Court denies attempt to stop Vermont's G.M.O. law

by Jeff Gelski
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BURLINGTON, VT. – A U.S. district court in Vermont on April 27 denied a preliminary injunction to stop Vermont’s G.M.O. labeling law from going into effect. The court, however, denied the state of Vermont’s motions to dismiss certain issues brought up by industry groups seeking the injunction.

Vermont’s Act 120 still is scheduled to go into effect on July 1, 2016. It will require food intended for humans and offered for retail sale in Vermont to be labeled as genetically engineered if it is produced entirely or in part from genetic engineering.

“While we are pleased that the district court found us likely to succeed on several of our claims, we are nevertheless disappointed by the court’s ultimate decision to deny our motion for preliminary injunction to block the implementation of the Vermont G.M.O. labeling law – Act 120 – on grounds that the manufacturers had not yet shown a sufficient degree of harm,” the Washington-based Grocery Manufacturers Association said. “We are reviewing this decision and considering our legal options. Manufacturers are being harmed, and they are being harmed now. Act 120 is unconstitutional and imposes burdensome new speech requirements on food manufacturers and retailers. It will also set the nation on a path toward a 50-state patchwork of G.M.O. labeling policies that will be costly and confusing for consumers.”

Joining the G.M.A. in asking for a preliminary injunction were the Snack Food Association, the International Dairy Foods Association and the National Association of Manufacturers.

The court dismissed the industry groups’ claim that Act 120 violates the Commerce Clause, but the court sided with the industry groups on a “natural” restriction. The court took issue with Vermont’s Act 120 prohibiting manufacturers from using labeling, advertising or signage indicating that a genetically engineered food product is “natural,” “naturally made,” “naturally grown,” “all natural,” or any words of similar import that would have a tendency to mislead a consumer.

The court pointed out Act 120 does not define the term “natural” or the phrase “any words of similar import.” Act 120 also purports to restrict the use of “natural” terminology in signage and advertising nationwide and on the Internet, according to the court.

The court also sided with the industry groups and did not dismiss their claim that the Federal Meat Inspection Act and the Poultry Products Inspection Act “expressly preempt all state regulation of labeling of meat and poultry products, including products Act 120 does not exempt.”

The court took issue with the industry groups’ argument of a potential 50-state patchwork of G.M.O. labeling policies. The court said currently no actual conflict exists between Vermont’s Act 120 and any mandatory G.M.O. labeling law elsewhere.

In support of their motion for a preliminary injunction, the industry groups submitted declarations from such companies as the Coca-Cola Co., PepsiCo, Inc., General Mills, Inc., ConAgra Foods, Inc. and Kraft Foods Group, Inc. The declarations concluded it is virtually impossible to manufacture many foods with non-bioengineered/non-G.M.O. sources for several reasons, including the prevalence of G.M.O. crops nationwide and the unavailability of non-G.M.O. ingredients in relation to demand.

The companies said complying with the Vermont law would require significant costs. For example, they would need to expand dual inventory, production and distribution systems for Vermont-bound products.

The state of Vermont submitted declarations from Ben & Jerry’s, Clif Bar and Beanfields Snacks. Their declarations challenged other manufacturers’ claims about the costs of creating new packaging, as well as the timing and feasibility of compliance with Act 120. They said using stickers, adding labels or using separate packaging for products requiring G.M.O. disclosure would save on costs and time.

Vermont’s Act 120 was signed on May 18, 2014. Bill Sorrell, attorney general for Vermont, on April 17 of this year officially adopted the regulations implementing Act 120.

“We are pleased at the amount of public input we received during the rule-making process, from industry and consumers, and are glad that, with the formal adoption of this rule, we are giving ample time for food manufacturers and retailers to prepare for the law to take effect in just over 14 months,” he said.
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