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The Food Fight Continues: Vermont AG Seeks to Dismiss Lawsuit Against GMO Labeling Law

In June, we reported on a suit brought by the Grocery Manufacturers Association (“GMA”) seeking to rescind Vermont’s new GMO-labeling statute, Act 120.  As we explained in that post, the GMA argues that Act 120 is doubly unconstitutional: not only does the law violate the Commerce and Supremacy Clauses (among others) of the U.S. Constitution by placing an undue burden on interstate commerce, it also runs afoul of the First Amendment by restricting the commercial speech rights of food companies to label their products.  Those constitutional problems—combined with the pragmatic difficulty of meeting the law’s ambitious compliance deadline of July 1, 2016—renders Act 120 indefensible, according to the GMA’s complaint.

GMAOn August 8, the Vermont Attorney General’s Office responded to this opening salvo with its own, asking the district court to dismiss the GMA’s complaint in its entirety.  Totaling 50 pages, the AG’s motion provides the first definitive look at the state’s arguments defending Act 120, shedding more light on the battle to come.

So what are Vermont’s responses to the criticisms levied by the GMA?  Highlights from the AG’s argument below:

  • The AG argues that Act 120 does not violate the Commerce Clause because it does not “clearly discriminate” against interstate commerce—that is, it is not an obviously “protectionist” measure that seeks to benefit businesses in Vermont by burdening out-of-state competitors.  And whatever burdens the law does impose on interstate commerce, the AG contends, pale in comparison to its putative “local” benefits to Vermont and its citizens.

  • The AG also contends that the labeling requirement does not infringe on food manufacturers’ First Amendment rights because it only seeks to regulate purely factual claims in advertising.  Because commercial fact-based speech receives less constitutional protection, the AG argues, Vermont need only show that the labeling requirement has a “rational basis”—an undemanding standard that state laws rarely fail to meet.

  • Finally, the AG maintains that Act 120’s ban on “natural” advertising claims for GMOs is not unconstitutionally vague, despite the breadth of the statute’s prohibition on the use of the words “natural, “naturally,” or other “words of similar import.”  The AG claims it will have the opportunity to clarify the statute’s application by issuing rules that spell out which uses of “natural” are permissible going forward.

The battle lines are now drawn; the parties’ positions have come into sharper relief.  The GMA will soon have its own opportunity to try to persuade the court either that it should decide the case in GMA’s favor or let the case go forward to the fact-gathering stage.  Look for the GMA to respond not only by challenging the relatively lenient constitutional tests that Vermont proposes, but also by arguing that actual evidence—not just legal argumentation—is necessary to determine whether the labeling requirement is valid.  We will keep a close eye on this case as it develops in the coming months.

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Staying in compliance with federal, state, Canadian, and international consumer product safety requirements and responding appropriately when there’s a potential hazard or product defect can help you avoid costly fines and enforcement actions as well as safeguard your organization’s reputation with consumers. Mintz Levin's Consumer Product Safety Practice is known for its capabilities and knowledge of product safety laws, regulations, and policies, including those of the US Consumer Product Safety Commission (CPSC), Health Canada, the European Union, Asia, individual US...