Vermont’s law requiring food producers to put a one-line label on their products containing genetically modified ingredients is unconstitutional, according to industry trade groups now challenging the state’s law in federal court.
Four national trade groups representing companies that produce cereals, yogurt, snacks and other products likely to contain genetically engineered ingredients filed a lawsuit Thursday against the state over its first-in-the-nation GMO labeling law.
Vermont’s law requires food products containing genetically modified ingredients to be labeled starting July 1, 2016. Proponents say the law gives consumers more information to make informed decisions about the food they purchase.
The Grocery Manufacturers Association, which represents cereal-maker General Mills, among others, is leading the charge against Vermont. The other groups are the Snack Food Association, the International Dairy Foods Association and the National Association of Manufacturers.
“Vermont’s mandatory GMO labeling law – Act 120 – is a costly and misguided measure that will set the nation on a path toward a 50-state patchwork of GMO labeling policies that do nothing to advance the health and safety of consumers,” GMA said in a statement.
Legal claims
Labeling opponents say the law requires companies to place a “de facto warning” label on their products when there is little scientific evidence that consuming GMO products is harmful for human consumption.
GMA said the Vermont’s law is unconstitutional because it violates First Amendment free speech protections – including the right to not speak at all. They say Vermont has not proven that consuming GMO products is harmful enough to compel this sort of speech.
“Act 120 imposes burdensome new speech requirements – and restrictions – that will affect, by Vermont’s count, eight out of every 10 foods at the grocery store. Yet Vermont has effectively conceded this law has no basis in health, safety, or science,” the group said.
The group also says the law violates interstate commerce protections because it favors Vermont companies over others.
The lawsuit says that there “are no major food manufacturers based in Vermont” and that “the cost of implementing the regulation falls largely, if not entirely, on out-of-state companies.” This cost is especially burdensome for companies that will have to segregate labeled products sold into regional distribution chains, the lawsuit says.
GMA says Vermont’s law preempted by existing federal regulation. The U.S. Food and Drug Administration does require manufacturers to label genetically engineered ingredients.
“The Constitution prohibits Vermont from regulating nationwide distribution and labeling practices that facilitate interstate commerce. That is the sole province of the federal government,” the group said.
The group is asking the state to repeal the law and pay for legal and attorney fees.
He said the law requires manufacturers to provide consumers with basic information about their products just as they do with existing nutritional information.
“The food industry has to label their calories and their salt content and their sugar content, and any number of other things, which are not, in and of themselves, harmful,” Sorrell said. “And this is just, in our view, another consumer warning – information for consumers to make informed choices on what products they want to buy.”
He said the law does not violate interstate commerce because more than 60 countries have enacted similar laws. And other states have labeling laws that would take effect when neighboring states pass similar policies, he said.
“It’s not like Vermont is this one marketplace in the whole world that’s going to require this labeling. There are many around the world. And we’ll see how other states go,” Sorrell said.
He estimates defending the law could cost $1 million to win and $5 million or more to lose. The state is stockpiling $1.5 million through state appropriations and settlement surpluses to defend the law. The state also taking private donations through a defense-fund website, Foodfightfundvt.org.
Costs of labeling
The lawsuit says it is impossible to substitute non-GE ingredients in products sold in the state because there is not enough supply to serve current demand.
“The prices are prohibitively high because of that low supply, and any increased demand resulting from the Act would send prices higher. Even if the supply of such ingredients were to increase in the future, or prices were to drop dramatically, manufacturers would face significant challenges changing their product formulations just for Vermont,” the lawsuit says.
Biotechnology Industry Organization, the world’s largest biotechnology trade group, said the law will increase food costs by about $400 dollars per year for the average household. These costs include both the higher price of non-GMO products and food distribution challenges.
Sorrell said these costs are overestimated. He said automakers made the same claims when they challenged Vermont (and nearly a dozen other states) for adopting California’s greenhouse gas emissions limits on cars and trucks.
“To the extent that there is a cost increase, I think it will be really minimal” he said.
The challengers
The Snack Food Association is a Virginia trade group representing 400 companies worldwide, including manufacturers of potato chips, tortilla chips, cereal snacks, pretzels, popcorn, cheese snacks, meat snacks, pork rinds, snack nuts, party mix and corn snacks, along with other product categories, according the lawsuit.
The International Dairy Foods Association, is a Washington, D.C.-based group representing 550 of the nation’s milk, cheese and ice-cream companies. The group represents the $2 billion New England dairy giant, Hood.
The National Association of Manufacturers is the nation’s largest manufacturing association.
