Burlington Free Press
by Dan D’Ambrosio

Attorney General William Sorrell is well aware of the high stakes involved in his defense of Vermont’s labeling law for genetically modified organisms against a lawsuit by the Grocery Manufacturers Association.

VTLabel CedarCircleFarmandEducationCenterSource: Cedar Circle Farm & Education Center

Across the nation, farmers, corporate executives at giant multinational food companies such as Unilever, and millions of Americans who question the health effects of genetically engineered food are watching and waiting to see what happens in the Vermont lawsuit. Oral arguments in the case tentatively are scheduled for early January.

The Grocery Manufacturers Association and several other trade organizations filed the lawsuit against the state one month after the law passed in May. The association argues that Act 120, as the law is known, violates the U.S. Constitution by compelling manufacturers to “convey messages they do not want to convey,” among other arguments.

Vermont’s law doesn’t go into effect until July 1, 2016, but the grocery association already is asking the U.S. District Court in Vermont to grant a temporary injunction to prevent the state from moving forward with implementation of the law. Sorrell’s team, which includes high-powered Washington, D.C., law firm Robbins, Russell, retained on a contract for $1.465 million, will argue to dismiss the lawsuit.

“We have committed to doing our level best to uphold this law,” Sorrell said. “This law has strong support from the Legislature and Vermonters.”

National polling shows a majority of Americans think consumers have the right to know whether genetically engineered ingredients are in the food they’re buying, Sorrell said. The Vermont law would require that processed foods made entirely or partially with genetic engineering be labeled “produced with genetic engineering,” “partially produced with genetic engineering” or “may be produced with genetic engineering.”

Sorrell said he’s still working out where this labeling would go on the package and how prominent the text will be.

The initial thinking is that the labeling would be near the ingredients list in about the same type size as “Serving Size” on the existing label, listing calories and other information, said Chris Miller, social mission activism manager for Ben & Jerry’s.

The ice-cream maker supports the law but is in an unusual position: Parent company Unilever belongs to the trade association that’s suing Vermont.

The dispute

Miller said he sees no problem with labeling.

“Our co-founder Jerry Greenfield said it best,” Miller said. “Companies should be proud of the ingredients they use in products they sell. What does it say if a company doesn’t want to tell you?”

That misses the point of the labeling controversy entirely, countered Karen Batra, spokeswoman for the Biotechnology Industry Organization, based in Washington, D.C. BIO represents the companies that develop genetically engineered foods.

Batra sees Vermont’s labeling law as a political statement — a scarlet letter, if you will — marking foods with genetically engineered ingredients as unnatural and to be avoided. And for no good reason, she said, because the U.S. Food and Drug Administration has long ruled there is no difference between genetically engineered foods and their non-engineered counterparts.

“We support the consumers’ right to know, but it needs to be in a way that provides information that’s useful to consumers and doesn’t disparage certain farming techniques,” Batra said. “The technology has been proven safe, but we do have an educational challenge ahead of us. We need to do a better job of communicating about the benefits of this technology, reaching out to consumers and explaining how biotechnology has enhanced farming so much in the last 20 or 30 years.”

The Grocery Manufacturers Association points out in its lawsuit that in 2013, 93 percent of the soybeans and 90 percent of the corn grown in the United States started with genetically engineered seeds. About half of all domestically produced sugar comes from genetically engineered sugar beets, and 88 percent of cotton, used for cottonseed oil, is genetically engineered. Alfalfa, canola, squash and Hawaiian papayas also have “widely used” genetic engineering, according to the lawsuit.

A hunger issue

Proponents of genetic engineering make two main arguments:

– The technique is necessary to feed the world’s growing population.

– It is environmentally beneficial.

“Even in the United States, where severe droughts have become a regular occurrence, farmers must find ways to do more with less,” the GMA lawsuit states. “One of those ways is to raise plant varieties that have been genetically modified through biotechnology to be more productive and more easily adaptable to changing conditions.”

Because genetically engineered crops have built-in resistance to bugs and weeds, proponents say they require less herbicides and pesticides to grow. The Grocery Manufacturers Association lawsuit credits genetic engineering for saving Hawaiian papaya farming after the spread of a plant virus that “decimated” plantations.

