Vermont’s GMO Labeling Law: DuPont, Syngenta Fight Disclosure of Internal Studies

June 21, 2016 GMT

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BRATTLEBORO >> The Vermont Attorney General’s Office is asking a federal judge to force Syngenta Corporation and Dupont to turn over internal studies relating to the safety of genetically modified organisms.

The state is asking the manufacturers of genetically engineered seeds — such as DuPont, Syngenta, Dow, Monsanto and Bayer — to turn over any studies conducted into the health and environmental impacts of those products and the producers of foods containing GE ingredients — such as Frito-Lay, Kellog’s and ConAgra — to release consumer surveys to see if these companies know what their consumers think when they see the word “natural.”

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.”

In response to the state’s request for the documents, Syngenta and Dupont claim the state’s motions are untimely; the documents sought are irrelevant to the underlying litigation; and it is too burdensome to look for the documents.

“All three of these arguments are meritless,” states the motion to compel. “The State served Subpoenas upon Syngenta and DuPont well before the fact discovery deadline. The Subpoenas called for the production of documents well before the fact discovery deadline. It is undisputed that the parties engaged in many written and oral negotiations regarding the proper scope of the Subpoenas, as is typical and ordinarily occurs during the fact discovery process.”

One month after the approval of Act 120, 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 the legislation. In the lawsuit, the plaintiffs contend 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.

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 today. Since the start of discovery, notes the state, the plaintiff organizations have turned over thousands of documents and additional documents have now been provided by four of the subpoenaed parties.

The motion to compel filed on June 20 against Syngenta and DuPont notes that counsel for the two companies led the state to believe the documents would be produced, but then produced nothing. While the close of discovery was Nov. 24, 2015, the state “in active negotiations with Syngenta and DuPont,” worked on narrowing the scope of the document request into mid-December. “Only after that date had passed did Syngenta and DuPont take the position that they could avoid all of their legal obligations to respond to timely served Subpoenas simply by running out the clock, and that the State would then be forever barred from moving to compel,” notes the motion to compel. This is an incorrect assumption, contends the state, as a motion to compel filed after the deadline for discovery is timely so long as “it seeks to compel answers and documents that were demanded during the discovery period. ... Syngenta and DuPont also fail to recognize that after the Subpoenas were issued, any alleged delays are attributable to the State engaging, as the rules of discovery require, in ongoing attempts to resolve matters without court intervention. ... The State was attempting to avoid unnecessarily burdening the courts with numerous motions to compel by first trying to resolve its disputes with the Subpoena recipients.”

The subpoenas were originally served in the District of Delaware, where the companies’ headquarters are located. The cases were then transferred to Vermont, where the actual lawsuit has been filed. Before the cases were transferred, Syngenta and DuPont told the Delaware court that the all the documents the state is asking for are available to the public but when challenged by the judge, admitted that only summaries are available.

Of utmost importance, contends the state, is the safety of crops that have been modified to withstand the application of herbicides and pesticides.

“Plaintiffs have put forward an expert witness who has signed a declaration claiming that ‘not one credible study has found any risk from GE not already present in traditional or conventional breeding.’ ... If Plaintiffs’ own members have studies showing risks from GE crops, it directly undermines the primary claim that Plaintiffs are making in this lawsuit.” GE-related pesticides like Roundup are used on crops genetically engineered to be “Roundup Ready,” “and the safety of GE crops — including environmental impacts — is thus directly connected to the safety and environmental impacts of pesticides and herbicides for which GE crops are specifically modified.”

The claim by Syngenta and DuPont that the discovery sought creates an undue burden that is not proportional to the needs of the case, is incorrect, contends the state.

“The State’s motions seek only ‘the results’ of studies or research since 1995 on the potential health or environmental impacts of GE crops, GE food products, or herbicide and pesticide usage on commercially available GE crops. Notably, Syngenta and DuPont implicitly concede that they keep track of precisely those results, since, as Syngenta puts it, federal law imposes ‘ongoing reporting obligation to (federal) agencies that would apply to any later obtained adverse data.’”

Further, the minor burden on Syngenta and DuPont is far outweighed by the importance of the issues at stake in the action and the importance of the discovery in resolving the issues.

“First, the underlying litigation involves a constitutional challenge to the first-in-the-nation GE food labeling law. This case is precedent-setting, and the stakes are high both for consumers and for manufacturers. ... Second, the specific information the State seeks will be highly relevant if it undermines the central theory of Plaintiffs’ case — that there is no scientific basis for labeling GE food. Plaintiffs should not be allowed to put forward such a thesis, and, more importantly, to ask this Court to make a holding to that effect, without the State having an opportunity to test it by viewing the documents that Plaintiffs’ members have thus far refused to produce.”

Dupont is also asking the Federal District Court for the District of Vermont to pay its attorney’s fees but, notes the motion to compel, “DuPont does not cite a single case in support of its claim that attorney’s fees would be appropriate here. Nor does DuPont even bother citing the applicable standard, which states that so long as the State is “substantially justified” in filing a motion to compel, DuPont cannot obtain fees. If anything, DuPont should be paying the State’s fees for having to file a motion to compel documents that DuPont should have turned over months ago.”

Most recently, a motion to compel filed against Frito-Lay was dismissed after the two parties reached an agreement. In that case, the state contended attorneys for Frito-Lay also delayed in responding to discovery requests and then told the court the state’s requests were untimely.

Earlier this year, 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.