|A panel discussed Maine’s GMO labeling bill at the Fair. From left to right, Jim Gerritsen, Laura Murphy, Sen. Chris Johnson and Rep. Lance Harvell. English photo.
Maine’s GMO labeling initiative, LD 718, is alive and well.
Foods made with genetically modified organisms are often called GMO foods – or GE (genetically engineered) foods. Last spring, Maine’s legislature overwhelmingly endorsed LD 718, which would require labeling of such foods. Governor LePage has promised to sign the bill into law in January 2014.
A Public Policy Teach-In on GE labeling at the 2013 Common Ground Country Fair included panelists Rep. Lance Harvell (R-Farmington) and Sen. Chris Johnson (D – Lincoln County), lead sponsors of LD 718; Jim Gerritsen of Wood Prairie Farm in Bridgewater, president of Organic Seed Growers and Trade Association (OSGATA), lead spokesperson in a class action suit against Monsanto, and a visionary activist in Maine’s GMO labeling campaign; and Laura Murphy, associate director of Vermont’s Environmental and Natural Resources Law Clinic and assistant professor at Vermont Law School. Murphy is leading the clinic’s legal advocacy toward passage and defense of labeling requirements for GE foods in Vermont. Logan Perkins, MOFGA’s GMO labeling campaign director, moderated.
Gerritsen told fairgoers that LD 718 will bring Maine up to the world standard for GMO labeling. More than 60 countries have mandatory labeling, and “it’s high time Maine showed the rest of the U.S. that Mainers and Americans deserve the same right to know,” he said. The federal government has done nothing, he added. “They have the ear of Monsanto and they’re restricting Americans’ right to know. It’s time that states like Maine take this into their own hands.”
Last November, Californians defeated Proposition 37, which would have created GE labeling there, by only 2 percent after the biotech and big food industries spent $48 million fighting against people’s right to know. “It was outrageous to us the lies told in that campaign that scared voters,” said Gerritsen – but that heavy-handed approach led to a groundswell of support for labeling nationwide, and now more than 25 states have labeling efforts underway.
|Logan Perkins, MOFGA’s GMO labeling bill coordinator, moderated the teach-in. English photo.
Maine’s LD 718 would follow world standards and require that any food made, in whole or in part, from GE organisms be labeled on the container. So a box of corn flakes made from GE corn would have to be labeled. If GE salmon is approved for the marketplace, it would have to be labeled. But milk or meat from a cow receiving GE feed would not have to be labeled, because the cow itself was not engineered. “We thought,” said Gerritsen, “as a first step, we had to get up to the world standard.”
Maine’s law would take effect only after four other contiguous New England states pass labeling laws. Connecticut has already done so; bills are in the works in New Hampshire and Vermont (where it is expected to pass the Senate by March 2014); and organizations are working in Massachusetts. “Optimistically, by next summer or fall, we could meet our trigger mechanism,” said Gerritsen.
Rep. Harvell explained the origin of LD 718. “This was my third term in the legislature. It seemed to me that when you have a federal government that is not testing or regulating GMOs, that you have a right to ask whose word they’re taking that these tests have been done correctly, and when you look at the record of the biotech industry, particularly Monsanto, this is a company that has been wrong on Agent Orange, it’s been wrong on PCBs, it was wrong on being able to declare its own Roundup [herbicide] biodegradable. This is America, it’s the land of baseball, and it’s not four strikes you’re out, it’s three.
“Because the FDA does not test GMOs – they leave it in the hands of the producers – they are treating the American public as lab rats, and it would seem to me that at least the most basic thing you could do is let the people know they’re in an experiment.”
Harvell met with MOFGA’s Heather Spalding, Russell Libby and Katy Green in the summer of 2012 to strategize – and their effort paid off. “When I saw 141 lights light up in the house,” said Harvell, “and 35 in the Senate, it was recognition that what we had put together as a team – Senator Johnson in the Senate, myself in the House, numerous others who helped, the incredible ground game that MOFGA carried out to keep the pressure on and to do what needed to be done politically – that was the highlight of the six years that I’ve been there.”
|Heather Spalding, MOFGA’s deputy director, with Sen. Chris Johnson, co-sponsor of the labeling bill. English photo.
