By: Jerry Chapin

 

A pending appeal filed by the Grocery Manufacturers Association (GMA) will likely determine the fate of Vermont’s labeling law (Act 120). Act 120, set to take effect in July of 2016, would require all foods sold in Vermont containing genetically modified organisms (GMOs) to be labeled as such. The appeal follows an April 2015 federal court decision dismissing GMA’s suit for a preliminary injunction that would have stopped the law from taking effect on constitutional grounds. Later this year, the Second Circuit will decide whether to apply a lower standard of constitutional scrutiny as used in Zauderer v. Office of Disciplinary Counsel, or an intermediate level of scrutiny as used in Hudson Gas and Electic Corp. v. Public Service Commission.  Under a Zauderer analysis, Act 120 would be constitutionally permissible if found to only require a “purely factual and uncontroversial” disclosure.  However, under a Hudson analysis, to uphold the constitutionality of Act 120, Vermont must show that its law advances an “important government interest” by means “substantially related to that interest,” a far more burdensome task. Given this novel issue of law and the widespread impact of the outcome, this one seems poised for Supreme Court review.

 

Whether it goes all the way to the top, or ends in the Second Circuit, the level of scrutiny applied in the court’s analysis will likely decide the case. The ruling will have a direct and widespread impact on labeling laws in other states, the food industry as a whole, and on consumers.  If the Second Circuit upholds Act 120, food producers and manufacturers will be tasked with delivering a slightly different product to Vermont than to the rest of the country. Furthermore, if other states follow in Vermont’s footsteps by passing slightly different labeling laws, producers could theoretically be tasked with supplying slightly different products to a multitude of different states in order to stay within compliance of each individual state’s laws. The cost associated with the organizational structure required to cater to a patchwork of state labeling laws would undoubtedly be passed onto the consumer.

 

The result would be higher food prices for products containing even trace elements of GMOs. Arguably more detrimental than an increase in the cost of food would be the perpetuation of the notion that GMOs are somehow unhealthy. Research has unanimously shown that there are no adverse health effects from consuming GMOs. Vermont has masterfully articulated their labeling law as a “right to know” issue, but the reality is, if passed, it will mislead the public into thinking GMOs are bad for us. We, the consumer, equate a government-mandated label with a warning, and by placing a GMO label/warning on a food product, Vermont is playing to the highly publicized misinformation that genetically modified seeds create a food product that is somehow harmful to our heath, when science has shown that this is simply not the case. In fact, studies have shown that organic produce is more likely to test positive for dangerous bacteria such as e-coli, salmonella, and listeria than conventional produce.

 

So why, Vermont, are you leading the witch-hunt against GMOs? Could it have anything to do with the fact that Vermont, despite its relatively small size, is the country’s eighth largest producer of organic foods? Maybe, but the likely answer is that Vermont is simply the sacrificial lamb of special interest groups who stand to make billions of dollars by tricking consumers into buying a more expensive non-GM product.

 

Bio: Jerry is an Electoral Board member of the Journal of High Technology Law. He is currently a 3L at Suffolk University Law School with a concentration in Trial and Appellate Advocacy. He holds a B.A. in Political Science from Roanoke College.

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