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15-1504
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
GROCERY MANUFACTURERS ASSOCIATION, SNACK FOOD ASSOCIATION,
INTERNATIONAL DAIRY FOODS ASSOCIATION, and NATIONAL ASSOCIATION OF
MANUFACTURERS,
Plaintiffs-Appellants,
v.
WILLIAM H. SORRELL, in his official capacity as the Attorney General of Vermont; PETER
SHUMLIN, in his official capacity as Governor of Vermont; JAMES B. REARDON, in his official
capacity as Commissioner of the Vermont Department of Finance and Management; and HARRY L.
CHEN, in his official capacity as Commissioner of the Vermont Department of Health,
Defendants-Appellees.
__________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF VERMONT
______________________________
BRIEF OF AMICI CURIAE VERMONT PUBLIC INTEREST RESEARCH GROUP,
CEDAR CIRCLE FARM, NORTHEAST ORGANIC FARMING ASSOCIATION
OF VERMONT, AND RURAL VERMONT
SUPPORTING DEFENDANTS-APPELLEES AND AFFIRMANCE OF THE DISTRICT COURT
Laura B. Murphy
Environmental & Natural Resources Law Clinic
Vermont Law School
PO Box 96, 164 Chelsea Street
South Royalton, Vermont 05068
(802) 831-1630
Counsel for Amici Curiae
With assistance from student clinicians Lara Christensen, Katharine H. Devine, Lauren Gates, & Taylor Kennedy

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CORPORATE DISCLOSURE STATEMENT
Amici curiae Vermont Public Interest Research Group, Cedar Circle Farm,
Northeast Organic Farming Association of Vermont, and Rural Vermont have no
parent corporations, are not owned in whole or in part by any publicly held
corporation, and do not issue stock.

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TABLE OF CONTENTS
TABLE OF AUTHORITIES………………………………………………...…….iv
INTERESTS OF AMICI .…………………………………………………….…....1
INTRODUCTION……………………………………….…………...………….…2
ARGUMENT…………………………………………………………………….....4
I.

Vermont’s decision to require labels on genetically engineered
foods is grounded in a thorough legislative process and
reasonable legislative Findings, to which deference is owed. ………..…4
A. Vermont’s legislative decisions are entitled to significant deference. ..…4
B. Vermont’s legislative decisions are reasonable and well supported. …....7

II.

Vermont’s interests in passing Act 120 are legitimate and substantial,
and this case is not Amestoy II. ………………………………………...18
A. Vermont’s interests in passing Act 120 are not “consumer curiosity”
because Vermont has set forth its interests, Vermont’s concerns
about genetically engineered foods are reasonable, and these interests
and concerns are indeed Vermont’s. ………………………………..….19
B. Vermont’s interests in passing Act 120 are valid, recognized State
interests. ……………………………………………………………..…23
1. Act 120 is based on substantial governmental interests in addition
to public health and food safety. ……………………………………23
2. Vermont’s public health and food safety interest is substantial
because it is based on reasonable concerns. …...……………………25

CONCLUSION. ………………………………………………...………………..28
CERTIFICATE OF COMPLIANCE WITH FRAP 32(A). ………………………29

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TABLE OF AUTHORITIES
Cases
Am. Meat Inst. v. U.S. Dep’t of Agric.,
760 F.3d 18 (D.C. Cir. 2014)................................................................ 23, 24-25, 27
Bhd. of Locomotive Firemen & Enginemen v. Chicago, Rock Island,
& Pac. R.R. Co., 393 U.S. 129 (1968)………………………….……………..…5-6
CTIA—The Wireless Ass’n v. City & Cnty. of S.F., Ca.,
827 F. Supp. 2d 1054 (N.D. Ca. 2011)…………………………………….……...26
CTIA—The Wireless Ass’n v. City & Cnty. of S.F., Ca.,
494 Fed. Appx. 752 (9th Cir. 2012)…………………………………...………….26
Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y.,
447 U.S. 557 (1980)………………………………………………………….…...25
Conn. Bar Ass’n v. United States,
620 F.3d 81 (2d Cir. 2010)………………………………………………………..18
Evergreen Ass’n, Inc. v. City of New York,
740 F.3d 233 (2d Cir. 2014)………………………………………………………24
Fed. Commc’ns Comm’n v. Beach Commc’ns, Inc.,
508 U.S. 307 (1993)………………………………………………………………..5
Int’l Dairy Foods Ass’n v. Amestoy,
92 F.3d 67 (2d Cir. 1996)……………………………………………..19, 20, 21, 28
Int’l Dairy Foods Ass’n v. Boggs,
622 F.3d 628 (6th Cir. 2010)……………………………………………………...21
Maine v. Taylor,
477 U.S. 131 (1986)………………………………………………………………25
Milavetz, Gallop & Milavetz, P.A. v. United States,
559 U.S. 229 (2010)………………………………………………………………24
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Minnesota v. Clover Leaf Creamery Co.,
449 U.S. 456 (1981)………………………………………………………………..5
N.Y. State Rest. Ass’n v. N.Y.C. Bd. of Health,
556 F.3d 114 (2d Cir. 2009)……………………………………………….25, 27-28
Nat’l Elec. Mfrs. Ass’n v. Sorrell,
272 F.3d 104 (2d Cir. 2001)…………………………………………..18, 19, 25, 27
Rubin v. Coors Brewing Co.,
514 U.S. 476 (1995)………………………………………………………………25
Safelite Grp., Inc. v. Jepsen,
764 F.3d 258 (2d Cir. 2014)………………………………………………………19
Turner Broad. Sys., Inc. v. Fed. Commc’ns Comm’n,
512 U.S. 622 (1994)………………………………………………………………..6
Turner Broad. Sys., Inc. v. Fed. Commc’ns Comm’n,
520 U.S. 180 (1997)………………………………………………………………..6
Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc.,
425 U.S. 748 (1976)……………………………………………………………...3-4
Vacco v. Quill,
521 U.S. 793 (1997)……………………………………………………………….5
Walters v. Nat’l Ass’n of Radiation Survivors,
473 U.S. 305 (1985)……………………………………………………………...4-5
Zauderer v. Office of Disciplinary Council of the Sup. Ct. of Ohio,
471 U.S. 626 (1985)………………………………………………………………24
Statutes & Rules
Fed. R. App. P. 29(a)……………………………………………………………….1
22 Me. Rev. Stat. §§ 2591-2596 (2013)……………………………………………2

