With the passage of the Administrative Procedures Act in the states and at the federal level, government agencies have been given powers traditionally reserved to the legislative and judicial branches. The result has been less representative government and situations where the bureaucracy rules by administrative fiat with little or no input from the public. A prime example of this would be a recent policy on raw milk enforcement implemented by the Vermont Agency of Agriculture, Food and Markets (VAAFM).
The sale of raw milk is legal in Vermont with the state legislature establishing a two-tier system in which producers can sell more raw milk each week if they comply with additional requirements regarding matters such as inspection, registration, and testing. Producers can also deliver raw milk to customers if they meet these requirements. Prior to 2014, Tier 2 producers could only either sell on the farm or through delivery direct to the customer’s residence. In July a new law went into effect allowing raw milk producers to sell at farmers markets, a significant improvement in the producer’s ability to sell raw milk.
New Policy Harder on Raw Milk Producers
The VAAFM, which has long been hostile to raw milk sales, implemented a new compliance and enforcement policy in October that looks to be designed not to benefit public health but rather to make it more difficult for Tier 2 producers to make a living.
Vermont producers face some of the strictest testing standards in the country with limits of 15,000 colony forming units per milliliter (cfu/ml) on the total bacteria count, 10 cfu/ml on the coliform count and 225,000 per ml on the somatic cell count (SCC). Under VAAFM’s new policy, a producer with just one total bacteria or coliform count above the limit “must warn all customers that the most recent bacteria coliform count result was over the limit (at the farm and at any point of delivery) and retest the week following the initial sampling.” If the follow-up sample tests above the limit, the producer must “stop all sales until an acceptable test result is achieved.” Most states having a total bacteria and test requirement have a 20,000 cfu/ml standard (which is also the same standard for pasteurized milk under the Pasteurized Milk Ordinance [PMO]). Most, if not all, states do not suspend sales of raw milk for human consumption or raw milk intended to be pasteurized unless 3 out of 5 consecutive tests are high for either coliform or total bacteria count. From 2009, when the original raw milk law went into effect, until the policy change, 3 out of 5 had also been the standard in Vermont.
As for a test above the limit for somatic cell count, again the “Producer must warn all customers that the most recent SCC result was over the limit (an easily read sign at the farm and at any point of delivery is sufficient).” The producer is also required to immediately contact a veterinarian to assess the herd and milking procedures to determine the cause of the mastitis and to minimize the potential for pathogens to shed in the milk.”
Vermont likely has the lowest somatic cell count requirement in the world; most states having an SCC requirement have a 750,000 standard, which is also the same requirement under the PMO. While someone with a 226,000 somatic cell count is well under the limit anywhere else in the U.S., in Vermont the dairy has to pay for a vet to assess the herd as well as warn its customers about the high count.
The purpose of VAAFM’s new policy is to scare the customers of raw milk producers so they will no longer buy the product. As raw milk research and expert Dr. Ted Beals pointed out in a letter to VAAFM Secretary Chuck Ross, “These tests (Total Bacteria Count, Coliform Count, and Somatic Cell Count) are extremely useful for dairy management, but are not intended for, nor useful for protecting the consumer from illness.” In a separate letter to Secretary Ross, Andrea Stander, Director of Rural Vermont stated, “The new policy provides no meaningful increase in protection of public health, safety or informed consent for consumers…” The Agency has also not provided any substantiated justification for the change in policy.
No Due Process for New Policy
Raw milk producers were afforded no due process in the implementation of the new policy; VAAFM gave them no opportunity to make comments before the policy went into effect, and it was Rural Vermont that first informed the producers of its planned implementation, not the agency. In her letter to Ross, Stander charged “the VAAFM (with whom all Tier 2 producers are duly registered) gave no indication that it intended to notify the farmers who would be impacted by the policy in advance of its original effective date of September 1, 2014.”
VAAFM’s new policy on testing (the policy covered other matters beyond testing standards for Tier 2 producers), in effect, creates law; the agency should have provided public notice with an opportunity for comment as required by the state Administrative Procedures Act. What is happening in Vermont is also taking place more often elsewhere around the country where bureaucrats are making law with little or no accountability.
