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Legal Experts Reject Food Industry Claims that GMO Labeling Laws Are Unconstitutional

January 23, 2014
Organic Consumers Association
by Katherine Paul and Ronnie Cummins

For related articles and more information, please visit OCA's Millions Against Monsanto page and our Genetic Engineering page.

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."

Vermont’s GMO labeling law stalled in 2012, in the face of Monsanto’s threats. Then in 2013, the Vermont House of Representatives passed H.112. The legislative session ended before the bill could move to the Senate. But now that the state legislature has reconvened, the bill has been taken up again by the Senate’s Agriculture Committee.

What’s next? Vermont lawmakers could pass a clean bill. Or, they could pass a meaningless bill with a trigger clause. Or, they could cave into industry’s threats entirely, and vote against the 90 percent of Vermonters who support H.112—knowing that the bill is bullet-proof, and their failure to pass it a failure of courage.

GMA Talking Points Are Full of Holes

Aside from being wrong on the constitutionality issue, the GMA talking points spin the usual industry lies about the health, safety and testing of GMOs.

To persuade state lawmakers that we don’t need GMO labeling laws, the GMA trots out the American Medical Association’s (AMA) claim that eating GMOs is no riskier than eating crops grown using conventional methods. But it doesn’t mention that the AMA has called for pre-market safety testing of GMO crops—a position that arguably calls into question the AMA’s position that GMO crops aren’t risky. Nor does the GMA mention the many organizations that do advocate for GMO labels, including the American Public Health Association and the Physicians Committee for Responsible Medicine.

The GMA talking points also claim that genetic engineering improves crop yields by increasing resistance to plant diseases and pests. And that GMO crops use less water.

But scientists have poked holes in all of those claims. In fact, the proliferation of GMO crops has led to increased use of pesticides and whole new classes of “superweeds” and “superbugs.”

In addition to Vermont, Rhode Island and Florida have introduced GMO labeling laws so far this year. And other states, including Massachusetts and New York, are expected to follow. Wherever laws are introduced, GMA lobbyists will be out in force, talking points in hand. Please tell lawmakers in your state to ignore the food industry’s threats, and stand up for consumers.

Katherine Paul is director of development and communications for the Organic Consumers Association.

Ronnie Cummins is national and international director of the Organic Consumers Association.