In 2014, the Vermont legislature passed Act 120, a statute requiring, among other things, that food offered for sale in Vermont and produced entirely or in part from genetic engineering carry a label stating “partially produced with genetic engineering”; “may be produced with genetic engineering”; or “produced with genetic engineering.” The legislature noted broad public demand for such labeling and that labeling was necessary to prevent consumer deception, prevent potential risks to human health, protect religious practices, and protect the environment. Trade groups sued Vermont government officials to enjoin enforcement of Act 120, contending that the statute violates the First Amendment and is otherwise unlawful. The district court declined to preliminarily enjoin the labeling requirement, concluding that the disclosure requirement is constitutional under the First Amendment rational-basis review established in Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 651 (1985). The trade groups appealed.
Public Citizen filed an amicus brief in support of the state in the Second Circuit. It argued that, to the extent that Zauderer’s reference to “purely factual and uncontroversial information” has any precedential value, it stands for the proposition that commercial disclosure requirements must compel only truthful, accurate information, not opinions—a standard that Act 120’s labeling provision easily meets. Public Citizen also urged the court of appeals to reject plaintiffs’ contention that preventing consumer deception is the only government interest sufficient to support a commercial disclosure requirement to which Zauderer review applies. Before the court of appeals ruled, Congress passed a nationwide on GMO labeling that preempted state action on the topic. The parties then agreed to dismiss the case.