In April, we wrote about the Vermont legislature’s approval of a bill that would require manufacturers to change the retail labels of certain foods to indicate that they are GMO.  On May 8, 2014, Vermont enacted the final version of this bill, now Act 120, which requires manufacturers to make these changes by July 1, 2016.  On June 12, 2014, Grocery Manufacturers Association (“GMA”), along with the Snack Food Association, International Dairy Foods Association, and National Association of Manufacturers, challenged Act 120 in a complaint filed in the District of Vermont (5:14-CV-117) against various Vermont state officials, including the Governor, the Attorney General, and the Commission of the Vermont Department of Health.

As we posited in our previous post regarding Vermont’s GMO law, Act 120 has been challenged in part based on the Commerce Clause.  In their complaint, GMA and the other plaintiffs request injunctive relief and a declaratory judgment stating that Act 120 is invalid on the grounds that the Act’s labeling mandate and marketing restrictions violate the First and Fourteenth Amendments, the Commerce Clause, and the Supremacy Clause.   Plaintiffs also cite to the FDA Commissioner’s March 2014 congressional testimony and a May 2014 article in The Atlantic written by the Secretary of Agriculture to support plaintiffs’ allegations that the federal government does not mandate special labeling because there are no demonstrated safety issues and no evidence of health risks; instead, the issue with GMO foods is the process through which food is created, which does not require special labeling.

In their complaint, the plaintiffs also discuss the pragmatic effects of Act 120.  The plaintiffs assert that the proscriptions exceed Vermont’s power to act and argue that the USDA’S Certified Organic program already meets this need.  Plaintiffs further explain that meeting the July 1, 2016 deadline for compliance with Act 120 will be “a difficult, if not impossible, deadline” for them to meet because they would have to revise hundreds of thousands of product packages and then establish Vermont-only distribution channels to ensure compliance with Act 120.  Additionally, plaintiffs note that “some companies may have no choice but to revise the labels for all of their products, no matter where they might be sold in the United States.”

The fight has just begun in Vermont, and only time will tell whether Vermont’s GMO labeling requirements will survive the GMA suit.