OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS AND DENYING PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION
Pending before the court are a motion to dismiss (Doc. 24) filed by Defendants William H. Sorrell, Peter' E. Shumlin, Tracy Dolan, and James B. Reardon (collectively, “the State”) and a motion for a preliminary injunction (Doc. 33) filed by Plaintiffs Grocery Manufacturers-Association (“GMA”), Snack-Food Associátion (“SFA”), International Dairy Foods Association (“IDFA”), and National Association of Manufacturers (“NAM”) (collectively, “Plaintiffs”).
The State’s motion asks the court to dismiss Plaintiffs’ Amended Complaint in its entirety for failure to state a claim for which relief may be granted. Fed.R.Civ.P. 12(b)(6). Plaintiffs’ motion asks the court to enjoin the State’s enforcement of Act 120 in its entirety pending a resolution of the case at trial. Fed.R.Civ.P. 65(a). The court heard oral argument on January 7, 2015, at which point the court took the pending motions under advisement. Because the State’s motion to dismiss winnows the claims for which Plaintiffs may seek a preliminary injunction, the court addresses that motion first. In the course of analyzing the motion to dismiss, the court considers whether Plaintiffs are likely to prevail on the merits of their claims at trial, which is an essential component of their request for preliminary injunctive relief.
Plaintiffs are represented by Catherine E. Stetson, Esq., E. Desmond Hogan, Esq., Mary H. Wimberly, Esq., and Matthew B. Byrne, Esq. The State is represented by Alan D. Strasser, Esq.,' Daniel N. Lerman, Esq., Lawrence S. Robbins, Esq., Lee Turner Friedman, Esq., Ver
The following Amicus Curiae have filed briefs in support of Act 120: the Vermont Public Interest Research' Group and the Center for Food Safety, which are represented by Laura B. Murphy, Esq.; The Vermont Community Law Center, which is represented by Jared Kingsbury Carter; Esq. and William B. Peard, Esq.; and the Free Speech For People, Inc., which is represented by Ronald A. Fein, Esq.- and Anthony N.L.. Iarrapino, Esq.
I. Factual and Procedural Background.
A. The Amended Complaint.
Plaintiffs’ Amended Complaint challenges Act 120’s requirement that certain manufacturers and ' retailers identify whether raw and processed food sold in Vermont was produced in whole or in part through genetic engineering (Act' 120’s “GE disclosure requirement”)
Count One of the Amended Complaint alleges Act 120’s GE disclosure requirement violates the First Amendment; Count Two claims Act 120’s “natural” restriction violates the First Amendment; Count Three asserts Act 120’s “natural” restriction is impermissibly vague in violation of the First and Fifth Amendments; Count Four alleges Act 120 violates the Commerce Clause; and Count Five asserts Act 120 is preempted by various federal statutes. With regard to each claim, Plaintiffs allege a violation of the Fourteenth Amendment, as they are suing defendants for their actions under the color of state law. See U.S. Const, amend. XIV, § 1.
B. Act 120.
Act 120 was signed on May 8, 2014 and will be enforceable effective July 1, 2016 (the “effective date”). It requires that “food [intended for human consumption] offered for sale by a retailer” after the Act’s effective date “be labeled as produced entirely or in part from genetic engineering if it is a product: (1) offered for retail sale in Vermont; and (2) entirely or partially produced with genetic engineering.” 9 V.S.A. § 3043(a). Genetic engineering (“GE”) is defined as “a process by which a food is produced from an organism or organisms in which the genetic material
(A) in vitro nucleic acid techniques,3 in-' eluding recombinant- deoxyribonucleic acid (DNA) techniques and the direct injection of nucleic acid into cells or organelles; or
(B) fusion of cells (including protoplast fusion) or hybridization techniques that overcome natural physiological, reproductive, or recombination barriers, where the donor cells or protoplasts do not fall within the same taxonomic group, in a way that 'does not occur by natural multiplication or natural recombination.
9 V.S.A. § 3042(4).
Act 120 applies to raw agricultural commodities, which are defined as “any food in its raw or natural state, including any fruit or, vegetable that is washed, colored, or otherwise treated in its unpeeled natural form prior to marketing.” 9 V.S.A. § 3042(10)., It also ’ applies to processed foods, which are defined as “any food other than a raw agricultural commodity and includes any food produced from a raw agricultural commodity that has been subjected to processing such' as canning, smoking, pressing, cooking, freezing, dehydration, fermentation, or milling.” 9 V.S.A. § 3042(8).
A GE manufactureras subject to Act 120 if it:
(A) produces a processed food or raw agricultural commodity under its own bránd or label for sale in or into the Státe;'
(B) sells in or into the Staté under, its own brand or label a processed food or raw agricultural commodity produced by another supplier;
(C) owns a brand that' it licenses or licensed to another person for use oh a processed food or raw commodity sold in or' into the State;
(D) sells in, sells into, or distributes in the State a processed food or raw agricultural commodity that it packaged under a brand or label owned by another person;
(E) imports into the United States for sale in or into the State a processed food or raw agricultural commodity produced , by a person without a presence in the United States; or
(F) produces a processed food or raw agricultural commodity for sale in or into the State without.,affixing a brand name.
9 V.S.A. § 3042(6).
1. Act 120’s GE Disclosure ’ Requirement.
Act 120 requires that a “packaged raw agricultural commodity” be, labeled by GE manufacturers “with the clear and conspicuous words' ‘produced with genetic engineering.’” 9 V.S.A. § 3043(b)(1). If the “raw agricultural commodity” is not sold separately packaged, then a GE retailer must “post a label” - on the shelf or bin “with the clear and conspicuous words ‘produced with genetic engineering.’ ” 9 V.S.A. '§ 3043(b)(2). Packaged processed food must be labeled by a GE manufacturer with the words: “ ‘partially produced with genetic engineering,’ ” or “ ‘may be produced with genetic engineering,’ ” or
2. Act 120’s “Natural” Restriction.
Act 120 prohibits GE manufacturers from,using labeling, advertising, or signage indicating that a GE food product is “ ‘natural,’ ‘naturally made,’ ' ‘naturally grown,’ ‘all natural,’ or any words of similar import that would have a tendency to mislead a consumer.” 9 V.S.A. § 3043(c). Act 120 does not define the term “natural” or the phrase ’“any words -of similar import.”
3. Act 120’s Exemptions and Penalties.
Act 120 exempts certain products from its embrace, including alcoholic beverages subject to Title 7 of Vermont’s statutory code and food not packaged for retail sale that is “a processed food prepared and intended for immediate human consumption” or that is “served, sold, or otherwise provided in any restaurant or other food establishment.” 9 V.S.A. § 3044(4),- (7)(A)-(B). It also exempts “[flood consisting entirely of or derived entirely from an animal which has not itself been produced with genetic engineering, regardless of whether, the animal has been fed -or injected with any food, drug, or other substance produced with genetic engineering.” 9 V.S.A. § 3044(1).
A GE manufacturer or retailer may obtain an exemption from Act 120 for any food “grown, raised, or prоduced without the knowing or intentional use of food or seed produced with genetic engineering” by providing its own “sworn statement,” or verification from an independent organization, that the food “has not been knowingly or intentionally produced with genetic engineering and has been segregated from and has not been knowingly or intentionally commingled with food that may have been produced with genetic engineering at any time.” 9 V.S.A. §§ 3044(2), (6); 3045(b). Act 120 provides that a “person” is liable for any “false statement” made in the course of obtaining this exemption. 9 V.S.A. § 3047.
Under Act 120, any “person” who violates its requirements is “liable for a civil penalty of not more than $1,000.00 per day, per product,” which “shall accrue and be assessed per each uniquely named, designated, or marketed product.” 9 V.S.A. § 3048(a).
C. Act 120’s Legislative Findings.
In conjunction with its enactment of Act 120, the Vermont General Assembly promulgated certain “Findings.” One such “Finding” is that federal law does not require the labeling of GE food, as evidenced by the following:
(A) Federal labeling and food and drug laws do not require manufacturers of food produced with genetic engineering to label such food as genetically engineered.
(B) As indicated by the testimony of a U.S. Food and Drug Administration (FDA) Supervisory Consumer Safety Officer, the FDA has statutory authority to require labeling of food products, but does not consider genetically engineered foods to be materially different from their traditional counterparts to require such labeling.
(C) No formal FDA policy on- the labeling of genetically engineered foods has been adopted. Currently, the FDA only provides nonbinding guidance on the labeling of genetically engineered foods, including a 1992 draft guidance regarding labeling of food produced from genetic engineering and a 2001 draft guidance for industry regarding voluntary labeling of food produced from genetic engineering.
2014 Vt. Acts & Resolves No. 120, Sec. 1(1)(A)-(C).
Vermont’s General Assembly’s “Findings” include a finding that “[g]enetically engineered foods are increasingly available for human consumption” in light of estimates “that up to 80 percent of the processed foods sold in the United States” may contain ingredients produced from GE sources. Id. at Sec. 1(3)(A). They also include a “Finding” that federal law does not presently require independent testing of the safety of GE food and that:
(A) In its regulation of food, the FDA does not distinguish genetically engineered foods from foods developed by traditional plant breeding.
(B) Under its regulatory framework, the FDA does not independently test the safety of genetically engineered foods. Instead, manufacturers submit safety research and studies, the majority of which the manufacturers finance or conduct. The FDA reviews the manufacturers’ research and 'reports through a voluntary safety consultation, and issues a letter to the manufacturer acknowledging the manufacturer’s conclusion regarding the safety of the genetically engineered food product being tested.
(C) The FDA does not use meta-studies or other forms of statistical analysis to verify that the studies it reviews are not biased by financial or professional conflicts of interest.
(D) There is a lack of consensus regarding the validity of the research and science surrounding the safety of genetically engineered foods, as indicated by the fact that there are peer-reviewed studies published in international scientific literature showing negative, neutral, and positive health results.
(E)There have been no long-term or epidemiologic studies in the United States that examine the safety of human consumption of genetically engineered foods.
Id. at Sec. 1(2)(A)-(E).
With regard to GE food safety, the General Assembly declared in its “Findings” that GE foods “potentially pose risks to health, safety, agriculture, and the environment,” as evidenced by the following:
(A) There are conflicting studies assessing the health consequences of food produced from genetic engineering.
(B) The genetic engineering of plants and animals may cause unintended consequences.
(C), The use of genetically engineered crops is increasing in commodity agricultural production practices, which contribute to genetic homogeneity, loss of biodiversity, and increased vulnerability of crops to pests, diseases, and variable climate conditions.
(D) Cross-pollination of or cross-contamination ■ by genetically engineered crops may contaminate organic crops and, consequently, affect marketability of those crops.
(E) Cross-pollination from genetically engineered crops may have an adverse effect on native flora and fauna.' The transfer of unnatural deoxyribonucleic acid to wild relatives can lead to displacement of those native plants, and in turn, displacement of the native fauna dependent on those wild varieties. .
Id. at Sec. 1(4)(A)-(E).
Based upon its “Findings,” the General Assembly concluded “that food produced from genetic engineering should be labeled as such,” because “[ljabeling gives consumers information they can use to make decisions about what products they would prefer to purchase,” because public opinion
In support of Act 120’s “natural” restriction, the General Assembly found:
Because genetic engineering, as regulated by this [A]ct, involves the direct injection of genes into cells, the fusion of cells, or the hybridization of genes that does not occur in nature, labeling foods produced with genetic engineering as “natural,” “naturally made,” “naturally grown/’ “all natural,” or other similar descriptors is inherently misleading, poses a risk of confusing or deceiving consumers, and conflicts with the general perception that “natural” foods are not genetically engineered.
Id. at Sec. 1(5)(C).
“For multiple health, personal, religious, and environmental reasons,” the General Assembly ultimately found that “the 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. at Sec. 1(5), (6).
D. Act 120’s Legislative Purpose..
Act 120’s “Purpose,” as declared by the General Assembly, is to:
(1) Establish a system by which persons may make informed decisions regarding the potential health effects of the food •they purchase and consume and by which, if they choose, persons may avoid potential health risks of food produced from genetic engineering;
(2) Inform the purchasing decisions of consumers who are concerned about the potential environmental effects of the production of food from genetic engineering;
(3) Reduce and prevent consumer confusion and deception by prohibiting the labeling of products produced from genetic engineering as “natural” and by promoting the disclosure of factual information bn food labels to allow consumers to make informed decisions; and
(4) Provide consumers with data from which they may make informed decisions for religious reasons.