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2014 Vt. Acts & Resolves No. 120
Act 120, Sec. 1…………………………………………………………..8, 22
Act 120, Sec. 1(1)…………………………………………………………....8
Act 120, Sec. 1(2)……………………………………………………………8
Act 120, Sec. 1(2)(B)……………………………………………………..8, 9
Act 120, Sec. 1(2)(C)………………………………………………………..9
Act 120, Sec. 1(2)(D)………………………………………………………10
Act 120, Sec. 1(2)(E)……………………………………………………….10
Act 120, Sec. 1(2)(F)………………………………………………………...9
Act 120, Sec. 1(4)…………………………………………………………..14
Act 120, Sec. 1(4)(C)………………………………………………………15
Act 120, Sec. 1(4)(D)………………………………………………………14
Act 120, Sec. 1(4)(E)…………………………………………………….....14
Act 120, Sec. 1(5)…………………………………………………………..22
Act 120, Sec. 1(5)(A)…………………………………………………...17-18
Act 120, Sec. 1(5)(B)………………………………………………………17
Act 120, Sec. 1(6)…………………………………………………..10, 18, 22
Act 120, Sec. 2……………………………………………………………..22
Act 120, Sec. 2, § 3041(1)……………………………………………...19, 25
Act 120, Sec. 2, § 3041(2)………………………………………………….24
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Act 120, Sec. 2, § 3041(3)…………………………………………….……23
Act 120, Sec. 2, § 3041(4)………………………………………………….19
Act 120, Sec. 2, § 3043(b)……………………………………………….…27
Conn. Gen. Stat. Ann. § 21a-92c (West 2013)……………………………………..2
Administrative Materials
Final Rule: Sterile Sometribove Zinc Suspension,
58 Fed. Reg. 59,946-02 (Nov. 12, 1993)………………………………………….21
Statement of Policy: Foods Derived from New Plant Varieties,
57 Fed. Reg. 22,984-01 (May 29, 1992)…………………………………….…8, 21
U.S. Food & Drug Administration, DRAFT Guidance for Industry:
Voluntary Labeling Indicating Whether Foods Have or Have Not Been
Developed Using Bioengineering (Jan. 2001), http://goo.gl/es6cOv........................8
Voluntary Labeling of Milk & Milk Products,
59 Fed. Reg. 6279-04 (Feb. 10, 1994)…………………………………………….21
Legislative Record Materials
American Academy of Environmental Medicine, Genetically Modified Foods
(May 8, 2009) (Dist. Ct. Dkt. 64-3)…………………………………………….…12
Michael Antoniou et al., GM Soy, Sustainable? Responsible?
(Sept. 2010) (Dist. Ct. Dkt. 64-2)…………………………………………………16
Michael Antoniou et al., GMO Myths & Truths: An Evidence-Based
Examination of the Claims Made for the Safety & Efficacy of Genetically
Modified Crops (June 2012) (Dist. Ct. Dkt. 64-2)…………………………...……10
Michael Antoniou, Sources & Mechanisms of Health Risks from Genetically
Modified Crops & Foods, Biosafety Briefing-Third World Network
(Sept. 2013) (Dist. Ct. Dkt. 64-3)………………………………………………....12

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Charles M. Benbrook, Impacts of Genetically Engineered Crops on
Pesticide Use in the U.S.—the First Sixteen Years, Envtl. Sci. Eur. (2012)
(Dist. Ct. Dkt. 64-4)……………………………………..……………………..….16
Tanya E. Cheeke at al., Evidence of Reduced Arbuscular Mycorrhizal
Fungal Colonization in Multiple Lines of Bt Maize, 99 Am. J. Botany 700
(2012) (Dist. Ct. Dkt. 64-4)……………………………………………………15-16
Artemis Dona & Ioannis S. Arvanitoyannis, Health Risks of Genetically
Modified Foods, 49 Critical Revs. Food Sci. & Nutrition 164 (2009)
(Dist. Ct. Dkt. 64-3)……………………………………………………………….12
European Network of Scientists for Social & Environmental Responsibility,
Statement: No Scientific Consensus on GMO Safety (Oct. 21, 2013)
(Dist. Ct. Dkt. 64-3), published in Environmental Sciences Europe
(Hilbeck et al., No Scientific Consensus on GMO Safety, 27:4 Envtl. Sci.
Eur. (Jan. 2015), available at http://goo.gl/IMNLKF)......................................10, 11
William Freese & David Schubert, Safety Testing & Regulation of
Genetically Engineered Foods, 21 Biotech. & Genetic Eng’g Revs. 5
(2004) (Dist. Ct. Dkt. 64-2)……………………………………………..….9-10, 12
Rebecca J. Goldburg, Environmental Concerns with the Development of
Herbicide-Tolerant Plants, 6 Weed Tech. 647 (1992)
(Dist. Ct. Dkt. 64-4)……………………………………………………………….15
Michael Hansen, Ph.D., Reasons for Labeling of Genetically Engineered
Foods (Mar. 19, 2012) (Dist. Ct. Dkt. 64-2)……………………………..…9, 10-11
Jane Kolodinsky, Vermonter’s Views on GMO Labeling (Jan. 29, 2014)
(Dist. Ct. Dkt. 64-5)…………………………………………………………….…18
Allison Kopicki, Strong Support for Labeling Modified Foods, N.Y. Times
(July 27, 2013) (Dist. Ct. Dkt. 64-5)………………………………………...…3, 17
Letter from Michael Hansen to Carolyn Partridge (Feb. 25, 2013)
(Dist. Ct. Dkt. 64-3)……………………………………………………………….11
Materials from H.112 Bill File (2014) (Dist. Ct. Dkt. 24-3)…………………...4, 22
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Margaret Mellon & Jane Rissler, Gone to Seed-Transgenic Contaminants
in the Traditional Seed Supply (2004) (Dist. Ct. Dkt. 64-3)…………………...…14
Belin Poletto Mezzomo et al., Hematotoxicity of Bacillus thuringiensis as
Spore-crystal Strains Cry1Aa, Cry1Ab, Cry1Ac or Cry2Aa in Swiss Albino
Mice, J. Hematology & Thromboembolic Diseases (2013)
(Dist. Ct. Dkt. 64-3)…………………………………………………………...12-13
John M. Pleasants & Karen S. Oberhauser, Milkweed Loss in Agricultural
Fields Because of Herbicide Use: Effect on the Monarch Butterfly Population,
Insect Conservation & Diversity (2012) (Dist. Ct. Dkt. 64-4)……………………15
Meredith G. Schafer et al., The Establishment of Genetically Engineered
Canola Populations in the U.S., PLoS one 6(10): e25736.doi:10.1371/
journal.pone.0025736 (2011) (Dist. Ct. Dkt. 64-4)…………...……………...14-15
Statement of Representative Kate Webb (Dist. Ct. Dkt. 64-1)……………………..7
Table of Contents: Health Risks of GE Foods, Volume I (Dist. Ct. Dkt. 24-3)…...11
Table of Contents: Health Risks of GE Foods, Volume II (Dist. Ct. Dkt. 24-3)….11
Table of Contents: GE Labeling-Additional Materials for Vermont Legislature
Spring 2014 (Dist. Ct. Dkt. 24-3)………………………………………………....11
Testimony of Martin Donohoe, M.D. (Jan. 16 & 29, 2014)
(Dist. Ct. Dkt. 64-1)……………………………………………………………….10
Testimony of Michael Hansen, Ph.D. (Feb. 7, 2013) (Dist. Ct. Dkt. 64-1)…....9, 10
Testimony of Michael Hansen, Ph.D. (Jan. 29, 2014) (Dist. Ct. Dkt. 64-1)……...10
Testimony of Jane Kolodinsky, Ph.D. (Jan. 31, 2014) (Dist. Ct. Dkt. 64-1)……..17
Testimony of Robert Merker, Ph.D. (Feb. 19, 2013) (Dist. Ct. Dkt. 64-1)………8-9
Testimony of David Rogers, Retired Professor (Jan. 10, 2014)
(Dist. Ct. Dkt. 64-1)………………………………………………….……………10

