MONTPELIER -- A Vermont Senate panel heard forecasts Wednesday on how well a bill requiring labels on genetically modified foods would hold up in court if the measure becomes law.
Sen. Richard Sears, D-Bennington and chairman of the Senate Judiciary Committee, said the threat of a lawsuit by the food or biotech industries looms large in the minds of lawmakers as they consider the bill. He began one question during the committee meeting: "When the case goes to court ... Notice, I didn't say if ...."
In an interview afterward, Sears said lawmakers have been told it would cost the state attorney general's office $5 million to $10 million to defend such a law in court. Sears said he would like a provision in the bill ensuring the attorney general has the funds to mount a legal defense. He said the funds could come from public and private sources.
Speaking against the bill, Stanley Abramson, a lobbyist for the Biotechnology Industry Organization, told the committee the federal Food and Drug Administration hasn't found any health risks from genetically modified food and sets standards for labeling food nationwide. He said it would be misleading for the state to imply differences between GMO food and conventionally manufactured food, noting that federal law bars misleading statements on food labels.
But Laura Murphy, a professor at Vermont Law School's environmental law clinic, said she believes if the bill becomes law, it would have a good chance of withstanding a challenge in federal court.
Murphy, who said she represents the Vermont Public Interest Research Group on the issue, described various arguments when federal law supersedes state law and how each could be defeated. She said a GMO labeling law could withstand a challenge, for instance, based on the argument that it violates the U.S. Constitution's bar on restricting interstate commerce.
"The dormant commerce clause is something that sometimes comes up. That's a doctrine that basically says states can't pass laws that would unduly interfere with interstate commerce," Murphy said in an interview. "Basically it comes down to a balancing test. And the question is whether the state's interest outweighs any potential burden on interstate commerce."
She said the state has a strong interest in preventing consumer confusion and deception and reducing any potential health risks from genetically modified food. She said a similar balancing test could be used to defeat First Amendment concerns about labeling requirements constituting compelled speech.
Asked later about Sears' concerns, Attorney General Bill Sorrell said he did not like the idea of his office becoming the beneficiary of private fundraising to defend a state law.
"I think it's bad policy, and it'll be a bad precedent," Sorrell said. If lawmakers want to pass a GMO labeling law, "they ought to be prepared to pay the cost of defending the law if it's attacked."