July 24, 2014

Update on State Legislative Efforts to Label Genetically Engineered Food

An update on the efforts to enact state laws that mandate the labeling of genetically engineered (GE) foods: at present, Connecticut and Maine have enacted conditional GE food labeling laws, which are not to take effect until a requisite number of neighboring states also pass such laws; effectively, these laws are dormant right now.  In contrast, Vermont passed a GE food labeling law, Act 120, in April of this year, with its mandates to take effect in July, 2016.  Vermont did not follow the conditional model set by the other states, and supporters of the law expected litigation to follow. Since the enactment of this law, Vermont has been sued by the Grocery Manufacturer’s Association and other trade groups, which filed their complaint in June. The complaint alleges a violation of the First Amendment, arguing that the manufacturers will be subject to a form of compelled speech, and as such, this amounts to an impermissible content-based regulation that is unconstitutional. Even accounting for the sometimes more deferential review of speech-related laws that target commercial entities (see 1980 Central Hudson v Public Service Commission), the plaintiffs assert that the state even fails to muster a “substantial government interest,” noting the failure of an earlier Vermont labeling law on dairy products produced from BGH-few animals to pass constitutional scrutiny in International Dairy Foods Association v. Amestoy (2nd. Cir. 1996) (one of the plaintiffs in this current litigation, the International Dairy Foods Association, had challenged the earlier law as well). The complaint against the Vermont GE law further alleges a Fifth Amendment defect pertaining to the vagueness of some terms in the statute, as well as a dormant Commerce Clause violation in view of the extraterritorial effects of the Vermont law on companies based outside Vermont who would be required to “establish Vermont-specific distribution channels.” As this litigation unfolds, efforts continue to mandate GE food labeling in other states. Active legislative efforts are underway in Pennsylvania, New Jersey, Illinois, Massachusetts and New Hampshire. Lastly, voter-initiated ballot measures to mandate GE food labeling will appear this fall in Colorado and Oregon (earlier initiatives in Washington (2013) and California (2012) failed by narrow margins).  All of these state efforts arise in the absence of (and official resistance to) any federal scheme for mandatory labeling of GE foods; the FDA imposes no such requirement but does allow voluntary labeling.

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