“Produced with Genetic Engineering”
This is one of the new labels that you will most likely see if Vermont’s GMO labeling law successfully avoids legal challenge and goes into effect as planned just about one year from now on July 1, 2016. The Vermont Attorney General’s office last week released the rules regarding the labeling of foods produced with genetic engineering that will guide manufacturers and producers of genetically engineering products for sale in this state.

What is covered:

1. Unpackaged food required to be labeled such as fresh fruits and vegetables

2. Packaged foods with genetic engineering offered for sale in Vermont including packaged raw agricultural commodities as well as processed foods.

What is exempt:

1. Animal products and foods bearing USDA approved labels

2. Foods certified as not produced with genetic engineering

3. Processing aids

4. Alcoholic beverages

5. Foods containing genetically engineered materials where the weight of the genetically materials is less than .9 percent of the total weight of the food

6. Foods verified by a qualifying organization – such as food certified as “organic” in accordance with USDA National Organic Program accreditations.

7. Food for immediate consumption such as unpackaged foods served in restaurants.

8. Medical food as defined by federal law.

The entire set of rules adopted by the Attorney General can be found here.

On Monday, the Federal Court denied the Grocery Manufacturing Association’s request for a preliminary injunction to stop the enforcement of the law beginning on July 1, 2016. This was a positive result for Vermont, the “david” in this david versus goliath battle. Vermont is the first state in the nation to pass and put into effect a GMO labeling law and opponents of the law were quick to file a complaint in federal court seeking to have the new law invalidated. This request for an injunction was the first step for the opponents to see if they would be able to have the court order that the law could not go into effect until the litigation was finalized.

While this was rather important and justifiably was splashed across the news around the country, not many reported that there was a second part to that ruling. While the opponents were seeking to have the court grant injunctive relief, the state of Vermont filed its own application seeking to dismiss, at least in part, the opponent’s claim. Vermont was predominantly unsuccessful on it application to dismiss various claims. For example, in response to the opponent’s claim that the labeling violates First Amendment rights, the court ruled: The court believes that Act 120’s affirmative labeling requirement is not barred by the First Amendment, but denies Vermont’s motion to dismiss the First Amendment challenge because the court recognizes that this is a serious question of law as to which courts might disagree; but the court finds that Act 120’s ban on the term “natural” does violate the First Amendment.

The court did dismiss the opponent’s claim that the labeling law violated the Commerce clause stating that the Act’s affirmative labeling law did not violate the Commerce clause since the labeling requirement only applied to products sold in Vermont. The court in its ruling was skeptical of some of the plaintiff opponent’s claims of a constitutional nature, but since this was a preliminary application, the court was reluctant to outright dismiss the plaintiff’s claims as a whole.

As has happened many times in the past, all eyes will continue to be on Vermont as this law and the legal challenge to it unfolds.

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