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Building a defensible model

House Ag Committee passes GE food labeling bill

BRATTLEBORO—Vermont took another step closer to the legal limelight last week when the House Committee on Agriculture passed a food packaging bill requiring the labeling of foods containing genetically engineered (GE) ingredients on April 20.

Hundreds turned out for a public hearing at the Statehouse on April 12 to testify on GE labeling. The public showed overwhelming support for the bill, but some strong voices spoke out against it.

The bill, now in the House Judiciary Committee, probably won’t make it to a House or Senate vote this late in the session.

Slow progress aside, committee chair Rep. Carolyn Partridge, D-Windham, said Vermont’s bill could serve as a model for an estimated 20 states considering similar legislation.

The bill (H.722) also contains a “trigger clause” stipulating that the statute would not go into effect until 365 days after California, possibly through a ballot initiative, and two Northeastern states pass similar bills.

Partridge said the committee included the clause out of deference to local speciality food producers who said the transition to new labeling or packaging would prove economically and logistically difficult and needed time to prepare.

Or food producers could decide to alter their ingredients list, turning the transition into a marketing opportunity, Partridge said.

According to Partridge, Rachel Lattimore of Arent Fox LLP, a Washington, D.C. law firm representing the biotech industry, has said that if the state passes the bill with the contingency date, the industry will consider it an “imminent threat” and will bring a lawsuit immediately.

“If it’s something you’re putting in your body, I think people have the right to know,” Partridge said, in response to Lattimore’s comments.

Some of the country’s GE crops are corn, with about 88 percent of the total crop estimated to be engineered. The soy crop is about 94 percent GE, and sugar beet, about 95 percent. Canola and cotton crops also tend to come from GE plants.

“I was delighted to have a 9-1-1 vote,” Partridge said. “I’m pleased we were able to vote out a good-quality defensible bill.”

With the emphasis on “defensible.”

Vermont faced a similar labeling kerfuffle in 1996, with its law requiring the labeling of dairy products that came from cows treated with recombinant Bovine Growth Hormone (rGBH), a synthetic hormone approved by the Federal Food and Drug Administration (FDA).

The Second Circuit of the U.S. Court of Appeals issued an injunction in favor of the industry on First Amendment grounds.

The Second Circuit’s court document stated that Vermont statute “caused irreparable harm to manufacturers by requiring them to make an involuntary statement” and “strong consumer concern alone was not a substantial state interest justifying restriction on commercial speech.”

Recent court cases brought against the state — including the Prescription Drug Confidentiality Law, campaign finance reform, and Entergy’s current suit regarding regulation of its Vermont Yankee nuclear plant — have caused concern about Vermont’s likelihood of winning its case if the GE bill goes to court.

California is in a different circuit of appeals, said Partridge. This different circuit, the Ninth, could serve as an advantage to Vermont if its statute takes effect after California’s.

Partridge said in response to the rBGH case, the House Committee on Agriculture asked the Legislative Council to advise on state interests above “public curiosity.” Consequently, this GE bill also explicitly discusses how labeling will support public health, safety, agriculture, and the environment.

At this stage, the bill, if passed by the Legislature, will require manufacturers to mark their products either as “partially produced” or “may be partially produced” with GE ingredients.

A loophole allows foods, like cheese, derived from animals raised on GE feed to avoid Vermont’s rules.

The often contentious root of the GE safety and labeling discussions is that the FDA has said that GE foods have no material difference from their non-GE counterparts and are “generally recognized as safe,” explained Partridge.

But, in Partridge’s opinion, the FDA does not test GE foods, but instead relies on reports from third-party laboratories paid by the same biotech firms whose products the labs are testing.

Tests done overseas, however, have indicated that GE foods can cause health problems.

Over a decade has passed since Vermont tried to require labeling of products containing rBGH. Partridge said that in that time, more people have cultivated an awareness of issues surrounding what they eat, of where their food comes from, and of the biotech industry.

In an email correspondence, Tim Stevenson, founding director of Post Oil Solutions, expressed frustration with the GE bill’s process and doubt about Governor Peter Shumlin’s sincerity for supporting the bill.

“It’s nice to think that we made a difference...except that passage by the House Ag Committee was not the issue in doubt when we traveled to Montpelier, and not the reason we went. We were under the illusion (as it turned out) that our presence would be helpful in the passage of H.722. The fact that the bill would not get beyond the House Ag Committee was not known by us...until later,” wrote Stevenson.

“The question remains for several of us: what was that rally/hearing in Montpelier a couple of weeks ago really all about?” he added.

Stevenson also supplied an email from Shumlin’s office written to a constituent regarding the GE labeling bill.

In his email, the Governor’s commitment toward the bill straddled the fence.

“I agree with those who advocate for clear labeling of genetically modified foods. GMO labeling makes sense and would give Vermonters key information about their food choices,” he wrote. “However, we know from attempts to pass similar legislation in the past, that such a requirement would not stand up to federal legal scrutiny. I don’t think it is fair to ask Vermonters to bear the burden of the cost of those legal challenges.”

While attending events in Brattleboro on Monday, Shumlin said he would not veto the bill.

“I never make threats like that,” he said.

Shumlin said he supported the GE bill, and believes that consumers have a right to know what’s in their food. He added that he helped sponsor the original rBGH bill.

Although he complimented the Legislature’s “good work” on the GE bill, he also didn’t want to forget the “judicial realities” of the rBGH case.

The state must figure out how best to succeed in court despite a legal climate that chooses corporations over people, the governor acknowledged.

“It doesn’t mean we give up,” Shumlin said.

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Originally published in The Commons issue #149 (Wednesday, April 25, 2012).

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