Yesterday, Vermont's legislature became the first state in the Union to pass a GMO labeling bill that is not contingent on other states passing similar legislation. Vermont's governor, Peter Shumlin, who has expressed reservations about the bill, is expected to sign the legislation into law. The law, which will not go into effect until July 1, 2016, requires food packages containing genetically-engineered ingredients sold at retail to contain a label indicating the presence of such ingredients. The law exempts meat, poultry and dairy products from animals fed GMO feed from its labeling requirements. It also exempts alcohol and food sold by restaurants and cafeterias.
The proponents of the legislation believe that this law is necessary because consumers have the right to know whether their food contains GMO ingredients. They also believe that the labeling initiative is important to protect organic farms from cross-pollination (although the bill does nothing to prevent cross-pollination). To support their argument that labeling is necessary, the legislature pointed to the fact that FDA does not conduct its own studies on the health effects of GMOs, nor does it conduct epidemiological studies on these crops. However, the legislation fails to mention that FDA does not conduct independent studies on the safety of any other new food product it approves. Also, my research efforts have also failed to find any evidence that FDA conducts long-term epidemiological studies on carrots.
Vermont has a history of passing labeling legislation that is ultimately rejected by federal courts for violating the First Amendment. For instance, when the anti-corporate cause du jour was labeling milk that contained rBST hormones, Vermont passed a first-in-the-nation labeling law. However, this law was promptly overturned because the state could not demonstrate that rBST milk differed from conventional milk in terms of health or safety effects, and accordingly, the state had no substantial interest in requiring a label.
Vermont's legislature is once again on vulnerable legal ground with its GMO labeling legislation. It has no science on its side indicating that GMO products are less healthy or safe than their conventional counterparts. Furthermore, labeling cannot advance the legislature's stated interest in protecting organic farms from cross-pollination with GMO crops. Even the state's Attorney General has expressed concern that his office may not be able to defend the legislation in court.
Due to the law's tenuous legalality and near certainty that it will face a constitutional challenge, the legislature appropriated $1.5 million to Vermont's Attorney General office to defend the law. Additionally, the legislature is allowing private donors to contribute to the cost of defending the law. Those with a financial stake in stigmatizing GMOs, including large organic food companies, will likely open their coffers to the fund.
The litigation that will result from this law will be drawn out and likely go through at least one round of appeals. At this point, its impossible to absolutely guarantee which side of the issue will come out on top. But with this much at stake on both sides of the labeling issue, I can predict one group that will walk away winners - lawyers.
John Dillard is an attorney with Olsson Frank Weeda Terman Matz P.C. (OFW Law), a Washington, DC-based firm that serves agricultural clients and clients with issues before federal and state courts, EPA, FDA, USDA, and OSHA. John focuses his practice on agricultural and environmental law. He occasionally tweets at @DCAgLawyer. This column is not a substitute for legal advice.