9 V.S.A. § 3041(l)-(4).
E. Evidence In Support of the Pending Motions.
The parties have submitted competing expert witness declarations and reports, examining the science, safety, efficacy, economics, and impacts of GE food production.
The parties further acknowledge that because Plaintiffs do not seek either an evidentiary hearing or a consolidation with the merits for their preliminary injunction motion, the court cannot rely on contested evidence to resolve any factual disputes. See Kern v. Clark,
For purposes of adjudicating the pending motions, the court is therefore confined to the factual and procedural background set forth herein and does not determine whether the General Assembly erred in its “Finding” that “[gjenetically engineered foods potentially pose risks to health, safety, agriculture, and the. environment.” 2014 Vt. Acts & Resolves No. 120, Sec. 1(4).
In support of their motion for a preliminary injunction, Plaintiffs ■ submitted the declarations of the Coca-Cola Company (“Coke”), PepsiCo, Inc. (“Pepsi”), General Mills, ConAgra Foods, Inc. (“ConAgra”), and Kraft Foods Group, Inc. (“Kraft”), as well as declarations from the SFA, Michaud Distributors (“Michaud”), and the Council of Supply Chain Management Professionals (“CSCMP”). The court refers to these entities -as “Plaintiffs’ GE manufacturers.”
The State submitted competing declarations from Ben & Jerry’s, Clif Bar and Company (“Clif Bar”), and Beanfields Snacks (“Beanfields”). These entities are referred to as “the State’s declarants.”
1. The Costs of Compliance with Act 120.
Generally, food manufacturers .offer items for retail sale by identifying them through a “stock-keeping unit” (“SKU”), which is a unique number for purposes of manufacturing, packaging, storage, sales, and distribution. - A single product can have several SKUs that reflect each size of the-product offered for sale; such as a six-'
Plaintiffs’ GE manufacturers distribute a large number of SKUs, ranging from approximately 1,700 SKUs (Pepsi) to tens of thousands of SKUs (ConAgra). None of Plaintiffs’ GE manufacturers currently label their products in accordance with Act 120’s GE disclosure requirement. They have considered whether to “reformulate” their products to be GE-free and have concluded that it is virtually impossible to manufacture many foods with non-GE sources for several reasons, including the prevalence of GE crops nationwide and the unavailability of non-GE ingredients in relation to demand, as well as an inability to change existing planting patterns, crops cycles, and contracts for production before Act 120’s effective date.
To comply with Act 120’s GE disclosure requirement, Plaintiffs’ GE manufacturers represent that they will incur “significant” costs, although the total costs of compliance are “difficult or impossible to quantify.” (Doc. 33-10 at 10, ¶¶ 33-34.) They explain that compliance will require them to evaluate whether their products contain or likely contain GE ingredients, including an investigation of all “upstream components,” (Doc. 33-10 at 5, ¶ 18), which will be followed by an evaluation of “the feasibility of designing, producing!),] and implementing Vermont-specific labels for all affected products.” (Doc. 33-8 at 5, ¶ 17; see also Doc. 33-9 at 7, ¶¶ 22-24.)
In addition to the impacts of designing new packages and/or labels for Vermont-bound products, Plaintiffs’ GE manufacturers assert they will need to expend resources for dual-inventory, production, and distribution systems for Vermont-bound products, which will require' additional plant and storage space for producing and handling separate inventories of Vermont-specific labels and products. They point out that while larger manufacturers will have more SKUs to change, smaller manufacturers may not be able to incur the expense of designing, reviewing, and creating new labels for their Vermont-bound products. They contend that this, in turn, may reduce competition in Vermont to a few multi-category, multinational companies that can afford product segregation.
2. The Timing of Compliance with Act 120.
Plaintiffs’ GE manufacturers claim that they may not be able to implement product changes in time to comply with Act 120’s effective date because the process of “designing the packaging, conducting a com
The State’s declarants challenge Plaintiffs’ GE manufacturers’ contentions regarding the costs of creating new packaging, as well as the timing and feasibility of compliance with Act 120.
F. The Final Rule.
Act 120 provides that the Attorney General “may adopt by rule requirements for the implementation” of Act 120 that include: (1) “a requirement that the label required for food produced from genetic engineering include a disclaimer that the Food and Drug Administration does not consider foods produced from genetic engineering -to be materially different from other foods”; and (2) “a requirement that a label required under [Act 120] identify food produced entirely or in part from genetic engineering in a manner consistent with requirements in other jurisdictions for the labeling of food, including the labeling of food produced with genetic engineering.” 2014. Vt. Acts & Resolves No. 120, Sec. 3(1), (2); see' also 9 V.SA.
During the pendency of this case, 'the Office of the Attorney General filed a Final Rule on April 20, 2015. See Consumer Protection Rule 121 [hereinafter Final Rule] (Doc. 93-1). According to the State, the Final Rule is intended “to clarify the reach of the statute,” (Doc. 63 at 27), and provides several definitions for terms used in Act 120, including that “[t]he term ‘genetic engineering’ does not encompass a change of genetic material through the application of traditional breeding techniques, conjugation, fermentation, traditional hybridization, in vitro fertilization, or tissue culture.” Final Rule § 121.01(6). The Final Rule also provides definitions for “Clear and conspicuous,” “Know,” and “Knowingly.” See Final Rule § 121.01(1), (9X10).
The Final Rule purports to “clariffy] the scope” of Act 120’s “natural” restriction, (Doc. 63 at 28), by stating that the phrase “ ‘[n]atural or any words of similar import’ means the words nature, natural, or naturally.” Final Rule § 121.01(14). It limits Act 120’s, “natural” restriction on advertising or signage to a “retail premises” in Vermont:
The manufacturer of a food that is produced entirely or partially with genetic engineering and offered for retail sale in Vermont shall not make any statement about the food that contains the word natural or any words of similar import: (1) in advertising at or in the retail premises, (2) on signs identifying the product at the point of display in the retail premises, or (3) on the label of the food. This prohibition does not apply to a food’s trade, brand, or product name, or any information required by the [FDA],- as referenced in 21- C.F.R. § 101.2(b).
Final Rule § 121.02(c)©; see also Final Rule § 121.01(22)-(23) (defining “Retail Premises” to mean “the physical location in Vermont where a retailer offers food for retail sale to consumers” and “Retailer” to mean “a person located in Vermont offering any raw agricultural commodity or processed food for retail sale”).
The Final Rule confirms that Act 120 does not prohibit “a person” from disclaiming on a food’s “packaging” that the FDA “does not consider food produced with genetic engineering to be materially different from other foods,” and it affirmatively provides that “a person may, in connection with offering food, produced with genetic engineering for retail sale in Vermont, make other disclosures about the food on its packaging.” Final Rule § 121.02(c)(ii).
The Final Rule provides that Act 120 shall not be construed to:
require the listing or identification of any ingredient or ingredients that were genetically engineered; or require the placement' of the term “genetically engineered” or a similar phrase immediately preceding or following any common name or primary product descriptor of a food; or require the placement of any disclosure required under section 121.02 of this rule as “intervening material” under 21 C.F.R. § 101.2(e); or otherwise require adding to or amending the information required by the [FDA], as referenced in 21 C.F.R. § 101.2(b).
Final Rule § 121.02(d).'
The Final Rule purports to limit when a GE manufacturer may use “partially” and “may be” produced with genetic engineering in conjunction with a GE food. Under the Final .Rule, “ ‘[plartially5 may be used to modify ‘Produced with Genetic Engineering’ only when a processed food contains less than 75% genetically engineered material by weight,” and “ ‘[m]ay be’ may be used to mоdify ‘Produced with Genetic
The Final Rule provides a safe harbor for GE retailers that requires notice and an opportunity for “corrective action” before an enforcement action takes place. Final Rule § 121.04(c)(i). It also sets forth a “presumption of manufacturer compliance,” which provides that:
Any packaged, processed food subject to the, provisions of this rule and offered for retail sale in Vermont before January 1, 2017, that does not comply with this rule, is presumed to have been packaged and distributed prior to July 1, 2016, and the manufacturer shall not be liable for failure to comply with this rule unless there is evidence that the food was distributed on or after July 1, 2016.
Final Rule § 121.04(d)®.
Plaintiffs contend that Act 120 cannot lawfully be amended by either a 'Draft Rule or a Final Rule and that only the General Assembly may “correct” Act 120’s alleged constitutional deficiencies. The parties have not fully briefed this issue as only a Draft Rule existed when their motions and related papers were filed. The court thus considers the Final Rule in conjunction with the pending motions, but will provide the parties with an opportunity to address its import in supplemental briefing.
II. Conclusions of Law and Analysis.
A. Motion to Dismiss.
Under Fed.R,Civ.P. 12(b)(6), when deciding a motion to dismiss for failure to state a claim, a court assumes “all well-pleaded, nonconelusory factual allegations in the complaint to be true,” Kiobel v. Royal Dutch Petroleum Co.,
In its evaluation of a motion to dismiss, “a district court may consider the facts alleged in the complaint, documents attached to the complaint as exhibits, and documents incorporated by reference in the complaint.” DiFolco v. MSNBC Cable L.L.C.,
To survive a motion to dismiss, a complaint must contain sufficient factual allegations “to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly,
The district court’s role “is merely to assess the legal feasibility of the complaint, not to assay the weight of the evi
B. Count Four: Plaintiffs’ Commerce Clause Challenge.
In adjudicating the motion to dismiss, the court turns first to Count Four, the only count of the Amended Complaint with regard to which Plaintiffs do not seek á preliminary injunction. In Count Four, Plaintiffs allege Act 120 violates the dormant Commerce Clause, and on that basis they ask that the Act be declared invalid in its entirety. The Commеrce Clause authorizes Congress “[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indians Tribes.” U.S. Const, art. I, § 8, cl. 3. Although the Commerce Clause does not “expressly restrain the several States in any way, [the Supreme Court has] sensed a .negative implication” within the Clause, “called the dormant Commerce Clause.” Dep’t of Revenue of Ky. v. Davis,
“The limitation imposed by the Commerce Clause on state regulatory power ‘is by no means absolute,’ and ‘the States retain authority under their general police powers to regulate matters of legitimate local concern, even though, interstate commerce may be affected.’” Maine v. Taylor,
A law may “clearly discriminat[e]” against interstate commerce “in three ways: (1) by discriminating against interstate commerce on its face; (2) by harboring a discriminatory purpose; or (3) by discriminating in its effect.” Town of Southold v. Town of E. Hampton,
In seeking dismissal of Count Four, the State argues that Act 120 does not discriminate against interstate commerce because it treats in-state and out-of-state GE manufacturers in the same manner and because the burdens of Act 120 are not excessive in relation to its benefits under Pike v. Bruce Church, Inc.,
Plaintiffs’ allegations all address Act 120’s probable impacts on GE manufacturers and interstate commerce. They do not identify any distinction found within Act 120, itself, that discriminates between instate and out-of-state GE manufacturers. Where courts have struck down a statute based on a facial challenge under the Commerce Clause, the law in question has generally distinguished between in-state and out-of-state commerce.
Plaintiffs also do not appear to claim that Act 120 reflects a' discriminatory purpose. In order to advance a discriminatory purpose challenge under the Commerce Clause, Plaintiffs must plausibly allege that the Vermont General Assembly enacted Act 120 in order to favor Vermont products over the same or similar products from other states. See, e.g., Bacchus Imps., Ltd. v. Dias,
2. Whether Plaintiffs Plausibly Allege a Discriminatory Effects Challenge to Act 120 Under the Commerce Clause.
Plaintiffs’ Commerce Clause challenge to Act 120 is- thus confined to a claim that the Act discriminates against interstate commerce “in its effect.” Town of Southold,
Regulations that clearly discriminate against interstate commerce [are] virtually invalid per se, while those that incidentally burden interstate commerce will be struck down only if the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. The Supreme Court has acknowledged, however, that there is no clear line separating the category of state regulation that is virtually per seinvalid under the Commerce Clause, and the category subject to the Pike v. Bruce Church balancing approach. In order to determine whether [a law] should be analyzed under the Pike balancing test or as a per se violation, [a court must] examine the nature of the burden on interstate commerce. , Under either analysis, the critical consideration is the overall effect of the statute on both local and interstate activity.
