States support Vermont’s position in GM labeling lawsuit.

  • As previously covered on this blog, 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 is ongoing.  Following the Vermont district court’s denial in April of the plaintiffs’ motion for a preliminary injunction, GMA filed an appeal in the Second Circuit Court of Appeals, arguing that the constitutionality of the law must be analyzed under Central Hudson‘s intermediate standard of scrutiny.
  • Eight states — Connecticut, Maine, Maryland, Massachusetts, Hawaii, Illinois, New Hampshire, and Washington — have filed an amicus brief in the Second Circuit to support Vermont’s position in the litigation.  In their brief, the states argue that the lesser “reasonable basis” standard from Zauderer should be used to evaluate mandatory commercial disclosure laws under the First Amendment, citing parallels to other courts’ application of that standard in cases involving constitutional challenges to mercury labeling, calorie disclosure, and country of origin labeling requirements.  The Zauderer standard applies to “purely factual and uncontroversial disclosures,” and the parties in this case clash over whether GM labeling information may be characterized as such.
  • The level of scrutiny to be applied is a pivotal factor in the outcome of this case and the food industry trade associations are likely to lose if the Zauderer “reasonable basis” standard is applied, which is why they are advocating for the application of Central Hudson‘s intermediate standard.  The Second Circuit reportedly will hear oral arguments by Fall 2015, with a decision due by the end of the year.  Depending on the decision and on Congressional action (or inaction) on federal GM labeling legislation, the food industry may continue to wait for resolution of this issue as the law’s July 1, 2016 implementation date draws nearer.