WASHINGTON, April 24, 2014 – The food industry is sending signals that it will go to federal court again to overturn a Vermont state law that would require food labels to disclose ingredients derived through biotechnology.

The Vermont legislature passed the labeling law Wednesday and Gov. Peter Shumlin said he would sign it. The state would become the first in the nation to require such labels, without neighboring states having passed similar legislation.

“We are currently in the process of evaluating the legislation to determine the best course of action in response to its passage,” the Grocery Manufacturers of America said in a statement. The group successfully beat back a narrower 1995 Vermont law that applied only to milk. “[W]e will make a determination about whether litigation is the appropriate response to this misguided legislation.”

In a phrase that reveals the potential constitutional arguments against the Vermont legislation, the GMA statement said that the government “has no compelling interest in warning consumers about foods containing GM [genetically modified] ingredients, making (the Vermont legislation’s) legality suspect at best.” U.S. Supreme Court rulings have held that governments lack the power to require companies to disclose information in the absence of a “compelling interest.”

A former GMA executive on Monday predicted that food and biotech companies would challenge the legislation and likely prevail again in federal court. “For starters, any reasonable judge would put a restraining order in place delaying enactment of Vermont’s legislation while the courts wrestle with the case,” Sean McBride, former GMA executive vice president of communications and membership services, wrote on the web site of his firm, DSM Strategic Communications & Consulting LLC. “That’s a win for industry.”

If industry gets a favorable decision against the Vermont statute, he says, “it could put an end to the nation’s ugly and protracted GMO labeling public policy battle.” A victory in court “likely sets a precedent that prevents or puts a chilling effect on future state mandatory GMO labeling activity,” McBride writes. “It may even encourage Congress to pass the Safe and Accurate Food Labeling Act pending in the House sooner rather than later.”

That outcome would encourage GMA. Its statement backs H.R. 4432, legislation in the US. House of Representatives that would require a label on biotech foods “if the FDA – our nation’s foremost food safety authority – determines there is a health or safety risk. Any labeling of GM ingredients would therefore be based on science, not fear or the varying politics of the 50 states.”

In a case that biotech supporters see as a precedent, the Appeals Court for the Second Circuit in New York ruled 2-1 in favor of two GMA predecessor organizations and several dairy industry groups that Vermont’s 1995 law requiring dairy manufacturers to identify products from cows treated with recombinant bovine somatotropin (rBST) violated the constitution’s First Amendment and Commerce Clause. Vermont’s legislature this year sought to satisfy the constitutional shortcomings by spelling out what the authors believed to be substantial, compelling reasons.

Although the appeals court ruling held that “consumer curiosity alone is not a strong enough state interest to sustain the compulsion of even an accurate, factual statement,” one of the three judges wrote a dissent that encourages supporters of the new legislation.

In a dissent from the appeals court majority opinion in 1996, Judge Pierre N. Leval said the mandatory label rule “was based on substantial state interests, including worries about rBST’ impact on human and cow health, fears for the survival of small dairy farms, and concerns about the manipulation of nature through biotechnology.”


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