Am. Booksellers Found. v. Dean,
The State seeks dismissal of Plaintiffs’ discriminatory effects claim, arguing that Act 120’s effect on interstate commerce is either non-existent or de minimus and is therefore not excessive in relation to Act 120’s benefits. In opposing dismissal, Plaintiffs assert, among other things, that they have “stated a claim that the natural ban’s regulation of national media is a per se violation of the Commerce Clause.” (Doc. 36 at 23.) Although the Amended Complaint does not contain this specific claim, Plaintiffs’ allegations are sufficient to be characterized as a per se challenge.
Act 120 prohibits GE manufacturers from, among other things, labeling a product “in signage, or in advertising as ‘natural,’ ‘naturally made,’ ‘naturally grown,’ ‘all natural,-’ or any words of similar import that would have a tendency to mislead a consumer.” 9 V.S.A. § 3043(c) (emphasis supplied). The Act. does not define either “signage” or “advertising,” and therefore these restrictions apply to any non-exempt “Manufacturer” who produces, sells, distributes, or licenses GE products that are sold in or into- Vermont. 9 V.S.A. § 3042(6). There is, however, no corresponding requirement that the signage and advertising occur in Vermont. By its terms, Act 120 purports to restrict a GE manufacturer’s use of “natural” terminology in signage and advertising nationwide and on the Internet.
Act 120’s “Findings” and “Purpose” contain no mention of any putative benefit that could be tied to Vermont’s regulation of GE manufacturers’ advertising and signage,activities in other states. “A state law may burden interstate commerce when it ‘has the practical effect of requiring out-of-state commerce to be conducted at the regulating state’s direction.’” Entergy Nuclear Vt. Yankee, LLC v. Shumlin,
In American Booksellers Foundation, the Second Circuit struck down portions of a Vermont statute that prohibited the transfer of sexually explicit material to a minor. The Second Circuit noted that the Vermont statute reached distribution of sexually explicit material via the Internet and explained that, “[b]ecause the [Internet does not recognize geographic boundaries, it is difficult, if not impossible, for a state to regulate [I]nternet activities without ‘projecting] its legislation into other States.’” Am. Booksellers Found.,
A similar conclusion is warranted here. Without limitation and for no stated purpose, Act 120 purports t.o prohibit GE manufacturers’ use of “natural” terminology in signage and advertising regardless of where or how those activities take place. These allegations are sufficient to state a plausible per se violation of the Commerce Clause based upon- its discriminatory effects. The State’s motion to dismiss this aspect of Plaintiffs’ Commerce Clause claim is therefore DENIED.
The State is more persuasive in arguing that Plaintiffs’ remaining discriminatory effects Commerce Clause claims should be dismissed. In their- Amended Complaint, Plaintiffs allege that the effects of Act 120 fall disproportionately on out-of-state food manufacturers because “the vast majority” of Plaintiffs’ members are located outside Vermont, there are allegedly “no major food manufacturers” based in Vermont, and that, as a result, “the cost of implementing [Act 120] falls largely, if not entirely, on out-of-state companies.” (Doc. 37-1 at 21, ¶ 73.)
Plaintiffs further allege that Act 120 forces their members, who sell food in interstate commerce .through national and regional distribution chains, to establish Vermont-specific distribution channels, which cannot be established in a commercially reasonable manner before Act 120’s effective date. They assert that they will effectively be compelled to change their regional or national labeling, regardless of where their products may be sold, as this will be the only cost-efficient means of achieving compliance with Act 120’s GE disclosure requirement. In light of GE labeling legislation in other states, Plaintiffs represent that this task will be complicated by the need to comply with conflicting GE regulations which will only further impede the flow of interstate commerce. For purposes of ruling on the motion to dismiss, the court must accept Plaintiffs’ factual allegations as true. See Mastafa v. Chevron Corp.,
In NEMA the Second Circuit explained that in order to “run afoul” of the Commerce Clause, a statute “must impose a burden on interstate commerce that is qualitatively or quantitatively different from that imposed on intrastate commerce.” NEMA
NEMA also dispenses with Plaintiffs’ argument that Act 120 violatеs the Commerce Clause because the costs of compliance fall disproportionately on larger, out-of-state GE manufacturers:
Although a regulation might violate the Commerce Clause by creating market incentives that encourage out-of-state manufacturers to abandon a state market while encouraging in-state manufacturers to pick up the slack, the instant regulation is evenhanded such that ... producers both inside and outside Vermont would face the same putative need to develop separate production and distribution systems to accommodate simultaneously the Vermont market and other state markets.
Id. at 111. The NEMA court observed that “the manufacturers, .remain free to charge higher prices only to Vermonters without risking violation of the statute” and that, even if the full costs could not be passed on to the consumer, the possibility that “manufacturers must bear some of the costs of the Vermont regulation in the form of lower profits does not cause the statute to violate the Commerce Clause.” Id. at 110-11.
A state regulation might impose a disproportionate burden on interstate commerce if the regulation is in substantial conflict with a common regulatory scheme in place in other states. It is not enough to point to a risk of conflicting regulatory regimes in multiple states; there must be an actual conflict between the challenged regulation and those in place in other states.
NEMA
In accordance with NEMA’s controlling precedent, the court must dismiss Plaintiffs’ remaining claims that Act 120 is discriminatory in its effects. Act 120 does not require GE manufacturers to alter their labeling, production, and distribution practices nationwide, and it is indifferent regarding whether and how GE products are labeled in other states. See Parkcentral Global Hub Ltd. v. Porsche Auto. Holdings SE,
In the absence of a plausible claim that Act 120 in its effects “clearly discriminates against interstate commerce,” Wyoming v. Oklahoma,
Because Plaintiffs’ remaining Commerce Clause challenges fail to.stаte a plausible claim for relief under'the dormant Commerce Clause, they are hereby DISMISSED under Fed.R.Civ,P. 12(b)(6). The State’s motion to dismiss Count Four of' the Amended Complaint is thus GRANTED IN PART and DENIED IN PART.
C. Count Five: Plaintiffs’ Preemption Claims.
In Count Five of their Amended- Complaint, Plaintiffs allege that Act 120 is expressly preempted or conflict preempted, in whole or in part, by various federal laws and thus violates Article VI, Clause 2 of the U.S. Constitution (the “Supremacy Clause”). The Supremacy Clause provides that the laws of the United States are “the supreme Law of the Land; ... any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U.S: Const, art. VI, cl. 2.
Under the Supremacy Clause, a state law may be preempted by federal law in. three ways: express preemption, field preemption, and conflict preemption. See Hillsborough County, Fla. v. Automated Med. Labs., Inc., 471 U.S. 707, 713,
Plaintiffs allege express preemption and conflict preemption pursuant to four federal statutes regulating the, labeling of food and beverages. They do not allege, nor could they reasonably allege, field preemption, which would require the court to find that Congress has regulated so comprehensively, and the federal interest is so dominant, in the field of food and beverage labeling that Congress “left no room for state regulation of these matters.” United States v. Locke,
With regard to Act 120’s GE disclosure requirement, Plaintiffs allege both express and - conflict preemption claims under the Federal Food, Drug, and Cosmetic Act
The State seeks dismissal of Plaintiffs’ claims, arguing that preemption is not mandated by the identified federal statutes, Plaintiffs lack standing to assert a Supremacy Clause claim to the FMIA and PPIA, and the State’s, Final Rule rectifies any remaining conflicts between Act 120 and preemptive federal law,
1. The FDCA and NLEA.
The FDCA prohibits' the misbranding of food -and drink, see 21 U.S.C. § 343, and its “statutory regime is designed-primarily to- protect the health and safety of the public at large.” POM Wonderful LLC v. Coca-Cola Co., — U.S. -,
The NLEA, which amends the FDCA, is intended “ ‘to . clarify and to strengthen the [FDA’s] legal authority to require nutritiоn labeling on foods, and to establish, the circumstances under which claims may be made about nutrients in foods.’ ” NYSRA,
In order .to state a claim that Act 120’s GE disclosure requirement violates the Supremacy Clause, Plaintiffs’ burden is twofold. They must first plausibly allege that Act 120’s GE disclosure requirement is “not identical” to a mandatory requirement of the FDCA. And second, they must plausibly allege that under the NLEA the identified mandatory FDCA requirement is clearly entitled to preemptive effect. See 21 U.S.C. § 343-l(a)(l)-(5); see also NYSRA;
Plaintiffs acknowledge that the FDA has promulgated no formal standards for GE labeling. They thus point to no federal statute or regulation that prohibits Act 120’s GE disclosure requirement. Plaintiffs further concede that the FDA provides guidance for the voluntary disclosure of GE ingredients. This clearly implies that, at least from the FDA’s perspective, GE ingredient information may be provided without violating federal law or misbranding a food product. See U.S. Food & Drug Admin., Draft Guidance for Industry: Voluntary Labeling Indicating Whether Foods Have or Have Not Been Developed Using Bioengineering, at 6-7 (2001) [hereinafter FDA Draft Guidance] (noting that manufacturers may label their food and beverage products as “genetically engineered” or containing ingredients that were - “produced using biotechnology”). Plaintiffs also recognize that pending federal legislation, if enacted, is intended to expressly preempt state law GE disclosure requirements. This, of course, begs the question of why 'such legislative measures would be necessary if Act 120’s 'GE disclosure requirement was already preempted. See Safe and Accurate Food Labeling Act of 2014, H.R. 4432, 113th Cong. (2014) (proposing an amendment to the FDCA that would include express preemption of state mandatory labeling requirements for food and beverages produced with bioengineered organisms). It is in the midst of this .unpromising environment that, Plaintiffs claim they can overcome the presumption against preemption with regard to Act 120’s GE disclosure requirement,
a. Whether Act 120’s GE Disclosure Requirement Is Expressly Preempted by the FDCA and NLEA.
Plaintiffs cite Act 120’s “ingredient labeling” and “product labeling” requirements as the focus of their Supremacy Clause challenge under the FDCA and the NLEA. They assert that Act 120’s GE disclosure requirement forces them to modify the “standard of identity”
In order for Act 120’s GE disclosure requirement to be found “not identical” to the FDCA’s mandatory labeling requirements, Plaintiffs argue that the court need only find that Act 120 requires disclosure of additional or different labeling information from the FDCA. Plaintiffs rely heavily on a federal regulation that appears to interpret “not identical” in this manner. See 21 C.F.R. § 100.1(c)(4) (defining “not identical” as “directly or indirectly imposes obligations or contains provisions concerning the ... labeling of food” that are “not imposed by” or that “[d]iffer from those specifically imposed by” federal law). Courts, however, have rejected the proposition that a federal regulation may extend preemption beyond NLEA’s express preemption provisions. See Reid v. Johnson & Johnson,
Accordingly, not all state labeling requirements that provide more or different information, from the FDCA are preempted.
Plaintiffs first challenge the alleged conflict between Act 120’s GE disclosure requirement and product labeling required pursuant to 21 U.S.C. § 343(g), (i). Section 343(g) of the FDCA. provides that where the FDA has established a “standard of identity” for a food, the food product’s label “must bear[] the name of the food specified in the definition and standard, and, insofar as may be required by other such regulations, the common names of optional ingredients.” 21 U.S.C. § 343(g). Where no “standard of identity” exists, the FDCA requires that a label must “bear[](l) the common or usual name of the food, if. any there be, and (2) in case it is fabricated from two or more ingredients, the common or usual name of each such ingredient.” 21 U.S.C. § 343(i).
Because the FDA has promulgated standards of identity for only some foods and beverages, the absence of a federal standard of identity obviates any claim that a state requirement is “not identical” to it.
