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Vermont Will Triumph Against Court Challenges to New Labeling Legislation

Opinion

In a May 3 column, Food Safety News editor Dan Flynn wrote a rather scathing editorial about Vermont’s new GMO labeling law. Among the criticisms, he asked a question:

“If there is some skilled member of the bar out there who has done the sort of professional analysis that is normally available, please send it to me. I truly would like to see it. I am certain this bill is a mess; I am just trying to figure out how messed up it is.

“It’s hard to take a bill seriously that starts out with a screed. I am not a lawyer and don’t speak like one on TV, but Section 1 of H. 112 sounds like it was written by someone who might be off their meds. My guess is that this entire section has no impact whatsoever on law, but that the Vermont General Assembly likes to blow political smoke to make up for its inability to do more thorough work.”

I’m not a member of the bar, sorry. I don’t even play a character on TV who is a member of the bar. You’ll just have to make do with an untrained opinion. Point of fact, most of us are untrained in the law, so we might as well muddle along on our own.

First, Dan mentioned the failure of California’s law related to downer livestock as an argument that, of course, this bill will fail when challenged in court, as all such bills do. Before I address this particular reference, I did want to mention that California has been quite successful with recent laws that have been challenged in court, similar to how people see the Vermont law being challenged.

California has been successful in defending the foie gras ban, the shark fin ban, as well as the state’s Low Carbon Fuel Standard. By all indications, California will also be successful with the recent challenge to its egg laws. I expect the judge to support the state’s motion for dismissal and the case to be over quickly.

Returning to the California law related to the slaughter of “downer” livestock that Dan mentioned, the law was struck down because the Federal Meat Inspection Act (FMIA) explicitly preempts any state requirement  “with respect to premises, facilities and operations of any [slaughterhouse] at which [federal] inspection is provided . . . which are in addition to, or different” than the federal requirements.

California’s downer law was in direct conflict with the federal law — an act precluded by the FMIA preemption clause. Even if the California law was complementary to FMIA, it still would be precluded because, as Justice Kagan noted, “The FMIA’s preemption clause sweeps widely…. The clause prevents a State from imposing any additional or different ― even if nonconflicting ― requirements that fall within the FMIA’s scope and concern slaughterhouse facilities operations.”

The authority for the Supreme Court decision rests squarely within the Supremacy Clause of the constitution that states that federal law shall be the “supreme law of the land.” However, the Supremacy Clause doesn’t apply to the other state laws I just mentioned because, as has been shown in court, none of the state laws are preempted by any existing federal law.

The Supremacy Clause doesn’t apply to Vermont’s law either. Why? The Vermont law says it all: “No formal FDA policy on the labeling of genetically engineered foods has been adopted. ”

FDA’s labeling guidelines related to GMOs are voluntary. Their purpose is to ensure uniformity and accuracy. Vermont requiring GMO labeling does not interfere with federal rules or regulations. The latter only kick in once the label has been so modified. And any preemption, expressed or implied, in the federal labeling laws (the Food, Drug, and Cosmetic Act, and the Nutrition Labeling and Education Act), “shall not be construed to preempt any provision of state law, unless such provision is expressly preempted.”

In other words, unless both laws expressly prohibit states from making laws related to GMO labeling, neither law preempts the state from doing so.

Dan’s editorial also references the Commerce Clause. I wrote about the Commerce Clause and its relationship to the California egg lawsuit. The Commerce Clause invests the federal government with the power to regulate commerce. However, it is the “dormant” Commerce Clause that’s at issue. The premise behind the “dormant” Commerce Clause is that states may not enact laws that purposely discriminate in favor of in-state producers against out-of-state producers. However, since both in-state and out-of state producers have to follow the exact same law and suffer the same economic considerations, I don’t see how the Vermont GMO law is discriminatory in nature.

What other kinds of legal challenges exist? In a recently released report entitled, “The Potential Impact of Mandatory Labeling for Genetically Engineered Food in the United States,” the Council for Agricultural Science and Technology (CAST) listed three legal challenges to mandatory GMO labeling. I’ve already touched on the first two (the Commerce Clause and the Supremacy Clause), but the last is related to the First Amendment and the concept of enforced speech.

A Washington Post article on the Vermont law notes that past court decisions have set up a four-part test to ascertain whether a restriction on commercial speech is allowed or not:

First, the court has to decide that the speech is protected, meaning it must be about legal activity and not be misleading. Second, the government has to claim a substantial interest in limiting the speech. Third, the policy in question has to “directly advance” that interest. Fourth, that policy must not overreach in achieving its goal.

Careful reading of the Vermont law has shown that the lawmakers have established a substantial interest in enacting the label law, and that this law is the way to directly advance the interests of the people of Vermont. It has also shown that there is no other way of enacting such a law since the FDA has shown no interest in mandatory labeling. Though issues related to freedom of speech are tricky, the state law’s wording demonstrates the lawmakers were well aware of potential freedom of speech issues and drafted text accordingly.

Though I’m not a lawyer, I strongly believe the state will triumph against any court challenge. And members of the legal profession also believe this is so. A memorandum prepared by Emord & Associates goes into great detail as to why the firm believes that the Vermont GMO law will survive a constitutional challenge:

“This memorandum assesses the constitutionality of Vermont Bill H.112 (2013) as passed in the Vermont General Assembly. Because the Second Circuit applies the Zauderer exemption for compelled speech broadly, and the Bill protects consumer health and safety, the law is likely constitutional under the First Amendment to the United States Constitution. Furthermore, H.112 does not impede or conflict with the federal Food and Drug Administration’s labeling regime for foods and dietary supplements. The federal system does not preempt H.112, which was enacted constitutionally under the State’s general powers. Finally, H.112 does not discriminate against interstate commerce, or impose a burden that outweighs Vermont’s legitimate interest in protecting the consuming public. Thus, H.112 does not violate the Dormant Commerce Clause. “

But let’s put aside the legal mumbo jumbo since most of us aren’t lawyers. Let’s talk about the intent of the Vermont law.

