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How the Food Industry Uses the Threat of Law Suits to Stop GMO Labeling Laws

The threats to sue states are clearly intended to strike fear in the hearts of those lawmakers genuinely concerned about spending tax dollars on costly court battles.
 
 
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The food industry is playing every conceivable angle in its quest to keep labels off foods that contain genetically modified organisms (GMOs)—including, according to a leaked document, threatening to sue the first state that passes a GMO labeling law. (Maine and Connecticut passed GMO labeling laws in 2013. But both have “trigger” clauses that prevent the laws from taking effect until at least four neighboring states, with a combined population of 20 million inhabitants, pass similar labeling bills).

The Organic Consumers Association has obtained the Grocery Manufacturers Association’s (GMA) “One-Pager” of talking points about GMOs and labeling laws. The document is intended for use by food industry lobbyists whose job it is to convince state lawmakers to reject GMO labeling bills in their states.

The talking points include the usual misinformation about GMO safety testing and the so-called benefits of GMOs. But they also include claims that GMO labeling laws are unconstitutional—claims that legal experts say are baseless.

The GMA may not have a legal leg to stand on. Still, the threats to sue states are clearly intended to strike fear in the hearts of those lawmakers genuinely concerned about spending tax dollars on costly court battles.

But GMO labeling activists are also concerned that some lawmakers will use the GMA’s threats as a convenient excuse to reject the majority opinion of their voters, in favor of siding with industry instead. Or as a means to convince their colleagues to add trigger clauses, similar to those in the Maine and Connecticut bills, in an attempt to stall or permanently sabotage GMO laws.

Food manufacturers insist that GMO ingredients are perfectly safe. Still, they’ve spent more than $70 million-- some of it illegally laundered—to defeat GMO labeling initiatives in California and Washington State. And the GMA, representing more than 300 food makers and trade associations, has drafted a bill (which so far has no sponsors) that would preempt state mandatory GMO labeling laws and allow the use of the word “natural” on GMO-contaminated products.

But now it appears the GMA, a member of the American Legislative Exchange Council (ALEC), has added another arrow to its quiver—intimidating lawmakers into submission by promising to entangle states in long, costly court battles.

Will Vermont Lawmakers Stand Up to Industry?

The GMA’s talking points are intended for use in any state weighing GMO labeling laws. But right now, it’s Vermont that’s once again in the spotlight. And Vermont lawmakers who are in the hot seat.

According to GMA propaganda, state GMO labeling laws violate the First Amendment, which protects commercial speech by prohibiting the government from compelling “certain statements.”

It’s not the first time Vermont lawmakers have had to deal with threats of lawsuits. In 2012, Monsanto lobbyists threatened to sue the state of Vermont if lawmakers there passed a GMO labeling bill. Vermont officials, including the governor, took the threat seriously. But activists responded by enlisting the help of legal experts to determine the bill’s constitutionality. After extensive research and analysis, both a Washington D.C.-based law firm, Emord & Associates, and the Vermont Law School independently concluded that Vermont’s GMO labeling bill would withstand a legal challenge from industry.

According to the Vermont Law School’s Environmental and Natural Resources Law Clinic, “We have researched and analyzed challenges that may be made in opposition to such legislation and have concluded that Vermont can pass GE labeling legislation that will meet all constitutional requirements.”

Attorneys at Emord & Associates drew the same conclusion:

Because the Second Circuit applies the Zauderer exemption for compelled speech broadly, and the Bill protects consumer health and safety, the law is likely constitutional under the First Amendment to the United States Constitution. Furthermore, H.112 does not impede or conflict with the federal Food and Drug Administration’s labeling regime for foods and dietary supplements. The federal system does not preempt H.112, which was enacted constitutionally under the State’s general powers. Finally, H.112 does not discriminate against interstate commerce, or impose a burden that outweighs Vermont’s legitimate interest in protecting the consuming public. Thus, H.112 does not violate the Dormant Commerce Clause.

 
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