More than 20 years ago, the FDA determined that genetically engineered (GE) ingredients do not create a safety concern.  Statement of Policy: Foods Derived From New Plant Varieties, 57 FR 22984-01 (1992).  The FDA has since rejected several attempts to force manufacturers to indicate which foods contain GE ingredients on food labels.  On May 8, 2014, Vermont enacted a law requiring manufacturers to label foods sold in the state that contain GE plant material.  Many non-organic foods in the U.S. contain GE ingredients.  On June 12, 2014, four food associations filed suit in Vermont alleging that the labeling law violates the U.S. Constitution.

The Grocery Manufacturers Association, Snack Food Association, International Dairy Foods Association, and National Association of Manufacturers challenged the law on four bases: (1) they allege that the law violates their free speech rights by compelling them to speak and identify GMOs as potentially harmful, a fact with which they disagree; (2) they allege that it violates their free speech rights by prohibiting them from speaking, primarily by identifying certain foods as “natural,” which manufacturers may currently do if the food contains GE ingredients; (3) the associations allege that the law is too vague to be enforced; and (4) they allege that the law violates the Commerce Clause by forcing out-of-state manufacturers to create costly, Vermont-specific labels, despite the fact that only the federal government—through the FDA—can regulate food labels.  You can read the complaint here.

The Vermont law and the food associations’ lawsuit may have implications that reach beyond the state of Vermont.  In January, Maine and Connecticut passed similar labeling laws, but those laws are contingent upon a certain number of states passing similar legislation. If those other laws went into effect, they may be susceptible to the same challenges put forth in the Vermont complaint.