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Thomson Reuters, National Survey of Healthcare Consumers: Genetically
Engineered Food (Oct. 2010) (Dist. Ct. Dkt. 64-5)……………………………....17
Vt. Legislative Bill Tracking System (Dist. Ct. Dkt. 24-3)…………….…………..7
A. Wegier et al., Recent Long-Distance Transgene Flow into Wild
Populations Conforms to Historical Patterns of Gene Flow in Cotton
(Gossypium hirsutum) at Its Centre of Origin, 20 Molecular Ecology 4182
(2011) (Dist. Ct. Dkt. 64-4)………………………………………….……………14
Other Authorities
Center for Food Safety, State Labeling Initiatives, http://goo.gl/vOodFl
(last visited Aug. 29, 2015)……………………………………….………………..2
John Fagan et al., GMO Myths & Truths (2d ed. 2014), available at
http://goo.gl/daQ6Ph ...............................................................................................16
Annie Gasparro & Jacob Bunge, Food Industry Wins Round in
GMO-Labeling Fight, Wall St. J. (Nov. 5, 2014),
available at http://goo.gl/9jpfX2 ..............................................................................2
Doug Gurian-Sherman, Contaminating the Wild? Gene Flow from
Experimental Field Trials of Genetically Engineered Crops to Related
Wild Plants (2006), available at http://goo.gl/K1SByY.........................................14
Doug Gurian-Sherman, Failure to Yield: Evaluating the Performance of
Genetically Engineered Crops (2009), available at http://goo.gl/udnoxU ............16
Just Label It!, Labeling around the World, http://goo.gl/zH3cEw
(last visited Aug. 29, 2015)……………………………………………………..….2
Philip J. Landrigan, M.D. & Charles Benbrook, Ph.D., GMOs, Herbicides,
& Public Health, 373 N.E. J. Med. 693 (Aug. 20, 2015), available at
http://goo.gl/lDgByY ........................................................................................13, 16
National Academies Press, Safety of Genetically Engineered Foods:
Approaches to Assessing Unintended Health Effects (2004), available at
http://goo.gl/QyAeZo .............................................................................................13
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Non-GMO Project, About GMO Testing, http://goo.gl/UMZZ9G
(last visited Aug. 29, 2015)……………………………………………………….21
Andrew Pollack, In Midwest, Flutters May Be Far Fewer, N.Y. Times
(July 11, 2011), available at http://goo.gl/8ar3kf ...................................................15
Jim Robbins, The Year the Monarch Didn’t Appear, N.Y. Times
(Nov. 22, 2013), available at http://goo.gl/cU2aUZ ..............................................15

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INTERESTS OF AMICI
Amici Vermont Public Interest Research Group (VPIRG), Cedar Circle
Farm, Northeast Organic Farming Association of Vermont (NOFA-VT), and Rural
Vermont comprise the stalwart coalition of Vermont-based advocacy groups that
championed Act 120 up to and through its signing on the steps of the Vermont
Statehouse.1 VPIRG is the State’s largest non-profit and consumer advocacy
group, dedicated to protecting and promoting the health of Vermont’s people,
environment, and locally based economy. Cedar Circle Farm is a certified organic
farm and education center in East Thetford, Vermont that is committed to securing
sustainable food systems for future generations. NOFA-VT is a non-profit
association of farmers, gardeners, and consumers working to promote an
economically viable and ecologically sound food system in Vermont. Rural
Vermont is a statewide grassroots membership organization dedicated to ensuring
that small-scale family farmers have a voice in public policy decisions, and to
resisting corporate control of the food system.
1

No party’s counsel authored this brief in whole or in part. No party or party’s
counsel contributed money that was intended to fund preparing or submitting the
brief. No person, other than amici curiae or their counsel, contributed money that
was intended to fund preparing or submitting this brief.
Amici’s source of authority to file this brief is Fed. R. App. P. 29(a). The parties
have consented to the filing of this and other amicus briefs. Letter from Catherine
E. Stetson and Megan J. Shafritz to Catherine O’Hagan Wolfe (June 15, 2015)
(Dkt. No. 43).
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Like Vermont’s legislature, these groups understand the need for labeling of
genetically engineered foods. Amici urge this Court to uphold the District Court’s
decision denying Plaintiffs-Appellants’ motion for a preliminary injunction.
INTRODUCTION
The State of Vermont has decided that it is in the best interests of the State
to require labels on genetically engineered (GE) foods. Underlying this decision
are two years of legislative deliberations, at least 52 committee meetings, 136
presentations of testimony, public hearings, extensive studies and factual materials,
five pages of carefully detailed legislative Findings, and four explicit State
purposes.
Vermont is not alone. Two nearby states have passed GE labeling laws,
albeit with contingency clauses. 22 Me. Rev. Stat. §§ 2591-2596 (2013); Conn.
Gen. Stat. Ann. § 21a-92c (West 2013). Four other states have had ballot
initiatives on GE labeling, with opponents spending over $100 million in efforts to
defeat them. Annie Gasparro & Jacob Bunge, Food Industry Wins Round in GMOLabeling Fight, Wall St. J. (Nov. 5, 2014), available at http://goo.gl/9jpfX2.
Nationwide, bills have been introduced in over 30 states. Center for Food Safety,
State Labeling Initiatives, http://goo.gl/vOodFl (last visited Aug. 29,
2015). Globally, 64 countries require some form of GE labeling. Just Label It!,
Labeling around the World, http://goo.gl/zH3cEw (last visited Aug. 29, 2015).
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Additionally, national polls consistently show that the great majority of Americans
want to know whether the foods they buy are produced with genetic
engineering. See, e.g., Allison Kopicki, Strong Support for Labeling Modified
Foods, N.Y. Times (July 27, 2013) (Dist. Ct. Dkt. 64-5, at 18) (93% of respondents
say GE foods should be labeled).
Despite this reality, Appellants attempt to paint Vermont as a fringe State
that has given in to the “purported” concerns of its citizens by passing a “first-ofits-kind law” with “no credible basis.” Appellants’ Br. (Dkt. No. 44) at 3, 23, 48.
Appellants appear to fear that “too many unwitting customers” will make bad
choices unless “they are not permitted to know” how their food is produced. Va.
State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 76970 (1976) (striking down Virginia law restricting pharmacists from advertising
prescription drug prices).
Appellants are wrong on both fronts, and their rhetorical flourishes do not
change the truth. Vermont’s interests in passing Act 120 are legitimate and
substantial. This brief will explore those interests, providing supplemental context
and detail on the legislative process for Act 120 and spelling out why this case is
not Amestoy II. As for Appellants’ “highly paternalistic approach” toward
consumers, the Supreme Court has rejected that approach and declared that
“information is not in itself harmful, that people will perceive their own best
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interests if only they are well enough informed, and that the best means to that end
is to open the channels of communication rather than to close them.” Id. at 770.
ARGUMENT
I.

Vermont’s decision to require labels on genetically engineered foods is
grounded in a thorough legislative process and reasonable legislative
Findings, to which deference is owed.
Before it became law on May 8, 2014, Act 120 progressed through many

legislative committees and public hearings; elicited many rounds of testimony
from citizens and science, policy, medical, business, and legal professionals—
including opponents of the bill; and drew stacks of studies, reports, and other
documents into the legislature’s deliberations. See, e.g., Materials from H.112 Bill
File (2014) (Dist. Ct. Dkt. 24-3, at 2-34). Act 120 is the result of a thoughtful,
thorough process and the legislative judgments it embodies are reasonable, well
supported, and entitled to deference.
A.