The concerns about GMO as stated in the Vermont law are valid, whether they meet every individual’s interpretation of validity or not. Cross-pollination is a problem. Organic farmers are adversely impacted by nearby GMO crops. Though not mentioned in the Vermont law, there is concern about the unintended spread of proprietary seeds (“drift”) and the legal problems this has triggered.

We already know that GMO contamination has impacted on farmers producing crops for export, so there’s a major fiscal concern, too. In addition, GMO seeds also encourage poor farming practices: unsustainable development rather than sustainable; monoculture over diverse agriculture.

Let’s also consider a presumption that GMOs have basically failed. The use of GMOs has increased the need for water. They have failed in preventing overuse of herbicides and expressly encourage the use of chemical pesticides. Because of reliance and encouragement on monoculture, they have failed to control pests in a sustainable manner. Because of the increased use of herbicides related to GMO crops, they have failed to control pests in such a way that the environment is not adversely impacted. And, as the world has discovered, they’re not all that friendly to the pocketbook or local agricultural practices.

Finally, as to the issue of most importance to Dan, there’s the issue of GMOs and food safety.

It is true that most studies and reports have not found a negative effect related to food safety from the use of GMO techniques. However, no publication, study, or report has noted a positive effect from GMO techniques either. In the absolute best case, GMO’s impact on food safety is neutral. When we consider that the most we can hope for from a food safety perspective is no effect at all, even the possibility of negative effects — increased allergic reactions and other impacts — leads to an overall negative net effect on food safety.

More important, the use of GMOs mask underlying problems. The Center for Food Safety notes this in relation to the discussion about using GMO to solve the Florida orange problem:

“The GE “solution” might be attractive to many growers, producers, and curious consumers because it seems like a direct ‘fix’ — by, for example, creating a citrus greening-resistant orange tree. But supporters of such technology continuously fail to acknowledge an important fact: this GE solution doesn’t address the root cause of the problem; it merely kicks the can down the road.”

Marion Nestle said much the same thing in relation to Golden Rice, supposedly the cure for Vitamin A deficiency in certain parts of the world, when she wrote:

“Taken together, the many nutritional, physiological, and cultural factors that affect vitamin A status suggest that the addition of a single nutrient to food will have limited effectiveness. Instead, a combination of supplementation, fortification, and dietary approaches is likely to be needed — approaches such as promoting the production and consumption of fruits and vegetables rich in beta-carotene, educating people about how to use such foods, and improving the quantity and variety of foods in the diet (so beta-carotene can be better absorbed). Perhaps most helpful would be basic public health measures such as providing adequate supplies of clean water (to prevent transmission of diarrheal and parasitic diseases).”

Add all of this up and you’ll realize that the people of Vermont have legitimate concerns expressed as a singular wish: to know if the product they’re using contains GMO material so they can make a choice whether to buy it or not, for whatever reason. This is a concern and a wish to which the legislature has listened — a refreshing change in today’s political world. Lawmakers have not only listened but have provided significant funding in defense, too.

Yes, there will be lawsuits. But the people bringing the suits had better bring their A game.

In fact, when it comes to this new law, we all might consider bringing our A game, whether we’re supporting it legally, or fighting it in editorials.

© Food Safety News
  • BarryThoele

    Well written Shelley. I’m still trying to figure out how this would be bad for consumers.
    Or how it is going to cost so much to implement. We already label ingredients how is this different? Because when people find out how deep into our food supply this actually goes and start tying the loose ends together it will come down to a traceable way to determine “if” there are negative impacts from GMO foods.
    I would think “if” there are no negative impacts the ag industries would be leading the charge.
    Instead it’s just more rhetoric and threats of legal challenges.
    Maybe it’s time to tell big ag to put up or shut up.

    • grifty

      It is different because we’re not talking about an ingredient, we’re talking about a production process. A GE corn kernel is not fundamentally different than an organic one.

      • http://burningbird.net Shelley Powers

        They’re not the same, though. If they were, Monsanto wouldn’t be able to tell if a farmer is using conventional seeds or the company’s proprietary seeds. When you can determine one thing is unique from the other, that’s not “equivalent”.

        The FDA looks at two things: that any introduced protein isn’t an allergen and the nutritional profile is the same. There are those going “Wait a sec? Is this really that sufficient?” Seriously, this is quite a shallow assumption.

        Unfortunately, further testing is problematic because the companies keep a stranglehold on their seed, and researchers can’t get access to seeds that enable controlled testing.

        Regardless, the GE corn kernel is fundamentally different from the conventional corn kernel.

        • Charles Rader

          Shelley, your comment has at least two separate mistakes.

          First, the Vermont law does not make any distinction between GMO-derived foods that are exactly the same as conventional and GMO derived foods that can be distinguished by testing. Even further, there is far more difference between any of various varieties of conventional corn than between a GMO corn and its conventional parent. Using the word “fundamental” masks the extent of differences that are hidden in non-GMO labeling.

