With Vermont GMO Litigation, Uncertainty All Around

May 5, 2015

By Ricardo Carvajal & JP Ellison

Last week, the federal district court judge presiding over industry’s challenge to Vermont’s law requiring GMO labeling issued a complex decision arising out of dueling motions.  The State of Vermont had asked the court to dismiss the plaintiffs’ complaint, arguing that it failed to state a claim on which relief could be granted.  The plaintiffs has asked the court to enjoin the law pending resolution of the case.  The court’s ruling gave no party a complete victory.  The effect of the decision is that it allows some parts of the challenge to proceed (a partial victory for the plaintiffs), but also allows implementation of the law to go forward on the timetable favored by Vermont (a partial victory for the state).  For that reason, advocates of the law were quick to paint the decision as a victory.  However, it is clear that at least some aspects of the law face tough sledding, and it appears somewhat unlikely that the law will survive intact.  Provisions of the law prohibiting “natural” labeling of GMO foods appear particularly vulnerable, but the heart of the law – the GMO disclosure requirement – is not out of the woods. 

Much of the decision focused on the question of what level of scrutiny should be applied in considering whether the GMO disclosure requirement violates the First Amendment.  Although the court concluded that it was appropriate to apply a lower level of scrutiny (referred to as Zauderer scrutiny after the Supreme Court decision by that name), the court acknowledged that reasonable minds may differ – and that the final outcome is by no means certain at this early stage in the proceedings:

Because the State has established that Act 120's GE disclosure requirement is reasonably related to the State's substantial interests, under Zauderer, Act 120's GE disclosure requirement is constitutional. Nonetheless, because the appropriate level of scrutiny is a contested question of law and because the factual record is undeveloped, the court does not dismiss Plaintiffs' First Amendment challenge to Act 120's GE disclosure requirement under Zauderer at this time. [(Emphasis added)]

Regardless of how this key issue is ultimately resolved, there will doubtless be fodder for an appeal on one side or the other, which suggests that an ultimate resolution could be years away.  That uncertain panorama should give pause to other states contemplating following in Vermont’s footsteps.  If not, then the passage of additional measures in additional states will almost certainly usher in federal legislation creating a national, uniform standard for GMO labeling.  Indeed, Vermont’s law standing alone may have a sufficiently profound commercial impact to trigger that outcome. 

In the interim, the science moves on.  In some quarters, focus is turning to gene-editing as a way of developing desired traits without the need for transgenesis (the introduction of external genes). Developers are hoping that the new techniques will be less controversial, but at least some critics view gene editing as just another form of genetic engineering – and presumably one that should be disclosed in the labeling of foods derived from gene-edited plants.