State GMO Labeling Laws: Constitutionally Questionable

Conference of Western Attorneys General Park City, UtahJuly 23, 2014

John G. DillardOlsson Frank Weeda Terman Matz PC

www.ofwlaw.com(202) 789-1212

jdillard@ofwlaw.com

Our Global Food Production Challenge

2005 2010 2015 2020 2025 2030 2035 2040 2045 20506,000

18PopulationGlobal Acreage

Source: UN FAO, HIGH-LEVEL EXPERT FORUM: HOW TO FEED THE WOLRLD IN 2050, Rome, Italy (Oct. 12-13, 2009), available at http://www.fao.org/wsfs/forum2050/wsfs-forum/en/

UN FAO Estimates Global Food Needs Will Increase 70% by 2050

Biotechnology Applications

• Herbicide Resistance

• Insect resistance

• Yield enhancement

• Disease resistance

• Drought tolerance

• Spoilage reduction

• Nutraceuticals

4John G. Dillard – jdillard@ofwlaw.com

Disease Resistance

• Rainbow Papaya– GE technology saved

Hawaii’s industry from the papaya ringspot virus

Why not just label it?

• NY Times Poll (7/28/2013)– 93% of survey respondents support mandatory

GMO labeling

• NY Times Poll (7/28/2013)– 93% of survey respondents support mandatory

GMO labeling

BUT . . .

– 75% concerned about effect of GMOs in food

– 37% feared it causes cancer, allergies

– 26% believe they are toxic

– 40% believe most fruits, vegetables are GMO

There are serious misconceptions about genetic engineering

• 2012 International Food Information Council survey (open-ended)– 3% believe biotech foods should be labeled

– 2% concerned about biotechnology’s effect on food safety

Why not just label it?• Mandatory labeling stigmatizes biotechnology

– GMO foods are scarce in most countries that require labeling

• Not related to health, safety or nutrition

• Increased food costs

• Food labeling should be a federal issue

• Marketplace already offers GMO-free alternatives

Constitutional Issues with GMO Labeling

• GMO label is “controversial”– Central Hudson test applies

• Vermont has not demonstrated a “substantial” state interest

• Exemptions undercut necessity of labeling

• “Natural” label prohibition is a restriction on commercial speech

• Mandates a government viewpoint

GMO label is “controversial”

• Central Hudson controls commercial speech– Exception: Zauderer – purely factual, uncontroversial

disclosures (rational basis)

• Labeling compels food manufacturers to use labels to convey an opinion with which they disagree:– Consumers should assign significance to the fact that a

product contains an ingredient derived from a genetically engineered plant

Vermont has not demonstrated a “substantial” state interest

• Labeling does not serve a governmental interest– Satisfying consumer curiosity is not a gov’t interest

• Legislative “findings” are based on speculation and conjecture about “unintended consequences,” not concrete facts

• Litigation funding mechanism illustrates lack of governmental interest– State acting as pass-through for labeling advocates

Exemptions undercut necessity of GMO labeling

• Broad exemptions demonstrate that law does not “directly advance” state interest– Alcohol– Food service– Products from animals fed GMO crops– Cheese produced with GMO enzymes

Why does “right to know” vary based on form or location of GMO consumption?

“Natural” label prohibition

• Vermont proscribes labeling GMO foods as “natural” or “words of similar import”– Restrictions of commercial speech fall under Central

Hudson

• Exemptions undercut necessity– Restricts “natural” in grocery store, but not restaurants

• Singles out biotechnology as not “natural”– Ignores other food production technologies and processes

Mandated expression of government viewpoint

• GMOs are a hotly contested public issue

• Labeling requires food manufacturers to espouse the government’s view – Gov’t is subject to the same scrutiny as content-

based restrictions on speech

State GMO Labeling Laws: Constitutionally Questionable

Conference of Western Attorneys General Park City, UtahJuly 23, 2014

John G. DillardOlsson Frank Weeda Terman Matz PC

www.ofwlaw.com(202) 789-1212

jdillard@ofwlaw.com

State GMO Labeling Laws: Constitutionally Questionable

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State GMO Labeling Laws: Constitutionally Questionable Conference of Western Attorneys General Park City, Utah July 23, 2014 John G. Dillard Olsson Frank

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