GMOs and Act 120

By Alexandra Noll*

Genetically modified foods were approved for human consumption in the United States in 1996. [1] Such products were hailed as revolutionary in the agricultural world. Many were engineered to increase crop yields and to resist the use of pesticides and herbicides. Monsanto’s famed Roundup Ready soybeans came onto the market in 1996.[2]  However, American consumers started growing concerned about the hidden nature of genetically modified foods in their food supply. [3] There was no way to tell what foods contained genetically modified products, and consumers began to feel as though it was their right to know what was in their food products. [4]

On May 8, 2014, Governor Peter Shumlin of Vermont signed Act 120 into law. [5] This law required the labeling of all foods containing genetically modified organisms manufactured in or shipped to Vermont. It was the first of its kind. While Connecticut passed a genetically modified labeling law in December 2013, its law will only take effect if four other states also pass a labeling law and, “the bill also requires that any combination of Northeast states where together reside at least 20 million must adopt similar laws in order for the Connecticut regulations to take effect” [6]

After Act 120 was passed in 2014, the Snack Food Association, the International Dairy Foods Association, the National Association of Manufacturers, and the Grocery Manufacturers Association initiated proceedings to sue Vermont over the law. [7] Manufacturers claimed that the need to re-label all foods shipped into Vermont called for a tremendous revision of the existing food labels that would pose an astronomical cost to the corporations. [8] Cathy Bacon, owner of Freedom Foods, testified before the House Agriculture Committee on February 20, 2013, saying that, “it’s not that I don’t support factual labeling…this has to be a USDA or FDA issue. For my clients, and certainly the small Vermont companies starting up, if they want to distribute nationally, this is going to pose a lot of cost to them.” [9]

Another issue raised is that the consumers’ argument about their right to know what is in their foods may not even exist. According to Michael Rodemeyer, a University of Virginia professor of biotechnology policy, “people are usually surprised to learn that there is no legal right to know” [10] In 1996, the United States Court of Appeals for the Second Circuit held in International Dairy Foods v. Amestoy that, “consumer curiosity alone is not a strong enough state interest to sustain the compulsion of even an accurate, factual statement.” [11]

Act 120, in its final form, highlights the fact that “there have been no long-term or epidemiologic studies in the United States that examine the safety of human consumption of genetically engineered foods.” [12] Lawmakers claimed that the labeling laws would clear up any confusion about the origins of food. They also highlight that “people with certain religious beliefs object to producing foods using genetic engineering because of objections to tampering with the genetic makeup of life forms and the rapid introduction and proliferation of genetically engineered organisms and, therefore, need food to be labeled as genetically engineered in order to conform to religious beliefs and comply with dietary restrictions.” [13]

Hank Greely, director of the Stanford Center for Law and Biosciences, stated that a law requiring labeling of genetically modified organisms is “an unsettled area in the law. If I were a betting man, I think the odds are good that the Supreme Court would…strike down a GMO labeling requirement.”[14] Vermont’s Attorney General, Bill Sorrell, “has estimated it could cost the state up to $8 million to defend the law, with no guarantee the state will prevail.” [15] Acting with incredible foresight, Vermont lawmakers included provisions for a defense fund, supported by the public, to help offset the enormous legal bills that were sure to come. Sorrell and his attorneys argue, “the state may make labeling restrictions to promote ‘informed decision-making on matters of public health and the environment’”[16]

In 2015, a U.S. District Court judge denied the Grocery Manufacturers Association’s motion for an injunction to block the enforcement of Act 120. [17]While the denial was appealed to the Second Circuit, the law took effect on July 1, 2016. [18] Yet just over a month later, President Obama signed a bill that overturned Vermont’s labeling law, and instead required the federal government to enact a national standard for GMO labeling. [19]

While Act 120 was certainly tailored to the citizens of Vermont, it would be too difficult for companies to navigate 50 state laws on the requirements for GMO labeling. National regulation is ideal, so long as it is not a voluntary labeling system. However, this type of legislation is unlikely to get much support in the Trump administration. It remains to be seen what will happen with the advent of President Trump.


The views and opinions expressed in this blog are those of the authors only and do not reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan.

*Alexandra Noll is a Junior Editor for MJEAL.  She can be reached at alexnoll@umich.edu.

[1] Company History, Monsanto.com, http://www.monsanto.com/whoweare/pages/monsanto-history.aspx (last visited Feb. 25, 2017)

[2] Id.

[3] Allison Kopicki, Strong Support for Labeling Modified Foods, The New York Times, (July 28, 2013), http://www.nytimes.com/2013/07/28/science/strong-support-for-labeling-modified-foods.html?_r=1&

[4] Jon Entine, Why Liberal Americans are Turning Against GMO Labeling, Forbes.com, (Aug. 25, 2014), https://www.forbes.com/sites/jonentine/2014/08/25/why-liberal-americans-are-turning-against-gmo-labeling/2/#73b5ac4a102c

[5] Press Release, Vt. Law School, Vt., ENRLC See GE Food Labeling Law Victory With Court’s Denial of Grocery Manufacturers Ass’n Motion for Injunction, Vt. Law School, (April 28, 2015), http://www.vermontlaw.edu/news-and-events/newsroom/press-release?id=245

[6] Genevieve Reilly, Malloy Signs State GMO Labeling Law in Fairfield, The Conn. Post, (Dec. 11, 2013), http://www.ctpost.com/news/article/Malloy-signs-state-GMO-labeling-law-in-Fairfield-5056120.php

[7] Terri Hallenbeck, Vt. Defends GMO Labeling Law, BURLINGTON FREE PRESS, (Aug. 8. 2014) http://www.burlingtonfreepress.com/story/news/politics/2014/08/08/gmo-lawsuit-response/13800873/

[8] Id.

[9] Kathryn Flagg, Who’s Trying to Kill the GMO Bill?, Sevendaysvt.com, (Feb. 27, 2013), http://www.sevendaysvt.com/vermont/whos-trying-to-kill-the-gmo-bill/Content?oid=2242964

[10] Rosie Mestel, Genetically Modified Foods: Who has to Tell?, THE L.A. TIMES, (Feb. 23, 2013) http://articles.latimes.com/2013/feb/23/science/la-sci-gmo-labeling-20130223

[11] Int’l. Dairy Foods Ass’n v. Amestoy, 92 F.3d 67, 74 (2nd Cir. 1996)

[12] Vt. Stat. Ann. tit. 9, § 3041 (2016)

[13] Id.

[14]Mestel, supra note 10.

[15]Hallenbeck, supra note 7.

[16] Id.

[17] Press Release, Vt. Law School, supra note 5

[18] What Businesses Need to Know About the New Vt. GMO Law, Law360.com, (May 31, 2016), https://www.law360.com/articles/801771/what-businesses-need-to-know-about-the-new-vt-gmo-law

[19] Stephen Dinan, Obama Signs Bill Overturning Vt.’s GMO Labeling Law, The Washington Times, (Aug. 2, 2016), http://www.washingtontimes.com/news/2016/aug/2/obama-signs-bill-overturning-vermonts-gmo-labeling/

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