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 Weeda Terman Matz PC www.ofwlaw.com (202) 789-1212 [email protected] Our Global Food Production Challenge.

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State GMO Labeling Laws: Constitutionally Questionable

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State gmo labeling laws constitutionally questionable

State GMO Labeling Laws: Constitutionally Questionable

Conference of Western Attorneys General

Park City, Utah

July 23, 2014

John G. Dillard

Olsson Frank Weeda Terman Matz PC

www.ofwlaw.com

(202) 789-1212

[email protected]


Our global food production challenge

Our Global Food Production Challenge

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

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/


Biotechnology applications

Biotechnology Applications

  • Herbicide Resistance

  • Insect resistance

  • Yield enhancement

  • Disease resistance

  • Drought tolerance

  • Spoilage reduction

  • Nutraceuticals

4

John G. Dillard – [email protected]


Disease resistance

Disease Resistance

  • Rainbow Papaya

    • GE technology saved Hawaii’s industry from the papaya ringspot virus

6

John G. Dillard – [email protected]


Why not just label it

Why not just label it?

  • NY Times Poll (7/28/2013)

    • 93% of survey respondents support mandatory GMO labeling

7

John G. Dillard – [email protected]


Why not just label it1

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

There are serious misconceptions about genetic engineering

8

John G. Dillard – [email protected]


Why not just label it2

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

9

John G. Dillard – [email protected]


Why not just label it3

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

10

John G. Dillard – [email protected]


Constitutional issues with gmo labeling

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

11

John G. Dillard – [email protected]


Gmo label is controversial

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

12

John G. Dillard – [email protected]


Vermont has not demonstrated a substantial state interest

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

14

John G. Dillard – [email protected]


Exemptions undercut necessity of gmo labeling

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?

15

John G. Dillard – [email protected]


Natural label prohibition

“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

16

John G. Dillard – [email protected]


Mandated expression of government v iewpoint

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

17

John G. Dillard – [email protected]


State gmo labeling laws constitutionally questionable1

State GMO Labeling Laws: Constitutionally Questionable

Conference of Western Attorneys General

Park City, Utah

July 23, 2014

John G. Dillard

Olsson Frank Weeda Terman Matz PC

www.ofwlaw.com

(202) 789-1212

[email protected]


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