Sen. Johnson said that after seeing California’s experience, he decided that “if they couldn’t get it done, maybe Maine could.” He drafted his own labeling bill, but after talking with MOFGA and others about Harvell’s bill, he became comfortable with its limitations. “I really wanted to get something done to build on later if we needed to do more.” Johnson dropped his bill and cosponsored Harvell’s. “I think that was a big part of being able to work together on this, of getting it supported as broadly as we did in the Legislature. MOFGA should be proud of their role in getting those discussions about what mattered and how we could be effective in getting this passed, given the experiences in other states,” said Johnson.
“For me, it’s a basic human right that we can make decisions about what we’re putting in ourselves. In fact I stood up and talked about myself and my family as lab rats, and my fellow senators as lab rats, and that was the source of some amusement for the rest of that day, but it really is what we’re subjected to, and we don’t have a choice because we don’t know what’s in our food. So I’m so glad that we’re finally going to be able to put that information in front of people and let them make these decisions for themselves.”
Laura Murphy explained that Vermont’s labeling bill passed the House in May and will be taken up by the Senate in January. The Vermont Law School clinic, where students work on real cases, is representing the Vermont Public Interest Research Group, VPIRG, and other groups on the bill.
Dynamics and Challenges in Augusta
Perkins asked the panelists to describe any issues that arose as they were working on the bill. Johnson said the question of constitutionality came up when the Maine Legislature was looking at the bill. Convincing legislators and working with the Attorney General’s office and others resulted in legislators signing on. “I think they all wanted to on its merits, that people should have the right to make these decisions, that they shouldn’t trust a government regulatory office that isn’t actually doing the testing,” said Johnson.
The next big challenge, he continued, was when people tried to dilute the bill. “There was an amendment to [exclude] baby foods, if sufficiently processed to remove all genetically modified elements – who knows what that is? It didn’t take long to make the argument that that was so nebulous, who would know? Who would be able to measure whether the food was considered to be safe because of that or not? So that went down fairly quickly.”
Similar attempted changes were caught while the bill was going through committee, because “we had a lot of eyes on it.
|Ted Quaday, MOFGA’s executive director, with Rep. Lance Harvell, co-sponsor of the labeling bill. English photo.
“One of the things that made a huge difference in supporting us in our work in the Legislature was all of the support from MOFGA and lots of people who aren’t in MOFGA but made phone calls, signed cards, and made it clear that they really wanted this to happen,” said Johnson. “When I can talk to a legislator … and they’re sitting on the fence, and I can say, you know, 91 percent of the people in the state of Maine believe that that’s the right thing to do too – Do you really want to tell them they’re wrong? That really helps.”
Harvell said, “We were up against some heavy hitters – the grocers, the biotech industry, some of the soft drink people. In terms of lobbying, at one point we were outspent 10 to 1. But they never stood a chance. When myself and Sen. Johnson were able to lock down 123 cosponsors for this bill, and the only reason we didn’t have more is because I ran out of time, that sent a message to them: We are seeing something different here that we haven’t seen somewhere else.” When MOFGA encouraged supporters to thank cosponsors, that meant a lot.
“We outhustled them,” said Harvell.
Gerritsen echoed the importance of the 123 cosponsors. “I don’t know of any other bill in the history of Maine that had 123 cosponsors. And if you look at it in the national context, we can’t get anything done on the federal level; there isn’t any consensus on anything. In our legislature we have 186 legislators, and primarily through the work of Lance, we had 123 cosponsors on a historic, precedent-setting bill.
“And then we used the MOFGA list and the allies within the other groups that supported us. And we had the constituents of these legislators thank them … for being a cosponsor. The secret that isn’t very much known outside of Augusta is that there are legislators who will sign up as a cosponsor without any intention of voting for the bill. It’s just kind of a professional courtesy. Well, 99 percent of the state of Maine doesn’t think that’s how things ought to be done, so when we thanked them for being a cosponsor, we kind of got them painted into a corner. It was going to become very difficult for them to get out of voting for that. So I think that dynamic was incredible.”