MONTPELIER –A state representative and some activists will travel to Washington in a bid to stop a federal law that would pre-empt states like Vermont from requiring labels on genetically modified foods.
Rep. Kate Webb, a Shelburne Democrat and a key backer of the GMO labeling bill that passed in Vermont this year, is set to testify Wednesday before a U.S. House committee. She’s then expected to participate in a rally in downtown Washington aimed at stopping the legislation sponsored by Rep. Mike Pompeo, a Kansas Republican.
In Vermont, meanwhile, local activists have set a 3:30 p.m. news conference for the Hunger Mountain food co-op in Montpelier with the same purpose in mind.
The Kentucky Department of Agriculture is taking applications for next year’s industrial hemp pilot projects. Potential growers must apply by Jan. 1; farmers who are chosen will be notified in late January.
“The first round of pilot projects with the universities and individual farmers in 2014 yielded a tremendous amount of data about production methods, seed varieties, harvesting and processing techniques, and uses for the harvested hemp,” Agriculture Commissioner James Comer said in a statement.
“We’re looking to conduct a wide scope of pilot projects in 2015. When the day comes that commercial hemp production is open to all producers and processors in Kentucky, we want to be ready.”
Hemp was grown in 2014 for the first time since it was outlawed decades ago along with marijuana, which has far more of the high-inducing chemical THC. Several research plots were grown by universities, and a handful of farmers grew private plots. Results of the research projects are likely to be released by the end of January.
To grow hemp, applicants must provide the physical address of the production fields and anywhere the hemp will be processed or stored.
MONTPELIER >> New Hampshire-based Stonyfield Farm is one of two organic dairy producers that have withdrawn from a trade group seeking to overturn Vermont’s GMO labeling law. The other is California’s Clover Stornetta Farms.
The companies say they are “under fire” from consumers who support the policy, according to a letter sent to the head of the International Dairy Foods Association.
Vermont’s GMO law would require labeling of certain food products containing genetically engineered ingredients starting in 2016. The IDFA is one of four trade groups that have filed suit against Vermont, arguing the law is unconstitutional. the lead plaintiff is the Grocery Manufacturers Association.
“Our decision to stop our membership wasn’t that hard, honestly,” said Britt Lundgren, director of organic and sustainable agriculture at Stonyfield Farm. “I don’t view this as a big loss for us. Stonyfield is a strong supporter of GMO labeling across the country.”
On July 8, an organic faction appeared within the IDFA when five members, all represented by another organic trade group, sent a letter to the association’s president to express their “deep concern and unhappiness” with IDFA’s decision to participate in the lawsuit.
“We are not clear why IDFA entered the lawsuit, as the labeling law does not affect dairy ingredients. As near as we can tell, this was an internal decision, with little or no consideration for the diverse interests of the membership,” the letter states.
“I hope that IDFA takes this as message that they do need to do a better job of reaching out to all of their stakeholders,” Lundgren said.
But others, including Horizon Organic, Aurora Organic Dairy and Organic Valley, will retain their membership with the IDFA. They are also members of the Organic Trade Association, a vocal proponent of state GMO labeling initiatives.
“We still belong to the IDFA,” wrote Sara Loveday, a spokesperson for Horizon Organic, which is a subsidiary of the Denver, Colorado-based WhiteWave Foods Company, in an email to VTDigger. “But the organization has agreed that our dues have not and will not be used for anti-labeling efforts.”
Horizon decided to stay with the IDFA in order to have a seat at the table, Loveday said.
“We believe that the most effective option for fighting the IDFA’s anti-labeling actions is to use the power of our memberships to voice our opposition to their approach. As you referenced, we have made it clear to the IDFA that we do not approve of their decision to join GMA’s lawsuit against the state of Vermont, and we are in ongoing discussions with them about their position,” Loveday wrote.
Peggy Armstrong, a spokeswoman for the IDFA, said as far as she knows, no other members have withdrawn.
Though dairy products are exempt under the law, many producers use sweeteners, such as corn syrup, which often comes from genetically engineered crops. Even a company like WhiteWave, which owns Horizon Organic, has products in its portfolio that contain GMOs, a spokesperson said.