“It has also been credited with dramatic reductions in the use of highly toxic pesticides,” the lawsuit states.

Chris Miller of Ben & Jerry’s, and those on the other side of the GMO debate, reject these arguments.

Miller dispenses with the “feed the world” argument by pointing out that 30 percent of all perishable food in grocery stores now gets thrown away. The problem, Miller said, is not that we don’t have enough food — it’s that the food is not reaching the people who need it.

“If you look at the rates of hunger in the United States, 20 percent of children go to bed hungry every night,” Miller said. “We have a hunger issue in the United States and not because we don’t have enough food. We produce enough calories to feed everybody. The problem is access, driven by economics. A massive part of the globe lives on less than $3 a day.”

As for the pesticide/herbicide argument, Vermont State Sen. David Zuckerman, P/D-Chittenden, lead sponsor of Vermont’s GMO labeling bill, told the Burlington Free Press in June he worries about the possible long-term effects of monkeying with a seed’s genetic makeup to increase crop resistance to pests and weeds.

Zuckerman gave the example of a naturally occurring pesticide called bacillus thuringiensis, effective for certain moths and worms, and one of the few pesticides he can use as an organic farmer. As it turns out, bacillus thuringiensis also is being used in genetically engineered seeds.

“When it’s in a plant and there for the whole season at concentrations 500 to 1,000 times higher, then those bugs can become resistant,” Zuckerman said in June. “If three bugs live out of 500,000 in the field because they happen to be genetically resistant, they’re going to find each other and breed. Eventually there will be a built-up resistance to that pesticide.”

An independent social mission

Ben & Jerry’s has found itself in the awkward position of supporting GMO labeling at the same time its parent company, Unilever, is a member of the Grocery Manufacturers Association, which brought the lawsuit against Vermont to strike down the labeling law. Unilever also contributed to a campaign to defeat a GMO labeling law proposed in California in 2012.

This is where the iconic ice cream company’s independent status within the Unilever global empire, including having its own board of directors, comes into play, Social Mission Activism Manager Chris Miller said.

“Part of the acquisition agreement between Ben & Jerry’s and Unilever allows Ben & Jerry’s to pursue its independent social mission,” Miller said. “Our support of mandatory GMO labeling comes from our progressive values.”

Those values also were behind Ben & Jerry’s refusal in 1989 to use milk produced by cows being injected with rGBH, a bovine growth hormone that increased milk production by up to 20 percent, Miller said.

Beginning in 2015, Ben & Jerry’s ice cream will use all non-GMO ingredients, Miller said. It took 18 months of work to get there. Miller is careful to make the distinction that Ben & Jerry’s is not claiming to be GMO-free, which he described as a “very strong, absolute claim” that would require third-party certification.

“We’re not doing third-party certification,” Miller said. “We require our suppliers to sign an affidavit that says the ingredients they’re using are non-GMO. Our supplier has to have an affidavit from their supplier stating the same thing, all the way back to the farm.”

As for the exemption given to dairy in Vermont’s GMO labeling law — obviously a major component of ice cream — Miller said that “because a cow eats genetically engineered feed doesn’t make the milk genetically engineered.”

“We have a long history of commitment to the consumers’ right to know and transparency in the food system,” Miller said. “The current iteration is our support for GMO labeling.”

Nevertheless, Ben & Jerry’s found itself the target about a year and a half ago of a boycott called for by the Organic Consumers Association, based in Finland, Minn.

“They were unhappy with our parent company’s role in the Proposition 37 mandatory GMO labeling fight in California, which failed,” Miller said.

Public records show Unilever spent about $467,000 fighting a proposal for mandatory GMO labeling in California in 2012, out of a total of about $40 million spent by opponents of the proposed law. Proposition 37 was defeated by nearly 400,000 votes, 51-48 percent.

A total of 24 states considered GMO labeling laws in 2014, with only Vermont and Maine passing measures. In the other 22 states, legislation either was defeated, withdrawn or held.

The highest-profile defeat came in Oregon, where many observers felt a labeling law in that progressive state had a good chance of passing. The law was defeated by 809 votes out of a total of 1.5 million cast, the Oregonian newspaper reported, triggering a recount.

