April 19, 2014

Vermont Prepared to Install First Mandatory State Labeling Law for Genetically Engineered Foods

The Vermont legislature has passed what could be the nation’s first state law requiring the labeling of foods with genetically engineered (GE) ingredients (at the federal level, the FDA does not mandate the labeling of GE-derived foods). The Vermont Senate has now cleared H. 112, which sets labeling standards for raw agricultural commodities and processed food that contain genetically engineered ingredients. In the last several years, a mechanism has emerged for states who want to implement labeling in concert with other states - they passed conditional labeling requirements for foods with GE ingredients that would only take effect if other states were adopting the same standards. Most notably, in 2013, Connecticut and Maine took this approach (see earlier post) and as of now, their laws have not taken effect as they await the required trigger conditions. The new Vermont law also adopts a similar conditional trigger, if that were to accrue before July 1, 2015, but if not – the Vermont law will go into effect on that date, whether other states do so or not. So Vermont is prepared to go it alone. Already, advocates of labeling in Vermont are anticipating the legal consequences of the law, sketching out responses to likely constitutional challenges – on First Amendment grounds (compelled speech) and the dormant Commerce Clause (improper state overreach into a federal sphere of action). Vermont has already experienced a defeat over a labeling law enacted in 1994 that required the labeling of dairy products from cows that were treated with recombinant bovine somatotropin (“rBST”); dairy farmers challenged the law under the First Amendment. In that case, the trial court had characterized the state motivation for the law: 
The State does not claim that health or safety concerns prompted the passage of the Vermont Labeling Law. Instead, it bases its justification for mandatory labeling not otherwise required by the FDA on strong consumer interest and the public's "right to know" whether a particular dairy product contains milk produced by cows given rBST. 
The 2nd Circuit ruled for the farmers, noting the government’s asserted interest in in satisfying the consumers’ right to know was “insufficient” to justify the speech-related injury claimed by the farmers: 
[W]e hold that consumer curiosity alone is not a strong enough state interest to sustain the compulsion of even an accurate, factual statement in a commercial context (citations omitted).
With that characterization in mind, the new Vermont labeling law includes the following statement of objectives: 
Because both the FDA and the U.S. Congress do not require the labeling of food produced with genetic engineering, the State should require food produced with genetic engineering to be labeled as such in order to serve the interests of the State, notwithstanding limited exceptions, to prevent inadvertent consumer deception, prevent potential risks to human health, promote food safety, protect cultural and religious practices, protect the environment, and promote economic development. 
This clause explicitly expands the state rationale to include matters of health and safety, likely elevating the significance of the government interests at stake, and refuting any charge that the state is only satisfying consumer curiosity, a seemingly trivial government interest to the courts that doomed the 1994 dairy labeling law. There is a flurry of state labeling efforts now underway -  there are 33 new GE food labeling bills pending in 19 states, as well as an Oregon ballot initiative on the November 2014 ballot.  At the federal level, opponents of mandatory labeling of GE food have introduced a federal bill, H.R. 4432, that would override any state legislation that would amend the Federal Food, Drug, and Cosmetic Act to declare that any labeling with respect to "bioengineering" would constitute “misbranding” and thus violate the federal statute. This bill would explicitly override state labeling laws: 
No State or political subdivision of a State may directly or indirectly establish under any authority or continue in effect as to any food in interstate commerce any requirement for the labeling of a food by virtue of its having been developed using bioengineering, including any requirements for claims that a food is or contains an ingredient that was developed using bioengineering. 
This bill competes with the previously-introduced H.R. 1699, a federal bill that would mandate nationwide GE food labeling. Both federal bills are unlikely to pass, leaving the state patchwork of labeling efforts and mandates in place.

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