GE Food Litigation

On May 8, 2014, the Vermont Legislature enacted Act 120, which requires manufacturers to label genetically engineered (“GE”) foods as such, and prohibits manufacturers from describing GE products as “natural.” One month later, on June 12, 2014, Plaintiffs—a collection of trade associations representing food producers—filed suit, naming as Defendants Attorney General Sorrell, Governor Shumlin, Health Commissioner Chen, and Finance Commissioner Reardon.

Recent Developments:

July 1, 2015: The American Chemistry Council, American Beverage Association, Biotechnology Industry Organization, Chamber of Commerce of the United States of America, Agricultural and Commodity Trade Associations, and Washington Legal Foundation filed briefs with the 2d Circuit as amicus curiae in support of Plaintiffs-Appellants and seeking reversal of the District Court’s decision. (See links below)

June 24, 2015: Plaintiffs-Appellants filed a brief with the 2d Circuit asking that the Court reverse the District Court’s decision denying Plaintiffs’ motion for a preliminary injunction. Plaintiffs-Appellants challenge the District Court’s decision that they were unlikely to succeed on their First Amendment challenge to Act 120 ‘s GE labeling requirement and had not shown irreparable harm with respect to the law’s “natural restriction.”

June 2, 2015: The U.S. Court of Appeals for the Second Circuit set the following briefing schedule for Plaintiffs’ expedited appeal: Plaintiffs’ opening brief is due June 24, 2015; the State’s response brief is due August 24, 2015; Plaintiffs’ reply brief is due September 8, 2015; and oral argument will then be scheduled “as expeditiously as possible after the reply brief.”

May 6, 2015: Plaintiffs appealed the Court’s April 27, 2015 decision to the U.S. Court of Appeals for the Second Circuit.

April 27, 2015: The Court issued its decision denying Plaintiffs’ preliminary injunction motion in its entirety, finding Plaintiffs were not likely to prevail on the merits of their claims or could not establish irreparable harm. The Court also granted in part and denied in part the State’s motion to dismiss, rejecting a significant portion of Plaintiffs’ Complaint, including claims that Act 120 is preempted by federal law and violates the Commerce Clause. As to Plaintiffs’ First Amendment claims, the Court made several rulings favorable to the State. In particular, the Court adopted the Attorney General’s argument that the lowest level of scrutiny applies to the disclosure law, whereby the State need only show that the GE label is reasonably related to the State’s interests. The Court found that the “safety of food products, the protection of the environment, and the accommodation of religious beliefs and practices are all quintessential governmental interests,” as is the “desire to promote informed consumer decision-making.” Finally, the Court declined to dismiss Plaintiffs’ First Amendment and vagueness challenges to the law’s “natural restriction,” concluding, for the time being, that Plaintiffs had sufficiently stated their claim.

January 7, 2015: The Court held oral argument on the State’s motion to dismiss and Plaintiffs’ motion for a preliminary injunction. The Court then took both motions under advisement.

September 12, 2014: Plaintiffs filed a motion for a preliminary injunction, seeking an order postponing the effective date of the GE labeling law (which is still nearly two years away) and enjoining the State from taking any action to enforce the law.

August 8, 2014: The State moved to dismiss Plaintiffs’ Complaint in its entirety. In its motion, the State contends that the GE labeling law withstands all five of Plaintiffs’ challenges to its constitutionality and that the Court should dismiss the suit without requiring the State to answer the Complaint or engage in further litigation.

District of Vermont Court Filings:

Below are the major filings and orders of the Court.

Published: Jul 2, 2015