          Second, your comment about researchers access to seeds was a valid complaint a few years ago but all the seed companies responded to the complaint by changing their policies and now anyone can use GMO seeds to study anything – except using them to breed new and competing varieties.

          • http://burningbird.net Shelley Powers

            Availability of seeds is a yes and no–even Monsanto’s more open approach is still only available for US based universities, and most access has been very recent and only with legal agreement.

            http://grist.org/food/genetically-modified-seed-research-whats-locked-and-what-isnt/

            So the access is mostly recent and still restricted in one way or another.

            And are you telling me there are GMO crops that can’t be differentiated from conventional, even using protein or DNA testing? That’s news to me.

          • First Officer

            He’s saying that many products derived from GMO’s are identical to their non-gmo counterparts. Like sugar, fructose syrups, etc. Sucrose is sucrose and it doesn’t care how it came to being. There might be some really small trace of DNA left but you woudn’t be able to discern if it was just some trace left from something else or they truly used GMO’s to make that sugar.

          • Charles Rader

            OK you’ve gone from “Unfortunately, further testing is problematic because the companies keep
            a stranglehold on their seed, and researchers can’t get access to seeds
            that enable controlled testing.” to “… Monsanto’s more open
            approach is still only available for US based universities, and most
            access has been very recent and only with legal agreement.”

            I consider that an adequate correction. Following your provided link to grist will be a useful way for most readers to get an honest explanation without this restriction to a few short sentences.

            [And are you telling me there are GMO crops that can't be differentiated
            from conventional, even using protein or DNA testing? That's news to me.]

            We aren’t talking about differentiation of the crops in whole form. We are talking, at least I am, about the foods on the store shelves, which is where the Vermont law about labeling is applicable. If you can find DNA from the crop in the food, that would be enough for a competent scientist to compare that DNA, sequenced, with the published sequence data that’s publicly available for all GMO foods.

            But the majority of the foods which will need to be labeled by the Vermont law are either chemically identical to their non-GMO counterparts, or so nearly so that it would be virtually impossible to find any difference, and then it would be further impossible to attribute the minute amount of GMO DNA, if found, to the original crop rather than some stray contamination. Shelley, if anyone really believes that beet sugar and GMO beet sugar could possibly have different health effects, he’s beyond rational discussion.

          • First Officer

            This does bring into question the enforceability of the law. I believe laws that are not enforceable can also be struck down like laws against particular thoughts.

          • http://burningbird.net Shelley Powers

            You’re conflating about four topics into a mish mash of difficult to understand text.

            First, I stand with my “testing is compromised by the companies”, in large part because of the enforcement of the legal agreements and the restrictions that even Monsanto, the most open, places on testing.

            If you’re talking about finished product, DNA testing would expose the GMO.

            http://courses.chem.indiana.edu/c118/documents/GeneticallyModifiedFoodsWeek1.pdf

        • First Officer

          No, its not. The two strains of corn, the GE and its parent strain are like two of the same year, make and model car with one had used some starhead screws in place of phillips head screws. There are more genetic differences between the parent strain of corn and other strains than between it and the GE strain. The FDA looks at all the testing submitted by the candidate company, including animal feeding studies.

          • http://burningbird.net Shelley Powers

            The genetically modified material can be discovered, even in highly processed food, through DNA testing.

            Genetically modified corn is not the same as conventionally grown corn.

          • First Officer

            And you can discover the starhead screws in the car too. You can also test for what particular conventional strain was grown too. Though not mathematically the same, they are the same for all practical purposes after harvesting. No new risks and all risks at or below the conventional strain. Discerning a negligible difference is not sufficient criteria for labeling.

          • First Officer

            2nd time: And you can discover the starhead screws in the car too. You can also test for what particular conventional strain was grown too. Though not mathematically the same, they are the same for all practical purposes after harvesting. No new risks and all risks at or below the conventional strain. Discerning a negligible difference is not sufficient criteria for labeling.

      • BarryThoele

        It is interesting that you use the word “fundamentally” when you post of difference.
        They require a listing white corn or yellow corn in the ingredients. I have even seen Hard Red Durum Wheat on ingredient labels.
        I see no reason this should be different. We already have labeling laws make them stick. This is just the GMO companies protecting their market share.
        They know if it were based on consumer preference they lose a big share.
        But that as they keep saying is what a true free market is about.

  • terryward

    Goodness me …a real actual creative writer.
    I admit to a lack of heebies regarding the GM thing, but for her writing skills alone, just at this moment I’m inclined to agree with Ms. Powers on anything.

  • Doug Farquhar

    State Authority to Regulate Biotechnology under the Federal Coordinated Framework
    Published in the Drake Journal of Agricultural Law
    Volume 12, No. 3
    Fall 2007

    Section on Preemption

    When Congress acts in accordance with the Constitution, it preempts state laws in conflict with its actions.[1] The theory of preemption arises from Article IV, cl. 2 of the Constitution, which states that it, and all laws of the United States “shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby.”[2]

    Preemption is either express or implied.[3] In either case, courts look to congressional intent in determining whether federal action preempts a state law, using the purpose of Congress as “the ultimate touchstone.”[4] When determining the whether preemption exists, and its scope, the courts start “with the assumption that the historic police powers of the State were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.”[5] In fields that states traditionally regulate, courts will presume that federal laws do not preempt local regulations.[6]

    Express preemption occurs when Congress explicitly states, in the statute’s language, the limits of state laws in the regulated field.[7] Although explicit in the law, courts must still interpret the scope of the language and its limits on states.[8]

