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Groups File Brief on Appeal of Court Ruling on Vermont Labeling Law

GMA Press Contact

Roger Lowe

office: 202-295-3954

(WASHINGTON, D.C.) The Grocery Manufacturers Association (GMA) and other groups today filed a brief with a federal appellate court explaining that a district court judge erred in refusing to block implementation of Vermont’s law mandating warning labels on products with ingredients from genetically engineered (GE) plants.

Joined by the Snack Food Association, the International Dairy Foods Association, and the National Association of Manufacturers, GMA filed the appellate brief in the U.S. Court of Appeals for the Second Circuit. The four trade associations are challenging Vermont’s Act 120 as violating the First Amendment’s free-speech guarantee because it imposes burdensome new speech requirements on food manufacturers and retailers.

The Vermont law requires food manufacturers to include on certain products with GE ingredients a label warning consumers that the products are or may be “produced with genetic engineering.” It also prohibits manufacturers from using the word “natural” or similar words to describe those products.

On April 27, the U.S. District Court in Vermont denied a motion for a preliminary injunction to stop the law from going into effect while the legal challenge was pending. That ruling means that Vermont can continue implementing the labeling law, which is set to go into effect in July 2016.

The brief detailed errors in the First Amendment analysis of the District Court. For example, they explained that the judge incorrectly concluded that the Vermont law compels only “purely factual and uncontroversial information,” and therefore was subject to lesser judicial scrutiny. The issue of labeling foods with GE ingredients is anything but “uncontroversial,” the brief said: “Indeed, it is difficult to point to a current topic more hotly debated in many circles than genetic engineering of crops.”

In addition, the brief explained, the judge improperly concluded that Vermont had offered sufficient justification for the law beyond mere consumer curiosity. As the Vermont legislature stated, the state law is intended to allow consumers to make “informed decisions” about the potential health or environmental effects of the food they purchase, or “for religious reasons.”

The brief said that  “the State simply lists the reasons why a consumer might be curious about GE-derived food—including public health, food safety, and environmental impact—without actually adopting any of those concerns.” Under precedent from the same court of appeals that will hear this case, that justification is insufficient to compel speech under the First Amendment.

The brief by the business groups also explained that the district court erred in declining to grant a preliminary injunction. The brief explained that the lower court actually agreed with the groups’ First Amendment challenge to Vermont’s ban on the use of the word “natural” in products containing GE ingredients. Because a First Amendment violation necessarily gives rise to irreparable harm—a prerequisite for an injunction—a preliminary injunction should have been issued, the brief said.

In addition, the business groups contended that companies will be forced to revise their business practices now in order to comply with the law because of the lead time required to restructure their supply and distribution chains to segregate Vermont-bound products at each level.

“If Act 120 is struck down, their efforts will all be for naught, and the harm done to their businesses cannot be repaired,” the brief said. “The losses of employee time and energy, and the diversion of staff and resources to compliance issues instead of new business opportunities, are also severe irreparable harms to Plaintiffs’ members.”

The District Court’s failure to grant a preliminary injunction has left the members of the trade associations fighting the law “with a lose-lose choice: self-censor now to avoid potential liability later, or defy the law now and risk enforcement later,” the brief said. “First Amendment preliminary injunctions are supposed to protect against just that dilemma.”

Other key points in the brief filed with the appellate court by the business groups are:

Previous Vermont Labeling Law Overturned by Same Appellate Court– An earlier version of Vermont’s GE labeling laws was overturned in the mid-1990s by the same federal court of appeals hearing this appeal. In 1994, Vermont passed a law requiring special labeling for milk produced from cows treated with recombinant bovine somatotrophin (rBST), a genetically engineered hormone, even though the FDA had rejected mandatory labels. However, because a few scientists insisted that there was room for debate about the safety of milk from rBST-treated cows, Vermont decided to require labels in light of “consumer concern” about the safety of rBST and some consumers’ “philosophical opposition” to rBST. The U.S. Court of Appeals for the Second Circuit found the rBST law unconstitutional, explaining that consumer interest is not sufficient justification for compelling speech.

Exemptions Make Law “Devoid of Real Meaning or Impact”–While Act 120 purportedly was passed to inform Vermont residents’ purchasing decisions, the fact is that “Act 120 is so riddled with exemptions that it is devoid of real meaning or impact. Food sold at restaurants, food sold for immediate consumption, and meat and poultry products all are exempt from the labeling mandate,” the brief said. “That means, for example, that a package of hamburger buns sold at the grocery store must be labeled, but hamburgers sold at McDonald’s will not be.  A granola bar sold in bulk at a warehouse club must be labeled, but the same granola bar sold individually in a vending machine will not be.  And a can of vegetable soup must be labeled, but a variety with chicken and vegetables will not be.”

Alternatives to Mandatory GE Labels Exist– Numerous market-based and consumer-friendly solutions exist for Vermont consumers who want information about foods without GE ingredients, the brief said. These include shopping guides that point consumers to foods with GE ingredients and those without GE ingredients, websites that verify products as organic or GE-free, and cell phone apps that scan barcodes and assess ingredient lists for the presence or potential presence of genetically engineered ingredients. In addition, manufacturers of foods that do not contain GE ingredients advertise that fact.

GMA and the other trade associations also have explained in their litigation challenging Act 120 that the lower court’s refusal to grant a preliminary injunction blocking the bill also will set the nation on a path toward a 50-state patchwork of GE labeling policies that will disrupt food supply chains, lead to higher food costs, and be confusing for consumers.  

In the April ruling, the District Court specifically cited a lack of a federal law expressly preventing such state standards, and a range of food and agricultural groups are urging passage of a federal bill that would set a uniform national standard across all states on GE labeling and labeling for non-GE products. Enactment of that federal legislation would preempt the Vermont law.

To view the brief, click here.

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Based in Washington, D.C., the Grocery Manufacturers Association is the voice of more than 300 leading food, beverage and consumer product companies that sustain and enhance the quality of life for hundreds of millions of people in the United States and around the globe. 

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