GMO Food Labeling on the Ballots – And in the Courts

In next week’s election, Oregon and Colorado will both put ballot measures before voters that would require mandatory labeling of GMO foods.  Both measures say that a “yes” vote would satisfy consumers’ right to know about food composition, would allow them to make choices about their health and religious convictions, and is justified by scientific uncertainty about the long-term consequences of genetic modification of crops.  Oregon’s measure has much more detail about other possible government objectives, such as safeguarding organic crops and supporting food tracing in the case of bacterial or other outbreaks. Currently, approximately 64 countries require labeling of genetically engineered foods.  This map comes from the Center for Food Safety: Right now, it looks like voters will vote “no” at least in Oregon.  You will remember that a similar ballot proposition went down in California in 2012 after opponent spent more than $45 million to defeat it, including large contributions by companies such as Monsanto, Kraft, Coca-Cola, and Pepsi.  And in 2013, Washington voters narrowly defeated a labeling measure after another expensive campaign. Even if labeling measures are approved by voters, they face rough going in the courts.  Vermont went a different route and passed a GMO labeling law through the legislature this year.  Now, the State is fighting to defend it against a lawsuit filed a few months ago by the Grocery Manufacturers Assoc.  The GMA claims that the law compels it to speak (that is to disclose the presence of GMOs) against its will in violation of the First Amendment. I’ve written about this tricky area of the law:  compelled disclosure in the commercial speech context.  It’s very tricky and courts have been falling all over the place on what the standard should be.  For the most part and for a long time, courts allowed legislatures pretty free reign to mandate disclosure of purely factual information in the advertising context.  And in the recent (July 2014) D.C. Circuit case regarding meat labeling, the court sitting en banc went this way, holding that it would not apply heightened scrutiny to laws that required this kind of factual information. At the same time, what courts find to be purely factual and uncontroversial in the labeling context has been changing and moving in a direction that favors corporate speakers.  For example, in 2012, the D.C. Circuit found that graphic tobacco labels were not factual and uncontroversial in part because the government was trying to shock consumers with upsetting pictures.  And in another case, in 2014, it found that SEC disclosure requirements about whether public companies knew if their products contained “conflict minerals” (from war-torn Congo) was not uncontroversial because it was so ethically-charged. The upshot is that even if Oregonians and Coloradans pass food labeling ballot measures, the ensuing court challenges could be tough.  The issues will be whether the state interest in labeling GMO ingredients in packaged food is more or less the same as its interest in labeling the origin of meat or nutritional values.  The questions will be whether a GMO label is too ethically-charged to be deemed non-controversial and whether “mere” consumer interest, without more specific health concerns, is reason enough to justify the mandate.  Strangely – and paradoxically for a law about transparency – it seems that the less the state says about its rationales, the better.  In this sense, the Colorado ballot measure may be better than Oregon’s because it throws fewer reasons out there to assail as controversial.  This ingredient is a fact.  Consumers are concerned.  They have a right to know.  Period.