Much Ado About Something: the First Amendment and Mandatory Labeling of Genetically Engineered Foods

• Publication year: 2021

MUCH ADO ABOUT SOMETHING: THE FIRST AMENDMENT AND MANDATORY LABELING OF GENETICALLY ENGINEERED FOODS

Stephen Tan(fn*) & Brian Epley(fn**)

INTRODUCTION ................................................................................ 301

I. BACKGROUND .......................................................................... 304

A. History of Food Labeling ................................................... 304

B. Genetically Engineered Foods ............................................ 306

II. THE FIRST AMENDMENT, COMPELLED COMMERCIAL SPEECH, AND LABELING OF GE FOODS ............................. 308

A. Restrictions on Speech ....................................................... 308

B. Compelled Speech .............................................................. 309

C. Zauderer Should Apply to Mandatory Labeling of GE Foods .................................................................................. 310

D. Mandatory Labeling of GE Foods Would Be Constitutional Even Under Central Hudson ....................... 313

III. PUBLIC AND GOVERNMENT INTERESTS SERVED BY MANDATORY LABELING OF GE FOODS ............................. 313

A. Environmental Impacts ....................................................... 315

B. Economic Impacts .............................................................. 320

C. Social and Cultural Impacts ............................................... 324

IV. CONCLUSION ............................................................................ 328

INTRODUCTION

Since first becoming commercially available in the mid-1990s, genetically engineered varieties of certain major food crops have come to dominate the American agricultural landscape. More than eighty percent of the corn and ninety percent of the soybeans grown in the United States are now produced from genetically engineered (GE) seed.(fn1) Correspondingly, food containing ingredients produced through biotechnology has become ubiquitous-if not readily apparent-in American grocery markets. The Congressional Research Service estimates that two-thirds of processed conventional foods contain ingredients produced through genetic engineering.(fn2)

The proliferation of GE foods(fn3) has raised concerns about possible adverse impacts, which have in turn prompted calls for laws requiring that such foods be labeled. Sixty-four countries around the world now require labeling of GE foods,(fn4) up from fewer than twenty in 2003.(fn5) Although surveys reveal that Americans overwhelmingly support mandatory labeling,(fn6) efforts to enact legislation have encountered stiff, well-funded opposition from manufacturers of GE seed and the processed food industry. Citizens' initiatives that would have imposed labeling requirements were narrowly defeated in California in 2012 and in Washington the following year.(fn7) And although bills in Connecticut and Maine have been signed into law, labeling of GE foods sold in those states will not be required until certain conditions, including the enactment of similar laws in other states, have been met.(fn8) To date, only one state, Vermont, has passed a GE food labeling law with a specified effective date.(fn9)

The passage of similar legislation in other jurisdictions seems increasingly likely. In 2013, state legislators in twenty-six states introduced GE food labeling bills.(fn10) In early 2014, the Grocery Manufacturers Association (GMA), a leading opponent of mandatory labeling, itself proposed federal legislation that would establish standards for voluntary labeling and would effectively preempt states from imposing stricter requirements.(fn11) In the meantime, the GMA and other labeling opponents prepare to challenge existing and prospective state laws on several constitutional grounds. First, they will likely contend that certain existing federal laws, including those that prohibit misbranding and require disclosure of certain nutritional information, preempt states from requiring labels on GE foods. Second, they will likely assert that any state law would violate the commerce clause. Third, they will likely argue that compulsory labeling would infringe on producers' First Amendment rights by obligating them to communicate information to consumers they would rather not disclose.

This Article evaluates the free speech implications of laws requiring that GE foods be labeled and concludes that such regulations would meet all First Amendment requirements for compelled commercial speech. Part I traces the history of food labeling in the United States, the advent of genetic engineering, and the application of that technology in agriculture and the food industry. Part II evaluates the scope of commercial free speech and the appropriate test to be applied in determining whether a GE food labeling law would violate the First Amendment. Part III examines the impacts of an agricultural and food system increasingly dominated by GE crops. It explains how controversy over a single issue, whether GE foods pose a potential risk to human health, has stunted the debate over whether mandatory labeling serves a useful purpose by diverting attention from other material impacts. It concludes that greater consumer and public awareness of the adverse environmental, economic, cultural, and social impacts of GE foods would serve a substantial government interest.

I. BACKGROUND

A. History of Food Labeling

For most of human history, there was little reason to label food for retail sale. Food was typically sold in its natural state, or at least in some easily recognizable form, so buyers could rely on their physical senses both to identify it and to determine its quality. And because most food was purchased and consumed in proximity to where it was produced, sellers understood that it might be unwise to offer goods that their customers and neighbors could readily identify as inferior.(fn12)

By the mid-1800s, advances in packaging, storage, and transportation-canning, refrigeration, and rail networks, primarily-opened new, distant markets for many food products.(fn13) Their increased distance from these markets created new opportunities for producers to improve their profit margins by compromising on quality.(fn14) By the end of the nineteenth century, adulteration of food emerged as a common and often dangerous problem.(fn15)

To distinguish their goods from inferior ones, producers increasingly turned to branding and trademarks.(fn16) Unscrupulous sellers responded by misbranding their products or resorting to other forms of fraud, prompting calls for government oversight over the production and sale of food products.(fn17) In 1906, Congress passed both the Pure Food and Drug Act,(fn18) the first federal law prohibiting the misbranding of food items, and the Meat Inspection Act,(fn19) which required that manufacturers identify themselves and substantiate any claims regarding quality.(fn20) The Food, Drug, and Cosmetic Act of 1938 declared any food "misbranded . . . [i]f its labeling is false or misleading in any particular"(fn21) and imposed civil and criminal penalties for violations.(fn22)

Scientific advances in the latter half of the twentieth century triggered a second wave of food labeling laws. Unlike earlier laws that restricted what producers and manufacturers could say, these new regulations required producers and manufacturers to convey information deemed important for consumers to know.(fn23) An improved understanding of human nutritional needs and the relationships between food and human health gave the Food and Drug Administration (FDA) a basis to promulgate its initial regulations on nutrition labeling in 1973.(fn24) In 1990, Congress passed the Nutrition Labeling and Education Act (NLEA), requiring the disclosure of nutritional profiles.(fn25) In the years since, other affirmative labeling requirements have been imposed, including country-of-origin labeling for meat products(fn26) and mandatory disclosure of common food allergens.(fn27) These and other food labeling requirements first imposed in the United States have been widely adopted around the world.

There is, however, one trend in food product labeling that the United States neither pioneered nor, despite widespread adoption overseas and broad public support at home, has thus far followed. While sixty-four nations around the world, including China, India, Japan, South Korea, Australia, Brazil, South Africa, and all of the nations of the European Union, now require that foods produced through genetic engineering be labeled,(fn28) attempts in the United States to enact federal legislation that requires labeling have failed, and only Vermont has passed a state law compelling disclosure that is not conditioned on the enactment of similar laws in other states.

B. Genetically Engineered Foods

Genes are discrete segments of an organism's chromosomes that code for certain proteins, which in turn determine the physical traits of that organism. An organism's genetic code, also known as its genome, is in essence the biochemical blueprint that defines that organism as a unique physical and biological being. Traditional plant breeding and animal husbandry manipulate this process through the selective breeding of individual organisms with desirable characteristics to create new organisms with these favored traits. Natural reproductive mechanisms limit how much any individual organism can differ genetically from...