by Dan D’Ambrosio
BURLINGTON, Vt. — A federal judge is weighing whether to put the brakes on Vermont’s first-in-the-nation genetically modified organism labeling law before it even goes into effect.
Judge Christina Reiss had probing questions for both sides in the lawsuit that the Grocery Manufacturers Association filed against the state of Vermont. She held a hearing Wednesday in federal court in Burlington.
Reiss heard arguments from the state concerning its motion to dismiss the lawsuit, and from the association regarding its request for the court to suspend the labeling law while considering whether the measure is constitutional.
The Vermont law would require that processed foods made entirely or partially with genetic engineering be labeled “produced with genetic engineering,” or “partially produced with genetic engineering” or “may be produced with genetic engineering.”
The judge focused on the last iteration of the labeling requirement, pressing a private attorney representing the state, Larry Robbins of the Robbins Russell law firm in Washington, D.C., about the value of a law that would allow manufacturers to say only that their products “may be produced with genetic engineering.”
Why, she asked, would manufacturers go to the trouble and expense of determining whether their products have genetically engineered ingredients when they could just “slap on a label” saying they “may” contain GMOs?
Given that possibility, Reiss questioned the value of labels that tell consumers something they already know, given that it is generally accepted that 90 percent of the corn and large percentages of other commodity crops in the United States are grown with genetically engineered seeds.
Robbins responded that manufacturers had an obligation not to be “willfully blind” to the requirements of the law. He also argued that even a label saying a product “may contain” GMOs would be valuable to consumers. He compared it to products with labels that say they may contain peanuts.
“If you have a kid with a peanut allergy, and it says ‘may contain’ … you’re not going to buy it,” Robbins said. “That’s all the information you need in the world.”
At another point in the hearing, Reiss told the attorney representing the Grocery Manufacturers Association that whether Vermont’s law is the result of the Legislature caving in to an “ill-informed minority,” as the lawyer had implied, was irrelevant.
“Who cares?” Reiss said to Catherine Stetson of the Hogan Lovells law firm in Washington, D.C.
Reiss was clear at the outset of the hearing that she would not be deciding whether GMOs are harmful to health or the environment.
“I am confident it is not my job to determine if genetically engineered foods are safe or unsafe,” Reiss said, adding she was not going to act as a “super science expert.”
Another debate dominating the hearing centered on the law’s mandate that manufacturers of foods containing GMOs may not label the products as “natural.” Reiss said Vermont’s position that manufacturers of GMO products can’t say they were naturally grown begs the question of who can make that claim.
“I can’t imagine any food that doesn’t have human intervention,” she said.
What about cross-breeding plants, or using pesticides, or fertilizers, or growing plants hydroponically, she asked. Those things don’t occur naturally.
Neither do tractors for plowing fields, Larry Robbins replied, but the bottom line is that the term “natural” does not go with genetic engineering. To bolster his argument, Robbins referred to the website of Monsanto, a leading manufacturer of genetically engineered seeds, which says the seeds are altered in a way “that does not occur naturally.”
LOTS OF LITIGATING
The Grocery Manufacturers Association and several other trade organizations filed the lawsuit against the state one month after the labeling law passed in May. The association contends, among other arguments, that the law violates the U.S. Constitution by compelling manufacturers to “convey messages they do not want to convey.”
Vermont’s law goes into effect July 1, 2016, but Catherine Stetson argued Wednesday that manufacturers such as ConAgra Foods, with some 90,000 products, would have to begin changing labels now to comply with the law by next year.
After the hearing, state Attorney General Bill Sorrell agreed the court had tough questions for both sides.
“That’s no surprise,” Sorrell said. “We feel good about the arguments that we’ve made. We’ll see what the court is going to do.”
There are no plans for Reiss to hear evidence from experts subject to cross examination, but Sorrell said the state is ready to go that route if necessary. Both sides have submitted expert testimony in written briefs.
“We don’t think it’s necessary,” he said. “We think it can be decided on the law.”
Both sides have indicated they don’t want to “sit back and let this case languish,” Sorrell said.
“We want to move forward,” he said. “I think there will be a lot of litigating between now and a year from now.”
Reiss did not indicate when she would make a ruling.
D’Ambrosio also reports for the Burlington (Vt.) Free Press