Vermont’s legislative decisions are entitled to significant deference.
Legislative judgments receive significant deference. First, courts afford

great deference to legislative factual findings: “When Congress makes findings on
essentially factual issues . . . those findings are of course entitled to a great deal of
deference, inasmuch as Congress is an institution better equipped to amass and
evaluate the vast amounts of data bearing on such an issue.” Walters v. Nat’l Ass’n

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of Radiation Survivors, 473 U.S. 305, 330 n.12, 335 (1985) (upholding statutory
fee limitation for veteran services under First and Fifth Amendments).
Second, in the rational-basis context, courts must uphold a law “‘so long as
it bears a rational relation to some legitimate end.’” Vacco v. Quill, 521 U.S. 793,
799 (1997) (citation omitted). Under this standard, “any reasonably conceivable
state of facts” can provide that rational basis, Fed. Commc’ns Comm’n v. Beach
Commc’ns, Inc., 508 U.S. 307, 313 (1993), and a “legislative choice” may be
“rational speculation unsupported by evidence or empirical data,” id at 315. States
are not obligated to “convince the courts of the correctness of their legislative
judgments.” Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 464 (1981).
Rather, the court must only find that “it is evident from all the considerations
presented to [the legislature], and those of which we may take judicial notice, that
the question is at least debatable.” Id. at 464, 470, 474 (citations and internal
quotation marks omitted) (upholding Minnesota law banning plastic milk cartons
under Equal Protection and Commerce Clause). And, in its fact-finding role, a
district court may not “resolve conflicts in the evidence against the legislature’s
conclusion or . . . reject the legislative judgment” based on a lack of “convincing
statistics” in the record. Bhd. of Locomotive Firemen & Enginemen v. Chicago,
Rock Island, & Pac. R.R. Co., 393 U.S. 129, 138-39, 143-44 (1968) (upholding

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safety-based state law requiring minimum train crew numbers under Equal
Protection, Due Process, and Commerce Clause).
Third, even in the intermediate-scrutiny context, a court’s “sole obligation”
is to assess whether the legislature “has drawn reasonable inferences based on
substantial evidence.” Turner Broad. Sys., Inc. v. Fed. Commc’ns Comm’n, 520
U.S. 180, 195 (1997); Turner Broad. Sys., Inc. v. Fed. Commc’ns Comm’n, 512
U.S. 622, 666 (1994). 2 In making this assessment, a court does not “reweigh the
evidence de novo” nor “replace [the legislature’s] factual predictions” with its own.
512 U.S. at 666. Instead, a court involves itself in further factual development
only where a particular record is insufficient to support a determination that
relevant constitutional factors have been met. See id. at 668.
Under either form of review, Vermont’s legislative judgments are sound.
Act 120’s Findings and their underlying support are far more than the “rational
speculation” required under rational-basis review. At a minimum, they also
constitute “reasonable inferences based on substantial evidence,” thus meeting
intermediate scrutiny as well.
2

For the reasons explained by the State, Vermont’s disclosure law is subject to the
Zauderer standard and intermediate scrutiny does not apply. See also VPIRG-CFS
Reply Support MTD & Response Opp. PI (Dist. Ct. Dkt. 64, at 24-39). However,
if the Court were to apply intermediate scrutiny, Act 120’s disclosure requirement
would survive because the legislature has drawn reasonable inferences based on
substantial evidence, see Turner Broad., 512 U.S. at 666, and the disclosure
requirement satisfies Central Hudson. See, e.g., Dist. Ct. Dkt. 64, at 41-43.
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B.

Vermont’s legislative decisions are reasonable and well supported.
When Representative Kate Webb introduced H.112 to the Vermont House

Committee on Agriculture and Forest Products, she explained that the
“introduction of genetically engineered foods into our diet has come quietly
without mandatory labeling,” that GE foods “might increase the risk of long-term
health impairment,” and that “without our knowledge and consent, we are all
participants in this grand experiment.” Statement of Representative Kate Webb
(Dist. Ct. Dkt. 64-1, at 5). Representative Webb also explained that Vermonters
deserve to know whether “the food they purchase poses potential risks to the
environment and biodiversity.” Id. at 5-6.
Over the next month, the House Agriculture Committee heard testimony
from 35 individuals, including science and medical professionals, policy experts,
attorneys, business owners, and agency personnel. See Vt. Legislative Bill
Tracking System (Dist. Ct. Dkt. 24-3, at 20-25). The House Committee on
Judiciary then spent several days considering the bill and hearing from additional
witnesses. Id. at 18-19. In the Senate the following year, the Committee on
Agriculture worked with the bill for 19 days and heard testimony from 31
witnesses, plus an additional 53 members of the public who testified at a public
hearing. Id. at 8-17. At its last major stop, the bill garnered testimony from 17
people in the Senate Committee on Judiciary. Id. at 5-8.
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During its review of H.112, the Vermont legislature made several significant
and accurate determinations, which it memorialized in the Findings section of Act
120. See 2014 Vt. Acts & Resolves No. 120 (Act 120), Sec. 1. First, the
legislature found that federal law does not currently require GE foods to be labeled
as such. Id. Sec. 1(1). This is correct. See Statement of Policy: Foods Derived
from New Plant Varieties (1992 Policy Statement), 57 Fed. Reg. 22,984-01, 22,991
(May 29, 1992); U.S. Food & Drug Administration (FDA), DRAFT Guidance for
Industry: Voluntary Labeling Indicating Whether Foods Have or Have Not Been
Developed Using Bioengineering (Jan. 2001), http://goo.gl/es6cOv (“The 1992
policy does not establish special labeling requirements for bioengineered foods as a
class of foods.”).
Second, the legislature found that federal law does not require independent
testing of the safety of foods produced with genetic engineering. Act 120, Sec.
1(2). This also is true. There is no federal statute or regulation that requires either
GE companies or FDA to test the safety of GE foods. See id. Sec. 1(2)(B); 1992
Policy Statement, 57 Fed. Reg. at 22,989-90 (providing guidance to industry and
encouraging “informal consultation”). Rather than independently test GE foods,
FDA reviews voluntarily submitted studies that have been financed or conducted
primarily by the biotechnology companies themselves. See Act 120, Sec. 1(2)(B);
Testimony of Robert Merker, Ph.D. (Feb. 19, 2013) (Dist. Ct. Dkt. 64-1, at 11, 208

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21) (testing done by purveyor or manufacturer or labs with which they contract).
Then, rather than make safety determinations regarding these products, FDA
informs the biotechnology companies that they (the companies) have made safety
determinations. See Act 120, Sec. 1(2)(B); Testimony of Michael Hansen, Ph.D.
(Feb. 7, 2013) (Dist. Ct. Dkt. 64-1, at 50-52); Michael Hansen, Ph.D., Reasons for
Labeling of Genetically Engineered Foods (Mar. 19, 2012) (Dist. Ct. Dkt. 64-2, at
5-6); William Freese & David Schubert, Safety Testing & Regulation of
Genetically Engineered Foods, 21 Biotech. & Genetic Eng’g Revs. 5 (2004) (Dist.
Ct. Dkt. 64-2, at 23) (“The review process . . . makes it clear that, contrary to
popular belief, the FDA has not formally approved a single GE crop as safe for
human consumption. Instead, at the end of the consultation, the FDA merely
issues a short note summarizing the review process and a letter that conveys the
crop developer’s assurances that the GE crop is substantially equivalent to its
conventional counterpart.”).
Additionally, FDA has no protocol for determining whether studies that are
not industry funded would produce different results than FDA’s current process.
See Act 120, Sec. 1(2)(C); Merker Testimony (Dist. Ct. Dkt. 64-1, at 25-26). In
fact, non-industry scientists often cannot conduct studies in the United States
because industry has restricted the use of patented GE crops in food safety
research. See Act 120, Sec. 1(2)(F); Freese & Schubert (Dist. Ct. Dkt. 64-2, at 189

