Burningbird

Also published at Food Safety News

In a May 3rd editorial , Food Safety News Editor Dan Flynn wrote a rather scathing editorial about Vermont’s new GMO labeling law. Among the criticisms he asked a question:

If there is some skilled member of the bar out there who has done the sort of professional analysis that is normally available, please send it to me. I truly would like to see it. I am certain this bill is a mess; I am just trying to figure out how messed up it is.

It’s hard to take a bill seriously that starts out with a screed. I am not a lawyer and don’t speak like one on TV, but Section 1 of H. 112 sounds like it was written by someone who might be off their meds. My guess is that this entire section has no impact whatsoever on law, but that the Vermont General Assembly likes to blow political smoke to make up for its inability to do more thorough work.

I’m not a member of the bar, sorry. I don’t even play a character on TV who is a member of the bar. You’ll just have to make do with an untrained opinion. Point of fact, most of us are untrained in the law, so we might as well muddle along on our own.

First, Dan mentioned the failure of California’s law related to downer livestock as an argument that, of course this bill will fail when challenged in court, as all such bills do. Before I address this particular reference, I did want to mention that California has been quite successful with recent laws that have been challenged in court, similar to how people see the Vermont law being challenged. It has been successful in defending the foie gras ban, the shark fin ban, as well as the state’s Low Carbon Fuel Standard. By all indications, California will also be successful with the recent challenge to its egg laws. I expect the Judge to support the state’s motion for dismissal, and the case to be over, quickly.

Returning to the California law related to the slaughter of “downer” livestock that Dan mentioned, the law was struck down because the Federal Meat Inspection Act (FMIA) explicitly preempts any state requirement “with respect to premises, facilities and operations of any [slaughterhouse] at which [federal] inspection is provided . . . which are in addition to, or different” than the federal requirements. (California’s Better Rule on Treatment of ‘Downer’ Pigs).

California’s downer law was in direct conflict with the federal law—an act precluded by the FMIA preemption clause. Even if the California law was complementary to FMIA, it still would be precluded because, as Justice Kagan noted, “The FMIA’s preemption clause sweeps widely…The clause prevents a State from imposing any additional or different―even if nonconflicting―requirements that fall within the FMIA’s scope and concern slaughterhouse facilities operations.”

The authority for the Supreme Court decision rests squarely within the Supremacy Clause of the Constitution, which states that federal law shall be the “supreme law of the land”. However, the Supremacy Clause doesn’t apply to the other state laws I just mentioned, because, as has been shown in court, none of the state laws are preempted by any existing federal law.

The Supremacy Clause doesn’t apply to Vermont’s law, either. Why? The Vermont law says it all:

No formal FDA policy on the labeling of genetically engineered foods has been adopted.

The FDA’s labeling guidelines related to GMOs are voluntary. Their purpose is to ensure uniformity and accuracy. Vermont requiring GMO labeling does not interfere with federal rules or regulations. The latter only kick in once the label has been so modified. And any preemption, expressed or implied, in the federal labeling laws (the Food, Drug, and Cosmetic Act, and the Nutrition Labeling and Education Act), “shall not be construed to preempt any provision of state law, unless such provision is expressly preempted.” (Food Fight: FDA Preemption And Food Labeling Claims)

In other words, unless both laws expressly prohibit states from making laws related to GMO labeling, neither law preempts the state from doing so.

Dan’s editorial also references the Commerce Clause. I previously wrote about the Commerce Clause and its relationship to the California egg lawsuit. The Commerce Clause invests the federal government with the power to regulate commerce. However, it is the “dormant” Commerce Clause that’s at issue. The premise behind the “dormant” Commerce Clause is that states may not enact laws that purposely discriminate in favor of in-state producers against out-of-state producers. Since both in-state and out-of state producers have to follow the exact same law, and suffer the same economic considerations, I don’t see how the Vermont GMO law is discriminatory in nature.

What other kinds of legal challenges exist? In a recently released report titled, The Potential Impact of Mandatory Labeling for Genetically Engineered Food in the United States, the Council for Agricultural Science and Technology (CAST) listed three legal challenges to mandatory GMO labeling. I’ve already touched on the first two (the Commerce Clause and the Supremacy Clause), but the last is related to the First Amendment and the concept of enforced speech.

A Washington Post article on the Vermont law notes that past court decisions have set up a four-part test to ascertain whether a restriction on commercial speech is allowed or not.

• First, the court has to decide that the speech is protected, meaning it must be about legal activity and not be misleading.
• Second, the government has to claim a substantial interest in limiting the speech.
• Third, the policy in question has to “directly advance” that interest.
• Fourth, that policy must not overreach in achieving its goal.

