Free Speech -- 2016



Grocery Manufacturers Ass'n v. Sorrell   (D. Vt.)

Vermont labeling law for genetically engineered products

The NAM joined the Grocery Manufacturers Association, the Snack Food Association, and the International Dairy Foods Association to challenge a Vermont statute (Act 120) that requires manufacturers to disclose when food has been produced with genetically engineered (GE) ingredients by labeling them as either produced, partially produced, or which may be produced with GE ingredients. Act 120 also prohibits labeling any food produced with GE ingredients as “natural,” “naturally made,” or “all natural.” In contrast, Act 120 provides an exemption for the same foods that are served in restaurants.

The NAM argued that labeling food with these disclosures will stigmatize certain foods over others, potentially hurting sales. This compelled speech violates the First Amendment guarantee of freedom to speak and freedom to not speak. Any such requirement must accomplish a compelling government interest and be the least restrictive means possible, but the Vermont government lacks such an interest because the FDA has found that GE foods cause no harmful effects. Furthermore, Act 120 does not implement the least restrictive means since labeling systems such as the USDA’s “Certified Organic” program or the Non-GMO Project are already in place. The NAM presented a similar argument in the case American Meat Institute v. USDA (D.C. Cir., No. 13-5281), in which a USDA regulation requires country-of-origin labeling of meat.

We also argued that Act 120 violates the Commerce Clause by unfairly targeting out-of-state food manufacturers. Virtually no major food manufacturer is based in Vermont, while local restaurants and dairy producers are all exempted from the law. This places an undue burden on interstate commerce by requiring companies to create costly labeling and advertising procedures specific to Vermont.

Lastly, federal law and FDA jurisdiction should preempt Act 120. Congress has authorized the FDA to regulate food safety and labeling. The FDA has approved all of the legally manufactured GE foods targeted by Act 120 and has repeatedly rejected efforts to require special labeling for them. The Vermont law directly conflicts with Congress’ intent and the regulations already implemented by the FDA.

After Vermont moved to dismiss our litigation, we filed a detailed brief in opposition, along with a Motion for a Preliminary Injunction. We outlined the reasons our law suit states valid claims under the First Amendment and Commerce Clause of the Constitution. Our motion for an injunction is supported by 9 declarations from various industry experts about the practical effect of the Vermont statute. We asked the judge to enjoin enforcement of the law for the duration of this litigation because manufacturers will suffer severe, irreparable and unavoidable injury without an injunction.

Manufacturers do not segregate products according to the state's mandate, and they will now have to create a separate labelling system, a separate stock-keeping unit, and a Vermont-specific distribution chain for Vermont-bound products. They must also comply with upcoming label changes from the Food and Drug Administration. Moreover the compliance lead times are is too short, particularly since Vermont is not expected to issue rules until July 2015. Since retailers are immune from the law, manufacturers bear the responsibility to ensure that products with current labels are swapped out in time. A manufacturer with 100 products could face over $5 million in potential penalties and liability because the retailer left the products on the shelf for ten days too long.

Oral arguments on our Motion for a Preliminary Injunction and the state's Motion to Dismiss were held on January 7, 2015. On April 20, 2015, the Vermont Attorney General's Office adopted regulations implenting the law. On April 27, the judge partially granted and partially denied the state's motion to dismiss the case, and refused to apply strict scrutiny to the mandated speech requirements, making it easier for the state to justify the law as the case proceeds. The judge also rejected our arguments that the law interferes with interstate commerce. However, the court found that we were likely to prevail on certain aspects of our First Amendment claim relating to the use of the term "natural."

On May 6, we notified the court that we are appealing the decision to the U.S. Court of Appeals for the Second Circuit. Click here for further information about the appeal.

Congress passed, and President Obama signed on July 29, 2016, a law which establishes a "National Bioengineered Food Disclosure Standard," and which contains a preemption provision prohibiting any state from continuing in effect "as to any food or seed in interstate commerce any requirement relating to the labeling of whether a food . . . or seed in genetically engineered." The Governor of Vermont also announced that the state would no longer be enforcing the state law. The parties concluded the case with a stipulated dismissal.


Related Documents:
Reply Brief in Support of Motion for Prelim. Injunction  (December 5, 2014)
NAM Opposition to Motion to Dismiss  (September 11, 2014)
Memo in Support of Motion for Preliminary Injunction  (September 11, 2014)
Press Release  (June 13, 2014)
NAM Complaint  (June 12, 2014)

 


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