Court strikes down labeling law;
critic blasts corporate privileges

An appeals court has sided with dairy producers in the latest battle over whether Vermont consumers are entitled to know if their dairy products have been produced with artificial bovine growth hormones. A critic of corporate power said the state should act to reverse the encroachment of corporate privileges in the courts.

A three-judge panel of the U.S. Court of Appeals for the 2nd Circuit ruled in New York on Aug. 8 that the state of Vermont could not force dairies to label their products. In the case of International Dairy Foods Association et al. v. Attorney General of Vermont, the panel by a vote of 2-1 directed District Court Judge J.G. Murtha in Vermont to issue a preliminary injunction blocking enforcement of a statute that requires labeling of products containing the genetically engineered bovine growth hormone rBST, also known as BGH.

Critics say the hormone, used to increase milk production, presents a risk not only to cows, but also to humans who consume the dairy products. Several trade and promotional groups filed suit, joined by Monsanto as "friend of the court," asserting that the Vermont statute violated their First Amendment rights as well as the commerce clause of the U.S. Constitution, which prohibits statutes that interfere with interstate commerce. Judge Murtha had denied the motion for injunctive relief.

The appeals court did not address the commerce clause, but Judges Altimari and McLaughlin wrote, "Because the statute at issue requires appellants to make an involuntary statement whenever they offer their products for sale, we find that the statute causes the dairy manufacturers irreparable harm ... The wrong done by the labeling law to the dairy manufacturers' constitutional right NOT TO SPEAK is a serious one that was not given proper weight by the district court."

Judge Leval, in his dissent, wrote: "The question is simply whether the First Amendment prohibits government from requiring disclosure of truthful relevant information to consumers. In my view, the interest of the milk producers has little entitlement to protection under the First Amendment. The case law that has developed under the doctrine of commercial free speech has repeatedly emphasized that the primary function of the First Amendment in its application to commercial speech is to advance truthful disclosure - the very interest that the milk producers seek to undermine."

While the state argued that consumers have a right to the labeling information, Richard Grossman, co-director of the Program on Corporations, Law & Democracy of Provincetown, Mass., commented that the case is not about whether business corporations or their trade groups should have First Amendment rights. Instead, it focuses on recent cases involving "commercial free speech" and "negative free speech" rights of corporations that go beyond individual rights.

"We should also note that the Vermont statute does not ban rBST products from being produced in the state, or from being sold in the state. This case revolves around the limited regulatory realm of permitting and disclosure. It is NOT about the authority of the people of Vermont to define what corporations do in any fundamental way within Vermont's borders ..."

"What is needed is for the State of Vermont to articulate its rightful authority to define the circumstances under which corporations will be permitted to do business within its borders," he said.

Since early in the 19th century courts have been granting corporations civil rights previously accorded to individuals. In 1886 the Supreme Court found that corporations were persons for the purpose of the 14th Amendment, which was designed to ensure civil rights for newly freed slaves. Grossman said that decision has been used by courts since then to expand the privileges and immunities of corporations against the public will.

"The words of corporate lawyers and majority opinion federal judges in this case reveal the reality of today's corporate/Constitutional law: with the IDEA of corporate personhood being accepted as given, our courts have been granting more and more rights to corporations, and in the process disempowering people and communities," Grossman said.

"It is time for us to challenge and turn back this fundamental direction of the courts," he said. "Important as this specific corporate genetic intrusion into our communities is ... if we do not redefine corporations, and redefine ourselves, we will be struggling against every corporate genetic intrusion one-at-a-time, just as we have been struggling against every corporate poison, dump, and lethal product one-at-a-time."

During the third week of October, students around the country will be convening teach-ins on their campuses and in their communities around the question: "Can we pursue democracy and social justice while corporations wield so much wealth and power?"

For more information contact the Program on Corporations, Law & Democracy, 211.5 Bradford St., Provincetown, MA 02657 or call (508) 487-3151.

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