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19); Hansen, Reasons for Labeling (Dist. Ct. Dkt. 64-2, at 8-9). Relatedly, there
have been no long-term or epidemiologic studies in the United States
demonstrating that GE foods are safe for human consumption. See Act 120, Sec.
1(2)(E); Michael Antoniou et al., GMO Myths & Truths: An Evidence-Based
Examination of the Claims Made for the Safety & Efficacy of Genetically Modified
Crops (June 2012) (Dist. Ct. Dkt. 64-2, at 90-93); European Network of Scientists
for Social & Environmental Responsibility (ENSSER), Statement: No Scientific
Consensus on GMO Safety (Oct. 21, 2013) (Dist. Ct. Dkt. 64-3, at 18), published in
Environmental Sciences Europe (Hilbeck et al., No Scientific Consensus on GMO
Safety, 27:4 Envtl. Sci. Eur. (Jan. 2015), available at http://goo.gl/IMNLKF).
In a third major Finding, the legislature concluded that there is a lack of
consensus regarding the safety of GE foods, and that such foods pose potential
risks to human health. Act 120, Sec. 1(2)(D), (4), (6). This too is well founded.
The legislature heard testimony regarding potential health effects from highly
credentialed professionals on multiple occasions. See, e.g., Testimony of Michael
Hansen, Ph.D. (Feb. 7, 2013 & Jan. 29, 2014) (Dist. Ct. Dkt. 64-1, at 40-119);
Testimony of David Rogers, Retired Professor (Jan. 10, 2014) (Dist. Ct. Dkt. 64-1,
at 120-50); Testimony of Martin Donohoe, M.D. (Jan. 16 & 29, 2014) (Dist. Ct.
Dkt. 64-1, at 151-82); Hansen, Reasons for Labeling (Dist. Ct. Dkt. 64-2, at 7-15)
(describing multiple studies demonstrating unintended effects of genetic
10

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engineering); Letter from Michael Hansen to Carolyn Partridge (Feb. 25, 2013)
(Dist. Ct. Dkt. 64-3, at 35-36) (regarding follow-up questions including need to
label “highly purified” GE foods). The legislature also had before it at least 47
scientific studies and documents supporting that there are potential health risks
with consuming GE foods and that, at the very least, there is a lack of consensus
regarding their safety. See Table of Contents: Health Risks of GE Foods, Volume I
(Dist. Ct. Dkt. 24-3, at 28-29); Table of Contents: Health Risks of GE Foods,
Volume II (Dist. Ct. Dkt. 24-3, at 30-31); Table of Contents: GE LabelingAdditional Materials for Vermont Legislature Spring 2014 (Dist. Ct. Dkt. 24-3, at
33). For example:
• We feel compelled to issue this statement because the claimed
consensus on GMO safety does not exist. The claim that it does
exist is misleading and misrepresents the currently available
scientific evidence and the broad diversity of opinion among
scientists on this issue. Moreover, the claim encourages a climate
of complacency that could lead to a lack of regulatory and
scientific rigour and appropriate caution, potentially endangering
the health of humans, animals, and the environment. ENNSER, No
Scientific Consensus (Dist. Ct. Dkt. 64-3, at 17).
• Based on the scientific uncertainty surrounding both the molecular
characterization of genetically engineered (GE) crops as well as
the detection of potential allergenicity, there is more than enough
uncertainty to decide to require labeling of foods produced via GE
as a risk management measure as a way to identify unintended
health effects that may occur post approval. If foods are not
labeled as to GE status, it would be very difficult to even identify
an unexpected health effect resulting from a GE food. Hansen,
Reasons for Labeling (Dist. Ct. Dkt. 64-2, at 4).
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• In the preceding paragraphs, we have described the US regulatory
system for GE foods, and with specific examples pointed out
serious deficiencies in both regulatory oversight and corporate
testing procedures. It is clear that the US regulatory process must
be made mandatory, as well as more stringent and transparent.
Freese & Schubert, Safety Testing & Regulation (Dist. Ct. Dkt. 642, at 34).
• An increasing body of evidence shows the disruptive effect of the
GM transformation process and clear signs of toxicity in wellcontrolled animal feeding studies even of a short-term nature. . . .
Based on available evidence and inadequacy of the tests required
by regulators, at present no GM crop and food can be categorically
stated as safe to consume, especially on a long-term, life-long
basis. Michael Antoniou, Sources & Mechanisms of Health Risks
from Genetically Modified Crops & Foods, Biosafety BriefingThird World Network (Sept. 2013) (Dist. Ct. Dkt. 64-3, at 32).
• With the precautionary principle in mind, because GM foods have
not been properly tested for human consumption, and because
there is ample evidence of probable harm, the AAEM asks . . .
[f]or a moratorium on GM food, implementation of immediate
long term independent safety testing, and labeling of GM foods,
which is necessary for the health and safety of consumers.
American Academy of Environmental Medicine, Genetically
Modified Foods (May 8, 2009) (Dist. Ct. Dkt. 64-3, at 38).
• The results of most studies with GM foods indicate that they may
cause some common toxic effects such as hepatic, pancreatic,
renal, or reproductive effects and may alter the hematological,
biochemical, and immunologic parameters. However, many years
of research with animals and clinical trials are required for this
assessment. Artemis Dona & Ioannis S. Arvanitoyannis, Health
Risks of Genetically Modified Foods, 49 Critical Revs. Food Sci. &
Nutrition 164 (2009) (Dist. Ct. Dkt. 64-3, at 40).
• Taking into account the increased risk of human and animal
exposures to significant levels of these toxins, especially through
diet, our results suggest that further studies are required to clarify
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the mechanism involved in the hematotoxicity found in mice, and
to establish the toxicological risks to non-target organisms,
especially mammals, before concluding that these microbiological
control agents are safe for mammals. Belin Poletto Mezzomo et
al., Hematotoxicity of Bacillus thuringiensis as Spore-crystal
Strains Cry1Aa, Cry1Ab, Cry1Ac or Cry2Aa in Swiss Albino Mice,
J. Hematology & Thromboembolic Diseases (2013) (Dist. Ct. Dkt.
64-3, at 59).
A recent article in the New England Journal of Medicine affirms the wisdom
of GE labeling, highlighting that the pesticides applied to GE crops create risks of
their own. See Philip J. Landrigan, M.D. & Charles Benbrook, Ph.D., GMOs,
Herbicides,& Public Health, 373 N.E. J. Med. 693 (Aug. 20, 2015), available at
http://goo.gl/lDgByY. The article notes that earlier recommendations by the
National Academy of Sciences (NAS) have largely gone unheeded, even given the
potential for GE foods to “produce unanticipated allergens or toxins” and “alter the
nutritional quality of food.” Id. 3 And, new developments “raise fresh concerns
about the safety of [GE] crops”—a new combination herbicide containing 2, 4-D,
and the designations of glyphosate as a “probable human carcinogen” and 2, 4-D

In 2004, the NAS had made several recommendations for improving GE safety
assessment, stating that “there remain sizeable gaps in our ability to identify
compositional changes that result from genetic modification of organisms intended
for food; to determine the biological relevance of such changes to human health;
and to devise appropriate scientific methods to predict and assess unintended
adverse effects on human health.” National Academies Press, Safety of Genetically
Engineered Foods: Approaches to Assessing Unintended Health Effects 8-15
(2004), available at http://goo.gl/QyAeZo.

