Preview: Vermont GMO Battle

Sunday, March 23, 2014
Montpelier — State lawmakers got a sneak preview last week of the court battle that likely awaits if they pass a bill requiring genetically modified foods sold in Vermont to be labeled.

Industry representatives both for and against the labeling bill, H.112, gave heated testimony at the Statehouse on Wednesday before members of the Senate Judiciary Committee, where the bill, which already passed the House, awaits action.

The bill would mandate that most packaged foods be labeled if they contain genetically modified organisms, known as GMOs. As written, dairy products, alcohol and meat, plus restaurant food, would be exempted from the law.

Sen. Dick Sears, D-Bennington, chairman of the Senate Judiciary committee, said he supports the bill, but his biggest concerns are the potential cost of litigation and the dairy exemption.

Assistant Attorney General Bridget Asay testified that the state may spend about $1 million defending the law in court. Even if the state is successful, she said, it would be hard to recover legal fees. If the state lost, the legal challenge could cost $5 million or more. The estimate includes the state’s costs and potential reimbursement for a victorious plaintiff.

Given the potential price tag, Sears said, he wants to make sure the law is foolproof.

To that end, the hearing Wednesday served as a preview of what challenges opponents may bring against the pending legislation. Sears said the expert testimony opposing a labeling law comprised the first negative comments his committee had heard, though the Senate Agriculture Committee previously gathered opposing views in its deliberations.

Potential Amendments

As senators ready the bill for a committee vote by the end of March, two major amendments emerge as possibilities: One, to require a legal defense fund to cover the costs of litigation, and another to eliminate the dairy exemption for fear it may undermine the bill’s viability in court.

Asay conveyed Attorney General Bill Sorrell’s concerns about a proposal to pass the bill only if a privately funded legal defense fund would be established to cover the expense of legal challenges.

“If the Legislature concludes that a proposed law serves the public interest and should be adopted notwithstanding the possibility of a legal challenge, it should pass the law and assume the cost of its defense,” Sorrell wrote in a letter to Sears.

“Quite frankly that boxes us in,” Sears told Asay at the hearing. He said he thinks it would be irresponsible to set the state up for a potentially costly lawsuit without setting aside the money to pay for it.

Sen. Jeanette White, D-Windham, said she’s troubled by the prospect of setting a precedent for supporting only what can be backed by wealthy interests. The legal defense fund idea was not part of the Senate Agriculture bill, Sears acknowledged after the hearing, but he said that doesn’t mean the idea can’t be revisited.

Leaving dairy out of the bill was a strategic move on the part of the Vermont Public Interest Research Group, known as VPIRG.

“We wanted to make the law about genetically modified foods,” said Falko Schilling, a lobbyist for VPIRG. “Milk itself is not genetically modified,” Schilling said, even though milk-producing animals may consume GMO grains.

The public policy and consumer affairs group’s pro bono legal counsel, the Environmental and Natural Resources Law Clinic at the Vermont Law School, testified that case law also supports the exemption. Andrew Homan cited the failed regulation of the growth hormone rBST as a lesson that any object of labeling regulation must be provably different from the products that don’t require labels.

Milk samples from animals that have and have not consumed GMO grains have not been proven compositionally distinct, he said. Therefore, they should be treated the same. Genetically modified ingredients in food products, however, can be detected.

Still, Sears wants assurance. “Do we have a reason, that can be defended in court, that exempts dairy and not corn chips,” he asked. “Or is it because Vermont is a big dairy state?”

Legal Arguments

The issue of milk’s composition presages a deeper legal argument behind GMO product labeling.

A potential lawsuit would hinge on several legal arguments: First Amendment rights and protections against compelled speech, “equal protection” laws, rules prohibiting conflict between state and federal laws, and the so-called “dormant commerce clause” saying states can’t make laws that will have an adverse impact on interstate commerce.

Beneath these legal questions brews a morass of conflicting opinions, contradictory scientific reports and varying interpretations about federal policy on GMOs — or the lack thereof.

The differences are critical because many legal arguments — especially that of compelled speech — revolve around whether GMO products are different, and whether the information contained in a label is “fact.”

On Wednesday, labeling supporters said the federal Food and Drug Administration had not determined whether GMO foods are safe. But labeling opponents said the FDA had clearly determined they are.

Stanley Abramson, an attorney with Arent Fox PLLC who represents the Biotechnology Industry Organization, as well as global agricultural firm Monsanto, is a former lawyer for the Environmental Protection Agency and a principal drafter of the federal government’s Coordinated Framework for Regulation of Biotechnology. Abramson testified by telephone from Washington, D.C., to caution against the labeling law.

He said the FDA’s position is that GMO food should be held to the same safety standards as anything raised through traditional breeding techniques. This implies the two groups of food are “substantially similar” and therefore should be treated equally under the law. Any labeling requirement to distinguish GMO food would be misleading, Abramson testified.

Abramson’s position was echoed by Val Giddings, a geneticist by training who now works as a private consultant and who testified as a senior fellow at the Information Technology and Innovation Foundation in Silver Springs, Md. Giddings and Michael Hansen, a senior staff scientist with Consumers Union, differed emphatically on bodies of science surrounding GMO foods.

Giddings testified at length about a lack of credible scientific evidence that GMO foods pose any risks.

The flip side of federal law and policy treating GMO and non-GMO food equally is that there is no mention of GMO products in the federal Food, Drug and Cosmetic Act. When it comes to the interplay between federal and state laws, federal statutes hold sway. No state law can pre-empt a law of the nation.

Should it pass, H.112 would not take effect for one or two years, to allow time for rulemaking by the state and compliance among food producers. Asay said, however, that if any parties intend to sue over the law, they likely would file suit very quickly after passage.

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