Thursday, May 7, 2015
Biotechnology, Labeling, and Consumer Protection: GMA v. Sorrell
On April 27, 2015, the federal district court judge presiding over Grocery Manufacturers Association v. Sorrell issued an opinion denying the industry group’s request for a preliminary injunction that would have postponed the implementation of Vermont’s GE labeling law until after the legal proceedings had concluded. The law, titled Act 120, requires raw agricultural commodities and processed foods produced with genetic engineering to be labeled to that effect, with limited exceptions.
Shortly after the Act was signed into law, the GMA and other industry groups challenged the constitutionality of the Act by arguing, among other things, that Vermont failed to demonstrate a substantial government interest that would justify compelled corporate speech when less restrictive means exist to inform consumers about GE ingredients. Those less restrictive means? Organic labeling. In their complaint, GMA argues that the USDA’s National Organic Program already ensures that foods labeled “USDA Organic” were not produced with GE plants or ingredients, making the Act wholly unnecessary. Consumers need only look for the “USDA Organic” label if they want to avoid GE products altogether. However, some critics decry this argument as disingenuous and purposefully misleading. Under the National Organic Program, use of the “USDA Organic” label is allowable where 95% or more of the ingredients are organic. The remaining ~5% of ingredients must be approved by USDA through its National List of Allowed and Prohibited Substances. Where no readily available organic products exist, USDA will allow conventionally farmed products, like cornstarch, to appear on the National List. It is through the use of these substances that products labeled “USDA Organic” may lawfully contain genetically engineered ingredients. Thus, the GMA may have a more difficult time persuading the Court that Vermont lacks a substantial government interest than it at first appeared.
Given the complexity of these issues, it is unlikely that GMA v. Sorrell will put an end to the debate, no matter the outcome. Nevertheless, the decision of the Court will help clarify both the role of the States in setting food policy and the limits of their authority when it comes to consumer protection.