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.