Murphy said she believes these labeling bills are constitutional. “That doesn’t mean that entities that don’t like the bill won’t sue a state that passes such a bill and claim that it is unconstitutional.
“There are about three arguments a company might make,” she explained. “They might say this violates the dormant commerce clause, which means you’re going to be putting too much of a burden on commerce among the states.
“They might argue that the federal government has supremacy over this area, and states shouldn’t be regulating in this area. Based on what I’ve seen, folks aren’t as concerned about those two arguments; there are really good counter arguments.
“My sense of what most folks are concerned about is the first amendment issue – the idea that you’re telling someone that you have to say something – a label – that you don’t want to say. It’s called compelled speech. Corporate speech is protected in this country, so perhaps a food producer might sue.
“There was a case that came out of the Second Circuit in 1996 (the level of appeals right before the Supreme Court). Vermont tried to pass a law that would require a label on dairy products that were produced with milk that came from cows that were treated with recombinant Bovine Growth Hormone. The state passed a law. The International Dairy Foods Association sued the state, and the trial court said Vermont had a good reason to pass the law, but the Second Circuit said no, you can’t do that, because the only reason you passed this law was for consumer curiosity. That’s not good enough.
“There are three reasons the court said that. These are the reasons that make [GE labeling] really different than what happened in that case. The court said the citizens of Vermont were concerned about potential health effects, about animal welfare, but the state wasn’t concerned – whatever that means. The Legislature had not adopted the concerns of the citizens. So the state would have had to do something to show that it, too, as a state, was concerned about all of these issues.
“Then the court said, even if you had been concerned, your concern would have to be reasonable. What would make it reasonable or not – there’s no scientific evidence from which an objective observer could conclude that rBGH has any impact at all on the final product. Contrast with the GE scenario where we do have scientific evidence. We have studies, we have reports, scientists, experts, showing there is cause for concern.
The Second Circuit Court also said the FDA had determined that dairy products from rBGH-treated cows are safe. “The FDA has not made that determination in the GMO context,” said Murphy. “With the hormone case, the FDA put out a formal document, they’d done a formal comment … [and] their own review. With GE, all we have from the FDA is a policy statement from 1992 that says we’re going to assume that these GE products are the same as non-GE food, and we’re not going to test, but we’re going to say, ‘Companies, you can test if you want to, and you can share the results with us if you want to.’ It’s not a regulation, [it] doesn’t have the force of law.”
Third, “the second circuit court said there’s no difference between milk from rBGH-treated cows and non-rBGH-treated cows. Scientists can’t even distinguish between the two. That wasn’t necessarily true, but that’s what the court thought, based on the record.”
The GE record is different, said Murphy. “There are lots of ways to test to see of a food is GMO. And there’s the old-fashioned way: Spray some Roundup on it and see if it survives. So we’re different. So I believe this bill is constitutional.”
Where Are We Today?
Perkins asked panelists about the current state of bills in New England. Harvell explained that LD 718 passed in both chambers, but because it was held until the final day of the session, “the clock, so to speak, stops when you leave and doesn’t start again until you return. We have a written agreement from the governor that he is going to sign this … when the clock starts after the three days when we return in January.”
The first thing the Attorney General would do if Maine were challenged legally, said Harvell, would be to point out that until the four contiguous states pass similar bills, Maine’s legislation isn’t law.
If that first line of defense didn’t succeed, other legal arguments would ensue.
“I think Ms. Murphy had it right,” said Harvell, “that the two commerce clauses and the preemption arguments we’re OK with. And there’s a lot of evidence out of Washington on this, because even though the industry is arguing about federal preemption, at the same time … they’re trying to get legislation saying states can’t do it. Well, if you already have preemption, why do you have to reassert it?
“On the flip side,” said Harvell, “Rep. Sanders from Vermont tried to put forth a bill expressly giving states the right to do this. So what it really says is the issue of preemption in relation to the federal government isn’t really clear yet, so we think we’re OK there.
“It will come down to the commercial speech argument, to compelled speech, and nobody really knows how it will come out. There has not been a case on GE foods in this country.” Cases have considered other kinds of labeling.