    In addition to express preemption, the Supreme Court has also recognized two types of implied
    preemption: field preemption and conflict preemption.[9] Field preemption occurs when federal
    regulation is “so pervasive as to make reasonable the inference that Congress left no room for States to supplement it” or “the Act of Congress may touch a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject.”[10]

    A federal law will also preempt a state law if the state law is in conflict with, or impedes that federal law.[11] “The test of whether both federal and state regulations may operate, or the state regulation must give way, is whether both regulations can be enforced without impairing the federal superintendence of the field.”[12] The Court need not even examine congressional
    intent where “compliance with both federal and state regulations is a physical impossibility,” as the federal law automatically preempts the state law in that circumstance.[13]

    [1]
    Wisconsin Pub. Intervenor v. Mortier, 501 U.S. 597, 604
    (1991).

    [2]
    U.S. Const. art. VI, § 2.

    [3] Gade v. Nat’l. Solid Waste Mgmt. Ass’n.,
    505 U.S.
    88, 98 (1992).

    [4]
    Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 208 (1985).

    [5]
    Mortier, 501 U.S.
    at 604.

    [6]
    Id.

    [7]
    Id.

    [8]
    See, e.g. Bates v. Dow Agrosciences,
    LLC., 544 U.S. 431 (2005), in which, in order to resolve a split in the Circuit Courts of Appeal, the Supreme Court held that the FIFRA provision that prohibited states from requiring labeling different from or in addition to the EPA approved labels preempted common law claims premised on defective labeling. The Court ruled that common law tort liability was a requirement beyond the EPA label, but that common law claims that used the EPA labels as the standard of care were permitted, as this did not require anything in addition to, or different from federal requirements.

    [9]
    Gade, 505 U.S. at 98.

    [10]
    Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947) (citations omitted)
    (examining the federal Warehouse Act’s language and legislative history to determine that Congress intended to be the sole regulator in the field when it eliminated a provision from the Act that allowed states to license warehousemen). See also Hines v. Davidowitz, 312 U.S. 52 (1941) (holding that Congress preempted the field of immigration and alien registration with the Federal Alien Registration Act, as immigration is a field traditionally reserved to the federal government).

    [11]
    Hines, 312 U.S. at 67.

    [12]
    Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142
    (1963).

    [13]
    Id.
    at 142–43

  • First Officer

    The FDA’s formal position on GMO labeling is that no formal or mandatory labeling as such is needed. The FDA has not enumerated a position for labeling on what breed of cows milk is produced from either. That doesn’t mean all others can force one at will. The federal courts have already ruled that consumer curiosity is not reason enough to compel speech. You claim there are health/etc concerns, but in any challenge brought to the federal level will show that those are simply false fears, however earnestly felt. All the proponents of this law will only be left with the argument that they believe there could be problems, without being able to show there has been problems or any scientific study worth it’s salt has supported such beliefs. The court will rule that if we were compel speech for unsupported beliefs, there would be no limit to the number and types of statements that would be required.

    And, to think, how many hungry children that 8 million dollars would’ve fed.

    • http://burningbird.net Shelley Powers

      But that’s not a _formal_, as in codified, position.

      The Vermont law isn’t based on “curiosity of the consumer”, it’s based on a set of concerns including health, safety, environmental impact, and even religious. States do have the right to enact laws that impact on the health, safety, welfare, et al of their citizens.

      Remember this isn’t a ban on GMO. This is only a label specifying the existing of genetically modified material within specific types of food products.

      And the courts don’t demand that states provide proof, because the courts are not in a position of determining what is, or is not, a good proof. If anything it is this, specifically, that has led SCOTUS to become less than enamored with the “dormant” Commerce Clause.

      At the end you swung immediately out of the legal into seemingly an overall defense of GMO. You realize that no defense of GMO is necessary with the Vermont law, because it does not ban GMOs.

      As for all the hungry children, the genetically modified crops from this country are used to fatten beef cows to an artificially higher fat content so that American chubbies can get their steak fix.

      Or they’re modified to make them more useful for the development of biofuels.

      About the only development related to GMOs and hungry children is the golden rice work, which is really about ensuring children get adequate Vitamin A, when children don’t eat correctly when their mother’s are having to work. And there’s the effort on the cassava.

      http://tyglobalist.org/in-the-magazine/features/genetically-modified-cassava-new-technologies-have-complicated-the-challenge-of-feeding-africa/

      • grifty

        One question I come up with is how will the State enforce this? Contrary to popular belief (as many pieces of common knowledge about GE are), there is no simple test for GE. IF you know the specific DNA markers you can test for it, but absent that..what would you be testing for? DNA? There isn’t some magic marker in the DNA that says “Monsanto” or something.
        2nd..who exactly gets in trouble with the law on this one? Lets say I produce food in Iowa (no labeling requirement). I sell it IN Iowa. Somehow or another it makes its way into the markets in VT. Who pays the fine for selling the unlabeled product? Certainly not the producer. The most likely source is the importer into the state, but they have no practical way of determining if a product is GE or not, nor do they have the ability to modify the labeling. I really thing we need to have a national policy on the issue.

        • http://burningbird.net Shelley Powers

          Re: enforcement.

          I suggest you read the bill.

          • First Officer

            What’s the test for determining whether sucrose was derived from GM beets or non GM beets?

          • http://burningbird.net Shelley Powers

            Manufacturers will be expected to understand whether the raw products they use have been genetically modified, and if so, label their finished products accordingly.