The plain language of Act 120'ren-ders Plaintiffs’ interpretation implausible. See Bates,
Plaintiffs’ argument regarding the impact of Act 120’s GE disclosure requirement on a product’s “list of ingredients” is equally untenable. In effect, Plaintiffs, ask the court to find that every listed ingredient must be accompanied by a separate GE disclosure if that ingredient is sourced from a GE crop. Nothing in Act 120 supports this interpretation, and Act 120 specifically states that its “requirements .... shall not be construed to require,” inter alia, “the listing or identification of any ingredient or ingredients that were genetically engineered.” 9 V.S.A. § 3043(d)(1). This is consistent with the FDA’s Draft Guidance, which states that “the optional terms that describe an ingredient of a multi-ingredient food as [genetically engineered] should not be "used in the ingredient list of the multi-ingredient food.” FDA Draft Guidance, at 10. The Final Rule confirms this interpretation and clarifies that the GE'disclоsure is also not required to be placed in a product’s “principal display panel” or “information panel” pursuant to 21 C.F.R. § 101.2.
b. Whether Act 120’s GE Disclosure Requirement Is Conflict Preempted by the FDCA and NLEA.
Plaintiffs gain no stronger footing with their argument that Act 120 is “confliet preempted” because it requires GE manufacturers to label their products in a false and misleading manner by “convey[ing] an overall impression” that GE ingredients are materially different from non-GE ingredients and “not as safe as other foods” when the FDA, itself, has refused to endorse this labeling message, (Doc. 33-1 at 67.) Conflict preemption exists (1) where it is “impossible for a private party to comply with both state and federal requirements,” or (2) where state law “stands a,s an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Freightliner Corp. v. Myrick,
The “impossibility prong” requires “no inquiry into congressional design” but turns solely on whether “compliance with both federal and state regulations is a physical impossibility.” Fla. Lime & Avocado Growers, Inc. v. Paul,
Plaintiffs’ Amended Complaint does not assert that it is physically impossible for a GE food product to be labeled with a “clear and conspicuous” statement that it is “produced with genetic engineering,” 9 V.S.A. § 3043(a)(2),,. (b)(l)-(2), and also comply with the FDCA’s mandatory labeling requirements. Not only does the FDA allow for voluntary GE disclosures, but, for illustrative purposes, the State has proffered a product label • that demonstrates how dual compliance may -be
The “obstacle prong” of conflict preemption, which requires an analysis of whether a state requirement thwarts the purposes and objectives of Congress, is “informed by examining the federal statute as a whole and identifying its purpose and intended effects.” In re Methyl Tertiary Butyl Ether (MTBE) Prods. Liab. Litig.,
Plaintiffs contend that Act 120 is conflict preempted because the FDCA prohibits “false or misleading” labeling, 21 U.S.C. § 343, and the GE disclosure requirement allegedly conveys a false and misleading opinion regarding the safety of GE food products based on a definition of GE that “far exceeds the meaning of that term in federal law.” (Doc.' 33-1 at 66-67.) Act 120’s GE disclosure requirement, however, makes no statement regarding food safety, and thus, any “overall impression” that GE ingredients are “unsafe” owes nothing to the purely factual information provided by it. Act 120’s GE disclosure requirement also conveys no information regarding nutrition and makes no claim about the nutritional value of GE ingredients. As the term “genetically engineered” is not federally regulated or defined for purposes of food and beverage labeling, it can hardly be said that a state definition that differs from definitions used in federal policy and guidance statements is “false and misleading,” or “stands аs an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Arizona v. United States, — U.S. -,
Plaintiffs fare no better with their claim that Act 120 “stands in the way of the ability of federal agencies ... to administer the health and safety statutes they are charged with implementing.” (Doc. 75 at 31.) Plaintiffs’ reliance on a 1986 policy statement by the Office of Science and Technology Policy entitled “Coordinated Framework for Regulation of Biotechnology,” 51 Fed.Reg. 23,302 (June 26, 1986) [hereinafter Coordinated Framework], is misplaced because the Coordinated Framework has no preemptive effect. See Holk,
Plaintiffs’ strongest conflict preemption argument is that the FDCA, as amended by the NLEA, is intended to promote “national uniformity in certain aspects of food labeling, so that the food industry can market its products efficiently in all 50 States in a cost-effective manner.” State Petitions Requesting Exemption from Federal Preemption, 58 Fed.Reg. 2462, 2462 (Jan. 6, 1993) (codified at 21 C.F.R.
While Plaintiffs’ plea for GE labeling uniformity reflects economic sense, and perhaps common sense as well, it runs afoul of the presumption against preemption which “‘is particularly weak where Congress has indicated its awareness of the operation of state law in a field of federal interest, and has nonetheless decided to stand by both concepts and to tolerate whatever tension there [is] between them.’ ” Wyeth,
Because the “purpose of Congress is the ultimate touchstone in every pre-emption case,” Lohr,
For the reasons stated above, the State’s motion to dismiss that portion of Count Five alleging express and conflict preemption claims under the- FDCA and NLEA is hereby GRANTED. For these same reasons, the court finds that Plaintiffs have failed to establish that they are likely to succeed on the merits of these claims at trial.
2. The FMIA and PPIA.
Plaintiffs allege that the FMIA and PPIA “expressly preempt all state regulation of labeling of meat and poultry products, including products Act 120 does not exempt.” (Doc. 37-1 at 24, ¶ 84.) Plaintiffs further allege that the United States Department of Agriculture (“USDA”), “which administers these statutes, does not require special labeling for products containing GE ingredients, and it does not prohibit the.use of the term ‘natural’ on
In opposing dismissal and seeking preliminary injunctive relief, Plaintiffs narrow their FMIA and PPIA preemption claims to argue that some GE food products that contain meat, poultry, and eggs which do not fall within Act 120’s exemption for products “consisting entirely of or derived entirely from an animal,” 9 V.S.A. § ‘3044(1), are regulated for labeling purposes by the FMIA or the PPIA. They identify canned meat and poultry products and pre.-made frozen meals - containing meat or poultry as examples of products that fall within both statutory frameworks. In their Amended Complaint and declarations, however, Plaintiffs fail to identify even one of their members who produces a non-exempt GE food product that is covered by the FMIA or PPIA.
a. Whether Plaintiffs Have Standing to Bring Supremacy Clause Claims Under the FMIA and PPIA.
Asserting that Plaintiffs lack standing, the State seeks dismissal of Plaintiffs’ Supremacy Clause claims under the FMIA and PPIA because Plaintiffs fail to allege that their members actually produce GE food products that are both non-exempt under Act .120 and governed by the FMIA and PPIA. If dismissal is not granted for lack of standing, the State effectively concedes that the FMIA and PPIA are entitled to preemptive effect, but argues that the State’s Draft Rule, which is now its Final Rule, renders Plaintiffs’ preemption claims moot.
Under Article III' of the Constitution, federal courts have jurisdiction only over “Cases” and “Controversies.” U.S. Const, art. Ill, § 2, cl. 1. Standing “is an essential and unchanging part of the case-or-controversy requirement of .Article III.” Lujan v. Defenders of Wildlife,
The “irreducible constitutional minimum of standing” requires that: (1) the plaintiff must have suffered injury in fact, which is an actual or imminent invasion of a legally protected, concrete, and particularized interest; (2) there must be a causal connection between the alleged injury and the defendant’s conduct at issue; and (3) it must be “likely,” not “speculative,” that the court can redress the alleged injury. Lujan,
A plaintiffs burden to establish the elements of standing “increases over the course of litigation.” Cacchillo v. Insmed, Inc.,
In their Amended Complaint, Plaintiffs do not specifically allege that their members manufacture GE products that are non-exempt under Act 120 and subject to the FMIA and PPIA. However, in alleging that members of the NAM include “small and large manufacturers in all 50 states and in every industrial sector, including the food and beverage industry,” and further asserting that NAM “members in the food manufacturing industry sell foods containing ingredients derived from genetically engineered plants and will be directly, immediately, and substantially affected by the Act,” (Doc. 37-1 at 6, ¶ 12), Plaintiffs have alleged sufficient facts to withstand - a standing challenge at the pleading stage. See Carver,
b. Whether Act 120 Is Preempted by the FMIA and PPIA.
“The labeling of meat and poultry products shipped in interstate commerce is specifically controlled by the [FMIA] and the [PPIA].and their respective regulations.” Gerace,
Specifically, the FMIA requires certain mandatory marking and labeling for “meat food products” and- provides: “Marking, labeling, packaging, or ingredient requirements in addition to, or different than, those made under this chapter may not be imposed by any State dr Territory or the District of Columbia with respect to articles prepared at any establishment under inspection in accordance with the requirements” of the FMIA. 21 U;S.C.- §■ 678. Under the FMIA, “meat food product” means' “any product capable of use as human food which is made wholly or in part from- any meat or other portion of the carcass -of any cattle, sheep, swine, or goats, excepting [certain] products.” 21 U.S.C. § 601(j). Labels are defined as “a display of written, printed, or graphic matter upon the 'immediate container (not in-
The PPIA contains a similar express preemption clause for the “[m]arking, labeling, packaging, or ingredient requirements” of poultry products that are “in addition to, or different than,” those mandated by the PPIA. 21 U.S.C. § 467e. Poultry means “any domesticated bird, whether live or dead,” 21 U.S.C. § 453(e), and “poultry product” means “any poultry carcass, or part thereof; or any product which is made wholly or in part from any poultry carcass or part thereof, excepting [certain] products.” 21 U.S.C. § 453(f).
Act 120 mandates a GE disclosure that is clearly in addition to and different than the marking, labeling, and packaging requirements imposed under the FMIA and PPIA. Act 120’s GE disclosure requirement is therefore expressly preempted for products subject td those, federal laws. See Nat’l Meat Ass’n v. Harris, — U.S.-,
Act 120’s “natural” restriction is also in addition to and different than the labeling requirements of the FMIA аnd the PPIA, which do not prohibit or regulate “natural” terminology. In light of the expansive reach of the express preemption provisions of the FMIA and the PPIA, Act 120’s “natural” restriction'is likewise preempted. See Gerace,
However, in the absence of more concrete evidence that Plaintiffs’ members actually manufacture GE food products that are non-exempt under Act 120 and subject to the FMIA or PPIA, the court cannot find a likelihood that Plaintiffs will succeed on the merits of them FMIA and PPIA preemption claims at trial. See Prayze FM v. F.C.C.,
For the foregoing reasons, the State’s motion to dismiss Plaintiffs’ Supremacy Clause claims in Count Five of the Amend
D. Counts One Through Three: Plaintiffs’ First Amendment Challenges.
The First Amendment to the United States Constitution prohibits laws and regulations that “abridg[e] the freedom of speech.” U.S. Const, amend. I. It protects “both the right to speak freely and the right to refrain- from speaking at all.” Wooley v. Maynard,
In Counts One through Three of the Amended Complaint, Plaintiffs assert claims under the First Amendment, challenging both Act 120’s GE disclosure requirement and its “natural” restriction. The Supreme Court has recognized that there are “material differences between disclosure requirements and outright prohibitions on speech.” Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio,
E. Count One: Plaintiffs’ First , Amendment Challenge to the GE Disclosure Requirement.
In Count One of their Amended Complaint, Plaintiffs challenge Act 120’s GE disclosure requirement, alleging that:
Act 120 compels manufacturers to use labels that do not accurately describe their products, that could confuse consumers rather.than inform them, and that could frighten consumers from purchasing safe, nutritious, affordable foods that are no different from counterpart organic, “Non-GMO” certified, or otherwise exempted foods. At bottom, Act ■120 requires manufacturers to ‘use their labels to convey an opinion with which they disagree, and that the State does not purport to endorse: namely, that consumers should assign significance to the fact that a -product contains an ingredient derived from а genetically engineered plant.
(Doc. 37-1 at 14, ¶ 43.)
In seeking dismissal of Count One, the State argues that Plaintiffs have failed to state a plausible claim for relief under the First Amendment because Act 120’s GE disclosure requirement compels disclosure of purely factual, non-controversial, commercial information that furthers the legitimate and substantial governmental interests set forth in Act 120’s “Findings” and “Purpose.”
The only point on which the parties are in apparent agreement is that Act 120’s GE disclosure requirement compels rather than restricts speech. The court’s “lodestars in deciding what level of scrutiny to apply to a compelled statement must be the nature of the speech taken as a whole and the effect of the compelled statement thereon.” Riley v. Nat’l Fed’n of the Blind of N.C., Inc.,
1. Whether Strict Scrutiny Applies.
Plaintiffs make two arguments in favor of the use of strict scrutiny to evaluate Act 120’s GE disclosure requirement. First, they contend Act 120 compels political speech. Second, they assert that Act
a. Political Speech.
