Federal Judge Identifies Problems With Natural Restriction in Vermont GE Labeling Lawsuit

The 84-page ruling was a partial victory for both sides in the debate over whether Vermont had the right to require disclosure of GE foods and prohibit the use of the term “natural" and similar words on such products.

Josh Long, Associate editorial director, Natural Products Insider

April 29, 2015

4 Min Read
Federal Judge Identifies Problems With Natural Restriction in Vermont GE Labeling Lawsuit

A federal judge has denied the Grocery Manufacturers Association’s request for a preliminary injunction against the first state law to require labeling of genetically engineered (GE) foods.

Vermont’s Act 120 is set to take effect on July 1, 2016, and state Attorney General William Sorrell earlier this month adopted regulations implementing the controversial law.

The Grocery Manufacturers Association (GMA) and other foods groups requesting the injunction failed to show that their members would suffer irreparable harm without it, Christina Reiss, a chief federal judge in Burlington, Vermont, ruled on April 27.

Reiss partially granted and partially denied Vermont’s request to dismiss an amended lawsuit, which was filed by GMA, Snack Food Association, International Dairy Foods Association and National Association of Manufacturers.

The 84-page ruling enables the lawsuit to move forward and was a partial victory for both sides in the debate over whether Vermont had the right to require disclosure of GE foods and prohibit the use of the term “natural" and similar words on GE products in labeling and advertising.  

Reiss technically only ruled on the food groups’ request for the preliminary injunction and the state’s motion to dismiss the lawsuit. Still, she gave strong indications of how she would ultimately decide the questions of whether the GE disclosure requirement and natural prohibition are lawful.

While the judge leaned strongly in favor of an eventual ruling that the disclosure requirement holds up under the First Amendment, she identified a number of problems with the natural prohibition and found that it would violate protected commercial speech.

GMA, which represents more than 300 food, beverage and consumer product companies, said that it was reviewing the decision and considering its options.

“Manufacturers are being harmed, and they are being harmed now. Act 120 is unconstitutional and imposes burdensome new speech requirements on food manufacturers and retailers," the Washington, D.C.-based trade group said in a statement. “It will also set the nation on a path toward a 50-state patchwork of GMO labeling policies that will be costly and confusing for consumers."

Disclosure Requirement

Reiss rejected GMA’s constitutional claim under the Commerce Clause that the disclosure requirement’s effect is to discriminate against interstate commerce.

Examining the plaintiffs’ First Amendment challenges, the judge refused to apply a “strict scrutiny" standard that would have made it more difficult to justify the government’s interest in requiring the GE disclosures. She found the disclosure requirement was “reasonably related to the State’s substantial interests" and therefore constitutional.

“The safety of food products, the protection of the environment, and the accommodation of religious beliefs and practices are all quintessential government interests, as is the State’s desire ‘to promote informed consumer decision-making,’" Reiss wrote.

The judge rejected the plaintiffs’ argument that the disclosure requirement was unconstitutional under the First Amendment because it was based purely on consumer curiosity. Reiss referenced the legislative record in Vermont on the debate over the safety of GE ingredients.

“This record includes studies about the safety of consuming GE plant-based foods, as well as studies about the environmental impacts of GE and GE crops," Reiss wrote. “The State also points to its interest in accommodating religious beliefs about GE, as well as its interest in providing factual information for purposes of informed consumer decision-making."

Natural Prohibition

Vermont’s restriction on the use of the term natural was met with far more skepticism from the court.

Reiss found problematic her view that the restriction wasn’t limited to the State of Vermont.

“By its terms, Act 120 purports to restrict a GE manufacturer’s use of ‘natural’ terminology in signage and advertising nationwide and on the Internet," the judge observed.

“Act 120’s ‘Findings’ and ‘Purpose’ contain no mention of any putative benefit that could be tied to Vermont’s regulation of GE manufacturers’ advertising and signage activities in other states," she added.

The judge found the plaintiffs’ allegations adequate to state a claim that the natural restriction infringed on the Commerce Clause. And while Reiss dismissed certain claims that the disclosure requirement was preempted by the Federal Food, Drug, and Cosmetic Act and Nutrition Labeling and Education Act, she found the natural restriction was preempted by other federal laws, namely the Federal Meat Inspection Act and Poultry Products Inspection Act.

Burden on Industry

In their lawsuit filed in June 2014, the food groups claimed Act 120 will severely burden the food industry because most foods today at grocery stores contain genetically modified organisms. The groups characterized the labeling deadline as “difficult, if not impossible" for many of their members and said “some companies may have no choice but to revise the labels for all of their products, no matter where they might be sold in the United States."

In support of their request for a preliminary injunction, the food groups submitted declarations from Coca-Cola Company, PepsiCo, Inc., General Mills, ConAgra Foods, Inc. and Kraft Foods Group, Inc. Vermont also received support from the food industry, including Ben & Jerry’s, Clif Bar and Company, and Beanfields Snacks.

At the outset of her ruling, Reiss said she would not decide whether the Vermont General Assembly erred when it found GE “foods potentially pose risks to health, safety, agriculture, and the environment.”

About the Author(s)

Josh Long

Associate editorial director, Natural Products Insider, Informa Markets Health and Nutrition

Josh Long directs the online news, feature and op-ed coverage at Natural Products Insider, which targets the health and wellness industry. He has been reporting on developments in the dietary supplement industry for over a decade, with a focus on regulatory issues, including at the Food and Drug Administration.

He has moderated and/or presented at industry trade shows, including SupplySide East, SupplySide West, Natural Products Expo West, NBJ Summit and the annual Dietary Supplement Regulatory Summit.

Connect with Josh on LinkedIn and ping him with story ideas at [email protected]

Education and previous experience

Josh majored in journalism and graduated from Arizona State University the same year "Jake the Snake" Plummer led the Sun Devils to the Rose Bowl against the Ohio State Buckeyes. He also holds a J.D. from the University of Wyoming College of Law, was admitted in 2008 to practice law in the state of Colorado and spent a year clerking for a state district court judge.

Over more than a quarter century, he’s written on various topics for newspapers and business-to-business publications – from the Yavapai in Arizona and a controversial plan for a nuclear-waste incinerator in Idaho to nuanced issues, including FDA enforcement of the Dietary Supplement Health and Education Act of 1994 (DSHEA).

Since the late 1990s, his articles have been published in a variety of media, including but not limited to, the Cape Cod Times (in Massachusetts), Sedona Red Rock News (in Arizona), Denver Post (in Colorado), Casper Star-Tribune (in Wyoming), now-defunct Jackson Hole Guide (in Wyoming), Colorado Lawyer (published by the Colorado Bar Association) and Nutrition Business Journal.

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