GM Labeling for Different States?

So what is on the horizon for GMOs if state legislation is enacted before federal legislation? Despite the recent increase in demand for these products and state efforts to regulate them, the road to legislation may be more difficult and challenging than anticipated. It will go far beyond merely passing these initiatives, and the battle will continue long after the votes are counted.

Federal Preemption

Any state legislation seeking to impose labeling requirements on GMOs will undoubtedly face litigation from various parties, primarily the food and agriculture industries. The first expected challenge to any such legislation is preemption by federal regulations. In other words, any state legislation is trumped by existing federal food labeling regulations, including the Federal Food, Drug, and Cosmetic Act (FDCA). Under the Supremacy Clause of the U.S. Constitution, state laws are invalidated if they “interfere with, or are contrary to, federal law.”

Generally, state labeling requirements contradictory to federal regulations are preempted by federal regulations. But what if there are no contradictory federal regulations? Neither the FDCA nor the FDA currently have labeling requirements in place for these foods. FDCA prohibits only state labeling requirements that are “not identical” to federal regulations, and courts have upheld state labeling requirements that address areas not regulated by the FDA. The federal government, including both Congress and the FDA, has the power to silence the preemption issue once and for all and to halt all current and future state efforts to label GMO products. Regardless, no such federal bill has been passed and the FDA has shown no interest in becoming involved in this GMO labeling issue.

The food industry would prefer federal legislation for the labeling of GMO food products rather than having to satisfy 50 different sets of regulations and incurring the incredible expense of fighting these state regulations in courts across the country. Federal food labeling legislation would give the food industry one uniform standard to follow, and would permit one single label to be used in every state.

Would the FDCA, FDA, or other federal regulations preempt new state labeling requirements? Arguments exist on both sides of the preemption issue. Several California federal court judges found that claims challenging the use of the term “all-natural” are not preempted because the FDA has refused to define this term or regulate its use. Will other courts follow? Or will the federal government step up and end the debate?

Labeling and Right to Free Speech

Another significant obstacle state GMO legislation may face is infringement on food producers’ First Amendment rights. No Constitutional “right to know” exists in the U.S. Any legislation either compelling food producers to include certain language on their products or banning certain language from being used could be vulnerable to a First Amendment challenge. The freedom of expression protects not only the right to speak, but also the right to abstain from speaking.

In order to survive a First Amendment challenge, a state legislative restriction on commercial speech (i.e., labeling requirements) must strike a balance between the new regulations and the producers’ right to free speech while showing that the state’s interest in passing the legislation is substantial.

The U.S. Court of Appeals, Second Circuit applied this analysis in its 1996 decision in International Dairy Foods Association v. Amestoy, finding that a Vermont statute imposing new mandatory labeling requirements on milk treated with artificial growth hormones was unconstitutional under the First Amendment. The court concluded that the statute compelled the milk producers to speak rather than remain silent, violating their First Amendment rights. Several other courts have followed, finding similar compelled speech without a public health or safety interest to be unconstitutional.