Enforcing an Unenforceable Law: the National Bioengineered Food Disclosure Standard

• Publication year: 2018

Enforcing an Unenforceable Law: The National Bioengineered Food Disclosure Standard

Mary Christine Brady

ENFORCING AN UNENFORCEABLE LAW: THE NATIONAL BIOENGINEERED FOOD DISCLOSURE STANDARD

Abstract

Congress hastily crafted the National Bioengineered Food Disclosure Standard ("GE labeling law" or Act), which it passed in July of 2016, to preempt various state laws that were cropping up around the country seeking to label genetically engineered ingredients (GEs). This Comment anticipates that the Act will face free speech challenges that may find the GE labeling law unconstitutional, especially following recent trends in First Amendment jurisprudence that have been increasingly applying stricter scrutiny upon constitutional review. Due to inconsistent applications of the two governing tests that review compelled commercial speech—the Central Hudson and Zauderer standards, respectively—this Comment suggests that the Supreme Court, in the context of the GE labeling law, determine the appropriate scrutiny level that courts should apply when reviewing First Amendment cases involving compelled commercial speech. This Comment finds that the GE labeling law will not likely withstand scrutiny under Central Hudson, but should survive less stringent review under Zauderer.

If the GE labeling law passes First Amendment review, the Act's weak enforcement provisions will invite a wave of litigation. This litigation will likely come from two sources: (1) consumer lawsuits and (2) competitor lawsuits arising under the Lanham Act. This Comment concludes that if the law survives First Amendment review, policing via private litigation will be a necessary complement to federal enforcement. Specifically, this Comment argues that competitor lawsuits under the Lanham Act will be the most effective enforcement tool, and their utility may be applicable to enforcing other laws.

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Introduction..............................................................................................773

I. GMOs vs. GEs: Terminology and Background Information About the GE Labeling Law.........................................................776
II. The National Bioengineered Food Disclosure Standard: Its Genesis and an Analysis of the Language of the Act.....................................................................................................778

A. Definition of "Bioengineering"................................................. 779
B. Establishment of the National Bioengineered Food Disclosure Standard.................................................................................... 780
C. Federal Preemption of State Food Labeling Standards............ 782
D. The Enforcement Provision ....................................................... 782

III. Likelihood of Overcoming First Amendment Challenges......................................................................................783

A. How Mandatory Commercial Disclosures Fit Within the First Amendment Context................................................................... 785
B. Surviving First Amendment Challenges May Hinge on the Scrutiny Level ............................................................................ 786

1. The Central Hudson Standard............................................. 788
2. The Zauderer Standard........................................................ 788

C. If Courts Continue Applying Stricter Scrutiny, the GE Labeling Law Might Not Stand.................................................. 789
D. After Applying a Three-Factor Analysis, Zauderer Should Be the Appropriate Standard for Compelled Commercial Disclosures Implicating Public Health ...................................... 792

IV. Two Types of Private Litigation Will Be Necessary to Enforce the GE Labeling Law.....................................................798

A. Consumer Litigation Will Be a Useful Enforcement Tool ......... 799
B. Competitor Suits Under the Lanham Act Will Be the Most Effective Enforcement Tool ....................................................... 803

Conclusion............................................................................................807

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Introduction

The National Bioengineered Food Disclosure Standard ("GE labeling law" or Act) will likely face litigation. An overview of the pro- and anti-labeling arguments that will give rise to litigation will help contextualize future suits.

