by Walter Judge The Vermont legislature has passed a bill that mandates, effective July 1, 2016, the labeling of food that contains – or might contain – genetically modified organisms (GMOs). The governor signed the bill Thursday afternoon. Although two other states have passed GMO labeling bills (Connecticut and Maine), Vermont’s bill is a first-in-the-nation bill because it does not contain a “trigger” clause, as the Connecticut and Maine laws do. The trigger clause in Connecticut’s and Maine’s laws means that those laws do not take effect until some other state’s labeling law goes into effect first. The idea behind including a trigger clause is that it reduces the likelihood that the enacting state will be sued by the food industry because, by definition, it will not be the first state to mandate labeling. The absence of a trigger clause in the Vermont bill has now made Vermont a lawsuit-target, and the bill raises a host of issues that could make it hard to defend in court.
The Vermont bill specifically acknowledges that the federal FDA does not consider GMO foods to be materially different from non-GMO foods. This could be a problem in defending the law. If the federal government does not consider GMO foods to need labeling, why should Vermont single out such products for separate treatment?
The Vermont bill asserts that scientific research is mixed on the safety of GMO foods and that GMO foods present potential health risks. Many would say that such a statement is false and anti-science: there have been numerous peer-reviewed, reputable scientific studies showing no safety concerns from GMO foods, and no scientifically-valid studies to the contrary. Thus, many would say that to imply that there is real scientific disagreement over the safety of GMO foods is like saying that there is genuine scientific disagreement over the reality of global climate change.
The Vermont bill requires foods to be labeled either: “produced with genetic engineering,” “partially produced with genetic engineering,” or “may be produced with genetic engineering.” Many food producers, especially small ones, including small, Vermont craft food producers, may simply not know, and may not easily be able to tell, whether their products contain GMO ingredients. Thus, they will be forced to “stigmatize” themselves with a label that says, “may be produced with genetic engineering.”
The labeling mandate in the Vermont bill extends not just to food manufacturers, but also to retailers, both supermarkets and to Vermont “mom and pop” grocery stores. In the case of unpackaged agricultural products that are or might be grown from GMO seeds, the retailer must label the display shelf or bin with the words “produced with genetic engineering.” This may constitute a hardship for small Vermont food stores. And supermarket chains operating in Vermont are certainly not going to like it, either.
The Vermont bill contains exemptions for meat and dairy products. While the proponents of the bill argue that this makes the bill less vulnerable to legal attack, it could work the other way around. Critics could argue in court that the bill is flawed because it singles out a favored and politically powerful Vermont industry – dairy farming – for exemption from a labeling requirement that everyone else is required to follow.
The debate on Vermont’s bill has focused on whether GMO foods should be labeled. But included in the bill is a prohibition on the use of the terms “natural” on GMO foods. This provision was not the subject of any significant public debate, and, again, could create problems for the law in court. Hundreds if not thousands of processed foods on Vermont supermarket shelves tout themselves as “natural,” and the federal Food and Drug Administration (FDA) has declined to prohibit such labeling. Why should one state be allowed to prohibit such labeling? Will national food producers change their labels for one state? Should they have to?
The Vermont Attorney General has predicted that Vermont almost certainly will be sued, and that defending the law in court could cost Vermont taxpayers millions of dollars. Worse, if Vermont loses the lawsuit, it could end up paying the other side’s attorneys’ fees as well, which could add up to $8-10 million dollars. For a state of only 600,000 residents, and a much smaller number of taxpayers, that could mean each Vermont taxpayer ponying up real money cash. Proponents of mandatory GMO labeling point to surveys that show a large percentage of Vermonters favoring such labeling. But did those surveys ask whether the respondent favored mandatory labeling if it meant that she – and every other taxpayer – might have to reach into her wallet to support the law? Especially when considering that Vermont has a mixed track record in defending its laws when they are attacked as unconstitutional or contrary to federal law – such as the Vermont law in the 1990s that mandated the labeling of dairy products from cows injected with bovine growth hormone. That law was struck down. Proponents of labeling argue that consumers have a right to know. But is this about a “right to know,” or is it instead about attempting to stigmatize GMOs out of existence through fear?
There are other potential consequences besides an expensive lawsuit from the food industry. Vermont is a small state with a miniscule consumer base. Will hundreds or thousands of food producers agree to separately label their products exclusively for the Vermont market, because of this law, or will they simply decide to “write Vermont off” and not sell their products in Vermont?
Lastly, as a practical matter, did the Vermont legislature think through what effect this law have on the thousands of small Vermont craft food producers who simply don’t know whether their products contain ingredients that may be derived from GMOs? If you can’t be certain that your product contains no such ingredients, apparently you will be forced to label it as “may be produced with genetic engineering.” And what if these local producers are simply unable to source their ingredients from non-GMO sources? Simply put, this cannot be good for Vermont craft food producers and, by association, the Vermont economy. Forcing them to label their products as possibly containing GMOs could kill off many of these good, homegrown industries.
Walter E Judge, Jr, is Director, Litigation Group, at Downs Rachlin Martin PLLC in Burlington.