By: John Herrick

BURLINGTON — A federal district court judge heard oral arguments on the constitutionality of Vermont’s GMO labeling law Wednesday.

At issue is whether Vermont can require manufacturers to label products with what critics claim to be a politically charged statement designed to prevent consumers from purchasing products containing genetically engineered ingredients.

The judge’s interpretation of the wording will affect the state’s ability to defend the case, officials said.

Vermont’s first-in-the-nation GMO labeling law will require manufacturers and retailers to label most products containing genetically engineered ingredients beginning in July 2016. The Grocery Manufacturers Association and other trade groups sued the state this summer, arguing the law is unconstitutional and places undue burden on the industry.

Catherine Stetson, the attorney representing the trade groups with the multinational law firm Hogan Lovells, said Vermont’s law requires manufacturers to put a “misleading” label on their products that is designed to tell consumers, “Don’t buy me.”

The trade groups have pegged the label as a de facto warning that ignores what they say is scientific consensus that consuming genetically engineered food is harmless to human health. (The state’s proposed rules allow manufacturers to also print a disclosure stating the “United States Food and Drug Administration does not consider food produced with genetic engineering to be materially different from other foods.”)

Stetson argued that the label violates First Amendment protections in the U.S. Constitution by compelling manufacturers to place statements on their products that they do not agree with. She said the label is considered controversial and therefore should pass a higher legal standard in order to be constitutional. Though the label may be considered a fact, as the state argues, it cannot be viewed in a vacuum, she said.

“This is a controversial issue,” Stetson said. “Whether that information even matters is itself controversial.”

The state disagrees, arguing that the label is a statement of fact that the product was produced with genetically engineered ingredients.

Lawrence Robbins, the state’s primary attorney on the case, who is a partner in his Washington, D.C., firm, said even calorie counts on labels could be considered controversial given that some people are concerned about their body image.

Even so, given that there is still debate around the issue only supports the need for the government to regulate it, Robbins said.

“It’s precisely that there is such a debate … and a narrative whose chapter is not yet written that consumers need to know how their food is produced,” he said.

If the judge decides the label is more than a statement of fact, the state will have to pass a higher legal standard. The state is hoping the judge will decide a lower standard of review, however.

Attorney General Bill Sorrell said the judge’s decision will determine how the state prepares for the case.

“The court could make some decisions that could have a great impact on the case,” he said.

Sorrell said the case is being watched nationally by other states considering GMO labeling laws.

But even if the judge decides to apply a higher standard of review, Robbins said there are still potential health and environmental risks associated with genetic engineering that the state should regulate, including cross-pollination of organic crops and the proliferation of so-called herbicide-resistant superweeds.

Act 120 bans the use of the word natural on products that also contain genetically engineered ingredients, but the trade groups say the state has not defined this term.

Chief Judge Christina Reiss, who heard the state’s motion to dismiss the lawsuit Wednesday, was also concerned about the state’s definition of the word natural. She described it as “arbitrary” and applying only to one group of manufacturers whose products contain genetically engineered ingredients.

She asked whether the use of pesticides, fertilizer or a greenhouse would also be considered unnatural.

Robbins said it is generally understood by the public that genetic engineering is not natural.

“The slope is slippery on both sides,” he said. “At some point you could say that nothing is natural.”

Walter Judge, an attorney for Downs Rachlin Martin, who is not participating in the lawsuit but is a critic of state’s labeling mandates, said he was skeptical of the state’s prohibition of the word natural. At issue is whether the state can target one group of manufacturers — those that use genetically engineered ingredients — and not others.

“It seems discriminatory to tell those who make food using GMO ingredients you can’t use the word natural,” Judge said.

He said one of the issues that was not addressed was the exemption in the rules that allows use of the word natural if it is part of the manufacturer’s brand name. It may be unfair for some companies to use a brand name that implies their food is natural when their products contain genetically engineered ingredients, he said.

Reiss said she “could not imagine” striking down the entire act because of the “natural” phrase.

Originally Published: VT Digger