Some companies oppose the state labeling law, but prefer a uniform national policy. The trade groups in the lawsuit argue a patchwork of labeling creates a costly logistical obstacle for food producers..
Laura Batcha, CEO and executive director for the Organic Trade Association, which represents some of IDFA’s members, said member companies have a right to voice their own perspective, as long as they do not publicly attack the trade association.
“Having a policy as a trade association doesn’t require a unanimity of thought,” Batcha said.
(TRFW News) A large European study led by Professor Erika von Mutius reports that fresh, non-pasteurized cow’s milk actually protects children from respiratory infections, fever and inflammation of the middle ear. The study does acknowledge that untreated cow’s milk could contain pathogenic microorganisms that could pose a health risk, but researchers argue for different processing methods to be used to preserve the protective agents in raw milk. (1,2,3)
Long-term study examines effects of raw milk on children’s health for their first year of life
This long-term study explored the role of dietary and environmental factors in developing allergic illness. The study began with 1,000 pregnant women who were asked to document their children’s diet and health weekly for the first year of life. (1,2,3)
“Among children who were fed fresh, unprocessed cow’s milk, the incidence of head colds and other respiratory infections, fever and middle-ear inflammation was found to be significantly lower than the group whose milk ration consisted of the commercially processed ultra-pasteurized product,” says Dr. Georg Loss of Dr. von Hauner’s Hospital, first author of the new paper. (1,3)
Drinking farm milk reduced the risk of developing respiratory infections, fever, and middle-ear inflammation by 30 percent. The effects of the milk diminished if milk was heated at home before drinking. Conventional pasteurization retained the ability to reduce fever, but exposure to UHT processing eliminated this ability. The positive impact of raw milk could easily be separated from the effects of other elements in the children’s diet. (1,3)
“The effects of diverse milk treatments are presumably attributable to differentially heat-resistant components present in fresh milk. Compounds that are sensitive to heat seem to play a particularly important role in protection against respiratory-tract and ear infections,” says Loss. (1,3)
Team suggests alternative processing to reduce risks and preserve health benefits of raw milk
At the end of the first year, researchers took blood samples from the children and tested for biochemical indicators of immune functioning. Infants that were fed on unprocessed milk had lower levels of C-reactive protein. (1,3)
“Other studies have shown that higher levels of inflammation are related to the subsequent emergence of chronic conditions such as asthma and obesity. Consumption of unprocessed milk may therefore reduce the risk of developing asthma,” Loss explains. (1,3)
Conventional pasteurization exposes milk to temperatures of 161-165 degrees Fahrenheit for 15 seconds. Ultra-pasteurized milk is brought to 275 degrees Fahrenheit for a few seconds. “Consumption of unprocessed milk itself is not entirely without risk,” says Loss. (1,3)
Milk not only contains fats and carbohydrates, but also proteins that modulate the immune system functioning. “In many respects, the composition of cow’s milk is similar to that of human milk,” says Loss. Breastfeeding has been known to protect infants from infections, and researchers believe that raw milk may promote healthy immune systems in the same way by altering the composition of gut microflora. (1,3)
Among the children of the study, only two percent had an allergy to milk or other food items prior to their first birthday. The women and children who participated in the study lived in rural areas of Bavaria, Finland, France, Switzerland and Austria. The study will continue to monitor these children for the first 10 years of life. (1,3)
Industry groups sued Vermont over a GMO labeling law; case could set precedent for states mulling similar legislation December 1, 2014
By Peter Moskowitz Full Article
Food activists and the industry are looking to a court case between Vermont and a major food distribution association as a bellwether for genetically modified foods.
In May the state legislature voted to require food containing genetically modified organisms (GMOs) to be labeled as such. If the law goes into effect in 2016, Vermont will be the first state to require such labeling. But first it will have to stand up in federal court: The Grocery Manufacturers Association — which is funded by a coalition of companies such as Coca-Cola, Unilever, Starbucks and Monsanto — and three other industry groups sued the state shortly after the law passed.
Now several other states with pending ballot initiatives and legislation that would similarly require GMO labeling are awaiting the district court’s decision. Arguments are tentatively scheduled for mid-December, according to Vermont’s attorney general.
