Attorney: This case could end up in the Supreme Court

What does the ruling in Vermont mean for GMO labeling?

By Elaine Watson contact

- Last updated on GMT

Attorney: “Ultimately, the court’s ruling suggests the government could mandate disclosure of any ‘fact’ that consumers express an interest in knowing about with respect to food products. This is a low bar.”
Attorney: “Ultimately, the court’s ruling suggests the government could mandate disclosure of any ‘fact’ that consumers express an interest in knowing about with respect to food products. This is a low bar.”

Related tags: Supreme court, Supreme court of the united states, Appeal

While opponents of Vermont’s GMO labeling Act 120 suffered a major setback this week after a federal judge rejected many of their arguments, some attorneys predict the case could ultimately end up in the Supreme Court to settle a long-running debate over compelled speech on product labels.

Their comments came after US district court chief judge Christina Reiss said she would not block the implementation of Act 120​ until litigation over the law is resolved.

In her 84-page order and opinion​ filed on April 27, Reiss said she was also unconvinced by most arguments put forward by the Grocery Manufacturers Association (GMA) et al in a lawsuit​ that Act 120​ is preempted by federal law or that it violates the First Amendment, although she was sympathetic to some of its concerns.

In the meantime, food manufacturers and retailers remain stuck between a rock and a hard place, because whatever happens regarding the lawsuit, Act 120 will likely come into effect first (July 1, 2016), meaning they will have to make a decision now​ as to how to label their products in order to comply.

Not surprisingly, therefore, the news from Vermont has prompted renewed efforts to get a federal GMO labeling law through Congress, with a letter​ signed by PepsiCo, General Mills and others this week urging the House of Representatives to pass Mike Pompeo’s Safe and Accurate Food Labeling Act​, which would bar GMO labels unless there is a health concern and create a voluntary non-GMO certification program.     

I expect that the law will be allowed to take effect in 2016 while the appeal continues

So what happens next?

First, the GMA et al will likely challenge Reiss's decision not to grant a preliminary injunction to put the law on hold by filing an appeal to the U.S. Court of Appeals for the Second Circuit in New York City, Richard Samp, Chief Counsel at the Washington Legal Foundation told FoodNavigator-USA.

But this will not help manufacturers in the short term he predicted:

What does Act 120 mandate?

Under Act 120 - which comes into force on July 1, 2016 - firms must declare in a “clear and conspicuous​” manner that foods are: ‘Produced with genetic engineering’​ or ‘partially produced with genetic engineering’ ​or ‘may be produced with genetic engineering’​ unless they can prove otherwise.

But they could also declare, for example, that the FDA does not consider food produced with genetic engineering to be materially different from other foods.

EXEMPTIONS​: Meat or milk from animals fed GE feed, alcohol, processing aids/enzymes, medical foods, foods sold in restaurants, or packaged foods where the aggregate weight of the GE material is no more than 0.9% of the total weight of the food.

NATURAL CLAIMS​: Foods containing genetically engineered ingredients cannot be marketed as ‘natural’.

PENALTIES​: Violators will be liable for a civil penalty of up to $1,000 per day, per product.   

That appeal would likely take upwards of two years.  Although the appeals court has the power to grant an injunction against enforcement of a statute pending completion of the appeal, that power is rarely exercised.

"Thus, I expect that the Vermont law will be allowed to take effect in 2016 while the appeal continues.”

It should be far more objectionable to force someone to speak against his/her will than to prevent him/her from speaking

Meanwhile, the fact that Reiss was not persuaded by the GMA’s First Amendment arguments (that Act 120 compels its members to say things they don’t want to say, and which are potentially controversial, for no good reason other than consumer curiosity) was “disappointing but not entirely surprising”, ​he said.

At the heart of this debate are differing interpretations of a U.S. Supreme Court decision issued in 1985 (Zauderer v. Office of Disciplinary Counsel, Supreme Court of Ohio​), he argued.

Some courts, he said, including this one in Vermont, interpret the Zauderer decision as establishing a more relaxed standard of review under the First Amendment when the government is compelling ​commercial entities to speak than when it is restricting ​their speech. 

But this “makes little intuitive sense", ​said Samp. "It should be far more objectionable under the First Amendment to force​ someone to speak against his/her will than to prevent​ him/her from speaking.”

The issues at stake in the Zauderer case, moreover, did not apply well to GMO labeling, he argued. “It says that when a commercial speaker puts out an ad, the government can force the speaker to include whatever additional information is necessary to prevent the ad from being misleading. But that doctrine, at least in my view, has nothing to do with GMO labeling.”

I expect that the Supreme Court will be required to address the issue again

In fact, as recent arguments over cigarette labeling and country-of-origin labeling of meat products have highlighted, there is “widespread disagreement among the appeals courts” ​about what Zauderer means in the context of product labeling, he said.

“I expect that the Supreme Court will be required to address the issue again within the next several years in order to clear up confusion regarding the meaning of Zauderer. The Vermont case might be a good vehicle for it to do so.”

Ultimately, the court’s ruling suggests the government could mandate disclosure of any ‘fact’ consumers express an interest in knowing

David L. Ter Molen, a partner in the Chicago offices of law firm Freeborn & Peters LLP,  told us he was also surprised the court in Vermont had set such a “low bar​” when it came to determining whether the compelled speech in question (in the form of mandatory GMO labels) violated the First Amendment.   

He added: “Ultimately, the court’s ruling suggests that the government could mandate disclosure of any ‘fact’ that consumers express an interest in knowing about with respect to food products. This is a low bar.”

The court also set a low bar in determining that a reasonable relationship existed between the compelled speech (the GMO labels) and a ‘substantial government interest’, he claimed.

“In sum, the ruling reflects a lack of clarity from the U.S. Supreme Court on compelled commercial speech cases.”

Bethany Kennedy, an associate at law firm Emord & Associates, meanwhile, predicted an appeal against Reiss’s refusal to grant a preliminary injunction would be unlikely to succeed: “The plaintiffs will have a difficult time showing that the district court made clearly erroneous findings of fact or applied the incorrect legal standard.”

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