Much Ado about Something: The First Amendment and Mandatory Labeling of Genetically Engineered Foods

By Tan, Stephen; Epley, Brian | Washington Law Review, June 1, 2014 | Go to article overview

Much Ado about Something: The First Amendment and Mandatory Labeling of Genetically Engineered Foods


Tan, Stephen, Epley, Brian, Washington Law Review


INTRODUCTION

Since first becoming commercially available in the mid-1990s, genetically engineered varieties of certain major food crops have come to dominate the American agricultural landscape. More than eighty percent of the corn and ninety percent of the soybeans grown in the United States are now produced from genetically engineered (GE) seed.1 Correspondingly, food containing ingredients produced through biotechnology has become ubiquitous-if not readily apparent-in American grocery markets. The Congressional Research Service estimates that two-thirds of processed conventional foods contain ingredients produced through genetic engineering.2

The proliferation of GE foods3 has raised concerns about possible adverse impacts, which have in turn prompted calls for laws requiring that such foods be labeled. Sixty-four countries around the world now require labeling of GE foods, 4 up from fewer than twenty in 2003.5 Although surveys reveal that Americans overwhelmingly support mandatory labeling,6 efforts to enact legislation have encountered stiff, well-funded opposition from manufacturers of GE seed and the processed food industry. Citizens' initiatives that would have imposed labeling requirements were narrowly defeated in California in 2012 and in Washington the following year.7 And although bills in Connecticut and Maine have been signed into law, labeling of GE foods sold in those states will not be required until certain conditions, including the enactment of similar laws in other states, have been met.8 To date, only one state, Vermont, has passed a GE food labeling law with a specified effective date.9

The passage of similar legislation in other jurisdictions seems increasingly likely. In 2013, state legislators in twenty-six states introduced GE food labeling bills.10 In early 2014, the Grocery Manufacturers Association (GMA), a leading opponent of mandatory labeling, itself proposed federal legislation that would establish standards for voluntary labeling and would effectively preempt states from imposing stricter requirements.11 In the meantime, the GMA and other labeling opponents prepare to challenge existing and prospective state laws on several constitutional grounds. First, they will likely contend that certain existing federal laws, including those that prohibit misbranding and require disclosure of certain nutritional information, preempt states from requiring labels on GE foods. Second, they will likely assert that any state law would violate the commerce clause. Third, they will likely argue that compulsory labeling would infringe on producers' First Amendment rights by obligating them to communicate information to consumers they would rather not disclose.

This Article evaluates the free speech implications of laws requiring that GE foods be labeled and concludes that such regulations would meet all First Amendment requirements for compelled commercial speech. Part I traces the history of food labeling in the United States, the advent of genetic engineering, and the application of that technology in agriculture and the food industry. Part II evaluates the scope of commercial free speech and the appropriate test to be applied in determining whether a GE food labeling law would violate the First Amendment. Part III examines the impacts of an agricultural and food system increasingly dominated by GE crops. It explains how controversy over a single issue, whether GE foods pose a potential risk to human health, has stunted the debate over whether mandatory labeling serves a useful purpose by diverting attention from other material impacts. It concludes that greater consumer and public awareness of the adverse environmental, economic, cultural, and social impacts of GE foods would serve a substantial government interest.

I. BACKGROUND

A. History of Food Labeling

For most of human history, there was little reason to label food for retail sale. Food was typically sold in its natural state, or at least in some easily recognizable form, so buyers could rely on their physical senses both to identify it and to determine its quality. …

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