“I know other attorneys general are watching this case closely,” said Vermont Attorney General William Sorrell. “Clearly other states are considering it. This is not a political issue. Most consumers think it’s important.”
If Vermont’s law is shot down in court, it would be a big win for the food industry, which has for years been trying to quash the growing push for GMO labeling. The industry argues that labeling is fearmongering, since the Food and Drug Administration considers food made with GMO essentially the same as non-GMO food.
In Vermont the industry is arguing that the state is trying to unfairly burden the business with its own labeling requirements and superseding federal regulations, which would be in violation of the Constitution’s commerce clause if it interferes with the free flow of food from state to state. The industry is also arguing that such labeling falls under political — as opposed to commercial — speech. Requiring a company to parrot the state’s political speech would be a violation of the First Amendment.
If the court upholds Vermont’s law, the case could have a domino effect across states considering GMO labeling laws. Twenty states have pushed for GMO labeling through legislatures, according to the Center for Food Safety, a pro-labeling group.
Connecticut and Maine have already passed GMO laws, but they include clauses that prevent the laws from being triggered until other states also pass legislation. Connecticut’s law require states with populations totaling more than 20 million to pass similar laws before its takes effect, and Maine’s law is in waiting until five other Northeastern states pass similar laws.
Colorado, California, and Washington have seen unsuccessful ballot initiatives pushing for labeling. Oregon activists have also tried to vote in GMO labeling. A labeling initiative was voted down in 2002, and another attempt in November is still too close to call, with votes being recounted.
Those delays would make Vermont the first state where GMO labeling initiatives would come to fruition, and activists are pinning their hopes on the court case.
“State-based labeling is something that hasn’t been really vetted by the courts,” said Falko Schilling, a consumer protection advocate at Vermont Public Interest Research Group, which is supporting the state with legal help in the case. “There will be more appeals [from the food industry], but this will serve as precedent.”
Grocery Manufacturers Association representatives did not respond to multiple requests for comment for this story, but in a statement on the suit from August wrote, “Vermont’s mandatory GMO labeling law — Act 120 — is a costly and misguided measure that will set the nation on a path toward a 50-state patchwork of GMO labeling policies that do nothing to advance the health and safety of consumers … The First Amendment dictates that when speech is involved, Vermont policymakers cannot merely act as a pass-through for the fads and controversies of the day. It must point to a truly governmental interest, not just a political one.”
Supporters of the lawsuit are confident they can counter the GMA’s claims effectively in court.
“The GMO bills in Vermont, Maine, Oregon — they’re 99 percent the same,” said Will Allen, the owner of Cedar Circle Farm and one of the most prominent anti-GMO organizers in Vermont. “Four states have passed essentially the same law, so it’s not a patchwork. There is a patchwork of laws in dozens of countries, but these companies, they do business all over the world.”
The science on GMOs is controversial. While the FDA considers food containing genetically modified ingredients safe, activist groups contend that not enough is known about GMOs to guarantee there will be no negative long-term effects of ingesting GMO foods. Some studies have found that GMO foods are less nutritional and can cause digestive problems in animals.
Regardless of the science, pro-labelers say it can’t hurt to give consumers more information. The public seems to agree: According to a New York Times poll conducted in 2013, 93 percent of people said foods containing GMOs should be labeled.
But Sorrell and others point out that the government requires labeling of other aspects of food. “It’s a straightforward message about what’s in the product,” he said. “We don’t think it’s an undue burden. We believe in the same way that manufacturers are compelled to list fats and sugars, governmental interest overrides First Amendment protection in this case.”
However the judge rules, the case will likely wind its way to higher courts. Sorrell and his team said they would challenge a defeat and expect the GMA to do the same.
For some activists, that’s the point of the Vermont case. Labeling proponents acknowledge that having 50 states with 50 solutions to GMO labeling would be untenable. But they’re hoping that Vermont will eventually force the Supreme Court to act on GMO labeling for the entire country.
“The GMA will fight us state by state,” said Dave Murphy, the executive director of Food Democracy Now, a national anti-GMO organization. “They’ll probably appeal it up to the Supreme Court. We understand it’s going to eventually be a federal standard.”