            Penalties will only apply when a manufacturer knows that the end product is derived, in whole or part, from GMO and then deliberately chooses not to mark their labels accordingly.

            This is similar to most of how our other food laws work.

          • First Officer

            But, how would you know? How will you determine intent and how would you determine such a product actually used GM derived sugar, etc. How would you catch cheating?

          • First Officer

            To clarify: What test would the state perform on the bag of sucrose they would have as evidence that it was intentionally derived from GMO’s? And what was it results and how did they come to those conclusions? If were the defendant’s lawyer, those would be my opening questions. Afterall, what case would the state have if they can’t prove the goods are non-conforming?

          • Mark174

            Or manufacturers can simply write “may be derived from GMO foods” on everything. The effect of the labeling law may simply be that consumers will come to recognize that avoiding GMO foods is too much hassle and end the controversy.

          • http://burningbird.net Shelley Powers

            Sure, that’s an option. Of course, no manufacturer has done this based on the EU and other country requirements, but hey, odder things have happened.

          • Mark174

            Well, yes: your crazy strategy worked and many Europeans are simply irrationally afraid of GMOs And as a consequence, they are significantly poorer than they would otherwise be.

      • First Officer

        First, that 8 million dollars can go to feed children, regardless if you buy it’s GM or not to do so.

        I do believe that the FDA has issued written statements regarding their position on GMO labeling and, if that, somehow, is not interpreted as their formal position, that can be rectified at any time.

        Those sets of concerns, without evidence, are simply reasons for curiosity. The state may not have to prove it’s not safe, etc, but the plaintiffs will prove that they are safe, etc. There is also the concern for religious practices. This is expressly forbidden by the first amendment. If not, then Jewish and Muslim groups will sue to have food producers label non-kosher, non-halal products as such. To enforce labeling for any concern the state might have because they believe it is in the interest of the people, just by stating so, without supporting evidence, will leave no limit to the kinds and amount of information that producers could be compelled to disclose. Perhaps the state is concerned that left handed people do not screw fasteners as tightly as right handed people, possibly leading to manufacturing defects in heavy machinery. The state could then force the labeling of how many left handed people were involved in making your lawn mower.

        And, yes, i am defending GMO’s and that doesn’t swing out of the legal as you put it. Labeling is not banning in of itself, but it will be shown in the upcoming suits that the groups funding the passage of this law and its defense, have gone on record that their intention is to use labeling as Scarlet Lettering, to no just avoid GMO foods themselves but to foment general boycotts against them. This provides ample proof that labeling will bear a heavy burden on GMO producers, for which no material benefit will be derived. It will also be shown that, like kosher and halal foods, those wishing to avoid GMO’s already have sufficient avenues to do so, through the gm-free labels and the Organic certifications.

        SInce you brought up Golden Rice, there are other GMO’s in the wings to boost nutrition or eliminate deadly allergens. You should also review where golden rice will be grown, and freely given. These are in areas where people get little else but rice for a multltude of reasons, the least of which is mothers having to work. These people would eat correctly if they could and simply saying, let them grow green veggies, doesn’t work. About 300 million dollars per year is spent trying to get vitamin A to these people and still a better part of a million go blind each year, along with many other health problems. To date, Golden Rice development has cost 30 million dollars. The rice will be grown in these areas, requiring no more cost than what rice they grow now. Hence, net cost will be zero for these people.

        Sincerely

        • http://burningbird.net Shelley Powers

          Doesn’t matter the intent of groups not associated with the Vermont state legislature. If the food companies have the compelling argument in support of GMO, let them make it, and let the chips fall. If there are GMOs to boost nutrition and eliminate allergens–marketing points. There you go.

          As for “proof” that the use of GMO is without harm, that’s virtually impossible.

          Once the golden rice is released the conditions that led to the Vitamin A deficiency will continue to exist. Why? Because rather than solve the problem, we threw technology at it.

          • First Officer

            Intent does matter in the law and those groups operate in Vermont as evidenced by their letter writing and fundraising campaigns. Regardless of any marketing points that labeling may have, it is not the state’s right to force such labeling without reasonable cause and with undue burden.

            It was never said GMO’s can be mathematically 100% without harm, only that they are as least as safe as any other breeding technique and oft times safer and introduces no new risks. Safety is a measure of risk. Anything below a predetermined level of risk is considered safe.

            Your statement about Golden rice is akin to saying the conditions that led to communicable diseases (evolution of pathogens) will continue to exist after vaccines are used. Vaccines are technology too. So, while we are trying to solve the problem, we can be saving millions of lives along the way. (Poverty is the actual problem and VAD is a huge economic drain with already poor families forced to care for their VAD struck members. Golden rice will help kickstart a golden cycle of increasing health and reducing these costs to these families, allowing them to apply their efforts to wealth generation.)

          • http://burningbird.net Shelley Powers

            Your analogy with the vaccine just isn’t appropriate.

            Vaccines are necessary because there is no other alternative, other than put people into isolated bubbles.

            However, there are alternatives to genetically modifying a rice in order to introduce vitamin A because of changed in environment, suddenly losing access to a particular foodstuff, circumstances, etc.

            If the reason for Vitamin A deficiency is because of environmental or social factors, than the vitamin A deficiency isn’t the only problem that will result. It’s more of a symptom of a problem then the problem, itself.

            If we solve the problem, this one particular symptom will go away. If we don’t solve the problem, some other symptom will appear, some other nutritional deficiency will appear, and we’ll have to start all over again.

