Washington Lawyer Says 
Ban on GMO Seeds Could Pass Legal Challenge 

DAVID MACE / Vermont Press Bureau 12feb04

[Mindfully.org note: This is a breath of fresh air!]

MONTPELIER—An attorney for the nonpartisan research arm of Congress has told Rep. Bernard Sanders, I-VT, that a ban on genetically engineered crops in Vermont could survive a constitutional challenge.

The memo from the Congressional Research Service's Stephen Vina undercuts one of the key arguments that opponents of banning GE seeds in Vermont have raised against the plan.

"... It appears a state law that places a moratorium on the planting of GE seeds would likely survive the posed constitutional challenges," Vina wrote in a response to requests from Sanders' staff, noting that states can legally act to protect the health and safety of citizens.

Jeff Weaver, Sanders' chief of staff, said the congressman had made the request on behalf of a constituent, and that while it wasn't definitive it was an important development in the debate over whether the state could regulate GE crops.

"At a minimum I think this document shows that it's an open question, and given the amount of research CRS has done they certainly feel that it is constitutional, that the state of Vermont could prohibit the planning of genetically modified crops."

The seeds—also known as genetically modified organisms, or GMOs—have been the subject of legislative efforts for several years.

Organic farmers have argued that GE crops like corn could contaminate their crops through pollen drift, and environmentalists claim the potential impact of the plants cross-pollinating with native species are unknown.

Opponents also say that while federal agencies have determined the products are safe, most of the research backing up those claims has been funded by the producers of GE seeds.

The Democratically controlled Vermont Senate passed a bill last year that would require the labeling and registration of genetically modified seeds, but House Republicans blocked the measure and the Douglas administration has opposed it.

Agriculture Commissioner Stephen Kerr has said that conventional farmers need to be able to use GE crops, and been working with an ad hoc panel to come up with "co-existence" rules to protect organic farmers from contamination, a compromise that organic farmers have largely rejected.

Kerr has also made it clear that advice from the Vermont Attorney General's Office has been that attempts to regulate GE crops would likely run afoul of federal law, namely the U.S. Constitution's interstate commerce clause preventing states from unduly burdening such trade.

On Tuesday, he reiterated that position, but said he couldn't comment on the Congressional Research Service memo until he'd consulted with attorneys.

But Kerr rejected the arguments of those who liken the issue to mercury regulation, where Vermont's first-in-the nation law requiring the labeling of products containing mercury was upheld.

Instead, he said the case was closer to the state's law trying to require the labeling of milk products from cows treated with the synthetic hormone rBST, where a federal judge determined that there was no compelling public safety issue at issue and therefore Vermont's law was unconstitutional.

"There's no scientific dispute that mercury is a toxin," Kerr said. "The preponderance of scientific evidence says there's no health risk from GE traits. They're miles apart."

Asked to elaborate on the memo, CRS officials said that the public health and safety standard could be interpreted to include threats to the environment, but that a compelling factual case would have to be made before a judge.

Supporters of efforts to require labeling or a moratorium hailed the ruling.

"(GE supporters) been saying the main reason they can't do this, put in a moratorium, is it's unconstitutional, and no credible source has said it would stand up to that challenge," said Amy Shollenberger, policy director for farm advocacy group Rural Vermont. "There's no more credible source than the Congressional Research Center."

Rep. David Zuckerman, P-Burlington, an organic farmer who has spearheaded legislative efforts to regulate or ban the use of GE crops in Vermont, echoed Shollenberger's comments.

"I do think a two or three year time out to evaluate the consequences should remain on the table considering the potential impact of GMOs," he said.

Efforts to reach officials at CropLife America, a Washington DC-based industry trade group, for comment were unsuccessful.

Weaver said the matter may ultimately have to be settled by a judge.

"A legislature tries not to do things that are obviously illegal or unconstitutional," he said. "... Congressman Sanders has been active on this issue, and it's our opinion that the constitutional question should not stand in the way of the Vermont Legislature working its will on this issue."

• More information: GeFreeVt.org