On August 8, the Vermont Attorney General’s Office responded to this opening salvo with its own, asking the district court to dismiss the GMA’s complaint in its entirety. Totaling 50 pages, the AG’s motion provides the first definitive look at the state’s arguments defending Act 120, shedding more light on the battle to come.
So what are Vermont’s responses to the criticisms levied by the GMA? Highlights from the AG’s argument below:
The AG argues that Act 120 does not violate the Commerce Clause because it does not “clearly discriminate” against interstate commerce—that is, it is not an obviously “protectionist” measure that seeks to benefit businesses in Vermont by burdening out-of-state competitors. And whatever burdens the law does impose on interstate commerce, the AG contends, pale in comparison to its putative “local” benefits to Vermont and its citizens.
The AG also contends that the labeling requirement does not infringe on food manufacturers’ First Amendment rights because it only seeks to regulate purely factual claims in advertising. Because commercial fact-based speech receives less constitutional protection, the AG argues, Vermont need only show that the labeling requirement has a “rational basis”—an undemanding standard that state laws rarely fail to meet.
Finally, the AG maintains that Act 120’s ban on “natural” advertising claims for GMOs is not unconstitutionally vague, despite the breadth of the statute’s prohibition on the use of the words “natural, “naturally,” or other “words of similar import.” The AG claims it will have the opportunity to clarify the statute’s application by issuing rules that spell out which uses of “natural” are permissible going forward.
The battle lines are now drawn; the parties’ positions have come into sharper relief. The GMA will soon have its own opportunity to try to persuade the court either that it should decide the case in GMA’s favor or let the case go forward to the fact-gathering stage. Look for the GMA to respond not only by challenging the relatively lenient constitutional tests that Vermont proposes, but also by arguing that actual evidence—not just legal argumentation—is necessary to determine whether the labeling requirement is valid. We will keep a close eye on this case as it develops in the coming months.