Johnson said, regarding constitutionality, “There’s a reason the state should be intervening in this, because individuals, knowing that there’s reason to doubt the safety, have no way of acting on that. There’s an inherent deception in that, when you go to the grocery store and buy that ear of corn, you can’t tell … that it’s something Monsanto or someone else engineered. That’s where the state comes in – in enabling you to act to manage your own risk in regards to what the studies have shown are valid safety concerns.”
Maine legislators were a little surprised at the end of the session that the bill was delayed at the Governor’s office, said Johnson. “We sat down with the Attorney General and the Governor’s office about what they were doing and why. We reached agreement with them that it was reasonable to avoid subjecting Maine to those costs and let Connecticut, where the governor had already signed it into law, draw fire first. We were concerned that the groundswell of interest that all of you had raised would fade, and if the governor didn’t sign it in January, that we would have to build that up again and move things forward. We both expressed that concern, and the Governor’s office put together the letter saying he would sign it into law in January. I think it’s tremendously important that we’ve not only got the tremendous support of the Legislature but got the Governor to sign on as well.”
Regarding other New England states, Gerritsen said Vermont people are confident they’ll get their bill passed this winter; Massachusetts by next year; and New Hampshire may move forward by the first of the year.
“It’s not a walk in the park,” said Gerritsen. “In Washington, Monsanto and the biotech industry have both the parties’ attention. During the last election, Monsanto gave $5 million to the Romney campaign and $2 million to the Obama campaign. That’s how they play it. The substantial equivalence – the FDA standard developed in 1992 – was invented by Vice President Dan Quayle working in cahoots with Michael Taylor, then a lawyer for Monsanto” [now deputy commissioner of FDA]. Substantial equivalence said that since GE corn looks like regular corn, it doesn’t have to be labeled.
“That’s scientifically indefensible,” said Gerritsen, “but that’s been the policy for over 20 years … There’s not a scientist around outside the biotech industry who thinks there’s any credence to that, and there’s certainly no one in the state of Maine who believes that. And there certainly are concerns.”
In contrast with the ruling on Vermont’s attempt to label products from rBGH-treated cows, “there is sufficient uncertainty about the health effects of GMOs that raises the standard that we have met, and in that way these are going to pass constitutional muster,” said Gerritsen. “If you look back at the history of the United States, every controversial bill is challenged – Obamacare was challenged, racial integration was challenged. That’s how the system works. You get a landmark law, of course it’s going to be challenged, because Monsanto thinks it’s going to lose a lot of money” when “people figure out that just as a risk assessment, it’s crazy for me to make this purchase. As Americans we have that right, and we’re not willing to take the lack of action from Washington any more.
“The problem is,” Gerritsen continued, “Washington does respond to pressure, and now there’s a lot of chatter that a law will be introduced to the U.S. House of Representatives that will try to preempt the right of states to enact their own GMO labeling laws. It seems to be coming from the House Energy and Commerce Committee. This is something we absolutely will not stand for. If the federal government is in the pocket of biotech, the state of Maine and other states in New England are not going to kowtow … for something that is against the people’s interest.”
Regarding the 35-0 vote favoring labeling in the Maine Senate and 141 to 4 vote in the House, Gerritsen said the four ‘no’ votes in the House “were among our strongest supporters who felt that we had compromised too much on the trigger mechanism. So on what other topic in this day do you have near unanimous support for the people’s right to know? I think right now biotech is running scared. They see that nationally, voters are deciding that we have a right to know, and you’re not going to deny that from us. People are taking their food dollars away from big food and away from the big biotech corporations. That, coupled with this kind of legislation, is how we bring about change that is good for our families and good for our state.”
New Hampshire Representative Peter Bixby, who is on the Environment and Agriculture Committee in the N.H. House and chairs the subcommittee for HB 66, New Hampshire’s labeling bill, was in the Common Ground audience. He complimented Harvell and Johnson on their coordination behind the scenes before much of their bill became public.
