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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
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Our Global Food Production Challenge
2005 2010 2015 2020 2025 2030 2035 2040 2045 20506,000
6,500
7,000
7,500
8,000
8,500
9,000
9,500
12
13
14
15
16
17
18PopulationGlobal Acreage
Popu
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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 – [email protected]
Disease Resistance
• Rainbow Papaya– GE technology saved
Hawaii’s industry from the papaya ringspot virus
6John G. Dillard – [email protected]
Why not just label it?
• NY Times Poll (7/28/2013)– 93% of survey respondents support mandatory
GMO labeling
7John G. Dillard – [email protected]
Why not just label it?
• 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
8John G. Dillard – [email protected]
There are serious misconceptions about genetic engineering
Why not just label it?
• 2012 International Food Information Council survey (open-ended)– 3% believe biotech foods should be labeled
– 2% concerned about biotechnology’s effect on food safety
9John G. Dillard – [email protected]
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
10John G. Dillard – [email protected]
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
11John G. Dillard – [email protected]
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
12John G. Dillard – [email protected]
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
14John G. Dillard – [email protected]
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
15John G. Dillard – [email protected]
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
16John G. Dillard – [email protected]
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
17John G. Dillard – [email protected]
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