Three national businesses are helping to defend Vermont’s GMO labeling law. The companies told a federal court last week that the state statute, which requires food manufacturers and retailers to label certain products containing genetically modified ingredients, would not be difficult to implement.
Organic energy bar manufacturer Clif Bar and Company, filed an amicus brief in support of Vermont’s law. Rhonda Miller, the company’s senior sourcing manager, said she has 24 years of experience in packaging.
“In my opinion, there is nothing posed by the small changes required by the Vermont law that would put anyone out of business or cause an overwhelming logistical hurdle,” Miller said.
Miller of Clif Bar and Company said the label changes would take at most six months.
“In my professional opinion, a change such as the one mandated by the Vermont law would require nothing more than a simple artwork change and would not be time intensive,” Miller said.
The other two manufacturers that filed briefs supporting Vermont’s GMO labeling law were Beanfields Snacks and Ben & Jerry’s.
Four other groups filed amicus curiae briefs in support of Vermont’s labeling law: the Vermont Public Interest Research Group and the Center for Food Safety represented by an attorney at the Vermont Law School, the Vermont Community Law Center, and Free Speech for People, Inc.
Attorney General William Sorrell is well aware of the high stakes involved in his defense of Vermont’s labeling law for genetically modified organisms against a lawsuit by the Grocery Manufacturers Association.
Across the nation, farmers, corporate executives at giant multinational food companies such as Unilever, and millions of Americans who question the health effects of genetically engineered food are watching and waiting to see what happens in the Vermont lawsuit. Oral arguments in the case tentatively are scheduled for early January.
The Grocery Manufacturers Association and several other trade organizations filed the lawsuit against the state one month after the law passed in May. The association argues that Act 120, as the law is known, violates the U.S. Constitution by compelling manufacturers to “convey messages they do not want to convey,” among other arguments.
Vermont’s law doesn’t go into effect until July 1, 2016, but the grocery association already is asking the U.S. District Court in Vermont to grant a temporary injunction to prevent the state from moving forward with implementation of the law. Sorrell’s team, which includes high-powered Washington, D.C., law firm Robbins, Russell, retained on a contract for $1.465 million, will argue to dismiss the lawsuit.
“We have committed to doing our level best to uphold this law,” Sorrell said. “This law has strong support from the Legislature and Vermonters.”
National polling shows a majority of Americans think consumers have the right to know whether genetically engineered ingredients are in the food they’re buying, Sorrell said. The Vermont law would require that processed foods made entirely or partially with genetic engineering be labeled “produced with genetic engineering,” “partially produced with genetic engineering” or “may be produced with genetic engineering.”
Sorrell said he’s still working out where this labeling would go on the package and how prominent the text will be.
The initial thinking is that the labeling would be near the ingredients list in about the same type size as “Serving Size” on the existing label, listing calories and other information, said Chris Miller, social mission activism manager for Ben & Jerry’s.
The ice-cream maker supports the law but is in an unusual position: Parent company Unilever belongs to the trade association that’s suing Vermont.
Miller said he sees no problem with labeling.
“Our co-founder Jerry Greenfield said it best,” Miller said. “Companies should be proud of the ingredients they use in products they sell. What does it say if a company doesn’t want to tell you?”
That misses the point of the labeling controversy entirely, countered Karen Batra, spokeswoman for the Biotechnology Industry Organization, based in Washington, D.C. BIO represents the companies that develop genetically engineered foods.
Batra sees Vermont’s labeling law as a political statement — a scarlet letter, if you will — marking foods with genetically engineered ingredients as unnatural and to be avoided. And for no good reason, she said, because the U.S. Food and Drug Administration has long ruled there is no difference between genetically engineered foods and their non-engineered counterparts.
The Grocery Manufacturers Association points out in its lawsuit that in 2013, 93 percent of the soybeans and 90 percent of the corn grown in the United States started with genetically engineered seeds. About half of all domestically produced sugar comes from genetically engineered sugar beets, and 88 percent of cotton, used for cottonseed oil, is genetically engineered. Alfalfa, canola, squash and Hawaiian papayas also have “widely used” genetic engineering, according to the lawsuit.
