WASHINGTON, Dec. 29, 2015 – The next step in the food industry’s challenge to a Vermont law requiring labeling of some foods made from genetically engineered ingredients likely will be a decision by a three-judge panel of the Second Circuit Court of Appeals in New York City.

Judges Gerard E. Lynch, Susan L. Carney and Barrington D. Parker are expected to rule soon on an appeal by the Grocery Manufacturers Association of a lower court’s refusal to block implementation of the state law, scheduled to take effect July 1.

GMA, joined by the International Dairy Foods Association, Snack Foods Association and National Association of Manufacturers, filed suit in U.S. District Court in Vermont in 2014. They argue that the law violates the Constitution’s “commerce clause” and First Amendment speech protection. Judge Christina Reiss in April declined to issue an injunction, pending final determination on the suit. The Second Circuit heard oral arguments on GMA’s appeal Oct. 8.

GMA argued in a supplementary filing late last month that the Food and Drug Administration’s denial of a petition to require biotech food labeling “demonstrates that the [Vermont] state’s position is unreasonable” and violates First Amendment speech protection.

In rejecting the Center for Food Safety (CFS) request to compel biotech food labels, FDA specifically cited “the First Amendment’s protection of commercial speech,” wrote Catherine E. Stetson, the Hogan Lovells’ lawyer who represents GMA. “FDA found CFS’s reasons to be wanting because CFS ‘did not provide a basis for FDA to conclude that [GE-derived] foods, as a class, present different or greater safety concerns than foods developed by traditional plant breeding, or otherwise differ from any other foods in any meaningful or uniform way’,” she wrote.

Vermont’s lawyer on the appeal, Lawrence S. Robbins of the Washington firm Robbins Russell, sought to rebut Stinson, saying the FDA’s denial of the CFS petition is irrelevant. The question, he wrote, “is not whether the FDA believes that GE foods differ from their traditional counterparts.” The Vermont Legislature, he wrote, “considered a wealth of testimony and scientific literature regarding GE foods” and then “chose to act where the FDA has chosen not to.”

The case has drawn widespread interest from industry and agriculture and from groups opposed to biotech foods. “Friend of the court” briefs in support of GMA’s position have been filed by the American Soybean Association, Corn Refiners Association, National Corn Growers Association, National Cotton Council, National Council of Farmer Cooperatives, American Chemistry Council, American Beverage Association, Biotechnology Industry Organization, U.S. Chamber of Commerce and Washington Legal Foundation. CFS and the Vermont Public Interest Research Group and other critics filed briefs supporting the state law. Texts of the briefs and other documents are posted on the Vermont attorney general’s office web page.

The legal challenge has no immediate bearing on how Congress resolves the effort to impose a national standard for biotech food labeling and thus sideline any state regulation by Vermont and other states. (See GMO labeling fight set to rekindle in January). Were the appeals court to grant GMA’s appeal, it likely would not invalidate the law but only suspend it while the case is returned to the U.S. District Court in Vermont for a trial on the merits of the case.


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