Last Wednesday, published an article written by Elaine Watson and entitled, “Vermont GMO labeling bill heads to governor’s desk. But can it withstand a First Amendment challenge?”  In that article, Watson notes how the bill, which requires GMO labeling for foods produced with genetic engineering and prohibits such foods from being labeled “natural,” has passed both the Vermont house and senate and is awaiting the signature of Governor Peter Shulmin.  Further, she explains that if the bill is signed into law, opponents will likely challenge in on First Amendment grounds.

As explained in a legal memorandum we prepared on the issue, the Vermont GMO labeling bill will likely survive a First Amendment Challenge in the Second Circuit, for the following reasons:

  • The Second Circuit is a particularly favorable jurisdiction for proponents of compulsory labeling laws.  Specifically, it applies rational basis review to compulsory commercial speech when the compelled speech is factual in nature, as opposed to viewpoint laden.  Under rational basis review, the Second Circuit will uphold such a law if there is a rational connection between its purpose and the means employed to realize its purpose.   Here, the Vermont labeling law compels factual speech, i.e., the disclosure of a genetically engineered component.  Plus, there is a rational connection between its purpose, the protection of public health and safety, and its means, requiring the disclosure of GMOs so consumers can avoid potentially dangerous products.
  • Legislatures have broad power to define legislative terms, such as the term “natural.”  Here, Vermont has defined “natural” to mean a product that was not produced through genetic engineering.  If a product that was produced through genetic engineering bears a “natural” claim in Vermont, the claim is false and not entitled to constitutional protection.






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