A hunger issue
Proponents of genetic engineering make two main arguments:
•The technique is necessary to feed the world’s growing population.
•It is environmentally beneficial.
Chris Miller of Ben & Jerry’s, and those on the other side of the GMO debate, reject these arguments.
Miller dispenses with the “feed the world” argument by pointing out that 30 percent of all perishable food in grocery stores now gets thrown away. The problem, Miller said, is not that we don’t have enough food — it’s that the food is not reaching the people who need it.
“If you look at the rates of hunger in the United States, 20 percent of children go to bed hungry every night,” Miller said. “We have a hunger issue in the United States and not because we don’t have enough food. We produce enough calories to feed everybody. The problem is access, driven by economics. A massive part of the globe lives on less than $3 a day.”
As for the pesticide/herbicide argument, Vermont State Sen. David Zuckerman, P/D-Chittenden, lead sponsor of Vermont’s GMO labeling bill, told the Burlington Free Press in June he worries about the possible long-term effects of monkeying with a seed’s genetic makeup to increase crop resistance to pests and weeds.
Zuckerman gave the example of a naturally occurring pesticide called bacillus thuringiensis, effective for certain moths and worms, and one of the few pesticides he can use as an organic farmer. As it turns out, bacillus thuringiensis also is being used in genetically engineered seeds.
“When it’s in a plant and there for the whole season at concentrations 500 to 1,000 times higher, then those bugs can become resistant,” Zuckerman said in June. “If three bugs live out of 500,000 in the field because they happen to be genetically resistant, they’re going to find each other and breed. Eventually there will be a built-up resistance to that pesticide.”
An independent social mission
Ben & Jerry’s has found itself in the awkward position of supporting GMO labeling at the same time its parent company, Unilever, is a member of the Grocery Manufacturers Association, which brought the lawsuit against Vermont to strike down the labeling law. Unilever also contributed to a campaign to defeat a GMO labeling law proposed in California in 2012.
This is where the iconic ice cream company’s independent status within the Unilever global empire, including having its own board of directors, comes into play, Social Mission Activism Manager Chris Miller said.
“Part of the acquisition agreement between Ben & Jerry’s and Unilever allows Ben & Jerry’s to pursue its independent social mission,” Miller said. “Our support of mandatory GMO labeling comes from our progressive values.”
Those values also were behind Ben & Jerry’s refusal in 1989 to use milk produced by cows being injected with rGBH, a bovine growth hormone that increased milk production by up to 20 percent, Miller said.
Beginning in 2015, Ben & Jerry’s ice cream will use all non-GMO ingredients, Miller said. It took 18 months of work to get there. Miller is careful to make the distinction that Ben & Jerry’s is not claiming to be GMO-free, which he described as a “very strong, absolute claim” that would require third-party certification.
“We’re not doing third-party certification,” Miller said. “We require our suppliers to sign an affidavit that says the ingredients they’re using are non-GMO. Our supplier has to have an affidavit from their supplier stating the same thing, all the way back to the farm.”
As for the exemption given to dairy in Vermont’s GMO labeling law — obviously a major component of ice cream — Miller said that “because a cow eats genetically engineered feed doesn’t make the milk genetically engineered.”
“We have a long history of commitment to the consumers’ right to know and transparency in the food system,” Miller said. “The current iteration is our support for GMO labeling.”
Nevertheless, Ben & Jerry’s found itself the target about a year and a half ago of a boycott called for by the Organic Consumers Association, based in Finland, Minn.
“They were unhappy with our parent company’s role in the Proposition 37 mandatory GMO labeling fight in California, which failed,” Miller said.
Public records show Unilever spent about $467,000 fighting a proposal for mandatory GMO labeling in California in 2012, out of a total of about $40 million spent by opponents of the proposed law. Proposition 37 was defeated by nearly 400,000 votes, 51-48 percent.
A total of 24 states considered GMO labeling laws in 2014, with only Vermont and Maine passing measures. In the other 22 states, legislation either was defeated, withdrawn or held.
The highest-profile defeat came in Oregon, where many observers felt a labeling law in that progressive state had a good chance of passing. The law was defeated by 809 votes out of a total of 1.5 million cast, the Oregonian newspaper reported, triggering a recount.
