Note: OFW Law’s Bob Hahn and John Dillard recently authored a legal backgrounder on the First Amendment implications of Vermont’s new genetically engineered food labeling law for the Washington Legal Foundation, a widely respected non-profit legal organization.

Vermont has become the first state to require labeling of genetically engineered foods. On April 23, 2014, Vermont’s legislature approved a bill (H.112) that would require raw agricultural commodities and processed foods offered for sale in Vermont retail stores, with certain exceptions, to bear special labeling if they are entirely or partially produced with genetic engineering. Governor Peter Shumlin signed the bill into law on May 8, 2014, and the labeling requirement will become effective on July 1, 2016. Vermont is now at the tip of the spear in the movement to require labeling on foods containing ingredients that are commonly referred to as “genetically modified organisms” or “GMOs.”

Although this legislation apparently enjoys broad popular support in a state known for embracing organic farming techniques and the local food movement, it is vulnerable to a constitutional challenge under the First Amendment. While the U.S. Court of Appeals for the Second Circuit is a particularly hospitable court for Vermont to make its case, it is not clear that even the Second Circuit would uphold this law if challenged. Moreover, even if the law is upheld by the Second Circuit, there is a good chance that the U.S. Supreme Court would grant certiorari to an appeal, given the existence of a pronounced split among the circuit courts on the proper standard to be applied in First Amendment review of this type of labeling law.

Click here to read the rest of Bob and John’s Washington Legal Foundation article.