            When a group of people suddenly lose access to a nutrient they’ve had access to in the past, that is where we should focus.

          • First Officer

            Alternatives to vaccines:

            1) Endure the disease. Chickenpox, mumps party anyone?
            2) Cure it once you got it. Diptheria and Pertussis are treatable by antibiotics.

            They’ve been trying those alternatives to Golden Rice and still a better part than a million people die each and every year. Golden riice doesn’t take anything away from these people and they didn’t suddenly lose a nutrient. There had always been VAD. By reducing VAD, Golden rice will allow would be sufferers and their would be caretakers to devote that time, effort and what little money they have to improving their lots in life. You say some other problem will take it’s place? I believe those facing death and blindness will gladly wager their luck on it.

          • Charles Rader

            [Because rather than solve the problem, we threw technology at it.]

            I’m an engineer (electronics not genetics) and my value to society is solving problems with technology. In many cases, eliminating the root cause of a problem is just not within our grasp, so we do what we can, or we do nothing. I’m pretty sure that Drs. Potrykus and Beyer (developers of Golden Rice) would have wanted poor Asians to be more prosperous, and to eat a varied diet. That’s nothing they knew how to do, and I haven’t noticed anyone else making it happen. Vitamin enriched rice IS something they knew how to do.

      • Mark174

        In practice, you can assume that almost everything that isn’t voluntarily labeled GMO-free contains some GMO component. Why do you need labeling?

        • http://burningbird.net Shelley Powers

          Because not every product contains GMO.

          • Mark174

            Yes, almost everything where the manufacturer didn’t try to keep it GMO free contains GMOs. And if I were a manufacturer, rather than face liability and controversy, I’d just put on “may contain GMOs” just to be sure.

    • Oginikwe

      Pulling out the “hungry children” meme is really low. We grow enough food in the world to feed everyone, we just don’t have the will to do it because there’s little profit in hungry people. This continuing concern-trolling by people in the industry is getting really old.

      • CycloneFarms

        LOL!

        You copied the “concern troll” phrase from that scathing takedown of the Union of Concerned Trolls (formerly known as the Union of Concerned Scientists)

        Just admit it.

        • Oginikwe

          Try the Urban Dictionary. You must be over 50.

      • Mark174

        You seem to have trouble recognizing sarcasm.

  • Ralph Emerson

    Not sure where to start here – first of all, without challenging the DOCTRINE of preemption (i.e., the fact that it exists at all), all governments (including Vermont’s) leave the door open to future, express preemption of labeling laws. So, for example, leaving the doctrine unchallenged will allow the federal government to move forward to either ban labeling or impose their own labeling system and then force Vermont to knuckle under it. In addition, we all have short memories, because back in 1996, the 2nd Circuit ruled that Vermont’s requirement to label artificial BGH in dairy products was struck down as a violation of corporate 1st Amendment rights. The case was International Dairy Foods v. Amestoy, 92 F.3d 67 (2nd Cir. 1996).

    So, the doctrines of preemption have to go (when applied in this way to knock down ceilings as well as “floors” in the law), and corporate “rights” have to go as well.

    As long as we only argue about application of them, we will endlessly lose (as we have), and always be subordinate to “higher” levels of government. As much as I hope that that’s not the case, it is.

    Also, the whole labeling thing is the wrong frame, in the first place – we should be prohibiting GMO’s period; rather than trying to stake out a claim to “right to know”. All labeling does is support the growth of the GMO industry, by making GMO’s “safe” in the marketplace. When we frame it as a “right to know” rather than our “right to prohibit” we’re automatically in the wrong ballpark.

    • http://burningbird.net Shelley Powers

      The toughest battle Vermont will have is the issue of Freedom of Speech, and a corporations freedom to be silence. And yes they will have to show that the law serves a compelling need of the citizens of the state.

      One argument I’ve read previously about the GMO laws is that a major difference between this particular dairy case and the case with GMOs is specific to the drift and very real concern about GMO contamination of organic crops.

      Because of this very real and easy to demonstrate problem, people’s right to have access to organic foods is imperiled because the foods will become increasingly contaminated by genetically engineered crops.

      And that, ultimately, is the most major threat to GMO: contamination.

      • Ralph Emerson

        Unfortunately, GMO contamination of crops isn’t a compelling need (or even a rational basis) for labeling laws; because the two aren’t connected. One is a desire to keep organic production safe; the other is about a right to know what’s in the food supply.

        The basic problem is one that the Vermont law doesn’t address. It’s the power that “higher” governments and corporations hold, which they can use to preempt and nullify our laws at any time.

        The Vermont law will be overturned; the question is whether people will learn anything from that. It seems we haven’t over the past 50 years of activism – we just keep reliving the same battle over and over again.

        The only solution is to structurally change how the system operates; and remove the powers that governments and corporations have over our own governments. And that’s a different conversation than one focused on knowing what is in the food that we eat. It’s unfortunate that our activism has become so flaccid and pathetic as to try to find exceptions and niches to how the law works; rather than inventing a whole new system of law.

        • http://burningbird.net Shelley Powers

          But who are we to say whether this is a compelling need or not? If the Vermont AG and his team do an effective job, then they’ll convince the district judge that this, and other, needs are compelling.

          I wouldn’t fixate on the preemption argument overmuch. I genuinely don’t believe this will be the biggest challenge.

          And as difficult as it is to believe at times, corporations really aren’t a fourth arm of the government. And a complete libertarian toss up isn’t a solution.