Ben & Jerry’s spent $303,039 supporting the proposed GMO labeling law in Oregon, according to public records. The money went to in-kind contributions for yard signs, buttons and social-media outreach, including a video that went viral. The company also put two ice-cream trucks on the road, giving out free ice cream and registering voters.

No trigger required

Aside from Vermont and Maine, only one other state, Connecticut, has passed a labeling law, and in both Connecticut and Maine, the law requires additional triggers to go into effect.

In Connecticut, four other states, one of which shares a border with Connecticut, must pass similar legislation before the Connecticut law takes effect. Additionally, the combined population of Northeastern states that enact GMO labeling laws must total more than 20 million people, based on the 2010 census. Maine has a similar trigger.

Vermont Attorney General Sorrell said those other states are just chicken.

“I suspect there was a reluctance to shoulder the responsibility for defending the law without other states having similar statutes,” Sorrell said. “An abundance of caution.”

Vermont was unhampered by any such reluctance.

“We went ahead and did it,” Sorrell said. “We’ve in the past not been afraid to get out ahead of the rest of the country. It’s our right as a state. Once in a while, our efforts get struck down. More often than not, our statutes are upheld in state and federal courts.”

Still, it costs money to be out in front with controversial legislation. In its lawsuit, the Grocery Manufacturers Association says Vermont has shifted the cost of implementing GMO labeling to out-of-state companies by exempting milk and food sold in restaurants from the labeling requirement.

The law has the effect, the association said, of “exempting two of Vermont’s largest domestic industries — dairy and tourism — from the requirements that apply to the largely out-of-state firms engaged in food manufacturing.”

The lawsuit also states that Vermont similarly has shifted the cost of implementing and defending the labeling law to “private individuals and organizations.”

“The Act creates a special fund for that purpose,” the lawsuit states. “The fund may accept an unlimited number of donations, without restrictions on who may give, or how much. The Act limits public funding of the Attorney General’s work to $1.5 million of certain surplus settlement proceeds, if any exist, as well as any additional funds the legislature may appropriate.”

This would be the “Vermont Food Fight Fund,” launched by Gov. Peter Shumlin and Jerry Greenfield with great fanfare at a June rally in front of the Ben & Jerry’s scoop shop on Church Street in Burlington.

The association’s lawsuit also notes that the labeling law bars the attorney general from using public dollars to defend the law “unless and until the private funding runs out.”

Not a minor matter

Sorrell dismissed as irrelevant the Grocery Manufacturers Association’s analysis of how the state is paying for its efforts to defend the labeling law. He said he argued strongly against hinging the defense of the GMO labeling statute on raising private money, which would establish a “really bad precedent.” The Food Fight Fund has about $400,000 in it, he said.

“The Legislature should decide what the law should be and stand behind the statute,” Sorrell said. “It’s one thing on GMO labeling, but let’s go to another issue: abortion, gay rights or whatever. Can you imagine the precedent of saying, ‘We’re going to outlaw this discrimination, but only if enough people out there contribute money to defend the statute?’ 

Sorrell said he’s not going to be “penny-wise and pound-foolish” in defending the GMO labeling law. He estimates it will cost up to $2 million to defend the law through the trial level. Whatever decision is made in federal court in Burlington, the outcome surely will be appealed, perhaps as far as the U.S. Supreme Court, Sorrell said.

Because constitutional issues are involved, Sorrell said, if Vermont loses, the state will be on the hook for the other side’s attorneys’ fees, which easily could drive the cost to the state to $5 million.

“Even putting the case on a so-called ‘fast track,’ it’s entirely possible there will be a number of years to get a final answer,” he said. “I would be shocked if there’s not an appeal.”

The U.S. Supreme Court receives about 7,000 requests each year to hear cases, and takes on only 70 to 80, Sorrell said. But if GMO labeling reaches that point, he believes the case has a good chance of being among the ones the court takes.

“Other states are closely watching the issue,” Sorrell said. “This is not a minor matter.”

Contact Dan D’Ambrosio at 660-1841 or [email protected]. Follow him on Twitter at www.twitter.com/DanDambrosioVT.

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