State GE Labeling Requirements Could Be Legally Vulnerable

University of Arkansas School of Law LL.M. Candidate Lauren Handel has considered whether food-labeling provisions, such as those that would have been required under California’s Proposition 37 (Prop. 37), which voters defeated this week, are vulnerable to constitutional or preemption challenges. Had it been enacted, Prop. 37 would have required most food companies to label their products with a statement indicating that they contain genetically engineered (GE) ingredients and would have prohibited the use of the term “natural” on processed food products as inherently misleading to consumers.

In her article titled “Labeling of Genetically Engineered Foods: A Constitutional
Analysis of California’s Proposition 37,” Handel explores the First
Amendment standards applied to commercial speech and concludes that
the state would not have been able to justify a ban on “natural” claims, and
that whether consumers’ “right to know” about GE ingredients trumps food
companies’ commercial speech rights is debatable. She also concludes that
Prop. 37’s GE-labeling component would likely have been preempted by
federal law to the extent it reached meat and poultry product labels.

Meanwhile, Prop. 37 proponents have reportedly vowed to continue their
efforts to require food companies to label products containing GE ingredients.
The coalition of consumer advocacy organizations and organic interests is
already apparently gathering signatures for a similar measure on Washington’s
2013 ballot, and campaign leaders claim that the issue now has nationwide
attention. They will continue to urge the Food and Drug Administration to
require GE labeling, having backed a petition drive that garnered more than
1-million signatures. Just Label It Campaign Director David Bancroft was
quoted as saying, “Federal GE foods labeling must now be the focus. The same
powerful interests that funded the campaign against Prop. 37 have already
had their lobbyists insert language in House versions of the Farm Bill, which, if
passed, would strip federal agencies of their authority to regulate GE crops.”

Critics of the proposal were equally sanguine, responding to the ballot
initiative’s defeat by claiming that it greatly reduces the odds such labels
will be required anywhere in the United States. A supporter of biotech crops
reportedly suggested that it will be more difficult to raise money to support
labeling campaigns. According to L. Val Giddings, “What justification can they
present to their funders to pour more money down this drain.” Still, Prop. 37
proponents, citing President Barack Obama’s (D) call for labeling during a
campaign speech in 2007, do not appear to have lost their enthusiasm for
seeking changes to food-labeling policy. See Reuters, Huffington Post, The New
York Times, November 7, 2012.