Rural Vermont director Andrea Stander has no doubt about what will happen if the legislature passes a GMO labeling bill that requires food products containing genetically modified organisms to say so on the packaging.
“Yes, there will be a lawsuit,” says Stander, whose organization advocates for Vermont’s family farmers. “But this is a case we can win.”
After two failed attempts in 2011 and 2012, Vermont lawmakers are making a third try at passing a bill requiring food producers to label products containing genetically engineered ingredients. Food manufacturers conservatively estimate that between 60 and 80 percent of processed foods contain at least one ingredient derived from genetically engineered corn, soybeans or other crops. Yet consumers have no way of knowing what products contain “GE” ingredients.
The European Union, Australia and China already require food labels to disclose genetically engineered ingredients, but so far neither the U.S. nor any individual state has succeeded in enacting a GMO labeling law.
Local supporters such as Dave Rogers, policy adviser for the Northeast Organic Farming Association of Vermont, wants Vermont to become the first. He admits the science isn’t settled on the safety of GMOs. But he says that’s all the more reason to require labeling.
“We’re not saying this stuff is going to kill you,” Rogers says. “In the face of such uncertainty, we have a right to know what we’re buying and make our own choices.”
By all measures, GMO labeling is a wildly popular idea here. A third of the legislature — 50 House members and 11 senators — have signed on as cosponsors of two labeling bills, H.112 and S.89. And a grassroots coalition is staging public forums around the state this week to rally support for what it calls “common-sense labeling.”
And yet the legislation faces significant obstacles. Last year, the House Agriculture Committee passed a GMO labeling bill by a vote of 9-1, but the bill died after a biotech industry lobbyist warned lawmakers that Vermont would almost certainly be sued if it passed the bill.
The biotech industry, purveyors of most genetically modified seeds, is again watching Vermont closely, according to Rep. Carolyn Partridge (D-Windham), chair of the House Agriculture Committee and a cosponsor of H.112. In fact, earlier this month the Biotechnology Industry Organization flew Val Giddings, a senior fellow with the Information Technology and Innovation Foundation, from Washington, D.C., to Montpelier to testify on the merits of genetically engineered foods, and the folly — from his perspective — of the proposed labeling law.
Dressed in blue jeans and rolled-up shirtsleeves, Giddings told lawmakers on February 15 that genetically engineered foods are actually safer than nonengineered products, and that the U.S. Department of Agriculture and the federal Food and Drug Administration have sufficiently studied the safety of GE foods. In fact, an FDA official told state lawmakers on February 19 that the FDA does none of its own testing of GE foods, instead relying on studies submitted by biotech companies themselves, or occasionally independently accredited labs, to evaluate the safety of various products.
Still, Giddings wrote later in an email to Seven Days, “The claim that these items have not been tested, and we’re all guinea pigs, is abundantly contradicted by not just mountains but Himalayan ranges of facts. I am completely fine with consumers making free choices … I am not OK with consumers being stampeded by deliberately misleading false alarms into choosing less safe foods out of the mistaken conviction they are more safe.”
Giddings’ blue jeans and bluster didn’t impress the bill’s many supporters, some of whom later remarked that his testimony came across as bombastic in Montpelier.
But it’s not just out-of-state biotech interests weighing in against the labeling bill. Watching closely is Margaret Laggis, a longtime Vermont lobbyist representing dairy farmers who take offense at the bill in large part because more than 90 percent of the field corn grown in the state — admittedly for animal consumption — comes from genetically modified seed. But dairy producers wouldn’t have to slap disclosure labels on their milk jugs: Under the proposed bill, milk and meat would be exempt from the labeling law.
Some grocers and specialty food producers, meanwhile, worry the labeling law would hurt small businesses and potentially drive up the cost of food for consumers. Cathy Bacon, the owner of Randolph-based Freedom Foods, a company that packages and develops food for other brands, testified before the House Agriculture Committee on February 20.
“It’s not that I don’t support factual labeling,” Bacon told lawmakers, adding that food labeling shouldn’t be done state by state. “This has to be a USDA or FDA issue. For my clients, and certainly the small Vermont companies starting up, if they want to distribute nationally, this is going to pose a lot of cost to them.”
