October 12, 2012
Partner Sarah Roller was quoted in a Food Chemical News article titled, "California's Prop 37 label law seen vulnerable to 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."
In a Washington Legal Foundation webinar, Sarah Roller said Prop 37 raises "substantial First Amendment concerns," because the Constitution "protects the right to speak and the right not to speak. Government has the burden to prove a need for restrictions on commercial speech. Regulation of speech must be a last resort, not the first resort." If government chooses to require a warning, it must "demonstrate that harms are real." She further clarified, "Compelled speech is subject to a heightened level of scrutiny. Prop 37 is vulnerable to challenge on First Amendment grounds."
During a question period in the aforementioned webinar, Roller forecasted that the cost of compliance with Prop 37 "would be huge. The scope of exclusions [from biotech labeling] would be uncertain, and there would be incentives for lawsuits to be filed. I anticipate lots of litigation, with cumbersome compliance and large defense costs."