“That has not happened in New Hampshire,” said Bixby, “so the opposition is a bit stronger and there is more doubt on the Agriculture Committee about whether this bill makes sense for New Hampshire and how it will affect conventional farmers who use GMO crops, particularly feed corn and sweet corn.
“The Farm Bureau is working very hard to get their members to oppose this bill, and that could be a real challenge for us,” said Bixby. “If you know farmers in New Hampshire or know people who know farmers in New Hampshire, please tell them to get in touch with members of the Environment and Agriculture Committee and say they support this legislation and why it would be in their interest as farmers.
“Another argument that is likely to have a lot of sway in New Hampshire is the right to know, perhaps better phrased as the responsibility for making your own decision. How can you make your own decisions responsibly if you don’t have knowledge to do that? Ask people in New Hampshire not to make very strong claims about the health dangers of GMOs. It’s unlikely to have much resonance” because the health effects are hard to determine. “It should be labeled because we don’t know what we’re dealing with,” said Bixby.
Bixby thinks the subcommittee will narrowly recommend in favor of the bill and the full committee will narrowly recommend against it – unless New Hampshire farmers tell the Committee that labeling is important to them. “That could swing two or three votes, which could make a difference in having the committee come out for or against,” he said.
The Committee must report out by the second week in November, and the full vote in the House will occur between January and mid-March. The bill will be discussed on the house floor, said Bixby, because any bill that comes before the N.H. Legislature has to be represented on the floor of the body that it starts it. “Things can’t be buried in committee in New Hampshire,” he said. Depending on the House action, the bill may or may not go to the Senate.
To follow New Hampshire’s bill, see https://nofanh.org/farming/policy/gmolabeling/.
Harvell noted that Maine is the only state with joint committees – i.e., with Senate and House members on a committee. So when a committee report comes out, it goes both to the House and the Senate. In New Hampshire and most states, however, after a bill passes in the House, the “total operation” has to start again in the Senate, which slows legislation.
Regarding opposition by some farmers, Harvell recognized the essential support of Sen. Troy Jackson in passing LD 718. “It took quite a lot of courage to do what he did, because GMO labeling is far more popular in Sen. Johnson’s and my neck of the woods than it is with canola farmers in Aroostook County.” Moderator Logan Perkins also recognized Rep. Bob Saucier, who is on Maine’s Agriculture Committee, who is from Aroostook County and voted for the bill.
Gerritsen said a different dynamic was working for Washington state’s November initiative, I-522. The wheat farmers there support labeling “because they’re afraid Monsanto will push through Roundup Ready wheat and that will ruin their market.” In California, on the other hand, the commodity industrial farmers wanted to defeat Prop 37.
Also, said Gerritsen, the Obama administration’s apparent push for GE salmon seems to be resonating with voters in Washington state. “It’s one thing if you have a GMO crop growing in the field,” Gerritsen said, “but when you get into GE animals, it seems to resonate. The Washington state fishing industry is afraid people will just stop buying [all] salmon if GE [salmon] is approved. So the fishing industry is behind labeling,” as are 64 percent of Washington voters. “But Monsanto and DuPont have contributed about $10 million. They will attempt to buy the election and destroy the campaign. In California they hired former tobacco industry lobbyists. We know how tobacco works: They lie and they stonewall, and that’s what biotech did in Prop 37, and we can expect that’s what they’ll do in I-522.”
Because I-522 has no trigger, “once it passes, there will be a time for implementation, but if it passes I think it will completely change the dynamic for GMO labeling across the United States,” said Gerritsen. “It will make it much easier to get GMO labeling in New England and across the country.”
Asked about ingredient and GE labeling, Rep. Johnson explained that GE labeling is not quite the same as ingredient labeling. GE is “more of a process label. It’s like the label on orange juice that says ‘not from concentrate,’” which, he believes, resulted from the fresh juice industry trying to protect itself. “We’re doing this from the grassroots, up, instead,” he said.
Harvell noted that if the federal government required GE labeling, it may face a compelled speech challenge, “but all the arguments about commerce and preemption go away. States asserting these rights can bump into federal supremacy.”
