Free Speech -- 2016

Grocery Manufacturers Ass'n v. Sorrell   (2nd Circuit)

First Amendment limits on government-mandated labelling disclosures and restrictions

The NAM joined the Grocery Manufacturers Association, the Snack Food Association, and the International Dairy Foods Association to file an appeal in the U.S. Court of Appeals for the Second Circuit on 6/24/2015, challenging a district court’s refusal to grant a preliminary injunction in a constitutional challenge to Vermont’s genetically engineered food labeling law. The plaintiffs challenged Vermont’s Act 210 which requires labels on products that contain genetically engineered (GE) plants and prohibits such products from being labeled as natural. The issue in this appeal is whether a district court erred in denying the plaintiffs’ request for a preliminary injunction to prevent the law from going into effect in July 2016.

On the mandatory labeling requirement, we argued that the district court incorrectly concluded that Act 210 compels only “purely factual and uncontroversial information” and therefore was subject to lesser judicial scrutiny. To the contrary, the debate around GE foods is highly controversial, and intermediate scrutiny should apply. Additionally, the law does not serve a substantial government interest because consumer curiosity alone is not a sufficient justification. The law further does not directly advance Vermont’s asserted interests because it is exceedingly vague and replete with exemptions, including food sold at restaurants, food sold for immediate consumption, and all animal products.

On the speech restriction issue (prohibition on labeling products as natural when they contain GE ingredients), the lower court agreed that the plaintiffs are likely to succeed on the merits. However, we argued that it erroneously found that we had not sufficiently shown that our members would be irreparably harmed by the restriction. The loss of a First Amendment right is per se irreparable harm.

The NAM urged the Second Circuit to reverse the district court’s ruling.

Amicus, or friend-of-the-court, briefs were filed July 1 by (1) the American Chemistry Council and American Beverage Association, (2) the Biotechnology Industry Organization, (3) the U.S. Chamber of Commerce, (4) American Soybean Ass'n, Corn Refiners Ass'n, National Corn Growers Ass'n, National Cotton Council and National Council of Farmer Cooperatives, and (5) Washington Legal Foundation.

On July 14, the House of Representatives passed S. 764, previously passed by the Senate, that provides a national mandatory disclosure standard for bioengineeered foods and preempts state genetic-engineering labeling requirements. The bill was signed by President Obama, and we filed a stipulation dismissing the appeal on Aug. 4.

Related Documents:
NAM Reply Brief  (September 8, 2015)
NAM Brief  (June 24, 2015)


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