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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

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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