Plaintiffs assert that Act 120’s GE dis,~ closure requirement compels political speech because it is “a politically motivated speech-regulation” that emerged from an allegedly GE-hostile and politically-charged legislative environment. (Doe. 33-1 at 31-37.) This argument is readily disposed of because speech does not become “political” on this basis.
A manufacturer who is required to disclose whether its products contain certain ingredients is not compelled to make a political statement even if such a statement “links a product to a current public debate” because “many, if not most, products may be tied to public concerns with the environment, energy, economic policy, or individual health and safety.” Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y.,
Moreover, objection and opposition, no matter however vehement, do not, without more, convert a disclosure requirement about a food product into a political statement. Indeed, the only occasion on which courts have applied strict scrutiny to a disclosure requirement is when that speech is “inextricably intertwined” with “fully protected speech.” Riley,
b. Viewpoint Discrimination.
Plaintiffs’ argument that Act 120’s GE disclosure requirement reflects impermissible viewpoint discrimination is more nuanced, but nonetheless contravenes controlling precedent.
Although the Supreme Court has recognized that “Mandating speech that a speaker would not otherwise make necessarily alters the content of the speech,”
“The principal inquiry in determining content neutrality, in speech eases generally ..., is whether the government has adopted a regulation of speech because of disagreement with the message it conveys.” Ward v. Rock Against Racism,
In this case, it is beyond dispute that Act 120’s GE disclosure requirement forces Plaintiffs’ members to speak against their will, regulates the content of that speech, and identifies the class of speakers who must make it. However, virtually all mandatory disclosure requirements regulate content and speakers in this manner; that does not necessarily render them impermissible viewpoint discrimination. See NEMA,
To constitute impermissible viewpoint discrimination, the “speech in question [must- be] defined by its’ content.” United States v. Playboy Entm’t Grp., Inc.,
If a GE manufacturer or retailer believes Act 120’s GE disclosure requirement gives rise to a negative connotation regarding the safety of GE foods, Act 120 does not prohibit “correction” of this allegedly erroneous impression.
To the extent Count One of the Amended Complaint asserts claims that Act 120’s GE disclosure requirement must be invalidated on the basis of strict scrutiny, those claims are not plausible and are hereby DISMISSED. See Neitzke v. Williams,
For purposes of Plaintiffs’ request for a preliminary injunction, the court further finds that Plaintiffs have failed to establish that they áre likely to prevail at trial on a claim that strict scrutiny applies to Act 120’s GE disclosure requirement. The court therefore will not grant preliminary injunctive relief on this basis. See Fed. R.Civ.P. 65(a); see also Munaf v. Geren,
2. Whether Intermediate Scrutiny or a Reasonable Relationship Test Applies.
Having determined that strict scrutiny does not apply to Act 120’s GE disclosure requirement, the court turns to the parties’ competing requests for a lesser form of judicial scrutiny. Plaintiffs argue that intermediate scrutiny as set forth in Central Hudson applies because Act 120’s GE disclosure requirement compels speech that requires Plaintiffs’ members to convey controversial information for the sole purpose of appeasing consumer curiosity. The State counters that Zauderer’s less exacting scrutiny applies because Act 120’s GE disclosure requirement compels only factual, noncontroversial commercial information and furthers govеrnmental purposes beyond merely satisfying a consumer’s right to know whether food products contain GE ingredients.
Intermediate scrutiny requires that a' statute restricting speech be no “more extensive than is necessary,” and must “directly advance[ ],” a “substantial” governmental interest. Cent. Hudson Gas & Elec. Corp.,
“It is undisputed that commercial speech is entitled'to the protection of the First Amendment.” Id. at 131. ' The Supreme Court,' however, has “always been careful to distinguish commercial speech from speech at the First Amendment’s core.” Fla. Bar v. Went For It, Inc.,
In affording only “a limited measure of protection” to commercial speech^ Ohralik v. Ohio State Bar Ass’n,
First, commercial speakers have extensive knowledge of both the market and their products.* Thus, they are well situated to evaluate the accuracy of their messages and the lawfulness of the underlying activity. In addition, commercial speech, the offspring of economic self-interest, is a hardy breed of expression that is not particularly susceptible to being crushed by overbroad regulation.
Conn. Bar Ass’n,
Plaintiffs argue that Act 120’s GE disclosure requirement does not mandate commercial speech because it does not propose a commercial transaction. To the contrary, they claim a GE disclosure conveys a message to consumers that they should■ not bug the product because of unfounded concerns about the safety of GE food. The problem with this argument is twofold; it not only defines commercial speech too narrowly, but it ascribes negative connotations to Act 120’s GE disclosure that do not otherwise exist.
“While the ‘core’ notion of commercial speech is ‘speech which does no more than propose a commercial transaction,’ ” Conn. Bar Ass’n,
Plaintiffs’ contention that Act 120’s GE disclosure requirement is not commercial becаuse it emerged from a debate about the safety of GE foods.is similarly unavailing. The Supreme Court.has “held that speech does not cease to be commercial merely because' it alludes to a matter of public debate.” Conn. Bar Ass’n,
Application of these standards to Act 120’s GE disclosure requirement reveals that, despite the partisan debate which gave rise to its enactment, the “nature of the speech taken as a whole” remains a factual disclosure regarding a food product’s ingredients made in conjunction with the purchase and sale of food. Riley,
b. Whether Act 120’s GE Disclosure Requirement Compels “Controversial” Speech.
Plaintiffs assert that, even if Act 120’s GE disclosure requirement is characterized as commercial speech, it compels Plaintiffs’ members to engage in “controversial”
At first blush, Plaintiffs’ characterization of the GE disclosure requirement as mandating a “controversial” disclosure appears unassailable. Act 120’s GE disclosure requirement was enacted in the midst of public and political controversy regarding the safety and benefits of GE and GE food. Courts, however, have not affixed the “controversial” label lightly, and the fact that Plaintiffs would prefer not to make the required disclosure is insufficient to render it “controversial.”
Instead, before compelled commercial information is deemed “controversial,” the compelled information must, itself, be “controversial.” The Second Circuit’s decision in Evergreen Association makes this point clear. See Evergreen Ass’n, Inc. v.
With regard to the Services Disclosure and the Government Message, the Second Circuit observed, “[ajssuming arguendo that [the city ordinance] required disclosures regulate commercial speech, we do not believe that the law regulates purely factual and uncontroversial informаtion” because the “Government Message requires pregnancy services centers to state the City’s preferred message, while the Services Disclosure requires centers to mention controversial services that some pregnancy services centers, such as Plaintiffs in this case, oppose.” Id. at 245 n. 6; see id. at 249 (concluding Services Disclosure “alters the centers’ political speech”). However, the Status Disclosure, requiring pregnancy services centers to disclose whether they had a licensed medical provider on staff, was a “neutral message” and a “brief, bland, and non-perjorative disclosure.” Id. at 249, 250 (internal quotation marks omitted). It was therefore constitutionally permissible even though it was part-of an otherwise unconstitutional ordinance that regulated speech regarding “controversial political topics.” Id. at 250. Evergreen Association thus instructs that it is the nature of the regulation of compelled speech that controls, not the nature of the legislative debate that gave rise to its enactment.
Other courts have concluded that compelled commercial information must also be “opinion-based” before it can be said to convey a “controversial” governmental message. See, e.g., Entm’t Software Ass’n v. Blagojevich,
If GE manufacturers and retailers believe a GE disclosure conveys a negative message about their products, Act 120 does not prevent them from “correcting” that message with their own disclosures, which may include a statement that the FDA does not consider GE food to be materially different from non-GE food. The Final Rule confirms that such “corrective” messages are permissible. See Final Rule § 121.02(c)(ii).
Because Act 120’s GE disclosure requirement mandates the disclosure of only factual information — whether a food product contains GE ingredients — in conjunction -with a purely commercial transaction, it does not require the disclosure of “controversial” information. See NEMA
c. Whether Act 120’s GE Disclosure Requirement Is Supported By More Than Appeasement of Consumer Curiosity.
Plaintiffs argue that Act 120’s GE disclosure requirеment is supported by no other interest beyond the gratification of consumer curiosity. ■ Under IDFA, a state ■interest of this nature-fails to. withstand First Amendment scrutiny. See IDFA
In IDFA, the Second Circuit ruled in favor of dairy manufacturers’ First Amendment challenge to a Vermont statute that required disclosure of whether a synthetic hormone called recombinant Bovine Somatotropin (“rBST”) or recombinant Bovine Growth. Hormone (“rBGH”) was used in the production of a milk product for retail sale in Vermont. The FDA had approved the. use of these hormones and -had declined to impose a mandatory rBST or rBGH labeling requirement, finding that dairy products derived from herds treated with these hormones were indistin
The Second Circuit noted that “the already extensive record” in’ IDFA “contained] no scientific evidence from which an objective observer could conclude that rBST has any impact at all on dairy products.” Id. at 73. It also pointed out that the State had conceded that its only purpose in enacting the disclosure requirement was to satisfy consumer curiosity. Accordingly, even if the disclosure' requirement was deemed “purely commercial speech,” it' could not be sustained under the First Amendment because “Vermont [did] not claim that health or safety concerns prompted the passage of the, Vermont Labeling Law, but instead defended] the statute on the basis of strong consumer interest and the public’s right to know.” Id. at 72, 73 (internal quotation marks omitted).
Since IDFA the Second Circuit has repeatedly held that the application of Central Hudson’s: intermediate scrutiny in that case was solely attributable to the State’s concessions. IDFA has thus been confined to its facts. As the Second Circuit has observed:
Although we applied the Central Hudson test in IDFA — which addressed a Vermont regulation requiring dairy producers to label dairy products derived from cows treated with recombinant Bovine Somatotropin (rBST) — our decision was expressly limited to eases in which a state disclosure requirement is supported by no interest other than the gratification of “consumer curiosity.” IDFA92 F.3d at 74 . The disclosure statute at issue here, however, is based on Vermont’s sübstantial interest in protecting human health and the environment from mercury poisoning.
NEMA,
Act 120’s “Findings” and “Purpose” extend beyond the mere appeasement of consumer curiosity, and the' State emphasizes that it is not making the concessions' it made in IDFA. It cites to what it characterizes as an ample legislative record documenting the scientific debate about the safety of GE ingredients and the studies that have produced positive, negative, and neutral results. This record includes studies about the safety of consuming GE plant-based foods, as well as studies about the environmental impacts of GE and GE crops'. The State also points to its interest in accommodating religious beliefs about GE, as well as its interest in providing factual information for purposes of informed consumer decision-making.
Although some of the State’s interests arguably border on the appeasement of consumer curiosity, the Second Circuit has recently observed that commercial disclosurе requirements that enhance consumer decision-making further First Amendment interests: . .
Commercial disclosure requirements are treated differently from restrictions on commercial ’ speech because mandated disclosure of accurate, factual, commercial information does not offend the core First Amendment values of promoting efficient exchange of information or protecting individual. liberty interests. ■Such disclosure furthers, rather than hinders, the First Amendment goal of the discovery of truth and contributes to the efficiency of the marketplace of ideas. Protection of the robust and free flow of accurate information is- the principal First Amendment justification forprotecting commercial speech, and requiring disclosure of truthful information promotes that goal.
NEMA,
In light of Act 120’s “Findings” and “Purpose,” and their grounding in an extensive legislative record, the court cannot conclude that Act 120’s GE disclosure requirement is supported only by a desire to gratify consumer curiosity. Under Second Circuit precedent, Zauderer therefore dictates the appropriate level of First Amendment scrutiny to be applied to Act 120’s GE disclosure requirement. See Conn. Bar Ass’n,
Because whether intermediate scrutiny applies to Act 120’s GE disclosure requirement presents a question of law, not a question of plausibility, and because that question of law is subject to reasonable debate, the court does not dismiss Plaintiffs’ First Amendment challenges to Act 120’s GE disclosure requirement based upon intermediate scrutiny at this time. The State’s motion to dismiss Plaintiffs’ intermediate scrutiny challenge to Act 120’s GE disclosure requirement is therefore DENIED WITHOUT PREJUDICE.
