GM Labeling for Different States?

These cases suggest that proposed legislation requiring food labeling to contain certain terms such as “genetically modified” or “produced with genetic engineering” (per the Connecticut GMO bill), absent a compelling state interest, may not survive a First Amendment challenge. Proponents of these new labeling standards assert that they are necessary to protect consumers’ right to know the content of their food products (i.e., to satisfy consumers’ curiosity). They do not claim that such labeling will protect any health or safety interest, likely because there is no scientific evidence that genetically modified foods materially differ from other food products.

In defending these initiatives, states and advocates could alternatively argue that we need GMO labeling regulations to serve more substantial interests, such as to prevent consumer deception or protect human health. But opponents will argue that since the FDA does not consider GMO foods materially different from traditional foods, consumers cannot be deceived if such products are not labeled as GMO. And, with no scientific evidence that GMO products are a health risk, the asserted interest of protecting human health likewise lacks proof. Since it would be difficult to argue that these proposed labeling regulations serve these interests, we are left with only consumer curiosity. But according to the Amestoy court, “consumer curiosity alone is not a strong enough state interest to sustain the compulsion of even an accurate, factual statement.” This court further recognized the slippery slope lying ahead, stating that “[w]ere consumer interest alone sufficient, there is no end to the information that states could require manufacturers to disclose about their production methods.” Eventually the courts will decide if this right to know is compelling enough to impose increased labeling requirements and the accompanying financial and other burdens on food producers. But many believe that, absent scientific proof of harm or some other safety issue caused by GM products, merely satisfying consumer curiosity will not be enough.

Interstate Commerce Clause

Another major potential constitutional hurdle facing individual state GMO regulations is the impact they may have on interstate commerce—the free exchange of products between citizens of different states across state lines. Under the Commerce Clause of the U.S. Constitution, congress has the exclusive power “to regulate commerce with foreign nations, and among the several states” to ensure the free flow of commerce without local or state restrictions.

Generally, areas of national importance requiring uniform federal regulation fall within the federal government’s exclusive power. But other areas lacking federal regulation or powers not enumerated to the federal government fall to the individual states pursuant to the Tenth Amendment. Thus, states have the right to regulate their own domestic commerce where there is no federal legislation in that area. But the exercise of that right cannot impede, discriminate against, or burden interstate commerce. If it does, the state and national interests fuelling the legislation must be weighed and a determination must be made as to whether the legislation oversteps the federal government’s exclusive power. Legislation violates the Commerce Clause if either the alleged state interest served by the law is outweighed by the burden imposed on interstate commerce or if its discriminatory effect on out-of-state producers burdens interstate commerce.

Similar to the First Amendment analysis, in order for such regulations to survive an interstate commerce challenge, a legitimate state interest must be shown. As U.S. Supreme Court cases reflect, a state can regulate intrastate commerce where there is no federal regulation as long as the legislation seeks to protect a compelling and legitimate state interest and imposes no unreasonable burden on interstate commerce. But courts have repeatedly found that, absent a legitimate health or safety concern, a state may not burden interstate commerce. Is consumer curiosity enough?

Costs of State Legislation

The advocates of state legislation claim that consumers have a “right to know” what is in their food, despite the fact that only 3 percent of Americans mention GMOs when asked what additional information they would like to see on food labels. However, the unexpected costs of states passing their own GMO food labeling requirements will be significant. Connecticut and Maine, recognizing the substantial burden and expense that would likely be required to defend these regulations in court, seek to share these costs with neighboring states with similar labeling requirements. But, regardless of which states take on this legal fight, the taxpayers will be the ones paying millions in litigation costs and attorney fees with their tax dollars. On the other side, consumers will wind up paying the litigation costs for companies challenging these new labeling regulations in the form of higher food prices.