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State GMO Labeling Laws: Constitutionally Questionable
Conference of Western Attorneys General Park City, UtahJuly 23, 2014
John G. DillardOlsson Frank Weeda Terman Matz PC
www.ofwlaw.com(202) 789-1212
3
Our Global Food Production Challenge
2005 2010 2015 2020 2025 2030 2035 2040 2045 20506,000
6,500
7,000
7,500
8,000
8,500
9,000
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12
13
14
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16
17
18PopulationGlobal Acreage
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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/
UN FAO Estimates Global Food Needs Will Increase 70% by 2050
Biotechnology Applications
• Herbicide Resistance
• Insect resistance
• Yield enhancement
• Disease resistance
• Drought tolerance
• Spoilage reduction
• Nutraceuticals
4John G. Dillard – [email protected]
Disease Resistance
• Rainbow Papaya– GE technology saved
Hawaii’s industry from the papaya ringspot virus
6John G. Dillard – [email protected]
Why not just label it?
• NY Times Poll (7/28/2013)– 93% of survey respondents support mandatory
GMO labeling
7John G. Dillard – [email protected]
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
8John G. Dillard – [email protected]
There are serious misconceptions about genetic engineering
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
9John G. Dillard – [email protected]
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
10John G. Dillard – [email protected]
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
11John G. Dillard – [email protected]
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
12John G. Dillard – [email protected]
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
14John G. Dillard – [email protected]
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
15John G. Dillard – [email protected]
Why does “right to know” vary based on form or location of GMO consumption?
“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
16John G. Dillard – [email protected]
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
17John G. Dillard – [email protected]
State GMO Labeling Laws: Constitutionally Questionable
Conference of Western Attorneys General Park City, UtahJuly 23, 2014
John G. DillardOlsson Frank Weeda Terman Matz PC
www.ofwlaw.com(202) 789-1212