If Californians approve controversial GMO labeling initiative Proposition 37 next month, could food industry opponents challenge it on First Amendment grounds?
Quite possibly, according to lawyers exploring what form a legal challenge might take.
Virginia-based food law attorney Jonathan Emord told FoodNavigator-USA that should Prop 37 pass, he expects First Amendment challenges from industry that “hone in on the issue of whether GMOs alter food stuffs such that they cause harm”.
He added: “The argument would be that proof of harm is lacking and thus that the state lacks a substantial interest in regulating; has adopted speech restrictions that do not directly advance the state’s interest in protecting consumers; and has adopted speech restrictions that are far more extensive than necessary to protect consumers.”
Ultimately, the Supreme Court will have to decide
But how might the 'Yes' campaign respond to such a legal challenge?
“In addition to arguments that GMO containing foods may be deleterious”, said Emord,” I would suspect Prop 37 proponents to argue that... GMOs are ubiquitous pollutants in that they leach into and contaminate organic strains, preventing them from being free from GMOs and saleable as organic.
“Unlike the rBST context [see below], genetic modifications in the crop supply migrate to non-GMO crops and thus pollute or trespass upon farms and food processors that seek to sell organic strains. That, among other factual arguments, creates a material distinction.”
But he added: “Ultimately, however, the Supreme Court would have to decide whether the harms from GMOs are substantial and whether Prop 37 is reasonably tailored to advance the state’s interest in protecting consumers from those harms.”
IDFA v Amestoy
Speaking at a recent seminar on biotech labeling hosted by the Washington Legal Foundation, Sarah Roller - a partner at the Washington, D.C. office of Kelley Drye & Warren LLP - cited a series of cases where labeling requirements imposed by states have been successfully blocked on First Amendment grounds.
The best-known example is the IDFA (International Dairy Foods Association) v Amestoy case of 1996 in which the 2nd circuit court concluded that a 1994 Vermont statute requiring mandatory labeling of milk treated with artificial growth hormones (rBST) was unconstitutional under the First Amendment, as it compelled food companies to choose speech instead of silence, said Roller.
“The Court ultimately found that despite the mild language that was prescribed, the Vermont law would have required manufacturers to publish the functional equivalent of a warning about a production method that had no discernible impact on the final product.”
She added: “Statutes that compel speech in order to satisfy consumer curiosity about the technologies used in making a food are vulnerable to challenge under First Amendment standards even when the compelled speech requirement arguably involves an accurate factual statement, but one that is objectionable to those that make and market the product.”
Similarly, Prop 37 would “restrict freedom of expression… specifically by requiring the use of very specific terminology in food labeling, terminology that is controversial and highly objectionable to those who would be required to abide with the labeling requirements”, she argued.
Body of case law supports First Amendment challenge
Since the IDFA v Amestoy case, several other courts have also “invalidated compelled speech requirements on similar grounds”, she said.
These showed that compelled labeling requirements are subject to particularly rigorous review when they require firms to convey a subjective point of view that they find objectionable, such as speech disparaging a lawful product, said Roller.
“This body of case law suggests that Prop 37 and similar labeling proposals are vulnerable to challenge on First Amendment grounds.”
The right to speak and the right to refrain from speaking
It is also well-established that the First Amendment encompasses both the right to speak and the right to refrain from speaking, including in the context of product labeling, said Roller.
And this is particularly pertinent as regards the clause in Prop 37 banning use of the term ‘natural’ on any processed food, regardless of whether the product even contains GMOs, she said.
“It bans expressed and implied natural claims from the labeling, advertising and promotions of foods that were made with the aid of food biotechnology or have been subjected to even the most basic forms of food processing such as heating, based on novel criteria that are at odds with well-established federal policies.”
Cross: Pre-emption case looks strong
Rebecca Cross, an attorney at San Francisco-based law firm BraunHagey & Borden LLP, told FoodNavigator-USA there are grounds for a potential challenge to Prop 37 on First Amendment grounds and on federal pre-emption grounds.
Currently, federal law does not require the labeling of genetically engineered (GE) food ingredients as the FDA has consistently argued that GE foods do not differ from other foods "in any meaningful or material way" or present any different or greater safety concerns than foods developed by traditional plant breeding methods, she added.
Supporters of a pre-emption challenge are likely to cite a recent ninth circuit appeals court opinion in a false advertising case brought by Pom Wonderful v Coca-Cola, which concluded that the federal Food, Drug & Cosmetic Act took precedence in the case, she predicted.
A First Amendment challenge also had potential, as the defense would have to try to prove that failure to label GMOs would harm consumers; and this could prove challenging, she said.
"To justify GMO labels, you have to consider if any health and safety risks from GMOs are known, probable, or possible, and proving they are known or probable as opposed to just possible, could be hard."
Wasserman: Prop 37 advocates will have to show a more compelling interest than mere consumer curiosity
Washington DC-based attorney Ivan Wasserman added: "Just like the First Amendment puts limits on the government's ability to prohibit speech, it also puts limits on the government's ability to compel speech. For example, whether FDA can compel cigarette companies to have the very graphic warning labels is the subject of ongoing litigations, with courts deciding both ways.
"To prevail, California would have the burden of demonstrating a compelling interest for the new labeling, and demonstrate how the labeling is narrowly tailored to that interest.
"It of course remains to be seen if California can meet that burden, but it it will likely have to show a more compelling interest than mere consumer curiosity."
Yes campaign: They are trying any tactic to try to scare voters …
However, a spokeswoman for the ‘Yes’ to Prop 37 told FoodNavigator-USA that she was not worried about a legal challenge, adding: “They are trying any tactic to try to scare voters away from voting for our right to know what's in our food. This is not a concern. Alaska already has a labeling law that requires labeling of genetically engineered fish.”
Click here to read the text of Proposition 37 (The California Right to Know Genetically Engineered Food Act).
Click here to read more about Prop 37’s ‘natural’ clause.
Click here to read about the enforcement provisions.