However, having determined that intermediate scrutiny is not warranted, the court further finds that Plaintiffs have failed to establish a likelihood of prevailing at trial on their claim that intermediate scrutiny requires the invalidation of Act 120’s GE disclosure requirement. Preliminary injunctive relief is thus not available on that basis. See N.Y. Progress & Prot. PAC v. Walsh,
3. Whether Act 120’s GE Disclosure Requirement Satisfies the Reasonable Relationship Test.
In Zauderer, the- Supreme Court held that “an advertiser’s [First Amendment] rights are adequately protected as long as disclosure requirements are reasonably related to the State’s interest in preventing deception of consumers.” Zauderer,
The Second Circuit has applied Zauderer not only to compelled disclosures “intended to prevent consumer confusion or deception,” but also to disclosures intended “to better inform consumers about the
As a threshold issue,, it is not clear whether Zauderer requires a state to identify a “substantial” governmental interest before it may require a factual, non-controversial commercial disclosure. Zauderer, itself, does not impose this requirement.
Although Plaintiffs aré correct that the Second Circuit’s recent commercial disclosure "cases have identified a “substantial” governmental interest, the Second Circuit has not affirmatively stated that Zatiderer requires this type of interest. The D.C. Circuit recently grappled with this same issue, concluding that “Zauderer gives little indication of what type of interest might suffice” 'and that “the Supreme Court has not made clear whether Zauderer would permit government reliance on interests that do not qualify as substántial under Central Hudson’s standard, a standard that itself seems elusive.” Am. Meat Inst. v. U.S. Dep’t of Agrie.,
Assuming arguendo that a “substantial” governmental interest is required under the Second Circuit’s interpretation of Zauderer, the State asserts that Act 120’s “Findings” and “Purpose” reflect a substantial interest in the need to disclose information relevant to potential health consequences from human consumption of
Plaintiffs nonetheless maintain that even if the identified interests are deemed “substantial,” “the harms recited in Act 120 are not real” because they “consist of speculation and conjecture about speculation and conjecture” based only on “risks,” or “mere potentiality.” (Doc. 33-1 at 37-38) (characterizing the “problems” identified in Act 120 as “fictional potentials”) (internal quotation marks omitted). It is, however, undisputed that there are studies supporting both “sides” of the GE dеbate, including studies regarding the negative impacts of GE food production and consumption. Therefore, even though Plaintiffs characterize the studies on which the State relies as “outdated, retracted, or debunked,” (Doc. 75 at 15), they have not and cannot plausibly allege that the State’s evidence is not “real” — only that it is not persuasive.
Plaintiffs lose both traction and credibility in their further contention that any State interest in “catering to personal, political, and religious views that reject science is neither legitimate nor governmental” and that, because the State allegedly “has no’ monetary skin in the game, there is hot even a financial interest in the enforcement of [Act 120].” (Doc. 33-1 at 50-51.) The safety of food products, the protection of the environment, and the accommodation of religious beliefs and practices are all quintessential governmental interests, as is the State’s desire “to promote informed consumer decision-making.” NYSRA,
Plaintiffs’ argument that any governmental interest is “not legitimate because it is politically motivated,” (Doc. 33-1 at 50-51), is equally unpersuasive. Most legislation is, to some extent, “politically motivated,” but Act 120 is nonetheless readily distinguishable from the purposeful discrimination at issue in United States Department of Agriculture v. Moreno,
The Second Circuit has held that -a state’s interest in . “encouraging changes in consumer behavior” through compelled disclosure is “rationally related” to a disclosure requirement even if the disclosure is not the best means of furthering that goal, See NEMA
Under Zauderer, there is also no requirement that a disclosure law “get at all facets of the problem it is designed to ameliorate.” Zauderer,
Because the -State -has established that Act 120’s GE disclosure requirement is reasonably related to the State’s substantial interests, under Zauderer, Act 120’s GE disclosure requirement is constitutional. Nonetheless, because the appropriate level of scrutiny is a contested question of law and because the factual record is undeveloped, the court does not dismiss Plaintiffs’ First' Amendment challenge to Act 120’s GE disclosure requirement under Zauderer at this time. The State’s motion to dismiss the remainder of Count One is thus DENIED WITHOUT PREJUDICE.
However, in light of the court’s conclusion that Act 120’s GE disclosure requirement is constitutional under Zauderer, there is no aspect of . Count One that would entitle Plaintiffs to preliminary injunctive relief. See Doninger v. Niehoff, 527 F.3d
F. Count Two: Plaintiffs’ First Amendment Challenge to the “Natural” Restriction.
In Count Two of the Amended Complaint, Plaintiffs assert a First Amendment challenge to Act 120’s “natural”'restriction, which prohibits GE manufacturers from using labeling, advertising, or signage indicating that a GE food product is “ ‘natural,’ ‘naturally made,’ ‘naturally grown,’ ‘all natural,’ . or any words of similar import that would have a tendency to mislead a consumer.” 9 V.S.A. § 3043(c). They allege that the State cannot establish that the restricted terms are inherently misleading, actually misleading, or potentially misleading when applied to GE foods and that, even if the State could make this showing, the restriction does not materially advance the State’s asserted interests and is more extensive than necessary. The State seeks dismissal of Count Two, arguing that Plaintiffs fail to state a claim for which relief may be granted because GE manufacturers’ use of “natural” terminology is entitled to no protection under the First Amendment.
1. Whether Plaintiffs Have Standing.
In seeking dismissal of Count Two, the State initially argued that Plaintiffs lacked standing to challenge'Act 120’s “natural” restriction because Plaintiffs failed to allege that their members used “natural” terminology in marketing and labeling their GE food products. In the Amended Complaint, Plaintiffs cure this defect by alleging that “Plaintiffs’ members include companies that have used, currently use, and intend to continue to use the ‘natural’ terms specifically identified in Act 120 with respect to products that contain ingredients derived from GE crops” and that because of their members’ “diverse range of marketing activities across all forms of media,” members will be subject to enforcement actions under Act 120 if they use words of “similar import” that may have a tendency to mislead- “some consumer somewhere.” (Doc. 37-1 at 18-19, ¶ 59.) The State concedes that its standing challenge is moot in light of the Amended Complaint.
2. Whether the “Natural” Terminology Is Inherently, Actually, or Potentially Misleading Speech.
Thé State argues that it may freely regulate and even ban the use of “natural” and similar words to describe GE food products as such usage is inherently or actually misleading. To the extent Act 120’s restriction on the use of “natural” terminology and “any words of- similar im
“The States and the Federal Government are free to prevent the dissemination of commercial speech that is false, deceptive, or misleading, or that proposes' an illegal transaction.” _ Zauderer,
Act 120 does not define “natural,” “naturally made,” “naturally grown,” and “all natural.” The Final Rule also does not define these terms. The State thus faces an uphill battle in arguing that a GE manufacturer’s úse of “natural” terminology is actually or inherently misleading because the alleged deception cannot be measured against a statutory, or even a regulatory, definition of the restricted terms.
The State asserts that regardless of how “natural” is defined, it cannot apply to GE foods because GE “techniques are, by definition, not ‘brought about by or ‘existing in’ nature, but instead are ‘manmade’ and brought about by ‘purposeful interference’ and ‘artificial means.’ ” (Doc. 24-1 at 31-32.) It cites the Vermont General Assembly’s “Finding” that labeling GE foods as “natural” or with “similar descriptors” is “inherently misleading.” 2014 Vt. Acts & Resolves No. 120, Sec. 1(5)(C).
Even if the use of “natural” in advertising, labeling, and signage for GE foods is not inherently misleading, the State maintains that it is actually misleading. It cites the General Assembly’s consideration of a 2010 survey conducted by The Hartman Group, Inc., (the “Hartman Report”) that purportedly shows that 61% of consumers “believed” that “natural” suggests or implies “the absence of genetically engineered food.” (Doc. 63-12 at 212; Ex. J at 805) (Doc. 63-20 at 6, f 9; Ex. E at 6, f 9) (see also Doc. 63-20 at 13, ¶ 26; Ex. E at 13, ¶ 26) (noting that “recent results from the 2013 Vermonter Poll ... confirm that ‘natural’ labels bn genetically engineered foods would be misleading to Vermont citizens in particular”). The General Assembly also considered the Hartman Report’s conclusion that the word “natural” on food products' has become increasingly “meaningful” to consumers-because they désire “fresh, real foods” that are “less processed” with “clean ingredient lists,” and that “natural” means “simple, real foods.” (Doc. .63-12 at 222, 232; Ex. J at 815, 825) (noting further that a majority of consumers believed that .“natural foods contain nothing artificial”). This.conclusion arguably conflicts with the Hartman. Report’s further finding that “natural as a marketing term remains vague and unappealing to consumers.” (Doc. 63-12 at 222; Ex. J at 815.)
A survey asking whether certain consumers think GE is a “fundamentally unnatural” process, (Doc. 63-20 at 12, ¶ 21; Ex. E at. 12, ¶ 21), is not the equivalent of actual-and unsolicited citizen problems or complaints regarding ,-GE manufacturers’ use of “natural” terminology. Cf. Alexander,
Speech that is shown to be only potentially misleading is protected by the First Amendment. See Alexander,
3. Whether Act 120’s “Natural” i Restriction Withstands Intermediate Scrutiny.
The Second Circuit’s “previous cases have drawn a distinction between standards of review [to be applied] to laws mandating commercial speech disclosures and laws restricting commercial speech.” Safelite Grp., Inc.,
Whether Act 120 restricts false and misleading speech in anything other than a random and arbitrary manner turns on how “natural” is defined. If “natural” means occurring or existing “in nature,” as the State contends, then virtually no food products should be described as “natural,” and GE manufacturers are not the only commercial speakers who should be restricted from its use. See Clear Channel Outdoor, Inc. v. City of New York,
Even if the State could establish that any use of “natural” terminology in conjunction with GE foods is potentially misleading, it does not thereby establish a substantial state interest. Although “there is no question that [the State’s] interest in ensuring the accuracy of commercial information in the marketplace is substantial,” Edenfield,
It is not clear, however, that a state has a substantial interest in prohibiting potentially misleading advertising, as opposed to inherently or actually misleading advertising. If the protections afforded commercial speech are to retain their force, we cannot allow rote invocation of the words potentially misleading to supplant the State’s burden. Moreover, it is .unclear what harm potentially misleading advertising creates, and the state bears the burden of proving that the harms it recites are real and.that its restrictions will in fact alleviate them to a material degree.
Alexander,
Assuming arguendo the State could articulate a substantial state interest in banning the use of “natural” terminology in advertising, labeling, and signage for GE foods because it is “potentially misleading,” the State has not further established that Act 120’s “natural”, restriction “directly and materially advances” that state interest and “is no more extensive than necessary to serve that interest.” Safelite Grp., Inc.,
Moreover, because Act 120 does not restrict food product manufacturers’ use of “natural” terminology generally, this raises the question,of what governmental interest could be directly advanced when only -certain commercial speakers are prohibited from using a potentially misleading term. See Bad Frog Brewery, Inc. v. New York State Liquor Auth.,
Finally, the State makes no argument that its consumer protection statutes are inadequate to address GE manufacturers’ potentially misleading use of “natural” terminology. See 9 V.S.A. §§ 2451-2466a. It similarly fails to explain why Act 120’s GE disclosure requirement is insufficient to provide consumers with adequate information to make up their own minds regarding whether a GE food product fits their definition of “natural.” Courts have recognized that restrictions on commercial speech to prevent consumer deception should be limited to those instances when actual deception is likely, or when a reasonable consumer would be deceived.
“The penultimate prong of the Central Hudson test requires that a regulation impinging upon commerсial expression ... ‘may not be sustained if it provides only ineffective or remote support for the government’s purpose.’” Edenfield, 507 U.S. at 770,
Here, the potential benefits of prohibiting the use of undefined terms by only some food manufacturers and the likelihood those, benefits will be achieved remains remote, contingent, and speculative, turning almost entirely on how “natural” terminology is defined and which commercial speakers are banned from using it. The State thus fails to establish that Act 120’s “natural” restriction directly advances a substantial state interest and is no greater than necessary to serve that
Plaintiffs have stated á plausible claim that Act 120’s “natural” restriction is invalid under the First Améndment. They have further established that they are likely to succeed on the merits of this claim at trial. The State’s motion to dismiss Count Two of the Amended Complaint is therefore DENIED.
