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Will Vermont’s GMO Labeling Law Survive Legal Challenge?

May 5, 2014

by Lauren Handel

Vermont’s GMO labeling bill is expected to be challenged in the courts soon after it is signed by the Governor. In an opinion piece for Food Safety News,  Shelley Powers predicts “Vermont Will Triumph Against Court Challenges to New Labeling Legislation.” My prediction more lawyerly and less sanguine: Vermont’s GMO labeling law might survive constitutional challenge, in part, or it could be entirely struck down. The two biggest constitutional hurdles for Vermont’s law are federal preemption and the First Amendment guarantee of free speech.

Regarding preemption, Ms. Powers says that the “Supremacy Clause doesn’t apply to Vermont’s law” because FDA does not formally regulate GMO labeling. It is true that FDA has issued only informal guidance regarding labeling of GMO products. For that reason, I agree with Ms. Powers that Vermont’s law is not likely preempted with respect to the labeling of food products within FDA’s jurisdiction. However, I believe that Vermont’s law is preempted to the extent that it requires labeling of foods within USDA’s authority. While the law has an exemption for “food consisting entirely of or derived entirely from an animal which has not itself been produced with genetic engineering,” foods made in part with meat or poultry would be subject to the labeling requirement. The labeling of such foods is governed by USDA under the Federal Meat Inspection Act and Poultry Products Inspection Act. Both of those statutes expressly preempt state laws imposing labeling requirements “in addition to, or different than” federal law. Vermont’s law requires labeling in addition to and different than that required by USDA and, thus, it likely is preempted with respect to foods containing meat or poultry.

The First Amendment analysis could go either way, largely depending on what test the court decides to use. Ordinarily, laws regulating commercial speech are analyzed under the test articulated by the US Supreme Court in Central Hudson Gas and Electric Corp. v. Public Service Commission of New York. That is the four-part test Ms. Powers references. If the court applies Central Hudson, the State of Vermont will have the difficult burden of proving (not merely claiming, as Ms. Powers states) that it has a substantial interest in requiring GMO labeling and that the law materially alleviates the problems. Although the Vermont bill declares that it has an interest in preventing consumer deception, preventing potential risks to human health, protecting religious practices, and protecting the environment, it is not clear that the State has evidence sufficient to prove that these are legitimate concerns or that labeling of GMO foods would materially advance any of these interests. 

Ms. Powers quotes from an analysis of the Vermont bill by the law firm Emord & Associates, which opines that the law is constitutional under the First Amendment. The authors of that memo anticipate that a court reviewing the Vermont law will apply a fairly lax (regulation-friendly) First Amendment test from the Supreme Court’s decision in Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio. In that case, the Court held that government may require commercial speakers to make “purely factual and uncontroversial” disclosures that are “reasonably related to the State’s interest in preventing deception of consumers,” as long as the requirements are not “unjustified or unduly burdensome.” The Supreme Court never has applied this test in circumstances where the government did not have an interest in preventing consumer deception. However, the US Court of Appeals for the Second Circuit (Vermont is within the Second Circuit) has held that the Zauderer test is appropriate where the state requires a purely factual disclosure, even if its interest is unrelated to preventing deception.

Even where Zauderer applies, the Second Circuit has said that the state’s interest has to be something more than satisfying consumer curiosity. In the mid-1990s, the same court found that a Vermont law that would have required labeling of dairy products produced with the synthetic growth hormone rBST violated the First Amendment because the State’s only interest was in satisfying consumer curiosity. Vermont will have a difficult time, I think, in distinguishing its present interest in informing consumers about the presence of GMOs from its earlier interest in disclosure of rBST. Thus, even if the court applies the easier test, Vermont’s “triumph” is far from a sure thing.

 

 

  • http://burningbird.net Shelley Powers

    I appreciate the thoughtful and learned response. I’m glad that we agree on the unlikeliness of preemption related to the FDA, but I am puzzled as to why you think the law would be preempted because of the FMIA and PPIA.