3

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as a “possible human carcinogen.” Id. (citing links to malignant tumors in animals
and, for glyphosate, increased non-Hodgkin’s lymphoma in humans).
In its fourth Finding, the legislature found that GE crops pose potential risks
to the environment, which also is accurate. Act 120, Sec. 1(4). For example, GE
crops contaminate wild plants and non-GE crops. See id. Sec. 1(4)(D)-(E). A
2004 report found that traditional varieties of seeds used by United States farmers
are “pervasively contaminated with low levels of DNA sequences originating in
genetically engineered varieties of those crops.” Margaret Mellon & Jane Rissler,
Gone to Seed-Transgenic Contaminants in the Traditional Seed Supply (2004)
(Dist. Ct. Dkt. 64-3, at 68); see also Doug Gurian-Sherman, Contaminating the
Wild? Gene Flow from Experimental Field Trials of Genetically Engineered Crops
to Related Wild Plants (2006), available at http://goo.gl/K1SByY. A more recent
study identified genetically modified cotton genes in wild populations in Mexico.
A. Wegier et al., Recent Long-Distance Transgene Flow into Wild Populations
Conforms to Historical Patterns of Gene Flow in Cotton (Gossypium hirsutum) at
Its Centre of Origin, 20 Molecular Ecology 4182 (2011) (Dist. Ct. Dkt. 64-4, at 4650). Another concluded that feral populations of canola were “large and
widespread” based on a roadside survey of canola plants that found two GE
varieties growing in the wild, as well as “novel combinations of transgenic forms.”
Meredith G. Schafer et al., The Establishment of Genetically Engineered Canola
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Populations in the U.S., PLoS one 6(10): e25736.doi:10.1371/ journal. pone.
0025736 (2011) (Dist. Ct. Dkt. 64-4, at 53).
The legislature also found that the use of GE crops in commodity agriculture
may contribute to a loss of biodiversity and increased vulnerability of crops to
pests and other factors. See Act 120, Sec. 1(4)(C). For instance, a 1992 paper
explained how then-newer herbicides intended for herbicide-resistant GE plants
“could lead to increased incidence of weeds,” potentially toxic effects on fish fry,
and glyphosate accumulation in plant foods. Rebecca J. Goldburg, Environmental
Concerns with the Development of Herbicide-Tolerant Plants, 6 Weed Tech. 647
(1992) (Dist. Ct. Dkt. 64-4, at 61). More recently, scientists have raised concerns
about GE crops and the decline in monarch butterfly populations. See John M.
Pleasants & Karen S. Oberhauser, Milkweed Loss in Agricultural Fields Because of
Herbicide Use: Effect on the Monarch Butterfly Population, Insect Conservation &
Diversity (2012) (Dist. Ct. Dkt. 64-4, at 64) (“results strongly suggest that a loss of
agricultural milkweeds is a major contributor to the decline in the monarch
population”); see also Andrew Pollack, In Midwest, Flutters May Be Far Fewer,
N.Y. Times (July 11, 2011), available at http://goo.gl/8ar3kf; Jim Robbins, The
Year the Monarch Didn’t Appear, N.Y. Times (Nov. 22, 2013), available at
http://goo.gl/cU2aUZ. GE crops also threaten soil health and non-target species.
See Tanya E. Cheeke at al., Evidence of Reduced Arbuscular Mycorrhizal Fungal
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Colonization in Multiple Lines of Bt Maize, 99 Am. J. Botany 700 (2012) (Dist. Ct.
Dkt. 64-4, at 80) (finding reduced soil fungi colonization in roots of multiple Bt
maize lines, potentially leading to “negative effect on the abundance or diversity”
of soil fungi); Michael Antoniou et al., GM Soy, Sustainable? Responsible? (Sept.
2010) (Dist. Ct. Dkt. 64-2, at 59-61) (describing concerns about nutrient uptake,
crop yields, and plant diseases).
Additionally, the use of GE crops in agriculture has substantially
increased—not reduced—the use of herbicides. Charles M. Benbrook, Impacts of
Genetically Engineered Crops on Pesticide Use in the U.S.—the First Sixteen
Years, Envtl. Sci. Eur. (2012) (Dist. Ct. Dkt. 64-4, at 82) (“Contrary to oftenrepeated claims . . . the spread of glyphosate-resistant weeds in herbicide-resistant
weed management systems has brought about substantial increases in the number
and volume of herbicides applied.”). 4 This is especially troubling given that
glyphosate and 2, 4-D are possible and probable human carcinogens. See
Landrigan & Benbrook, supra, at http://goo.gl/lDgByY.
4

Set against these harms, GE crops have not increased yields. See, e.g., John
Fagan et al., GMO Myths & Truths 297 (2d ed. 2014), available at
http://goo.gl/daQ6Ph (“GM crops do not increase yields. Nor are there any GM
crops that are better than non-GM crops at tolerating poor soils or challenging
climate conditions.”); Doug Gurian-Sherman, Failure to Yield: Evaluating the
Performance of Genetically Engineered Crops 33 (2009), available at
http://goo.gl/udnoxU (studying thirteen years of GE crops and concluding that GE
crops have not increased intrinsic agricultural yields while traditional breeding
methods have).
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Finally, the Vermont legislature found that the absence of GE labels created
not only the potential for, but also the reality of, consumer confusion and
deception. See Act 120, Sec. 1(5)(A)-(B). Specifically, polling “by the New York
Times indicated that many consumers are under an incorrect assumption about
whether the food they purchase is produced from genetic engineering.” Id. Sec.
1(5)(B); see Kopicki, Strong Support for Labeling (Dist. Ct. Dkt. 64-5, at 18)
(fewer than half polled knew large amount of processed foods they buy at
supermarkets is GE; almost half thought most or a lot of their produce was GE).
Another survey showed that only 69.2% of those polled knew that some of the
food available in stores had been genetically engineered; for those earning less
than $25,000/year, only 51.3% were aware of this fact. Thomson Reuters,
National Survey of Healthcare Consumers: Genetically Engineered Food (Oct.
2010) (Dist. Ct. Dkt. 64-5, at 25). As a University of Vermont professor testified,
foods produced with genetic engineering are “credence goods,” which means that
“even after consumers use that product, they have no idea what they were eating . .
. . [A]nd that’s when labeling comes in and helps consume[r]s to understand what
is in the product in the absence of no other way to know.” Testimony of Jane
Kolodinsky, Ph.D. (Jan. 31, 2014) (Dist. Ct. Dkt. 64-1, at 194-95). And, knowing
is relevant; the legislature correctly found that “a large majority of Vermonters
want foods produced with genetic engineering to be labeled as such.” Act 120,
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Sec. 1(5)(A); see Jane Kolodinsky, Vermonter’s Views on GMO Labeling (Jan. 29,
2014) (Dist. Ct. Dkt. 64-5, at 27) (“Over the 13 year period, on average 88.9
percent of Vermonters agree there should be GMO labeling.”).
For all of these reasons and more, the State of Vermont determined that it is
in the best interests of the State to require labels on foods produced with genetic
engineering. Act 120, Sec. 1(6). Vermont’s decision to give Vermonters the
benefits of this factual information is sound, and Act 120 is constitutional.
II.

Vermont’s interests in passing Act 120 are legitimate and substantial,
and this case is not Amestoy II.
Act 120 is based on four substantial governmental interests that are stated in

the Act itself and, as described above, are supported by extensive legislative
Findings grounded in a robust legislative record. 5 Appellants’ attempt to invoke
Amestoy and conjure up “consumer curiosity”— by claiming that the State’s
concerns about GE foods have “no credible basis” and that, in any case, the State’s
concerns are not actually the State’s—ignores the reality of Act 120 and the
teachings of Amestoy.

5

The Second Circuit repeatedly has characterized the Zauderer interest as
“legitimate.” See Nat’l Elec. Mfrs. Ass’n v. Sorrell, 272 F.3d 104, 115 (2d Cir.
2001) (“legitimate and significant public goal”); Conn. Bar Ass’n v. United States,
620 F.3d 81, 101 (2d Cir. 2010) (applying Zauderer and dismissing plaintiffs’
claims where government had “legitimate” interest). However, Appellants’
preference for “substantial” over “legitimate” is irrelevant because Vermont’s
interests in Act 120 are both legitimate and substantial.
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A.