G. Count Three: Plaintiffs’ Vagueness Challenge to Act 120’s “Natural” Restriction of “Any Words of Similar Import.”
In Count Three, Plaintiffs contend that Act 120’s restriction on “any words of similar import,” 9 V.S.A. § 3043(c), is void-for-vagueness under the First Amendment and the Due Process Clause because it fails to provide reasonable notice of the scope of conduct that gives rise to civil penalties and authorizes arbitrary enforcement actions. As Act 120’s “natural” restriction extends beyond food product labeling and covers advertising and signage activities as well, 'Plaintiffs ask that Act 120 be declared void in its entirety.
The State seeks dismissal of Plaintiffs’ void-for-vagueness challenge, arguing that Plaintiffs have not plausibly alleged an as-applied challenge to Act 120 and that their facial challenge must fail because Act 120’s restriction on the use of “any words of similar import” is not impermissibly vague in all of its applications. In the alternative, the State argues that any vagueness in Act 120’s use of the phrase “any words of similar import” has been cured by its Final Rule, which defines “any words of similar import” to mean “the words nature, natural, or .naturally.” Final Rule § 121.01(14).
The “‘void-for-vagueness doctrine requires that laws be crafted with sufficient clarity to give the person of ordinary intelligence a reasonable opportunity to know what is prohibited and to provide explicit standards for. those who apply them.’ ” VIP of Berlin, LLC v. Town of Berlin,
Vague restrictions on speech force potential' speakers “to ‘steer far wider of the unlawful zone’ than if the boundaries of the forbidden areas were clearly marked.” Baggett v. Bullitt,
Plaintiffs’ Amended Complaint presents their void-for-vagueness challenge as both
A facial challénge to Act 120 can only succeed if “a substantial number of its applications . are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.” United. States v. Stevens,
Not only does Act 120 fail to define “any words of similar import,” but it refers to its undefined “nátural” terminology for guidance. The Final' Rule adopts this same approach. See Final Rule § 121.01(14). Pursuant to the State’s.interpretation, Act 120’s restriction.on “any words of similar import” therefore becomes surplusage in contravention to well-established canons of statutory construction. See State v. Breed,
Because Act 120 requires that “any words of similar import” have “a tendency to mislead a consumer,” 9 V.S.A. § 3043(c), the State argues that this limitation cures any vagueness. There is, however, no requirement that a reasonable consumer be misled, or that a consumer be reasonably misled, or that the advertising message as a whole be misleading.
For the foregoing reasons, Act 120’s restriction of “any words of similar import” fails to provide “fair notice of what is prohibited.” United States v. Williams,
Although Plaintiffs have established that their void-for-vagueness claim should not be dismissed at this time, they fail to plausibly allege that Act 120 must be struck down in its entirety on either First Amendment or Due Process grounds. ' “Generally speaking, when confronting a constitutional flaw in a statute, [a court should] try to limit the solution to the problem, severing any problematic portions while leaving the remainder intact.” Free Enter. Fund v. Pub. Co. Accounting Oversight Bd.,
The State’s motion to dismiss Count Three for failure to state a claim under Fed.R.Civ.P. 12(b)(6) is DENIED. The court further finds that Plaintiffs are likely to succeed on the merits of their facial void-for-vagueness challenge to Act 120’s prohibition on the use of “any words of similar import” at trial.
H. Whether Plaintiffs Are Entitled to a Preliminary Injunction.
Plaintiffs seek a preliminary injunction, enjoining enforcement of Act 120 in its entirety based upon.their First Amendment, Due Process, and Supremacy Clause challenges, portions of which the court has dismissed. A party “seeking a preliminary injunction must establish that [it] is likely to succeed on the merits, that [it] is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in [its] favor, and that an injunction is in the public interest.” Winter v. Natural Res. Def. Council, Inc.,
The court has found that Plaintiffs are likely to prevail on the merits of their First Amendment challenge to Act 120’s “natural” restriction; their First Amend
In order to obtain a preliminary injunction with regard to any of these claims, Plaintiffs must proffer persuasive evidenсe that their members will suffer irreparable harm “if [they] lose[ ] on the preliminary injunction but ultimately prevail ] on the merits, [with] particular' attention to whether the ‘remedies available at law, such as monetary damages, are inadequate ,to compensate for that injury.’ ”' Salinger v. Cotting,
Plaintiffs’ arguments that their members will suffer irreparable harm if enforcement of Act 120 is not preliminarily enjoined are primarily directed to their challenge to Act 120’s GE disclosure requirement and the expense, time, and resources they will expend to achieve compliance with it by Act 120’s effective date. They identify few hardships their members will suffer in order to comply with Act 120’s “natural” restriction and its prohibition on “any words of similar import.” Indeed, other than unspecific allegations in their Amended Complaint, Plaintiffs provide no evidence of any member’s actual use of the “natural” terminology or “any words of similar import” in conjunction with a GE product. Plaintiffs therefore fail to demonstrate that their members will be irreparably harmed if enforcement of Act 120’s “natural” restriction and its prohibition on the use of “any words of similar import” are not enjoined prior to trial. See 1-800-411-Pain Referral Serv., LLC v. Otto,
There is also no evidence that Plaintiffs’ members’ use of the “natural” terminology and “anywords of similar import” will be chilled prior to trial, nor any suggestion that Plaintiffs’ members must make material changes in the way they conduct business in order to prepare for compliance with these restrictions. See Bennett v. Lucier,
Similarly, Plaintiffs do not identify any of their members who currently produce non-exempt GE products that are governed by either, the FMIA or the-PPIA. The court thus cannot evaluate the magnitude of any harm these members may suffer in order to comply with Act 120’s GE disclosure requirement and “natural” restriction. In light of the Final Rule’s exemption from Act 120 for any “[p]ackaged, processed food containing meat or poultry” subject to the FMIA and PPIA, Final Rule § 121.03(a)(ii), an enforcement action against these GE manufacturers appears unlikely.
Irreparable harm is “the single most important prerequisite for the issuance of. a preliminary injunction.” Bell & Howell: Mamiya Co. v. Masel Supply Co.,
Accordingly, in the absence of a “clear showing” of irreparable harm, the court proceeds no further with analyzing whether Plaintiffs have satisfied the remaining requirements for preliminary injunctive relief. Plaintiffs’ claims that have not been dismissed must therefore await a trial on the merits. See Entergy Nuclear Vt. Yankee, LLC v. Shumlin,
CONCLUSION
For- reasons stated above, the court GRANTS IN PART and DENIES IN PART the State’s motion to dismiss. (Doc. 24.) It DISMISSES Count One with respect to Plaintiffs’ claim- that strict scrutiny applies to Act 120’s GE disclosure requirement; it DISMISSES Count Four with respect to Plaintiffs’ claims that Act 120 violates the Commerce Clause, with the exception of Plaintiffs’ per se challenge to the application of Act 120’s “natural” restriction to GE manufacturers’ nationwide and Internet signage and advertising activities; and it DISMISSES Count Five with respect to Plaintiffs’ preemption claims, except their express preemption claims under the FMIA and the PPIA. The court DENIES all remaining aspects of the State’s motion to dismiss.
With regard to Plaintiffs’ claims that have not been dismissed, the court DENIES Plaintiffs’ motion for a preliminary injunction. (Doc. 33.)
SO ORDERED.
Notes
-. Plaintiffs contend that Act 120’s designation ■ of food as "entirely or partially produced with genetic engineering," 9 V.S.A. § 3043(a)(2), is inaccurate because "[o]ne may genetically engineer a plant but one does not genetically engineer a food into'existence.” (Doc. 33-1 at 42-43.) Plaintiffs are correct that foods are not actually produced with genetic engineering; however, the term "produced with genetic engineering” conveys sufficient information that a reasonable consumer would understand that the product contains a GE ingredient or ingredients. See U.S, Food & Drug Admin., Draft Guidance for Industry: Voluntary Labeling Indicating Whether Foods Have or Have Not Been Developed Using Bioengineering, at 6-7 (2001) (authorizing the voluntaiy use of "informative statements” of "the fact that a food or its ingredients was produced using bioengineering”); see also Questions & Answers on Food from Genetically Engineered Plants, U.S. Food & Drug Admin., http://www.fda.gov/Food/Food ScienceResearch/Biotechnology/ucm346030. htm (last visited Apr. 27, 2015) (acknowledging "the strong interest that many consumers have in knowing whether a product was produced using genetic engineering”). .For ease of reference, the court will refer to food subject to Act 120 as "GE food” or "GE food products” produced by "GE manufacturers” and offered for sale by "GE retailers.”
. An organism is defined as "any biological entity capable of, replication, reproduction, or transferring of genetic material.” 9 V.S.A. § 3042(7).
. "In vitro nucleic acid techniques” are defined as "techniques, including recombinant DNA or ribonucleic acid techniques, that use vector systems and techniques involving the direct introduction into the organisms of hereditary materials prepared outside the organisms such as micro-injection, chemoporation, electroporation, micro-encapsulation, and liposome fusion.” . 9 V.S.A. § 3042(5).
. These polls include a poll conducted by the Center for Rural Studies at the University of Vermont that ''indicate[d] that' a large majori- • ty of Vermonters want foods produced with genetic engineering to be labeled as such” and a poll conducted by the New York Times that "indicated that many consumers- are under an incorrect assumption about whether the food, they purchase, is produced from genetic engineering, and labeling food as produced from genetic engineering will reduce ■ consumer confusion or deception regarding the food they purchase.” 2014 Vt. Acts & Resolves No. 120, Sec. 1(5)(A)-(B).'
. At the parties’ request, the court took judicial notice of the following: Act I 20’s legislative history and the materials considered by the Vermont General Assembly in arriving at its. "Findings”; White House Office of Sci. & Tech. Policy, Coordinated Framework for Regulation of Biotechnology, 51 Fed.Reg. 23,-302 (June 26, 1986); U.S. Food & Drug Admin. ("FDA”), Statement of Policy: Foods
. As an alternative to compliance with Act 120, some of Plaintiffs’ GE manufacturers considered whether they could refrain from selling products in Vermont, but concluded that, due to the long shelf lives of many products and current distributor relationships and contracts, they may still have non-compliant products in distribution as of the Act’s effective date. (See Doc. 33-7 at 8, 29; Doc. 33-10 at 13, ¶ 46; see also Doc. 33-4 at 9, ¶¶ 29-31.)
. For example, Ben & Jerry’s, which manufacturers- products with approximately 70 SKUs, estimates that the "entire process” of changing its packaging would cost $500 per SKU; that "a simple 4 to 6 word change to a label or package,” including the design, production, and delivery to its manufacturing facility, would be a "fairly easy” change that would take about six weeks; and that it would take six months from "package redesign to store shelf.” (Doc. 63-7 at 4-5, ¶¶ 8-9, 11.) Clif Bar states the total cost for each packaging change ranges between $50Q and $1,950 and estimates the entire process to redesign and produce its packaging would take approximately four to six months. (Doc. 63-8 at 5, 7, ¶¶ 11, 15.) Beanfields identifies a cost of $300 to $400 per package or label change and that it could implement, these changes in three to four months, if necessary. Bean-fields, however, will not have to make any changes to its packaging to comply with Act 120 because it produces non-GE food products. (Doc. 63-9 at 4-5, ¶¶ 6, 10-11.) .
. See, e.g., Granholm v. Heald,
. Plaintiffs allege that "manufacturers promote their food through regional and national advertising” and that "[m]anufacturers therefore cannot achieve compliance with the advertising restrictions in the Act without changing their nationwide and regional advertising, as well as their Internet advertising and web sites.” (Doc. 37-1 at 22,175.)