Genetically modified organisms (GMOs) are not new to the marketplace, but consumer frenzy about labeling them is.¹ The infamous war against GMOs is spurred, in part, by an aversion to a misnomer; consumers are not actually afraid of every GMO, but they have conflated their fear of genetically engineered (GE) ingredients with all GMOs.² The true labeling clash involves whether to disclose the presence of GE ingredients. Labeling advocates—supporting transparency and a consumer's right to know—are pitted against labeling opponents—many from the food industry—who defend that GE ingredients pose no real "health, safety, or nutritional risks."³

In the absence of a national regulatory scheme, various states passed GE labeling laws,⁴ which were largely galvanized by consumer demand.⁵ The pioneer state labeling law was to take effect in Vermont on July 1, 2016.⁶ In response, Congress raced to pass the National Bioengineered Food Disclosure Standard, which President Barack Obama signed into law on July 29, 2016.⁷ With the Act, the United States now joins sixty-four other countries that

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require GE labeling standards.⁸ As Gary Hirshberg, founder of the labeling advocacy group Just Label It, told the New York Times upon passage of the law, "What today really means is that we've left the legislative period of this battle after seven years and moved into the regulatory and marketplace phase of it, which was where it was always headed anyway."⁹

The federal GE labeling law involves a mandatory disclosure, which necessarily implicates First Amendment free speech issues. This Comment argues that, should the statute come before it, the Supreme Court should revisit the two controlling tests that govern the scrutiny levels for mandatory disclosures such as the GE labeling law. The Central Hudson test, which emerged from Central Hudson Gas & Electric Corp. v. Public Service Commission, requires intermediate scrutiny;¹⁰ the Zauderer test, which arose from Zauderer v. Office of Disciplinary Counsel, demands a reasonable relationship between the mandatory disclosure and the government interest.¹¹ While the two standards may seem distinct, in practice, however, the Zauderer standard often resembles intermediate scrutiny. A growing yet undefined trend toward stricter scrutiny has materialized for two reasons. First, litigants challenging compelled disclosures have been urging more stringent standards. And second, in addition, or as a result, courts have been applying higher scrutiny levels, which require more substantial government interests to justify infringements on free speech, especially in the context of public health.¹²

The two tests are antiquated—they emerged in 1980¹³ and 1985,¹⁴ respectively—and recent First Amendment cases have commingled their applications, unsettling and blurring the standards.¹⁵ In light of the rattled standards and the fact the Supreme Court has yet to consider mandatory

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disclosures in the health context, the GE labeling law would be an opportune occasion to define clearly the appropriate level of scrutiny for compelled commercial disclosures as well as the types of government interests that would satisfy both intermediate scrutiny under Central Hudson or the more relaxed standard under Zauderer. Indeed, Justices Ginsburg and Thomas have expressed interest in reassessing the Zauderer standard.¹⁶ More specifically, the Supreme Court should clarify whether the Zauderer standard requires a substantial government interest.

If the GE labeling law withstands likely First Amendment challenges, or until successful First Amendment litigation overturns the law, the government should anticipate two other sources of litigation: (1) consumer class actions arising under parallel state laws or existing state consumer protection laws and (2) competitor suits by manufacturers seeking to enforce the GE labeling law through the Lanham Act. This Comment forecasts that private litigation will be necessary to enforce the GE labeling law due to the ineffective enforcement provisions in the language of the Act. In particular, this Comment concludes that competitor suits under the Lanham Act will likely be the most powerful instrument to enforce the Act.

This Comment proceeds in four Parts. Part I explains the debate surrounding GE foods that incited Congress to enact the National Bioengineered Food Disclosure Standard with the aim of preempting a patchwork of disparate state laws across the country. Part II analyzes the language of the Act, exposing the weaknesses in the GE labeling law that will give rise to the litigation discussed in Parts III and IV. Part III explores the likely First Amendment challenges that GE labeling opponents will raise in response to compelled commercial speech from the mandatory disclosure requirement. Finally, if the Act survives the free speech issues discussed in Part III, Part IV concludes that private litigation will be necessary to enforce the GE labeling law due to weak enforcement provisions in the Act. This Comment ultimately concludes that private enforcement via competitor suits will be the most effective enforcement tool.

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I. GMOs vs. GEs: Terminology and Background Information About the GE Labeling Law

This Part describes the development of genetically engineered food and its ubiquity in the American and global food supply. This background sets the stage for the debate over GE labeling that spurred the passage of the federal GE labeling law.

Through hybrid and selective breeding, "[h]umans have...