October 24, 2012
Partner Sarah Roller was quoted in the FoodNavigator-USA.com article titled, "GMO Labeling: How Vulnerable is Proposition 37 to a Legal Challenge?" Prop 37, the Genetically Engineered Foods Right to Know Act, would require labeling on foods containing genetically engineered ingredients and prohibit labeling or advertising such food as "natural."
Speaking at a recent seminar hosted by the Washington Legal Foundation, Ms. Roller cited a series of cases where labeling requirements imposed by states have been successfully blocked on First Amendment grounds. The best-known example is the International Dairy Foods Association (IDFA) vs. Amestoy case of 1996 in which it was ruled that a 1994 Vermont statute requiring mandatory labeling of milk treated with artificial growth hormones was unconstitutional under the First Amendment.
"The Court ultimately found that despite the mild language that was prescribed, the Vermont law would have required manufacturers to publish the functional equivalent of a warning about a production method that had no discernible impact on the final product. ... Statutes that compel speech in order to satisfy consumer curiosity about the technologies used in making a food are vulnerable to challenge under First Amendment standards even when the compelled speech requirement arguably involves an accurate factual statement, but one that is objectionable to those that make and market the product."
Similarly, Prop 37 would "restrict freedom of expression... specifically by requiring the use of very specific terminology in food labeling, terminology that is controversial and highly objectionable to those who would be required to abide with the labeling requirements," she argued.