Vermont’s interests in passing Act 120 are not “consumer curiosity”
because Vermont has set forth its interests, Vermont’s concerns about
genetically engineered foods are reasonable, and these interests and
concerns are indeed Vermont’s.
In Amestoy, there were essentially three factors relevant to the Court’s

decision that only “consumer curiosity” was at play, none of which are present
here.6 First, the Amestoy Court relied “only upon those interests set forth by
Vermont before the district court.” Int’l Dairy Foods Ass’n v. Amestoy, 92 F.3d
67, 73 (2d Cir. 1996). And, as the District Court made clear in that case, Vermont
“‘d[id] not claim that health or safety concerns prompted the passage of the
Vermont Labeling Law.’” Id. (quoting District Court). In sharp contrast, in this
case, the State set forth four state interests before the District Court, interests that
are at the heart of Act 120 and explicitly stated therein, and that include health and
safety concerns. See Defs. Reply Support MTD & Response Opp. PI (Dist. Ct.
Dkt. 63, at 20-26, 37-41); see also Act 120, Sec. 2, § 3041(1)-(4).
6

It was this decision—that Vermont’s only interest was “consumer curiosity”—
that led the Court to apply Central Hudson in the Amestoy case, and to determine
that Vermont’s interest was not “substantial.” Int’l Dairy Foods Ass’n v. Amestoy,
92 F.3d 67, 73-74 (2d Cir. 1996); Nat’l Elec. Mfrs., 272 F.3d at 115 n.6 (“our
[Amestoy] decision was expressly limited to cases in which a state disclosure
requirement is supported by no interest other than the gratification of ‘consumer
curiosity’”) (citation omitted). Since Amestoy, this Court has emphasized that
Zauderer is the proper standard to apply to disclosure requirements absent limited
narrow circumstances. See, e.g., id. at 115 (“Zauderer, not [Central Hudson],
describes the relationship between means and ends demanded by the First
Amendment in compelled commercial disclosure cases.”); Safelite Grp., Inc. v.
Jepsen, 764 F.3d 258, 263 (2d Cir. 2014).
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Second, the Amestoy Court reasoned that companies could not be required to
disclose information absent “some indication that th[e] information bears on a
reasonable concern for human health or safety, or some other sufficiently
substantial governmental concern.” 92 F.3d at 74. Relevant to the Court’s inquiry
on this point was whether the record contained any “scientific evidence from
which an objective observer could conclude that rBST has any impact at all on
dairy products.” Id. at 73. The answer in that case was no, but the answer in this
case is yes.
The legislative record for Act 120—not to mention the declarations
submitted by the State below—contains ample scientific evidence supporting
Vermont’s determinations that GE foods pose potential health risks, and that no
consensus of safety exists. See supra pp. 7-14. This evidence was not fabricated
by hack scientists as Appellants would have the Court believe, but includes peerreviewed articles, testimony from highly credentialed experts, and position
statements from professional associations. See id. Vermont has a “reasonable
concern for human health or safety.”
Additionally, unlike the products at issue in Amestoy, FDA has not
determined that GE foods are safe. In Amestoy, FDA had “‘concluded’” after
“exhaustive studies” that “‘there [we]re no human safety or health concerns’” with
rBST-derived products. 92 F.3d at 73 (citation omitted). This conclusion was
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memorialized in a Rule. See Final Rule: Sterile Sometribove Zinc Suspension, 58
Fed. Reg. 59,946-02 (Nov. 12, 1993) (approving drug); Voluntary Labeling of
Milk & Milk Products, 59 Fed. Reg. 6279-04, 6279 (Feb. 10, 1994) (explaining
FDA had approved rBST because it “had determined after a thorough review” that
product was safe). With GE foods, there is no Rule, no thorough review, and FDA
has never made a determination of safety. See supra pp. 8-10. Rather, in the
decades-old GE foods statement that FDA has issued—i.e., a policy statement prepublic notice and comment—the agency raised several concerns regarding
potential negative health effects. 1992 Policy Statement, 57 Fed. Reg. at 22,98588 (e.g., unexpected effects, toxicants, allergenicity, antibiotic resistance). Thus,
to the extent FDA has any views on the subject, they do not undermine Vermont’s
reasonable concerns.7
The third “consumer curiosity” factor in the Amestoy case was the Court’s
conclusion that Vermont had not “adopted” the concerns of consumers, but “only
adopted that the consumers [we]re concerned.” 92 F.3d at 73 n.1. In an
astonishing example of selective discernment, Appellants claim that the same is
7

The Amestoy Court also noted that “neither consumers nor scientists [could]
distinguish rBST-derived milk from milk produced by an untreated cow.” 92 F.3d
at 73. Though that turned out to be untrue, see Int’l Dairy Foods Ass’n v. Boggs,
622 F.3d 628, 636 (6th Cir. 2010) (“a compositional difference does exist”), this is
another difference between Amestoy and the present case. See Non-GMO Project,
About GMO Testing, http://goo.gl/UMZZ9G (last visited Aug. 29, 2015)
(describing testing for GMO contamination).
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true here, that Act 120 is fatally flawed because it seeks to give information to
consumers. Dkt. No. 44, at 40-42. However, disclosure requirements always seek
to give information to consumers. Appellants do not cite one example of a
disclosure requirement whose first purpose is not to give information to
consumers.
Further, Vermont has adopted the concerns of its citizens, Vermont shares
those concerns, they are Vermont’s. The legislature worked on H.112 for two
years, held at least 52 committee meetings, heard at least 136 testimonies, and
meticulously detailed five pages of Findings. See H.112 Bill File (Dist. Ct. Dkt.
24-3, at 2-34); Act 120, Sec. 1. These are not the actions of a disinterested,
unconcerned legislature. Act 120 is explicit:
For multiple health, personal, religious, and environmental reasons, the State
of Vermont finds that food produced from genetic engineering should be
labeled as such, as evidenced by the following . . . .
[T]he State should require food produced with genetic engineering to be
labeled as such in order to serve the interests of the State, notwithstanding
limited exceptions, to prevent inadvertent consumer deception, prevent
potential risks to human health, protect religious practices, and protect the
environment.
Id. Sec. 1(5), (6) (emphases added). In other words, Vermont seeks to give
information to consumers because it has concerns about GE foods, and toward the
end of enabling its citizens to avoid the foods giving rise to those concerns. See id.
Secs. 1 & 2.
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B.

Vermont’s interests in passing Act 120 are valid, recognized State
interests.
Appellants do not seriously dispute that Vermont’s asserted Purposes are

valid governmental interests. Rather, they take issue with the “health and safety”
Purpose because it addresses a “potential risk.” Dkt. No. 44, at 40. This argument
is flawed for two reasons. First, it ignores that public health and food safety is but
one of the Purposes underlying Act 120. Second, it relies on the wrong benchmark
for determining when a health and safety interest becomes sufficient—which is not
after GE foods have been proven harmful to human health.
1.