          • Ralph Emerson

            Keep dreaming. Your logic ignores the last fifty years of idiotic activism on progressive issues. And a 1st amendment argument is a free speech argument, not a preemption argument. On the preemption front, they may win, but on the 1st amendment rights of corporations, there’s no way.

            It’s not about libertarian toss-ups, its actually about controlling our own government, so that they don’t enable the very corporations that come back to nullify our laws. You want a labeling law? You need to get corporations out of being the ruling class.

          • First Officer

            You forget, that corporations, while not actually people themselves, are organizations of people. They do not check all their 1st amendment rights at the door when they report to work. Vermont already lost it’s milk lableing battle because of 1st amendment rights.

          • RobertBurn

            I don’t think he forgot that at all. People make the connections between government and corporations and money and cronyism makes certain peoples vested interests protected by government and others ignored.

            Let me ask, if the FDA was saturated with ex activists and employees from the organic food industry and the Vermont right to know (GMO labeling) group would you trust it to regulate GM products?

      • First Officer

        The Organic Industry decided amongst themselves to strive for a zero tolerance standard. Since GMO’s are safe by the measures and practices in force in the food industry today, the only reason the Organic industry has for such a standard is to attract customers. I.e an economic gain. It is not up to an organic grower’s neighbors in helping said organic grower to meet his or her contractual agreements, especially since they will share in none of that economic gain. Further, zero tolerance is unattainable and not expected in any other farming endeavor with small amounts of mixing tolerated in all other crops.

  • marcbrazeau

    How does mandatory consumer labeling of GMOs address any of the issues raised by Ms. Powers?

    Cross-polination? – That needs to be worked out between farmers. Why not pass a law regulating buffer zones?

    Increased use of herbicides? Then label for herbicide content. Because when you take away the RoundUp you are probably replacing it with atrazine, dicamba or 2,4D.

    Water use? Try regulating water use.

    And I’m completely baffled how a GMO label in Vermont is going to address dire poverty in the Philippines.

    • http://burningbird.net Shelley Powers

      It must have been my mirror self that referenced Philippine poverty because I didn’t do so.

      The point I’m making is that citizens have legitimate concerns about GMO on many different levels, and many different fronts. Right now, though, they can’t exercise their opinion by restricting purchases to non-GMO products.

      (Or restricting purchases to GMO products, whatever rings your bell.)

      Note that when I did discuss the issues related to GMOs I did so after the discussion about the law, and the legal aspects. I’m listing the many different concerns about GMO.

      • CycloneFarms

        “The point I’m making is that citizens have legitimate concerns about GMO
        on many different levels, and many different fronts. Right now, though,
        they can’t exercise their opinion by restricting purchases to non-GMO
        products.”

        Absolutely incorrect.

        People that are afraid of the GMO boogeyman can buy organic or items that are part of the Non-GMO project. The Non-GMO project does useful things like certifying GMO-free salt (snicker).

        Your list of “concerns” about GMO doesn’t reflect science. You are giving false balance to activist groups that sling nonsense.

        • Oginikwe

          Yes. Let’s talk science.

          A Hungarian-born UK Scientist, Arpad Pusztai was a world renowned expert on food safety, who worked at UK’s leading food safety research lab, the Rowett institute. He evoked worldwide media attention in August 1998, when he said in British TV that he would not eat genetically engineered food because of the insufficient scientific testing. In 1999, he published a study about potential dangers of genetically modified potatoes in The Lancet. The potential damage to the biotech industry from this study, and the industry’s massive campaign for public confidence in genetically modified foods, is obvious. Shortly after, the Rowett Institute suspended Pusztai, claimed that his study was not supported by the evidence, and shelved him. A scientific committe was asked by the Rowett institute to review the study Pustai referred to. It said there were important deficiencies in the study. Pusztai then sent the research protocols to 24 independent scientists in different countries. These turned down the conclusions of the review committee and found that his research was of good quality and justified his conclusions.

          • Charles Rader

            OK Pusztai – let’s assume, for argument’s sake, that his work, although controversial, is correct. What it then shows us is that a kind of potato genetically engineered to produce a certain poison, is worse than the poison by itself. If anything, it proves that testing GMO food seems to be successful at finding any problems. It doesn’t show anything about existing GMO foods on the market. All you have told us that is relevant is that a certain scientist has said that he would not eat GMO food.

            You’ve also worded the Pusztai story in a rather misleading way. He submitted his paper to The Lancet, and it was rejected by reviewers. It was then published because of the widespread publicity and interest by non-scientists – an extraordinary example of scientific openness. One would hope that you would have included some mention of the devastating fact that nobody has reproduced this result.

          • Oginikwe

            You are the one who is misleading. Pusztai was under a gag order from Rowett Research Institute. Dr. Stanley Ewen from Aberdeen University carried out his own measurements and agreed with Puzztai’s findings as eventually did 20 members of an international scientific panel. Then Rowett lifted the gag order so he could talk about his study but did not yet have permission to publish. Ewen wrote up his own appraisal and published it in the Lancet with Pusztai as the co-author.
            Pusztai’s best quote: “it is very, very unfair to use our fellow citizens as guinea pigs.”

          • Charles Rader

            Oh, yes, Dr. Puzstai’s co-author agreed with the lead author. Sorry I left that out.

            The fact, uncontested, is that Pusztai’s experiment, even if we ignore the controversy and accept it as valid, showed nothing about any other GMO food and certainly nothing about any GMO food in our food supply. All you have that is relevant is Dr. Pusztai’s stated opinion.

