MONTPELIER — Vermont Attorney General William Sorrell told the Senate Agriculture Committee Wednesday that he expects a judge to rule on dueling motions in the GMO labeling case within the next three months, which will help lay out a path for the rest of the case.
A host of food industry groups filed suit last year against the state’s GMO labeling law, set to take effect July 1, 2016, claiming it is unconstitutional. Sorrell briefed the committee Wednesday on the status of the case.
The plaintiffs have asked the judge for a summary judgment, claiming the state is restricting their free speech rights by forcing them to label products that contain GMOs. They also claim the state cannot prevent them from calling a product natural if it contains GMOs.
The state has filed a motion for dismissal of the lawsuit. Oral arguments have already been heard, and Sorrell said the state “attacked each count of the plaintiffs’ complaint.”
In some cases, restricting the right to speech can be unconstitutional, according to Sorrell.
“In first amendment free speech arena, there’s the freedom to speak or the freedom to remain silent. So, restricting speech can be a violation of free speech rights,” Sorrell said.
Under the state’s GMO labeling law, the state is compelling food manufacturers to state whether or not food products have GMO ingredients. “They’re objecting, saying, ‘You are forcing us to speak on labels and we don’t want to,’” Sorrell said.
In this case, Sorrell said the state has argued that it is not unconstitutional, and courts have found such compelled speech to be constitutional in similar cases.
“On the compelled speech issue we suggest that there are legitimate governmental concerns about environmental issues and public health issues as it relates to genetically engineered products, and legitimate governmental interest to accommodate religious considerations for a segment of the population,” he said.
The state’s motion to dismiss cited a case from an appeals court in Washington, D.C., one step below the U.S. Supreme Court, in which the appeals court ruled that meat must be labeled with the country of origin. The court applied a lenient standard for the government to overcome, according to Sorrell.
“We suggest in our argument that this is very much akin to the country of origin required disclosure on meat products that we’re talking about here,” he said. “We should win on the compelled speech piece.”
And, unlike products that contain alcohol or tobacco and require health warnings, the required labeling requires facts to be disclosed, much like nutrition labels.
“Unlike those kinds of warnings, what our statute requires are simply factual assertions without sort of the taint or flavor, if you will, of saying, ‘Caution, these are hazardous to your health,’” Sorrell said. “These are akin to the … kinds of closures that you typically see on products for calories, fat content, salt and sugar and the like. The standard to which we should be held shouldn’t be a higher standard because it is just a factual assertion as opposed to a warning.”
Sorrell said he is also confident in the state’s argument for prohibiting the use of the term “natural” for GMO products.
“There is no first amendment right to make either false or misleading statements,” he said.
The state’s case points to a posting on the website of Monsanto, a biotechnology company that is part of the suit against the state, that describes GMOs as “plants or animals that have had their genetic makeup altered to exhibit traits that are not naturally theirs.”
“We say, ‘Listen, there’s no way you can say that this is natural,” Sorrell said.
Committee Chairman Sen. Robert Starr, D-Essex/Orleans, indicated he believes that posting will harm the plaintiffs’ case.
“They kind of shot themselves in the foot with that post,” Starr said.
The suit also claims an undue burden on interstate commerce. Sorrell told the committee that the law provided more than two years notice to food manufacturers of the pending labeling requirement.
“The state was very accommodating there,” he said.
And GMO labeling is already required in more than 60 countries and two other states, Connecticut and Maine, have passed labeling requirements, but those have yet to take effect.
“This is not Vermont as some island in the world that’s requiring labeling,” Sorrell said.
U.S. District Court Judge Christina Reiss is expected to issue a ruling on the initial motions within the next several months, according to Sorrell. That will inform both sides how the rest of the case will proceed, he said.
“I think we’re hoping to be on a track where whatever evidentiary proceeding we’re going to need to do will be done some time by late fall. Hopefully, a decision at the trial court [will happen], if not within this calendar year, then very early into the next calendar year,” he said.