will get a measure on the Oregon ballot this year.
That recent report — authored by professors from the universities of California, Illinois and Missouri — found no science-based reason for singling out genetically engineered foods. They also suggested that such requirements could have possible trade implications — many of the labeling requirements in other countries violate World Trade Organization agreements, they write — and that food costs could potentially rise if companies decide to use non-modified ingredients instead of simply slapping a genetically modified organism (GMO) label on products. (If they opt to comply with labeling requirements instead, costs could be minimal.)
Proponents argue that the science behind genetically modified food is far from conclusive and ask why consumers should take risks without knowing what they’re eating. If companies truly stand behind the safety of GMO foods, they shouldn’t worry about having to identify them, advocates for labeling argue.
Whatever the wisdom of labeling policies, though, Vermont is set to move forward with its requirement. Cummins and others are relatively calm about the prospect of lawsuits, though, because they’re prepared. Advocates expect industry will challenge the law on three constitutional grounds, none of which they expect to be successful (of course). Here’s how the food industry may fight back and why labeling proponents think they can win, according to their legal analyses.
1. The First Amendment argument
The first argument that industry is expected to make in challenging Vermont’s GMO law is that it violates commercial free speech rights under the First Amendment. (Businesses have limited free speech protections based on the benefit of free-flowing information to an open society.)
The Supreme Court has established two tests for reviewing whether such rights have been violated, according to two legal analyses of Vermont’s law. Under one test — from Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio — the U.S. Supreme Court found that requiring commercial speech is considered constitutional if the required speech conveys “purely factual information in support of a legitimate government interest,” according to a memo from Emord & Associates, a food and drug law firm. In other words, government can require businesses to make factual statements if it’s in the service of the public good in some way.
The other First Amendment test revolves around whether a state can restrict commercial speech. It stems from New York’s attempt, in the interest of conserving energy, to ban utilities from promoting use of electricity. The Supreme Court overturned the ban, challenged by Central Hudson Gas & Electric. In so doing, the court set up a four-part test, according to another memo from the Vermont Law School’s Environmental and Natural Resources Law Clinic, which represents the Vermont Public Interest Research Group. A limit on commercial speech must meet four requirements, the court found:
- First, the court has to decide that the speech is protected, meaning it must be about legal activity and not be misleading.
- Second, the government has to claim a substantial interest in limiting the speech.
- Third, the policy in question has to “directly advance” that interest.
- Fourth, that policy must not overreach in achieving its goal.
Both legal memos and labeling advocates come to the same conclusion: a labeling law will likely pass either test.
2. Does federal law trump state law?
Another argument that proponents of GMO labeling expect to hear is that Vermont’s new law stomps on territory covered by the federal government. There are three conditions under which federal law trumps state law, a process known as preemption, according to the Law Clinic memo. They are known as express preemption, field preemption and conflict preemption.
Express preemption is when Congress explicitly says a federal law trumps state laws. Both memos conclude that it has not done so with such labeling requirements, which don’t explicitly govern genetically modified foods. A conflict preemption exists when it’s impossible to comply with both federal and state law. Again, federal regulations don’t touch on the use of “genetically enginereed,” “natural” or similar terms, so it’s possible for a business or individual to comply with federal and state labeling requirements, both memos find. Finally, federal law trumps state law when it’s clear that the federal interest in a field is so great that it’s assumed to be the one in charge. In that instance, “congressional intent to supersede state laws must be ‘clear and manifest,'” which neither memo finds it is.
3. Does it interfere with interstate commerce?
The third challenge labeling proponents expect to hear is that the GMO law unconstitutionally interferes with interstate commerce. While the Constitution’s Commerce Clause grants Congress the authority to regulate interstate commerce, it is also understood to implicitly limit state powers to do the same.
The Supreme Court has in the past applied two tests in assessing whether a policy violates the clause. The first is whether a law discriminates against interstate commerce — in other words, does it explicitly favor commerce within the state over commerce between states.
Vermont’s GMO law treats Vermont companies the same as companies based in other states, so advocates are confident it would survive that first test. The second test would ensure that any burden on interstate commerce — e.g. increased costs of labeling GMO foods — are fairly balanced with the local benefits the law provides, such as protecting public health and the environment. Again, advocates conclude the law is balanced.