Vermont Governor Peter Shumlin
Vermont Governor Peter Shumlin ()

Food industry trade groups have tapped Hogan Lovells to challenge a first-of-its-kind state law requiring the labeling of genetically engineered food. In a complaint filed June 12 in U.S. district court in Burlington, Vt., the trade groups argue that Vermont’s government exceeded its constitutional authority by enacting the groundbreaking labeling law on May 8. They argue that the law, which goes into effect in 2016, violates the First Amendment as well as the Commerce Clause.

Vermont is “prohibiting manufacturers from describing their products in terms of their choosing, without anything close to a sufficient justification,” the trade groups wrote. “The state is forcing the cost of this experiment on out-of-state companies and citizens to which it is not politically accountable, and it is undermining and impeding the federal government’s interest in uniform, nationwide standards for food labeling.”

The plaintiffs are the Grocery Manufacturers Association, the Snack Food Association, the International Dairy Foods Association and the National Association of Manufacturers. They’ve sued four Vermont officials, including Attorney General William Sorrell and Gov. Peter Shumlin.

Representing the organizations are two partners in the Washington, D.C., office of Hogan Lovells: Catherine Stetson, who codirects Hogan’s appellate practice, and E. Desmond Hogan. Local counsel is Matthew Byrne, a former partner at Kirkland & Ellis in Chicago who is now a managing shareholder of the Burlington-based Gravel & Shea.

Vermont’s law, known as Act 120, would require food companies to disclose whether a product contains ingredients derived from genetically modified organisms. Proponents of the act argue that GMOs may not be as safe as the U.S. Food and Drug Administration has asserted, and that consumers should be able to know what they’re eating. Connecticut and Maine have also passed food labeling bills, but their laws require neighboring states to enact similar legislation. Vermont’s bill is the first with no strings attached.

At least six bills restricting or banning genetically modified foods were filed in the state Legislature in New York in 2014, but none have advanced past the initial committee stage.

They include a measure similar to Vermont’s Act 120, the “New York Right to Know Genetically Engineered Food Act” (A5412/S4468), which would require any foods produced with genetically engineered components to be so marked for New York consumers.

Another measure, A2299, would impose a five-year moratorium on the planting and growing of genetically modified crops in New York state. A third bill, A2810, would require milk cartons to carry the notice “This milk was produced by cows administered growth hormones” where bovine growth hormones were used on dairy cows.

In its complaint, Hogan Lovells argues that Vermont’s legislature has exempted dairy products and restaurant food from the bill to protect the state’s large tourism and dairy farming industries. The firm also maintains that to comply with the July 2016 deadline, some companies will have to change their labels throughout the entire U.S.

Sorrell, the Vermont attorney general, said his office has been preparing to defend the law and “we’re ready to fight.”

Shumlin, the governor, said Vermont will continue to push for what he calls common-sense labeling on packaged foods that contain GMOs.

The state has established a “Food Fight Fund” to help cover its legal costs.