California Ballot: Label Genetically Engineered Foods?

The nation is watching California, where a citizen’s initiative to enact a genetically engineered (GE) food labeling law has now qualified for the November ballot. In order to place the California Right to Know Genetically Engineered Food Act on the ballot for the November election, 500,000 signatures were required, and the organizers exceeded that in turning in a petition with nearly a million signatures. The proposed law declares that, as of July 2014, “any food offered for retail sale in California is misbranded if it is or may have been entirely or partially produced with genetic engineering and that fact is not disclosed.” The law would require that raw genetically engineered agricultural commodities be labeled with Genetically Engineered” on the front of the packaging; it would further require that processed foods made with genetically engineered ingredients be labeled with “Partially Produced with Genetic Engineering” or “May be Partially Produced with Genetic Engineering.” Exemptions from the labeling requirement include “a raw agricultural commodity or food derived therefrom that has been grown, raised or produced without the knowing and intentional use of genetically engineered seed or food.” This provision acknowledges the possibility of inadvertent contamination of non-GE crops by GE crops in proximity (see here for legal issues involving such contamination). The proposed bill further declares that the use of “natural” or similar terms for foods with genetically engineered ingredients consitutes misbranding. A number of states have pending legislation to require GE food labeling, but none have brought a referendum to ballot as California has; Vermont’s bill has emerged from committee and will be taken up in the next legislative session. On a nationwide level, efforts continue to recruit public pressure on the FDA to mandate the labeling of GE food on a nationwide basis (which it does not); a formal petition has been filed with the FDA and a consumer petition drive continues. If California does acquire the labeling requirement, we can expect possible constitutional challenges from affected industries along First Amendment lines (compelled speech arguments, commercial speech doctrine review) as well as potential dormant Commerce Clause arguments (is such a state food labeling scheme preempted by federal law or authority?). For reference, the dairy industry succeeded in a First Amendment challenge to a 1994 Vermont law requiring milk products to be labeled when animals had been given recombinant growth hormone (rBST); the courts did not find a substantial state interest in Vermont’s assertion of consumer interest as a justification for the labeling requirement.