Careful reading of the Vermont law has shown that the lawmakers have established a substantial interest in enacting the label law, and that this law is the way to directly advance the interests of the people of Vermont. It has also shown that there is no other way of enacting such a law, since the FDA has shown no interests in mandatory labeling. Though issues related to Freedom of Speech are tricky, the state law’s wording demonstrates the lawmakers were well aware of potential Freedom of Speech issues, and drafted text accordingly.

Though I’m not a lawyer, I strongly believe the state will triumph against any court challenge. And members of the legal profession also believe this is so. A memorandum prepared by Emord & Associates goes into great detail as to why the firm believes that the Vermont GMO law will survive a Constitutional challenge:

This memorandum assesses the constitutionality of Vermont Bill H.112 (2013) as passed in the Vermont General Assembly. 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 forfoods and dietary supplements. The federal system does not preempt H.112, which was enacted constitutionally under the State’s general powers. Finally, H.112does 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.

(After I turned over this text to Food Safety News, I found an additional legal resource on this law, the Vermont Law School Environmental and Natural Resources Clinic. It has also prepared a memorandum on the law. In addition, a lead sponsor of the law, Rep. Kate Webb, responded in comments to Dan Flynn’s editorial.)

But let’s put aside the legal mumbo jumbo since most of us aren’t lawyers. Let’s talk about the intent of the Vermont law.

The concerns about GMO as stated in the Vermont law are valid, whether they meet every individual’s interpretation of validity or not. Cross-pollination is a problem. Organic farmers are adversely impacted by nearby GMO crops. Though not mentioned in the Vermont law, there is concern about the unintended spread of proprietary seeds (“drift”) and the legal problems this has triggered.

We already know that GMO contamination has impacted on farmers producing crops for export, so there’s a major fiscal concern, too. In addition, GMO seeds also encourage poor farming practices: unsustainable development, rather than sustainable; monoculture over diverse agriculture.

Let’s also consider a presumption that GMOs have basically failed. The use of GMO has increased the need for water, rather than decrease it. They have failed in preventing overuse of herbicides, and expressly encourage the use of chemical pesticides. Because of reliance and encouragement on monoculture, they have failed to control pests in a sustainable manner. Because of the increased use of herbicides related to GMO crops, they have failed to control pests in such a way that the environment is not adversely impacted. And as the world has discovered, they’re not all that friendly to the pocketbook or local agricultural practices, either.

Finally, as to the issue of most importance to Dan, the issue of GMOs and food safety.

It is true that most studies and reports have not found a negative effect related to food safety from the use of GMO techniques. However, no publication, study, or report has noted a positive effect from GMO techniques, either. In the absolute best case, GMO’s impact on food safety is neutral. When we consider that the most we can hope for from a food safety perspective is no effect at all, even the possibility of negative effects—increased allergic reactions and other impacts—leads to an overall negative net effect on food safety. (Toxicity Studies of Genetically Modified Plants: A Review of the Published Literature, Potentional Adverse Effects of Genetically Modified Crops, WHO Biotechnology reports).

More importantly, the use of GMOs mask underlying problems. The Center for Food Safety notes this in relation to the discussion about using GMO to solve the Florida orange problem:

The GE “solution” might be attractive to many growers, producers, and curious consumers because it seems like a direct “fix”—by, for example, creating a citrus greening-resistant orange tree. But supporters of such technology continuously fail to acknowledge an important fact: this GE solution doesn’t address the root cause of the problem; it merely kicks the can down the road.

Marion Nestle said much the same thing in relation to “golden rice”, supposedly the cure for Vitamin A deficiency in certain parts of the world, when she wrote:

Taken together, the many nutritional, physiological, and cultural factors that affect vitamin A status suggest that the addition of a single nutrient to food will have limited effectiveness. Instead, a combination of supplementation, fortification, and dietary approaches is likely to be needed—approaches such as promoting the production and consumption of fruits and vegetables rich in beta-carotene, educating people about how to use such foods, and improving the quantity and variety of foods in the diet (so beta-carotene can be better absorbed). Perhaps most helpful would be basic public health measures such as providing adequate supplies of clean water (to prevent transmission of diarrheal and parasitic diseases).

Add all of this up, and you’ll realize that the people of Vermont have legitimate concerns expressed as a singular wish: to know if the product they’re using contains GMO material so they can make a choice whether to buy it or not, for whatever reason. A concern and a wish to which the legislature has listened–a refreshing change in today’s political world. Not only listened, but provided significant funding in defense, too.

Yes, there will be lawsuits. But the people bringing the suits had better bring their A game.

In fact, when it comes to this new law, we all might consider bringing our A game, whether we’re supporting it legally…or fighting it in editorials.