Harvell emphasized that one thing that got him involved “was the idea about who owns life and who owns the intellectual property to life. For years I have found it abhorrent that a company can claim that it has the right to patent something that belongs to all of humanity. When you look at a piece of corn, you’re looking at something that started out historically as a grain [head] about the size of a thumb, and it was from the breeding and efforts of thousands of years of human beings, much of it done in our own Land Grant colleges, paid for by the taxpayers, and the idea that these entities can step in and claim this as theirs should be abhorrent to every person here.” He said he is encouraged by the Supreme Court’s recent 9-0 ruling that human genes cannot be patented (AMP v. Myriad Genetics). “Let’s hope the next step is to say that you can’t patent this.”
Gerritsen noted that he is part of a major federal lawsuit, OSGATA et al. v. Monsanto. MOFGA is party to that suit. OSGATA is a national trade organization based in Washington, Maine; Gerritsen is its president. The lawsuit was filed in March 2011 in Federal District Court in Manhattan. “We’re seeking two goals,” said Gerritsen. “We’re challenging the validity of GMO patents owned by Monsanto; and we’re seeking court protection under the Declaratory Judgment Act for family farmers, should they become contaminated by Monsanto’s patented transgenic seed, that the court will not permit Monsanto to sue those farmers for patent infringement for possessing Monsanto’s technology without having signed a licensing agreement.”
For 2-1/2 years, Monsanto has used stalling techniques to try to prevent farmers from having their day in court, said Gerritsen. “They filed a motion to dismiss in an effort to get the case ruled that we don’t have standing to sue them. So we’ve never yet been able to argue the merits of our case, which we believe are strong.
“We have prepared four distinct legal arguments based on patent law. We are represented by some of the best patent lawyers in the United States working for the Public Patent Foundation in New York City. In order to win our case, we have to win only one of our arguments; in order for Monsanto to win, they have to win all four of the arguments put forth.
“We filed a petition with the U.S. Supreme Court on September 10” after the Court of Appeals for the federal circuit in Washington, D.C., gave OSGATA et al. a partial victory in that the Court of Appeals reversed the lower court ruling. The lower court judge said that the farmers did not have standing. The Court of Appeals said the farmers do have standing, but they went on and erroneously thought that Monsanto’s lawyers, who have made verbal promises in court that they would not pursue us for patent infringement, that those were sufficient to protect the farmers, and it made moot the case.
“The fact is,” said Gerritsen, “that protection only pertains to trace amounts – 1 percent or less. If we should be contaminated at a level of greater than 1 percent, we have no protection at all. There’s a lack of clarity as to whether, if we take that crop and then as seed growers plant it next year, we may not have any protection. A seed grower who is not given protection to replant their seed – that’s not protection that is going to let us continue.
“Patents are only judged valid once they have gone through court challenge,” said Gerritsen. “In a typical year, 500,000 patents are submitted to the U.S. Patent and Trademark Office; 200,000 of them are approved, and the Patent Office makes money on each approval; and every year 3,000 to 5,000 patents are challenged, and when brought to court, 50 percent of those challenged patents are found invalid. So when you look at the statistics and look at the strength of our case, I think we have a good chance that we can get our day in court to challenge the validity of these patents. And if they’re deemed invalid, that brings home Lance’s concept that patenting of this form of life is something that has occurred only in the last 30 years in the Patent Office.”
Johnson added, “The whole idea of owning seeds flies in the face of what we have to do in terms of the changing climate, when we need diversity and resilience. Counting on monocultures and patented seeds that everyone’s had their arms twisted into using is not going to get us there.”
Gerritsen concluded, “Left to their own devices, I think the biotech industry would try to snuff out organic. They’re trying to steal the people’s seed resources, contaminate them with GMO content, and make us just a side issue of nonimportance. We’ve been organic farmers for 37 years. This is my life. I think everyone here at the Fair understands that we really have a great thing going in Maine and we can create a much better state for ourselves if we put the ideals that MOFGA represents at the forefront of our lives, and when we need to stand up to protect our community that we’re going to do that and we’re not going to kowtow to Monsanto with their kind of threats and stress on the democratic system. The people’s rights need to be prominent. We all need to keep fighting for that. That’s our payback for being part of this organic community.”