Act 120 is based on substantial governmental interests in addition to
public health and food safety.
Among other things, Act 120 seeks to prevent consumer confusion and

deception. Act 120, Sec. 2, § 3041(3). Given that so many Vermonters want to
know whether their foods are produced with GE, that Vermonters do not currently
have the information necessary to determine this fact, and that polls show
consumers often have inaccurate assumptions about whether foods are GE,
Vermont’s interest in preventing consumer confusion and deception is certainly
well supported. See supra pp. 17-18; Am. Meat Inst. v. U.S. Dep’t of Agric., 760
F.3d 18, 23 (D.C. Cir. 2014) (citing “demonstrated consumer interest” in countryof-origin labeling as factor contributing to government’s substantial interest). This
interest alone is sufficient to survive First Amendment scrutiny. See, e.g.,
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Zauderer v. Office of Disciplinary Council of the Sup. Ct. of Ohio, 471 U.S. 626,
650-53 n.15 (1985) (noting “the reasonableness of the decision that appellant’s
omissions created the potential for deception of the public”); Milavetz, Gallop &
Milavetz, P.A. v. United States, 559 U.S. 229, 252-53 (2010) (upholding
bankruptcy disclosure where government interest was in preventing consumer
deception); Evergreen Ass’n, Inc. v. City of New York, 740 F.3d 233, 248-49 (2d
Cir. 2014) (upholding medical provider disclosure under strict scrutiny where
disclosure “support[ed] the state interest in informing consumers and combating
misinformation”).
The legislature also intended to “[i]nform the purchasing decisions of
consumers who are concerned about the potential environmental effects of the
production of food from genetic engineering.” Act 120, Sec. 2, § 3041(2). A
similar but more attenuated interest was recently upheld by the D.C. Circuit. See
Am. Meat Inst., 760 F.3d at 23-24. There, the Court specifically referenced
legislative statements that “identified the statute’s purpose as enabling customers
to make informed choices based on characteristics of the products they wished to
purchase.” Id. at 24. The Court explained: “Even though the production steps
abroad for food imported into the United States are to a degree subject to U.S.
government monitoring . . . it seems reasonable for Congress to anticipate that
many consumers may prefer food that had been continuously under a particular
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government’s direct scrutiny.” Id. (citation omitted). Similarly here, the Vermont
legislature recognized that consumers may prefer to avoid purchasing GE foods
based on concerns about the environment. Additionally, environmental protection
is a well-established governmental interest. See, e.g., Cent. Hudson Gas & Elec.
Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557, 568 (1980) (conserving
energy); Maine v. Taylor, 477 U.S. 131, 148 (1986) (“guarding against imperfectly
understood environmental risks, despite the possibility that they may ultimately
prove to be negligible”); Nat’l Elec. Mfrs. Ass’n v. Sorrell, 272 F.3d 104, 115 (2d
Cir. 2001) (reducing mercury pollution).
2.

Vermont’s public health and food safety interest is substantial because
it is based on reasonable concerns.
Another primary Purpose of Act 120 is “[p]ublic health and food safety”—in

particular, to “[e]stablish a system by which persons may make informed decisions
regarding the potential health effects of the food they purchase and . . . avoid
potential health risks of food produced from genetic engineering.” Act 120, Sec. 2,
§ 3041(1). Like the other Purposes described above, promoting public health and
food safety is a valid state interest. See, e.g., Rubin v. Coors Brewing Co., 514
U.S. 476, 485 (1995) (promoting “health, safety, and welfare” is substantial
interest); N.Y. State Rest. Ass’n v. N.Y.C. Bd. of Health, 556 F.3d 114, 134 (2d Cir.
2009) (preventing obesity is valid interest).

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Appellants are mistaken that GE foods must be proven harmful before
Vermont can have a valid health or safety interest in requiring labeling. The
potential for something to go awry justifies a disclosure requirement. In American
Meat Institute, the Court had no trouble relying on “a congressional decision to
empower consumers to take possible country-specific differences in safety
practices into account” as a factor in upholding country-of-origin labeling. 760
F.3d at 25 (emphasis added). And, in CTIA, the Court held that a local government
could require factual disclosures regarding cell phone emissions on the basis of a
potential health risk.8 See CTIA—The Wireless Ass’n v. City & Cnty. of S.F., Ca.,
827 F. Supp. 2d 1054, 1060-61 (N.D. Ca. 2011) (“[a] government may impose, out
of caution, at least some disclosure requirements based on nothing more than the
possibility that an agent may (or may not) turn out to be harmful”), vacated on
other grounds by 494 Fed. Appx. 752, 753-54 (9th Cir. 2012). 9

CTIA pointed out that San Francisco used the word “risk” “different from the
usual way.” 827 F. Supp. 2d at 1061. Vermont, in contrast, prudently used the
words “potential health risks,” which reflects that there is a lack of consensus on
whether GE foods pose health risks. Regardless, as with Act 120, San Francisco’s
ordinance addressed health risks that, though possible, had not yet been statistically
proven (in contrast to, for instance, smoking), and this was sufficient to sustain a
Fact Sheet requirement (once revised). Id. at 1061-63.
8

9

The Ninth Circuit did not overrule the District Court’s conclusion that a
government could require a disclosure based on a potential health risk, but rather
held that the Fact Sheet in question was not “purely factual and uncontroversial”
because it contained “San Francisco’s recommendations as to what consumers
should do if they want to reduce exposure to . . . emissions.” 494 Fed. Appx. at
26

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Appellants conflate the “interest” factor with the “fit” factor here, arguing
that because Vermont’s health and safety interest is based on potential risks, there
is not a reasonable relationship between that interest and the disclosure
requirement. Dkt. No. 44, at 48-50. But, as noted above, the point of a label is to
give consumers information in order to achieve some end. See, e.g., Nat’l Elec.
Mfrs., 272 F.3d at 115 (“the compelled disclosure at issue here . . . [is] intended . . .
to better inform consumers about the products they purchase []though the overall
goal of the statute is plainly to reduce the amount of mercury released into the
environment”). If the “end” is valid, the disclosure requirement is almost always
bound to achieve that end. See Am. Meat Inst., 760 F.3d at 26 (“The self-evident
tendency of a disclosure mandate to assure that recipients get the mandated
information may in part explain why, where that is the goal, many such mandates
have persisted for decades without anyone questioning their constitutionality.”).
Here, the State has a substantial interest in enabling its citizens to avoid the
potential health risks of GE foods, and labeling achieves that end. See N.Y. State

753 (emphasis added). That there was a scientific debate about health risks was
not relevant to the validity of the governmental interest, but to whether it was
proper for San Francisco to include its own recommendations in the compelled
disclosure. See id. at 753-54. Thus, the decision does not apply here in either the
“substantial interest” or the “uncontroversial” context. Vermont’s law requires a
short statement of fact about the product to which the statement refers, plain and
simple. See Act 120, Sec. 2, § 3043(b).
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Rest. Ass’n, 556 F.3d at 134 (enabling New Yorkers to avoid consuming too many
calories—at certain restaurants—through calorie disclosure requirements).
Finally, Act 120 passes muster under Amestoy’s guidance that a state interest
in human health or safety be based on a “reasonable concern” in order to be
substantial. 92 F.3d at 74. As detailed above, Vermont’s interest in human health
and safety is based on reasonable concerns, and it is substantial.
CONCLUSION
For the reasons explained above, Appellants’ First Amendment claim
against Vermont’s disclosure requirement is without merit, and this Court should
uphold the District Court’s denial of a preliminary injunction.
DATED:

August 31, 2015

Respectfully Submitted,
/s/ Laura B. Murphy
Environmental & Natural Resources Law Clinic
Vermont Law School
PO Box 96, 164 Chelsea Street
South Royalton, Vermont 05068
(802) 831-1630
Counsel for Amici Curiae
With assistance from student clinicians
Lara Christensen, Katharine H. Devine, Lauren Gates, & Taylor Kennedy

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CERTIFICATE OF COMPLIANCE WITH FRAP 32(A)
1) This brief complies with the type-volume limitation of Fed. R. App. P.
32(a)(7)(B) and 29(d) because this brief contains 6992 words, excluding the
parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
2) This brief complies with the typeface requirements of Fed. R. App. P.
32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because
this brief has been prepared in proportionally spaced typeface using
Microsoft Word 2010 in 14-point Times New Roman.
/s/ Laura B. Murphy
Attorney for Amici Curiae
Vermont Public Interest Research Group
Cedar Circle Farm
Northeast Organic Farming Association of Vermont
Rural Vermont
Dated:

August 31, 2015

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