But the bill’s supporters note the FDA and USDA haven’t shown leadership on the issue, forcing the state to take action. Proponents believe Vermonters overwhelmingly back GMO labeling, pointing to an 11-year-old poll by the University of Vermont Center for Rural Studies that showed 90 percent of respondents support labeling of genetically engineered foods.
The reasons are many: Some claim religious objections to tinkering with crop DNA, while others believe that GE foods are environmentally destructive, threaten crop diversity and pose health hazards. Numerous studies have looked into the safety of GE foods, but no clear consensus has emerged.
Lawmakers crafting this year’s bills believe they can pass legislation that would stand up to a court challenge. Supporting that claim is a memo prepared by the Vermont Law School’s Environmental and Natural Resources Law Clinic on behalf of Vermont Public Interest Research Group. In it, two law students, supervised by clinic director Laura Murphy, argue Vermont is on safe legal ground mandating GMO labeling.
Lawmakers have reason to proceed cautiously. In 1994, then-governor Howard Dean signed a law requiring labels to indicate whether milk came from cows treated with the growth hormone rBST, but the U.S. Court of Appeals for the Second Circuit struck down that law. Murphy says there are several significant differences between the GE bill and the rBST labeling law — enough that she’s confident any Vermont bill would survive constitutional scrutiny.
Murphy explains that the state will need to prove there’s more than just “consumer curiosity” at stake in order to ensure the law is defensible. Vermont was sued after passing a mercury labeling law in 1998, she notes, but won the lawsuit because the state could prove it was motivated by concerns over the health and safety impacts of mercury contained in fluorescent light bulbs, batteries and other products. That’s one reason the House Agriculture Committee is soliciting testimony about health and safety concerns related to GE ingredients.
Assistant Attorney General Bridget Asay, whose boss would have the job of defending a lawsuit, has twice testified before legislators on this year’s bill. The attorney general’s office has not taken a position one way or the other on the bill, but warns that Vermont would be on the hook to pay the biotech industry’s attorneys’ fees if the law is challenged successfully.
“We consider the law to be defensible, but defensible is not the same as prevailing,” says Asay, “and there is significant risk that the law would not be upheld.”
Partridge, for one, insists she won’t be bullied by the biotech industry. She’s more worried about her own constituents, she says, who’ve made it clear that they support labeling foods with GMOs.
“I’m not intimidated at all,” Partridge says. “We’re anticipating a lawsuit, and that’s why we’re crafting this bill to be ultimately defensible.”
As for the concern about the bill’s effect on specialty food producers, Partridge says that the landscape has already shifted in the last year. Ben & Jerry’s cofounder Jerry Greenfield recently testified to state lawmakers that Vermont’s finest is making plans to go GE-free by the end of 2013.
Other cosponsors of the bill view it as imperfect but necessary. “It’s a flawed bill, because it could put on a burden on Vermont producers. It could attract a lawsuit that Vermont can’t afford. But it’s a start,” says Rep. Teo Zagar (D-Barnard). “It’s the only way right now that we can give consumers the informed consent that we need if we want to make decisions about this technology.”
The House Agriculture Committee began marking up the labeling bill late last week. If it passes there, it would make stops in the two other House committees — Judiciary and Commerce and Economic Development — before heading for a floor vote. Should the bill miss the mid-session crossover deadline, Partridge says she’ll seek an extension from Senate leaders.
Will this year be any different than last? Supporters hope so. NOFA Vermont’s Rogers says the bill has a lot of momentum coming off last year, when more than 350 Vermonters turned out for a public hearing on the issue. The national push for GMO labeling took a hit last year, when California voters narrowly defeated a measure to require such labeling after the biotech industry spent $47 million fighting Proposition 37; supporters spent $7 million.
But Rogers isn’t discouraged.
“I think the biotech industry and Big Food thought that they could kill all of this around the country by defeating Prop. 37 in California,” he says. “People certainly were discouraged for a little while after that, but all it did was just strengthen the resolve of people around the country … It’s not going to go away, and how those on the other side, particularly the ones with the deep pockets, choose to play their hand, we’ll see.”