Lawyers for Vermont, Grocery Manufacturers spar over GMO labeling bill

By Daniel Enoch

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New York, Oct. 8, 2015 - The state of Vermont and the Grocery Manufacturers Association (GMA) squared off Thursday in a battle over the nation's first mandatory labeling law for foods made with genetically engineered products.

The venue was an ornate courtroom on the 17th floor of the federal courthouse in lower Manhattan where GMA tried to persuade a three-judge panel of the U.S. Court of Appeals for the Second Circuit that a District Court judge in Vermont was wrong in denying its request for a preliminary injunction against implementation of the law, scheduled for July 1. GMA wants the Vermont law blocked until its complaint - that the law is unconstitutional - can be litigated.

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Catherine Stetson, with the D.C. office of the Hogan Lovells law firm, represented GMA. She argued that the Vermont law, enacted in May 2014, violated the First Amendment by compelling food companies to put on their labels messages they don't want to convey, without justification, at great expense and for little reason. “There is no scientific body in this country” that has cited evidence of GMO crops causing harm to humans, she said.

As GMA and its allies put it in its original injunction request, filed in June 2014:

“The State is forcing the costs of this experiment on out-of-state companies and citizens to which it is not politically accountable, and it is undermining and impeding the federal government's interest in uniform, nationwide standards for food labeling prescribed by duly authorized federal agencies.”

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Representing Vermont, Larry Robbins, with the Washington law firm Robbins Russell, denied that the state's legislature had relied on “junk science” in writing the labeling law and argued that the law would help consumers make informed decisions about the food they eat and public health.

In a brief filed in September, Robbins and his team wrote: “The legislature considered a wealth of evidence, including studies published in peer-reviewed scientific journals and testimony from food-science and health professionals, showing that GE crops present risks to human health and the environment.”

During the hearing the judges pressed Stetson on why GMA objected to a label that simply includes the fact that the product was made with genetically engineered products.

“If it goes on a label, it means something,” Stetson said at one point. “The mere fact that the state mandates” something on a label “smacks of a warning.”

The panel took the arguments under advisement without indicating when it would rule.

GMA did not indicate how much it would cost for its members to comply with the law, but after today's hearing, Karin Moore, GMA vice president and general counsel, said the costs would be “significant.” She also said that even though the group's basic challenge to the Vermont law has not been adjudicated, the group's members are already taking steps and incurring costs to comply with the law.

Moore said GMA was hoping that Congress would pass a bill sponsored by Rep. Mike Pompeo, R-Kan., that would block efforts in Vermont and several other states that would mandate labeling for foods made with genetically engineered ingredients. She declined to speculate about the bill's chances of becoming law.

GMA's allies in its legal challenge include the Snack Foods Association, the International Dairy Foods Association and the National Association of Manufacturers.

 

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