Vermont’s GM labeling law survives initial challenge.

  • For months, the food industry has anxiously awaited developments in the lawsuit brought by the Grocery Manufacturers Association (GMA) and other trade associations to challenge Vermont’s labeling mandate for Genetically Modified (GM) food products.  The law takes effect on July 1, 2016, and Vermont’s Attorney General recently adopted implementing regulations.  Under Vermont’s law, certain manufacturers and retailers will need to identify whether raw and processed food products sold in Vermont were produced in whole or in part using GM technology.  The law also prohibits the use of “natural”-type claims on GM food products.  GMA – together with the Snack Food Association (SFA), International Dairy Foods Association (IDFA), and National Association of Manufacturers (NAM) – challenged the law primarily on First Amendment, Commerce Clause, and preemption grounds.  The plaintiffs also sought a preliminary injunction in the case.
  • In an opinion issued on April 27, 2015, Judge Christina Reiss, Chief Judge of the U.S. District Court for the District of Vermont, has allowed Vermont’s law to stand for now, denying the plaintiffs’ motion for a preliminary injunction and dismissing specific counts related to the Commerce Clause and preemption-based challenges.  On a positive note for the food industry, the court found that plaintiffs are likely to prevail on their claim that the law’s ban on the use of “natural” claims for foods containing or possibly containing GM ingredients is unconstitutional.  In the context of the First Amendment challenge, however, the court held that Vermont’s labeling requirement does not warrant “strict scrutiny.”  In denying the plaintiffs’ motion for a preliminary injunction, the court did not appear to be persuaded that plaintiffs would suffer “irreparable harm” pending resolution by trial; instead, the judge concluded that plaintiffs had identified only “the ‘possibility’ of harm.”
  • Although several aspects of the plaintiffs’ challenge have survived the State’s Motion to Dismiss and proceed to a trial on the merits, it is very much an open question whether plaintiffs will be able to convince the court at trial to strike down the law.  In effect, the food industry still must wait in limbo, counting down to possible compliance on July 1, 2016…waiting to see if the federal government will intervene with its own labeling “fix”….waiting to see if other states will attempt to impose GM labeling requirements… and all the while continuing to hope for ultimate victory in the GMA challenge.