          • Oginikwe

            It’s not “opinion” when it’s science. His methodology was sound. Where is that GMO potato today? Wasn’t it called “New Leaf”?

          • CycloneFarms

            Pustazi has been debunked.

            How about bringing up another anti-science meme?

          • Oginikwe

            No he hasn’t.
            Genetically Modified Foods: Are They a Risk to Human/Animal Health?: http://www.actionbioscience.org/biotech/pusztai.html

            Either way, Monsanto apparently sees the writing on the wall:
            Monsanto Is Going Organic in a Quest for the Perfect Veggie
            http://www.wired.com/2014/01/new-monsanto-vegetables/?mbid=synd_digg

            You pro-GMO industry folks need to take your P.R. firms’ advice and keep to the script. The meme is “junk science,” not “anti-science.” Didn’t you get the memo?

    • First Officer

      They scream pesticides but want to label GMO’s, regardless if any pesticides were used or not and regardless of the traits introduced or deleted. This tips their hand and show us just how much of a luddite position this labeling law is.

  • http://burningbird.net Shelley Powers

    Evidently real lawyers are going to be weighing in on this issue here a FSN (one who I encouraged, and hope he does participate).

    I once thought that what mattered was the quality of the argument, not the profession. That we non-lawyers can’t practice law (of course not), but we could participate in the discussions, and should, because these laws–and the cases that refine or dismiss them–have such a profound effect on our lives. .

    Evidently, I was mistaken.

    Anyway, all talked out and nothing more to say.

  • Jonathan Gilbert

    Well said Shelley. Whether its COOL or GMO labeling it amazes me that the hats, HATS, I manufacture and sell require more labeling than the food we eat or the origin of that food. God Bless America, but seriously, what ball are these anti-labeling keeping their eye on?

    • hyperzombie

      I have never seen an ingredient list on a Hat.

      • http://burningbird.net Shelley Powers

        You’ve never seen the fabric, country, and care label in a hat? Next time you see a baseball hat, take a look at the back.

        • hyperzombie

          It doesn’t tell me if the nylon was made from Natural gas or oil, Oh the Humanity…

  • Charles Rader

    Yes I saw that. I found it intriguing that the bill doesn’t require the label to identify the GMO ingredient. So a consumer who is worried about herbicide use doesn’t know if the GMO was designed to tolerate a herbicide. A consumer angry at Monsanto won’t know if the GMO was developed by Bayer or Simplot, etc. He won’t even know if the GMO ingredient contains any novel DNA or protein – a sack of sugar is chemically identical whether the sugar came from sugar cane or sugar beet but the label falsely implies a difference. This bill is transparently intended to facilitate a propaganda campaign.

    • http://burningbird.net Shelley Powers

      Because the law can’t touch the nutrition label without hitting federal preemption.

      And I don’t think people are quite that picky.

      The “propaganda campaign” just doesn’t work when we consider the amount of money companies paid to fight the GMO bills in Washington and California.

      Unless you want us to bring this up everytime you use this term? That’s cool, will do.

      • First Officer

        What is the appropiate amount of money to defend one’s rights?

  • http://burningbird.net Shelley Powers

    You don’t have to be “qualified” to discuss the law. Or the legal ramifications. You may not be interested, or feel comfortable, but there’s nothing stopping you or anyone from joining in.

    You don’t agree with it, so you come out exposure ofthis huge propaganda campaign. That’s the same as me saying curry is bad food just because I don’t like it.

    And when we consider the 65 million or so that Big Food paid to undermine Prop 37 in California, well, everything is relative.

    Your analogy is not the best I’ve seen. May want to try that one again.

    • Charles Rader

      Shelley, the huge amount of money that was spent by the food companies opposing Prop 37 is not the issue. They do have the money to influence public opinion – but they were playing “defense” . It is simply incontrovertible that the major reason there is any public interest at all behind labeling GMOs is that the public has been exposed to a negative campaign. I gave you several examples of the parts of that campaign which are false.

      I could also have complained about sins of omission. For example, the exaggerated claim that GMO food is not tested (when it is) is calculated to lead people to believe that other novel foods would naturally be tested. But they aren’t. The claim that FDA requires only voluntary testing is calculated to lead people to believe that it’s often omitted, but it’s not. Also the same approval process is not voluntary in Canada which has approved exactly the same set of GMO varieties. Also, the testing required by EPA or USDA is not voluntary. These are omissions that twist the meaning. If you don’t like the word propaganda, please suggest another term.

      [Your analogy is not the best I've seen.] I didn’t think they were good enough analogies either. I invite you to suggest another example of a good law forcing disclosure of something to facilitate a propaganda campaign. But I wonder if you disagree with the original point, that a labeling law that facilitates a propaganda campaign is poor public policy.

      • http://burningbird.net Shelley Powers

        You come into comments and you say, “There was a huge propaganda effort and that’s why the Vermont law was passed!”

        But then, when I mention the efforts large agricultural companies spent on defeating GMO bills in other states, you say, well, that isn’t relevant.

        Sorry, I don’t play when the rules are fixed against me.

    • RobertBurn

      65 million dollars could feed a lot of starving people. (see first post above)

      • http://burningbird.net Shelley Powers

        +100

        (Will remember this one for future reference.)

  • First Officer

    It seems, from the arguments presented in the preceding comments that, in spite assurances to the contrary, Vermont did not write a good law. Vermont was careful to seek legal advice but, in seeking firms that seem to be sympathetic to the anti-gmo cause, they got what they wanted to hear.