Ben & Jerry’s spent $303,039 supporting the proposed GMO labeling law in Oregon, according to public records. The money went to in-kind contributions for yard signs, buttons and social-media outreach, including a video that went viral. The company also put two ice-cream trucks on the road, giving out free ice cream and registering voters.
No trigger required
Aside from Vermont and Maine, only one other state, Connecticut, has passed a labeling law, and in both Connecticut and Maine, the law requires additional triggers to go into effect.
In Connecticut, four other states, one of which shares a border with Connecticut, must pass similar legislation before the Connecticut law takes effect. Additionally, the combined population of Northeastern states that enact GMO labeling laws must total more than 20 million people, based on the 2010 census. Maine has a similar trigger.
Vermont Attorney General Sorrell said those other states are just chicken.
“I suspect there was a reluctance to shoulder the responsibility for defending the law without other states having similar statutes,” Sorrell said. “An abundance of caution.”
Vermont was unhampered by any such reluctance.
“We went ahead and did it,” Sorrell said. “We’ve in the past not been afraid to get out ahead of the rest of the country. It’s our right as a state. Once in a while, our efforts get struck down. More often than not, our statutes are upheld in state and federal courts.”
The lawsuit also states that Vermont similarly has shifted the cost of implementing and defending the labeling law to “private individuals and organizations.”
“The Act creates a special fund for that purpose,” the lawsuit states. “The fund may accept an unlimited number of donations, without restrictions on who may give, or how much. The Act limits public funding of the Attorney General’s work to $1.5 million of certain surplus settlement proceeds, if any exist, as well as any additional funds the legislature may appropriate.”
This would be the “Vermont Food Fight Fund,” launched by Gov. Peter Shumlin and Jerry Greenfield with great fanfare at a June rally in front of the Ben & Jerry’s scoop shop on Church Street in Burlington.
The association’s lawsuit also notes that the labeling law bars the attorney general from using public dollars to defend the law “unless and until the private funding runs out.”
Not a minor matter
Sorrell dismissed as irrelevant the Grocery Manufacturers Association’s analysis of how the state is paying for its efforts to defend the labeling law. He said he argued strongly against hinging the defense of the GMO labeling statute on raising private money, which would establish a “really bad precedent.” The Food Fight Fund has about $400,000 in it, he said.
“The Legislature should decide what the law should be and stand behind the statute,” Sorrell said. “It’s one thing on GMO labeling, but let’s go to another issue: abortion, gay rights or whatever. Can you imagine the precedent of saying, ‘We’re going to outlaw this discrimination, but only if enough people out there contribute money to defend the statute?’ “
Sorrell said he’s not going to be “penny-wise and pound-foolish” in defending the GMO labeling law. He estimates it will cost up to $2 million to defend the law through the trial level. Whatever decision is made in federal court in Burlington, the outcome surely will be appealed, perhaps as far as the U.S. Supreme Court, Sorrell said.
Because constitutional issues are involved, Sorrell said, if Vermont loses, the state will be on the hook for the other side’s attorneys’ fees, which easily could drive the cost to the state to $5 million.
“Even putting the case on a so-called ‘fast track,’ it’s entirely possible there will be a number of years to get a final answer,” he said. “I would be shocked if there’s not an appeal.”
The U.S. Supreme Court receives about 7,000 requests each year to hear cases, and takes on only 70 to 80, Sorrell said. But if GMO labeling reaches that point, he believes the case has a good chance of being among the ones the court takes.
“Other states are closely watching the issue,” Sorrell said. “This is not a minor matter.”
Attorney General William Sorrell is bolstering his argument in federal court to dismiss a lawsuit against Vermont’s GMO labeling law by offering testimony from experts including Jerry Greenfield of Ben & Jerry’s.
Greenfield says Vermont’s labeling law would not be overly burdensome on industry, as plaintiff the Grocery Manufacturers Association has claimed.
