Should the First Amendment protect food companies that want to label genetically modified foods as “natural,” and don’t want to disclose the presence of genetically modified ingredients?
The Issue: Vermont passed the first state law requiring labels disclosing the presence of genetically modified organisms (“GMOs”) in food offered for sale in Vermont; the law also prohibited marketing GM foods as “natural.” The processed food industry sued to stop the law from going into effect, claiming that requiring “produced with genetic engineering” labels would unconstitutionally compel speech by food manufacturers and retailers, while prohibiting “natural” labels on GM foods would unconstitutionally restrict their speech.
Why It Matters: The presence of GMOs in food matters to many consumers. A large national survey found that a majority of American households is unwilling to eat GM meat or fish, and almost half are unwilling to eat GM vegetables, fruits, and grains. The survey also found that, although an estimated 80% of all processed foods contain GM ingredients, 40% of Americans under the age of 35 did not know that GM ingredients are present in any foods. Other surveys have shown that eating natural foods is important to many consumers; unsurprisingly, most consumers (often incorrectly) assume that foods labeled “natural” do not contain GM ingredients. The packaged food industry has spent large sums to thwart government oversight of and transparency around GM foods, lobbying against state disclosure laws and, through this litigation, attempting to intimidate other states from following Vermont’s lead. Indeed, the Grocery Manufacturers’ Association, lead plaintiff in this case, was recently ordered to pay the largest fine ever imposed for a violation of campaign finance law for its attempts to hide the identities of the food companies that were bankrolling its campaign to defeat GMO labeling in Washington.
Equally important are the more general First Amendment issues at stake. The processed food companies argued for a more stringent level of First Amendment review for mandated disclosures than applicable precedent would indicate. A tougher standard would pose a severe threat to hosts of federal, state, and local disclosure requirements protecting public health and safety, and informing consumers in a wide variety of contexts, including critical financial transactions. Among other protections, nutritional labeling, tobacco warnings, securities disclosures, reports of releases of toxic substances or effluent pollutants, posting notification of workplace hazards, and other warnings of exposure to hazardous substances, might all be put at risk. Similarly, if advertising as patently misleading as labeling GM foods “natural” could not constitutionally be prohibited, regulators’ ability to protect vulnerable members of the public from even the most predatory and deceptive business practices would be called into question.
Contribution of Public Good: On appeal in the Second Circuit, Public Good co-authored a brief with Free Speech for People, arguing that both parts of Vermont’s statute were constitutional. The brief underscored that commercial speech is protected principally to facilitate the free flow of information and that, consequently, mandatory disclosures should be reviewed leniently. The brief also argued that calling GM foods “natural” is a paradigmatic case of both “inherently” and “actually” misleading speech and, therefore, warrants no constitutional protection at all.
Amici joining Public Good: In addition to Free Speech for People, Public Good was joined on the brief by Consumer Action.
Outcome: In direct response to Vermont’s statute, in summer 2016 Congress enacted a federal GMO labeling law, to apply nationwide. Because the federal law expressly preempts all state GMO labeling laws, the Vermont Attorney General announced that the state would no longer enforce the state’s labeling law, the food companies withdrew their appeal, and both sides agreed to drop the case without prejudice. The federal law will not go into effect for several years and is significantly less protective of consumers than Vermont’s law.
102 F.Supp.3d 583 (D. Vt., Apr. 27, 2015); No. 15-1504 (2d Cir., appeal filed May 6, 2015).