GMO labeling gains traction in some states; legal showdowns likely

For the first time, state legislatures are passing measures to require labeling of foods that contain products from genetically engineered crops — part of a recent upswing in food regulation that has producers challenging the rules as unconstitutional.

Vermont has become the first U.S. state mandating the labeling of genetically modified foods. (Laws passed in Connecticut and Maine only take effect if at least four other states adopt similar measures).

In the Midwest, GMO-labeling bills have been introduced in six states. Though none has become law, some of these measures have captured considerable attention, as shown by the large turnout for an informational hearing held earlier this year on Minnesota’s HF 850.
And Rep. Phyllis Kahn, co-sponsor of HF 850, says the topic will likely arise again in her state.

Proponents of these laws say consumers should have a right to know whether the products they buy have been genetically modified. Kahn says she is not against genetically modified crops, but she hopes companies will begin voluntary labeling.

But the laws’ opponents say that government-mandated labeling carries an implicit message that genetically engineered foods are unsafe.
The law, which takes effect July 1, 2016, exempts the dairy industry — by excluding products such as milk from cows fed genetically engineered grain — as well as restaurants and medical foods from labeling. (Minnesota’s HF 850 contained similar exemptions.)The Vermont law is significant because it is a first in state policy, likely to lead to litigation and court decisions that guide future actions by state legislatures.

Despite these and other exemptions, Vermont’s law will still impact an estimated 80 percent of food sold in the state. For example, products containing corn syrup, vegetable oil from soybeans, or sugar from sugar beets will likely have to be labeled as genetically engineered.

In anticipation of a legal challenge, legislators created a $1.5 million defense fund within the measure that allows outside groups to donate to the state.

The law is the latest example of the increased legal activity surrounding how the nation produces its food, with other notable issues being new federal country-of-origin labeling rules for meat and California’s new standards for the housing of egg-laying hens. Food producers are challenging the constitutionality of these rules.

The genetic-modification and country-of- origin regulations raise First Amendment questions of whether the government is “compelling” speech, says John Dillard, an attorney for OFW Law.

Previous court decisions, he says, have set a precedent that the government must satisfy three obligations in order to compel commercial speech: it must serve a substantial governmental interest, must directly advance that interest and must be “narrowly tailored” to do so.

In the case of health warnings for cigarettes or the listing of nutrition facts on food products, the government has met this legal standard. It remains to be seen whether the new labeling rules do so as well.

The U.S. Constitution’s Commerce Clause, meanwhile, can prohibit state laws that improperly burden interstate commerce. That is the basis for a legal challenge by Iowa, Nebraska and four other states seeking to void California’s requirement that outside producers bringing eggs into the state follow its housing guidelines for hens. Iowa alone ships more than 2 million cases of eggs into California, so its farmers would have to either change their production systems or halt shipments.

 

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Stateline Midwest ~ June 20141.95 MB