. The State appears to misunderstand the essence of Plaintiffs' pér se Commerce Clause claim. In a footnote, the State characterizes the claim as one related to the costs of changing advertising and signage whereas Plaintiffs' per se claim under the Commerce Clause is directed to the nationwide reach of Act 120's regulation of advertising and signage. (See Doc. 24-1 at 42 n. 22.) In its briefing, the State suggested that its Final Rule will "clarify” any problem with Act 120’s "natural” restriction. (Doc. 63 at 76.) The Final Rule purports to limit Act 120’s reach to "advertising at or in the retail premises” for food "offered for retail sale in Vermont." Final Rule § 121.02(c)(1) (emphasis supplied). However, because the parties have not briefed whether the Final Rule may lawfully narrow the reach of Act 120’s "natural” restriction in this manner, the court confines its analysis to the text of Act 120.
. The court need not credit Plaintiffs' further allegation that Act 120 is discriminatory in its effects because of its exemptions. "[I]n
. See also Freedom Holdings, Inc. v. Cuomo,
. The Amended Complaint alleges there are "pending” ballot measures in Oregon and Colorado, neither of which passed, (Doc. 37-1 at 23, ¶ 78), and the only two other states to enact GE labeling legislation have trigger clauses which render the statutes effective only if, inter alia, four additional states adopt similar GE labeling laws. See 2014 Me. Laws ch. 436 (HP 490) (LD 718) (Maine); 2013 Conn. Pub. Acts No. 13-183 (to be codified at Conn. Gen.Stat. § 2la-92) (Connecticut).
. The Amended Complaint further alleges that, in addition to the FDCA, NLEA, FMIA, and PPIA, the Plant Protection Act, 7 U.S.C. §§ 7701-7786; the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. §§ 136— 136y; and the. Organic Foods Production Act, 7 U.S.C. §§ 6501-6523, reflect Congress’s occupation of the field and that Act 120’s “new, additional layers of regulation” impose “unjustified burdens on innovative technologies” and stand “as an obstacle to the achievement and execution of Congress’s objectives in its regulation of new agricultural technologies.” (Doc. 37-1 at 24-25, ¶ 85.) The parties, however, give this claim only cursory treatment in their briefing, and therefore the court declines to address it. See Ibarra v. City of Chicago,
. Plaintiffs do not contend that federal law . preempts Act 120’s "natural” restriction under the FDCA and the NLEA, (Doc. 36 at 27 n. 7), presumábly because the courts have squarely rejected such claims. See, e.g., Hoik v. Snapple Beverage Corp.,
. The NLEA's express preemption clauses foreclose any claim of implied preemption. See Hoik,
. See 21 U.S.C. § 343(g) (deeming food with a standard of identity to be mislabeled "[i]fit purports to be or is represented as a food for which a definition and standard of identity has been prescribed by [the FDA], unless (1) it conforms to such definition and standard, and (2) its label bears the name of the food specified in the definition and .standard, and, insofar as may be required by such regulations, the common names of optional ingredients (other than spices, flavoring, and' coloring) present in such food”); see also 21 U.S.C.
. See 21 U.S.C. § 343(i)(l) (deeming food without a standard of identity to be mislabeled "[u]nless its label bears ... the common or usual name of the food, if any there be”); see also 21 C.F.R. § 102.5(a) (providing that the "common or usual name” of a food or beverage must identify "in as simple and direct terms as possible, the basic nature of the food or its characterizing properties or ingredients” and must "be uniform among all identical or similar products”).
. See 21 C.F.R. § 101.2(e) (listing requirements for the "information panel” on "packaged food,” including a requirement “that the ingredient list for a food or beverage appear in one location on the product label without other intervening material”); 21 C.F.R. § 101.4(a)(1) ("Ingredients required to be dedared on the label or labeling of a food ... shall be listed by common or usual name in descending order of predominance by weight on either the principal display panel or the information panel in accordance with the provisions of [21 C.F.R.] § 101.2[.]"); see also 21 U.S.C. § 343(i)(2) (deeming food without a standard of identity that is "fabricated from two or more ingredients” to be mislabeled "[u]nless its label bears ... the common or usual name of each such ingredient”).
.See POM Wonderful LLC v. Coca-Cola Co., - U.S. -,
.Compare Vt. Pure Holdings, Ltd. v: Nestle Waters N. Am., Inc.,
. For example, Plaintiffs assert that, under Act 120, enriched com meal, a product for which the FDA has established a standard of identity, must be labeled '" 'enriched corn meal made from genetically engineered corn,’ ” which Plaintiffs argue is a "designation” that is "not identical” to "the product’s mandated standard of identity.” (Doc. 33-1 at 64.)
. Plaintiffs contend that "a carbonated soft drink,” which is the product’s "common or usual name,” must be labeled "a carbonated soft drink partially produced with genetic engineering” under Act 120. (Doc. 33-1 at 63.)
. See 21 C.F.R. §§ 101.2(b), (e) (directing that ”[a]ll information required to appear on the label of any package of food under [federal regulations] shall appear either on the principal display panel or on the information panel, unless otherwise specified by regulations in this chapter,” and that ‘‘[a]ll information appearing on the' information panel pursúant to this section shall' appear in one place without other intervening material”).
. See Plumley v. Massachusetts,
. See, e.g., Riley v. Nat’l Fed’n of the Blind of N.C., Inc.,
. Plaintiffs erroneously 'assert that "[a] law-may not stand under any circumstance” if it is viewpoint discriminatory. (Doc. 33-1 at 31.) Notwithstanding viewpoint discrimination’s status- as "an egregious form of content discrimination” and the Supreme Court's observation that " [discrimination against speech because of its message is presumed to be unconstitutional,” Rosenberger v. Rector & Visitors of Univ. of Va.,
. Taken to its logical conclusion, Plaintiffs in effect argue that a law requiring disclosure of the presence of an ingredient in a particular food product must also require manufacturers to disclose the absence of that ingredient in order to be. "even-handed.” Plaintiffs cite no authority for this approach.' See Burson v. Freeman,
.' Plaintiffs argue that Act 120’s mens rea requirement, which exempts food produced “without the knowing or intentional use of” GE ingredients, means that only some GE manufacturers will be subject to Act 120’s GE' disclosure requirement. See 9 V.S.A. §§ 3044(2),. (6); 3045(b) (allowing retailers and manufacturers to certify, or to provide the certification from an independent organization, that the food was not “knowingly or intentionally” produced from or commingled with food produced from GE seeds or ingredients). As the State points out, the legislative history of Act 120 reveals that this exemption was an attempt "to avoid penalizing traditional farmers (and the manufacturers they supply) whose crops were, unbeknownst to them, contaminated by gene flow from GE-crops.” (Doc. 63 at 44 & n. 34.) Plaintiffs cite no authority for the proposition that a mens rea requirement constitutes viewpoint discrimination.
. See, e.g., Sorrell v. IMS Health, Inc., — U.S. -,
. The Final Rule confirms this interpretation of Act 120, providing that "a person may, in connection with offering food produced with genetic engineering for retail sale in Vermont, make other disclosures about the food on its packaging, including that the [FDA] does not consider food produced with genetic engineering to be materially different from other foods.” Final Rule § 121.02(c)(ii).
. See, e.g., Milavetz, Gallop & Milavetz, P.A. v. United States,
. Plaintiffs further contend Act 120 mandates "misleading” speech because Act 120's definition of GE is erroneous, conflicts with other GE definitions used by the State, and conflicts with the FDA's definition of GE. Plaintiffs point to no authority for the proposition that speech is misleading when it fails to reflect a party's preferred definition of a statutorily-defined term. See supra n. 1.
. See NEMA,
. See, e.g., Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio,
. The Zauderer Court rejected an argument that Ohio had to demonstrate its "disclosure requirement serves some substantial governmental interest” because this argument "overlooks material differences between disclosure requirements and outright prohibitions on speech” in that the disclosure requirement of factual commercial information did not "prescribe what shall be orthodox” or "other matters of opinion,” nor did it "prevent attorneys from conveying information to the public.” Zauderer,
. Plaintiffs' reliance on United States Department of Agriculture v. Moreno,
. The State nonetheless points out that “notably, and not surprisingly, in the numerous declarations submitted by Plaintiffs, none of their members is willing to identify any specific products that contain GE ingredients but are which nevertheless []labeled as ‘natural.’ ” (Doc. 63 at 45 n. 3.5.) Although this absence of proof does not defeat standing for purposes of the motion to dismiss, it is relevant to whether Plaintiffs are able to establish irreparable harm. See Moore v. Consol. Edison Co. of N.Y.,
. In its briefing, the State relied on a yet-to-be-finalized, yet-to-be-promulgated Draft Rule and conceded that it was "still fine tuning Act 120” through rulemaking. (Doc. 63 at 48.) As the Final Rule provides no definition of the "natural" terminology and defines “any words of similar import” by reference to “natural” terms, any ambiguity inherent in Act 120 remains.
. The State also has not and cannot establish that there is a single, accepted definition of the term "natural.” It has only demonstrated that the various definitions of that word share commonalities. See, e.g., Natural, The American Heritage ■ College Dictionaiy 908 (3d ed.1993) ("1. Present in or produced by nature. 2. Of, relating to, or concerning nature. 3. Conforming to the usual or ordinary course of nature.”); Natural, Black’s Law Dictionary 1188 (10th ed.2014) (defining "natural” as ”[i]n accord with the regular course of things in the universe and without accidental or purposeful interference”; as ”[b]rought about by nature as opposed to artificial means”; and as ”[u]ntouched by civilization”); Natural, Merriam-Webster Online Dictionaiy, www.merriam-webster.com/dictionaiy/ natural (last visited Apr. 27; 2015) (defining "natural” as "existing in nature and not made or caused by people”; "coming from nature”; and "not containing anything artificial”).
.This finding is somewhat at odds with the General Assembly’s further "Finding” that a GE manufacturer's use of any of the "natural” terms “poses a risk of confusing or deceiving consumers.” 2014 Vt, Acts & Resolves No. 120, Sec. 1(5)(C). Speech that is inherently misleading poses more than a risk of confusion- or deception, and it is for this reason it receives no First Amendment protection. Moreover, as Plaintiffs observe, the numerous exemptions in Act 120 undermine the State’s position that it is inherently misleading to label GE products as "natural.” (Doc. 33-1 at 52, 54) ("There is no reason why ‘inherently’ deceptive speech would lose that ‘inherent’ characteristic in certain circumstances or on certain foods, and the Act does not offer one.... The exemptions doom the natural ban [because the] State cannot say that ‘natural’ terms present an unacceptable risk of deception when the State is perfectly willing to tolerate them for exempted foods.”).
. Plaintiffs identify an array of problems with the Hartman Report and with the other studies, surveys, and reports relied upon by • the State because, inter alia, “the surveys on which [the State relies] asked overtly leading questions” and "typically sought customers’ opinions about what they believed 'natural' meant ... not specific to the commercial context-or, critically, advertising”; in addition, "key definitions were left out,” including "how the terms ‘genetically modified organisms' or ‘genetically engineered’ were explained to survey participants." (Doc. 75 at 25-26.) ■
. See, e.g., Hairston v. S. Beach Beverage Co.,
. See Vt. Right to Life Comm., Inc. v. Sorrell,
. While the Stevens Court noted that to "succeed in a typical facial attack,” a plaintiff must "establish ‘that no set of circumstances exists under which [the statute] would be valid,’ ” United States v. Stevens,
. The State’s assertion that civil liability under Act 120 does not depend on a “particular consumer’s reaction to an advertisement,” (Doc. 63 at 49 n. 39), is belied by the express language of Act 120, which applies to “any words of similar import that would have a tendency to mislead a consumer.' ” 9 V.S.A. § 3043(c) (emphasis supplied). The civil cases on which the State relies to support the ■ "tendency to mislead” standard are distin- - guishable as they require- proof of "extrinsic evidence [of. consumer deception or confusion] to support a finding of an implicitly false message." Tiffany (NJ) Inc. v. eBay Inc.,
. See 9 V.S.A. § 3046 ("If any provision of this chapter or its application to any person or circumstance is held invalid or in violation of the Constitution or laws of the United States or in violation of the Constitution or laws of Vermont, the invalidity or the violation shall not affect other provisions of this section which can be given effect without the invalid provision or application, and to this end, the provisions of this chapter are severable.”).
. Compare Elrod v. Burns,