Four food, beverage and business trade organizations have filed a constitutionally based challenge to Vermont’s recently enacted law that would require food and beverage manufacturers to disclose on product labels that their products are “produced with genetic engineering” (GE), or “may be” or are “partially” so produced and to prohibit the use of terms such as “natural” in the labeling, signage and advertising of GE products. Grocery Mfrs. Ass’n v. Sorrell, No. 14-0117 (U.S. Dist. Ct., D. Vt., filed June 12, 2014).

According to the complaint, it will be difficult or impossible to comply with the law’s July 1, 2016, effective date, because members must “revise hundreds of thousands of product packages,” “establish Vermont-only distribution channels” or “revise the labels for all of their products, no matter where they might be sold in the United States.” The plaintiffs claim that the law’s proscriptions “are beyond Vermont’s power to enact” by “compelling manufacturers to convey messages they do not want to convey, and prohibiting manufacturers from describing their products in terms of their own choosing, without anything close to a sufficient justification.” They also contend that federal labeling laws preempt the state requirements.

Alleging First and Fifth Amendment violations, including free speech restrictions and arbitrary enforcement, as well as violations of the Commerce and Supremacy Clauses, the plaintiffs allege that the law unjustifiably singles out processed foods while protecting in-state interests such as dairy and tourism, because it exempts food derived entirely from an animal which has not itself been produced with genetic engineering, foods sold in restaurants, alcoholic beverages, and processing aids and enzymes. They also claim that the state government apparently has a weak interest in the law and simply served “as a pass-through for advocates of controversial views that the State did not purport to endorse, and that are based on conjecture about ‘unintended consequences’ that the State did not bother to substantiate, or even investigate.” They further contend that concerned consumers can avoid GE foods by other means, such as buying certified organic or voluntarily labeled products, or consulting informative Websites.