BRATTLEBORO — In documents filed in federal court pertaining to Vermont's GMO labeling law, those opposed to Act 120 make a startling admission.
"Plaintiffs contend that Vermont cannot regulate the use of 'natural' labels on GE food products because the term 'natural' is so meaningless that it cannot be misleading," according to documents filed in a Texas federal court in April.
In May 2014, the Vermont Legislature enacted Act 120, which requires the labeling of foods produced or partially produced with genetic engineering or containing genetically modified ingredients and prohibits the labeling of such foods as "natural."
One month later, the Grocery Manufacturers Association, Snack Food Association, International Dairy Foods Association and National Association of Manufacturers filed suit in Vermont federal district court to prevent the enforcement of Act 120. In the lawsuit, the plaintiffs contend that Act 120 violates their First Amendment right to free speech, is unconstitutionally vague, violates the Dormant Commerce Clause, and is preempted by federal labeling statutes.
A key issue before the Vermont district court is whether consumers are misled by the labeling of GE food products as "natural." Vermont argues that, under the First Amendment, it has the right to regulate misleading speech.
Vermont filed in Texas to force Frito-Lay to release consumer surveys it had conducted concerning genetically engineered food products and the use of "natural" labels on those products. Vermont also asked the Texas court to transfer its appeal to Vermont, which it granted on June 1.
"We actually filed eight motions to compel," said Kyle Landis-Marinello, an assistant attorney general in Vermont. Among the companies targeted were manufacturers of GMO seeds such as Dow, Dupont, Syngenta, Monsanto and Bayer. The state is asking the manufacturers of genetically engineered seeds to turn over any studies conducted into the health and environmental impacts of those products.
Frito-Lay, Kellogg's and ConAgra also received subpoenas, as they are members of one or more of the organizations that are appealing Act 120, said Landis-Marinello. "We want the consumer surveys to see if these companies know what their consumers think when they see the word 'natural.'"
The subpoenas were filed in the federal district courts where the companies are registered, but a number of those proceedings have been transferred to Vermont. Landis-Marinello noted that Kellogg's is the only company at this point that has agreed to turn over the requested documents.
Act 120 has two parts, he noted. The first requires food manufacturers to disclose whether a product contains GE ingredients and the second prohibits manufacturers of those foods from labeling them as "natural." The Grocery Manufacturers Association, Snack Food Association, International Dairy Foods Association and National Association of Manufacturers are seeking an injunction to prevent Act 120 from going into effect on July 1. A hearing on the motions to compel is scheduled in Burlington on June 22.
"We have argued that it is deceptive to put the word 'natural' on a product that contains GE ingredients, and deceptive language is not protected under the First Amendment," said Landis-Marinello.
The state first argued that it is inherently deceptive to label any product containing GE ingredients as "natural," a claim the court rejected. The state has appealed that decision to the Second Court of Appeals.
In the motion to compel, the state contends Frito-Lay has refused to produce the requested documents. "Vermont has reason to believe that Frito-Lay has documents that bear on (1) whether consumers know or are confused about the presence of GE crops or material in food products; and (2) consumer perception of 'nature,' 'natural,' or 'naturally' labels on GE food products."
Since October 2015, the AG's Office has attempted to get the documents from Frito-Lay, but according to the filings by the Vermont Attorney General's Office, Frito-Lay has delayed the attempts to the point it is past the end of discovery. The filing documents a pattern of refusals, ignored emails and telephone calls and requests that Vermont narrow its request.
The documents in Frito-Lay's possession "are relevant to the claims and defenses of the parties because they would bear directly on whether 'natural' labels on GE food products are actually or potentially deceptive, and on whether consumers are generally aware of the presence of GE in food they purchase on a daily basis."
In its opposition to the state's motion, attorneys for Frito-Lay, which is not a named party to the lawsuit, wrote the "non-public surveys ... are not relevant to the question at issue in the litigation of whether the State's speech restrictions are justified based on the legislative record and state interests that existed at the time the Vermont Legislature passed the law. The burden for Frito-Lay to search for and produce any responsive documents also far outweighs any potential benefit of production to the State."
The attorneys categorized the motion as "a fishing expedition" and said the state "does not explain how internal Frito-Lay surveys about consumers' general knowledge about GMOs ... purchasing habits relating to GE foods ... or perception of the term 'natural' generally ... are relevant to Plaintiffs' claims regarding the Act's unconstitutionality."
Frito-Lay's attorneys also contend the motion "is untimely as well as meritless, and the State has failed to establish good cause for its undue delay."
In its memorandum of support of its motion, filed on June 3, the state noted "Frito-Lay has so far evaded its legal obligations to produce documents relevant to the underlying litigation. This Court should not condone Frito-Lay's decision to produce nothing in response to a properly and timely served Subpoena."
The state contends the subpoena was issued prior to the discovery deadline and that the parties engaged "in many written and oral negotiations regarding the proper scope ..."
"What is not ordinary is the way that Frito-Lay repeatedly ignored attempts by counsel for Vermont to meet and confer. When Frito-Lay finally responded to Vermont's requests, almost three weeks later and the day before the close of fact discovery, it proposed dates for discussion in early December. ... Frito-Lay gave Vermont's counsel every indication that it was willing to cooperate with production of a more limited set of requests (thus avoiding any need for court intervention), until weeks after the close of fact discovery."
Following a discussion in early December, Vermont pared down its request, but only after a third attempt to verify the amended request did not get Frito-Lay's attorneys to respond.
"The response indicated that Frito-Lay would produce no documents due to the close of fact discovery and that Frito-Lay was continuing to stand on all objections. Frito-Lay's theory was apparently that it could avoid all of its legal obligations to respond to a timely served subpoena simply by running out the clock, and that Vermont would then be forever barred from moving to compel. This is incorrect."
However, wrote Frito-Lay's attorneys, the state's demands "are so far from the main dispute ... that they are unimportant in resolving the issues presented."
But Landis-Marinello noted in a case that could be precedent-setting, is important to get as much information as possible. "(T)he stakes are high both for consumers and for manufacturers."
Meanwhile, some food manufacturers are rushing to comply with Vermont's labeling law. In March Mars, Kellogg's and General Mills announced they would be joining Campbell's in labeling products made with GMO ingredients.
"Each of the companies noted that the production costs associated with crafting a label specific to the Vermont market would be prohibitive; rather than absorb these costs, the companies made the calculated decision to label their products," wrote Chris Campbell, for the Food Institute.
Bob Audette can be contacted at 802-254-2311, ext. 160.