Sorrell originally filed a motion to dismiss in August after the association filed its lawsuit in June together with the Snack Food Association, International Dairy Foods Association and the National Association of Manufacturers. The industry trade group argues that Act 120, as the Vermont law is known, violates the U.S. Constitution by compelling manufacturers to “convey messages they do not want to convey,” among other arguments.
The state’s filing, made Friday in U.S. District Court in Burlington, augments Vermont’s original arguments in the motion to dismiss, including that states have “traditionally acted to protect consumers by regulating foods produced and/or marketed within their borders.”
“We have this opportunity to respond again, so we respond now with the perspectives of experts on different issues that are important, and addressing the fact that it’s not too burdensome,” Sorrell said.
The law requiring labeling of genetically engineered food sold in Vermont goes into effect July 1, 2016. The Grocery Manufacturers Association called that deadline “difficult, if not impossible” to meet, saying its members must revise hundreds of thousands of product packages.
Vermont would become the first state to require labeling of foods containing genetically modified organisms, or GMOs, a fact noted by singer Neil Young in a widely read blog post calling for a boycott against coffee company Starbucks.
Starbucks is a member of the Grocery Manufacturers Association, which Young refers to as a “shadowy” group that Starbucks is hiding behind to support the lawsuit.
Starbucks denied Young’s charges, made over the weekend, in a terse statement, saying the company “is not part of any lawsuit pertaining to GMO labeling nor have we provided funding for any campaign.”
“Starbucks has not taken a position on the issue of GMO labeling,” the company said. “As a company with stores and a product presence in every state, we prefer a national solution.”
Companies much closer to home also are members of the Grocery Manufacturers Association, including Keurig Green Mountain (formerly Green Mountain Coffee) and Unilever, the parent company of Ben & Jerry’s.
Ben & Jerry’s supports mandatory GMO labeling and began removing GMOs from its ice cream last summer. The company did not respond to a request late Monday afternoon to a request for comment regarding the lawsuit.
Keurig spokeswoman Sandy Yusen said: “We won’t speak specifically to pending legal matters except to clarify that Green Mountain Coffee is not directly funding or involved in the lawsuit, despite what some have said or implied.”
Yusen said that like many organizations, Keurig is working to understand the complexities associated with the role of GMOs in global food systems, “including challenges related to labeling, the heart of the situation in Vermont.”
She said Green Mountain Coffee beans are GMO-free.
Attorney General Sorrell said Monday he expects U.S. District Court to schedule oral arguments concerning the state’s motion to dismiss sometime in December, or no later than the beginning of the new year.
“Let’s get on with the litigation, make a decision on the motion to dismiss, then we’ll see where we stand,” Sorrell said.
The Vermont Agency of Agriculture will not require certain farms in the Missisquoi Bay basin to implement agricultural practices designed to improve water quality in Lake Champlain.
Chuck Ross, the secretary of the agency, rejected a petition from an environmental law firm calling on the state to enforce new best management practices to curb manure runoff from farms in the region.
Manure and fertilizer runoff from farms is the leading cause of phosphorus pollution in Lake Champlain, according to the state. The nutrients cause toxic algae blooms that have become more frequent during the summer months in St. Albans Bay and Missisquoi Bay, and were blamed for a fish die-off in 2012.
The Conservation Law Foundation petitioned the state to enforce agricultural best management practices, or BMPs, that require farmers to plant cover crops and buffer areas, keep livestock away from waterways and contain manure on farms.
Under the lake cleanup program, the state will adopt new Accepted Agricultural Practices, which are designed to prevent water pollution from farms. The updates include creating minimum 25-foot vegetated buffers along streams, 10-foot buffers along ditches, additional livestock exclusion requirements in areas where erosion is frequent and a small-farm certification process.
Ross said the state does not have the resources to help farmers comply with the new BMPs. State law requires the agency to provide farmers with financial assistance.
The Agency of Agriculture will continue to accelerate compliance and enforcement activities in the Missisquoi Bay basin, he said. The state hired a small-farm inspector in November of last year who has already inspected 175 small farms in Franklin County, according to the agency.
The agencies of Agriculture and Natural Resources teamed up to begin inspecting farms in Franklin County this fall. The state has inspected 247 farms in the region, up from 211 in 2013, according to a report by the Agency of Agriculture, Food and Markets.