GMO and Prop 65 Labeling: Unconstitutional?

More U.S. food firms are invoking free speech as reason not to comply with certain government-mandated labeling disclosures. Their argument: The government cannot force a company to make a claim that the company disagrees with, per the First Amendment. Increasingly, this argument is cropping up over labeling for genetically modified organisms (GMOs) and Proposition 65 chemicals in food products.

Specifically, two high-profile lawsuits may become the first to deliver a judgment on the constitutionality of required GMO and Prop 65 labeling.

The state of Vermont’s GMO-labeling law, effective July 2016, will be the first in the nation to require packaged foods to disclose GMO content. (Maine and Connecticut also passed laws, but enactment pends a trigger-clause.)

Proposition 65 regulations, now being revised by California’s Office of Environmental Health Hazard Assessment (OEHHA), require products sold in California to warn about the presence of Prop 65–list chemicals. OEHHA has proposed new wording, too: “Warning: This product can expose you to a chemical [or chemicals] known to the State of California to cause [cancer]/[birth defects or other reproductive harm].”

Food companies fear (understandably so) that these warnings scare off customers when in fact a product may not actually be dangerous. After all, depending on whom you talk to, there isn’t yet sweeping scientific consensus that GMOs endanger human health. (In the case of GMO labeling, even the factual statement “contains GMOs,” with no explicit warning attached, is likely to appear ominous, firms say.) The same can be said about Prop 65 chemicals, because some chemicals may be present at such low levels in a product that risk to human health is negligible. Does the government have the right to compel corporate speech if the company doesn’t stand behind what’s being said? Moreover, must the government be required to definitively prove that the potential for harm exists in order to justify the need for a disclosure?

Such questions will increasingly require answers as First Amendment cases go to trial. In the aforementioned GMO-labeling suit led by food industry groups, including the Grocery Manufacturers Association, Vermont will likely need to show that GMOs actually risk human health in order to uphold the reason for a disclosure. Similarly, in the Prop 65 case (brought by the Council for Education and Research on Toxics against major coffee merchants, including Starbucks), both sides spent last fall arguing over whether or not the acrylamide in coffee causes cancer in humans. Both cases were ongoing at the time this article went to press, although a decision in the Prop 65 case is expected soon.

To some extent, corporations have never received complete First Amendment protection. While the First Amendment protects non-commercial speech (religion, freedom of the press, etc.), commercial speech-such as on product claims and labels-still faces some government regulation in order to protect the public. If a company engages in food and supplement commerce, it can fully expect to abide by FDA’s Federal Food, Drug, and Cosmetic Act (FD&C Act), which in a manner limits free speech by prohibiting companies from making false and misleading label claims. (Companies, by the way, have used this very argument against mandated disclosure, stating that the government is forcing companies to make what they believe are false and misleading claims, thereby violating the FD&C Act.)

Answers aren’t easy, which is why consumers, the food industry, and lawyers alike will be watching the aforementioned court cases very closely.

In the midst of these arguments, one, made by University of California Berkeley law professor Stephen D. Sugarman in an article in the Food and Drug Law Institute’s journal Food and Drug Policy Forum (vol. 5, no. 4; April 29, 2015), did stick with me. Sugarman wrote, “The central justification the Supreme Court has given for applying the free speech clause to commercial speech is the right of consumers to receive truthful information…I find it highly ironic that the Supreme Court and lower courts are now using the ‘compelled speech’ concept….to keep consumers from getting information that many of them clearly want to have (and which regulators have tried to assure they can obtain).”

Consumers voted in a ballot initiative like Prop 65 because they wanted mandatory disclosures. Do food companies have the right to block that? In what some will see as a controversial stance, Sugarman wrote: “In my view, regardless of what the mainstream scientific findings are, if these voters can get the appropriate legislative or executive body to pass a law or adopt a regulation that will give them the information they want about the content of food they will eat, then I say that disclosure requirement should be upheld.” Do you agree? Contact me and let me know.

Jennifer Grebow
Editor-in-Chief
Nutritional Outlook magazine
jennifer.grebow@ubm.com

Thanks to the American Herbal Products Association, whose May 20^th webcast, “Proposition 65: What's Going On?” discussed this and other issues in detail.

Also read:

Prop 65 Changes Don’t Help Businesses or Consumers, Experts Say

Yes, We Need a Federal GMO-Labeling Law. But Maybe It Should Be a Voluntary One.

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