    True, touching on either would be the kiss of death for the bill, as California discovered with its downer livestock law. But the Vermont law specifically exempts food that is under the USDA’s authority, as you noted:

    “(exempted) Food consisting entirely of or derived entirely from an animal which has not itself been produced with genetic engineering, regardless of whether the animal has been fed or injected with any food, drug, or other substance produced with genetic engineering.”

    Are you thinking of something like a vegetable beef soup with over 3% beef?

    From the FSIS labeling guidelines:

    “Although FSIS has jurisdictional authority over food labeling for
    products containing meat and poultry, the FMIA and the PPIA explicitly
    authorize USDA (through FSIS) to exempt from its regulatory coverage food products which contain meat or poultry “only in relatively small portion or historically have not been considered by consumers as products of the meat food industry ….”

    http://www.fsis.usda.gov/wps/wcm/connect/f4af7c74-2b9f-4484-bb16-fd8f9820012d/Labeling_Requirements_Guide.pdf?MOD=AJPERES

    There was an FSN article noting that the USDA inspected cans of chicken noodle soup because of the meat content.

    http://www.foodsafetynews.com/2010/12/who-inspects-what-a-food-safety-scramble/#.U2g531cxxXI

    However, I don’t feel as concerned about the preemption issue, even if the USDA/FDA dividing line rears its ugly little head. It will make for a more interesting legal case, though.

    As for the Freedom of Speech angle, I do believe this is the tougher battle for the state. But I don’t think it’s unwinnable. The GMO law isn’t the same rBST law, so we shouldn’t assume the same outcome. But, as I like to note, I’m not a lawyer so I could very well be entirely wrong about all of this. Time will tell.

    Lastly, there is the question of whether the food industry will even fight the law. GMO labeling is inevitable. How many millions will the industry spend and continue to spend, to defeat initiatives and state and federal bills, to lobby, and now fight laws in the court? Not to mention the negative publicity inherent with a case of this nature?

    At some point in time, even the most intransigent of CEOs must realize they’re fighting a never ending battle.

    I’m glad Vermont passed its law. It’s past time to take this issue to the next level.

    Again, thank you for the thought provoking and interesting response.

    • David Brown

      I would suspect that if a labeling law or two were struck down in court, then attempts to impose mandatory labels would probably end. Voters don’t want to spend a lot of money defending laws that are likely to be struck down. That is why the Vermont case is so important. While a decision at a lower level wouldn’t set precedent for the entire country, I would guess that this could likely be appealed to the supreme court.

  • Lauren Handel

    With regard to preemption of USDA-regulated foods, I am thinking of a product like soup. The Vermont law only exempts products that are “entirely” from animals, which leaves products containing both meat and non-meat subject to the labeling requirement. Products containing more than 3% raw meat or more than 2% cooked meat are regulated by USDA.

    The GMO law is different than the rBST law, but there are significant similarities in the facts. For both rBST and GMOs, FDA determined that foods made with the technologies are no different than foods made without the technology and that they do not pose a risk to human health. In both cases, the state’s interest is in providing consumers with information that they may feel is material to their purchasing decisions. In the rBST case, the court said that amounts to nothing more than satisfying consumer curiosity.

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  • http://www.isitorganic.ca/ Mischa Popoff

    It doesn’t mater if Vermont’s absurd GMO labelling law is challenged and defeated. It’s a moral victory for the enemies of progress, and will be remembered as such in the media for years to come.
    Urban organic activists evidently have nothing better to do with their time in Vermont.

  • David

    Thank you for the article. I think the law would fail on First Amendment grounds, but I think there could be more to the federal pre-emption than meets the eye.

  • http://theprogessivecontrarian.wordpress.com/ Bernie Mooney

    I’m not a lawyer, but wouldn’t the exemptions be enough cause for the court to rule against the law? It’s discriminatory. If there is a legitimate need for labeling, shouldn’t it be across the board with no exemptions?

    • http://www.foodlawfirm.com Lauren Handel

      The exemptions alone would not necessarily invalidate the law if there is a legitimate reason for them. But the exemptions could be used to show that government does not have a sufficiently important interest in mandating labeling (if it has a serious concern, why not mandate the label on all food?) and that the law would not further the government’s purported interest (how can the law advance the state’s asserted interest when so many food products are exempt?).

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