On April 21, the Vermont House of Representatives voted to accept a Senate-passed bill that would make the state the first to require food makers to label products that contain genetically modified crops. Vermont’s Governor, Peter Shumlin, has said he will sign the bill, which would take effect in July 2016.
The Grocery Manufacturers Association (GMA) called the bill “critically flawed,” claiming that genetically modified crops are safe, and noting that the FDA has found that GMO-containing foods are “safe and materially no different than conventionally produced products.” (The FDA has endorsed voluntary labeling of GMO or genetically modified organism products.) The GMA also noted in a release that consumers who want to avoid GMOs can simply choose products labeled “certified organic.”
Court challenges to the pending Vermont law are a virtual certainty, says Arnie Friede, senior food and drug law attorney with Sandler, Travis & Rosenberg, a former associate chief counsel in the FDA’s chief counsel’s office. He expects that their primary argument will be that “compelled disclosure” of GMOs is an improper restriction on free speech under the First Amendment.
“It looks like it’s lining up to be a key test case for whether this kind of disclosure can be mandated,” he says. “The primary question is whether or not this kind of labeling is justified by health and safety consideration, given the FDA’s position that there is no material difference between products containing GMOs and those that don’t.”
Another possible avenue to justify “compelled disclosure” might be consumer deception, Friede notes. “If the state could establish that failure to label was somehow misleading consumers, that might be a rational on which the law could be upheld.”
Although consumers may want to know whether or not the products they buy contain GMOs, that doesn’t necessarily mean that the law can compel that disclosure. “You could argue that there is a lot of information that some consumers want to know,” Friede says. “Maybe I want to know whether the people working in this company are being paid, or if their source of water is uncontaminated. But can the company be required to put that information on their labels?”
Next month, the D.C. Circuit Court of Appeals will consider a related case, involving Country of Origin Labeling (COOL) regulations for meat products, requiring that muscle cut covered commodities such as steaks, pork chops, and ribs be clearly labeled with the country or countries of origin where the animal was born, raised, and slaughtered. North American meat industry groups have challenged the regulations. “This case will be very analogous to the GMO labeling laws, as it is also about compelled disclosure in food products, and it’s highly likely that it will ultimately go to the Supreme Court,” Friede says.