GMA's Initial Attempt to Halt Vermont's GMO Labeling Fails

What do the Grocery Manufacturer’s Association, the Snack Food Association, the International Dairy Foods Association and the National Association of Manufacturers have in common? They are plaintiffs suing the state of Vermont to prevent the implementation of Vermont’s GE Labeling Law 120. The Judge, however, handed them a disappointment when she ruled on April 27, 2015 that she will not issue an injunction prior to the law going into effect on July 1, 2016.  GMA et al., is appealing that ruling.

The plaintiffs complained that the law impinges on their First Amendment right and that the federal law displaces (i.e. preempts) state law on the issue of food labeling and sought an injunction to prevent it from taking effect. They took issue not only with the GE labeling requirement of Labeling Law 120 but also the law’s prohibition against using the word “natural” and “any words of similar import” in products containing GMOs.

The State argued, among other things, that it has a right to protect its citizens, that the Legislative findings “reflect a substantial interest in the need to disclose information relevant to potential health consequences from human consumption of GE food; to accommodate religious beliefs and practices regarding GE and GE food; to promote informed consumer decision-making; and to address the potential ‘unintended’ consequences from GE food production to non-GE crops and the environment.” The State further argued that the law is reasonably related to that stated goal and it sought to dismiss plaintiffs’ complaint on various grounds.

The Court disagreed with plaintiffs’ that the federal law displaces state law and stated, with respect to conflict preemption, that “[r]egulation of food and beverages is an area in which Congress has long expressed its awareness of state legislation and has consistently tolerated the states’ competing interests and regulatory control.” In fact,

Because the “purpose of Congress is the ultimate touchstone in every pre-emption case,” … “[i]n areas of traditional state regulation, [the court] assume[s] that a federal statute has not supplanted state law unless Congress has made such an intention clear and manifest.” … Plaintiffs therefore fall short of plausibly alleging that Act 120′s GE disclosure requirement “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” … This court must therefore presume that Act 120′s GE disclosure requirement can “‘coexist with federal regulations,”‘ … and must dismiss Plaintiffs’ conflict preemption claims. (internal citations omitted).

The Court also found that “the State has established that Act 120′s GE disclosure requirement is reasonably related to the State’s substantial interests, …[and], Act 120′s GE disclosure requirement is constitutional,” but did not dismiss plaintiffs’ complaint at this time because the level of judicial review remains a contested question of law and to give parties the opportunity to further develop the case. Significantly, however, the Court ruled that plaintiffs were not entitled to a preliminary injunction that would prevent the law from being implemented.

As it concerned the Labeling Law’s prohibition against the use of the world “natural” the Court found that “the State’s complete ban on the use of ‘natural’ terminology in the advertising, labeling, and signage for GE food products…violates the First Amendment,” and permitted plaintiffs’ claim on this subject to proceed.

GMA is a trade organization representing large food and beverages makers. The U.S. Right To Know Foundation, which advocates for GMO labeling, has a compiled a provocative list of facts regarding the trade group. When not litigating the trade group spends its time lobbying against GMO labeling. A recent analysis by the Environmental Working Group, for example, found that “‘[t]he Grocery Manufacturers Association, disclosed $5.8 million in lobbying expenditures around GMO labeling in 2014,” which is a “sharp” increase from the $60,000 spent by the group in 2013.