by Shayne Spence
Vermont will almost certainly be sued, and will almost certainly lose, if the GMO-labeling bill (H. 112) is passed as-is, without a “trigger clause”. Attorney General Sorrell gave testimony on Friday, February 7, on the potential legal implications of passing such a law, and the added security that a trigger clause would bring. The Senate Agriculture Committee followed the Judiciary Committee in approving H. 112 in a 4-1 vote.
The “trigger clause” is language in a bill that would require either a) a certain number of states or b) a certain total population of states pass a labeling law before the VT law would go into effect. This ensures that if Vermont faces legal action on First Amendment grounds, there will be other states being sued as well, so Vermont can benefit from the other, likely larger, states’ legal teams. This would also ensure that in the case of a loss, the legal fees the state would be held responsible for would be spread among other states.
Vermont has been down this road before. In a 1996 decision, the U.S. Second Circuit Court of Appeals ruled that Vermont’s statute requiring labeling of milk containing rBST, a bovine growth hormone, was unconstitutional on First Amendment free speech grounds. Without proving that a significant health risk existed, the state did not have a compelling interest in requiring labeling. It is likely that we would suffer the same fate in court this time around.
Connecticut is the only other state that has passed a GMO-labeling law. However, it’s has a trigger clause, requiring that four states pass similar laws before Connecticut’s law takes effect. Jim Harrison of the Vermont Grocers Association (VGA) advocated for the addition of similar language in the Vermont bill, requiring that the total population of states with similar laws be above 20 million. This would ensure that the total market share of the states requiring labeling is large enough where larger companies won’t just stop selling their products here.
It seemed to be the general agreement that having a GMO-labeling law would strengthen the Vermont brand. Both Senator David Zuckerman (P/D), an organic farmer who would personally benefit from this legislation, and Jim Harrison of the VGA said there were niche markets in other states in which the VT products made without GMOs would see heightened sales due to labeling.
However, it is hard to believe this is possible unless other states pass similar laws. This is a good reason why labeling non-GMOs is a better way of dealing with the issue than requiring labeling of GMO foods. This bill is more about punishing competition than it is about educating the public. Given that the law brings with it the risk of a lawsuit, I would hope that the Senate proceeds with caution and inserts a trigger clause so Vermont is not going out on a limb alone.
Shayne Spence is the Outreach and Development Coordinator of the Ethan Allen Institute. This post first appeared on their blog.