LegiStorm

Summary:

The labeling of genetically engineered (GE) foods, sometimes referred to as genetically modified foods (GMO foods), has been the subject of debate among members of the general public, industry participants, and federal and state governments. Grocery Manufacturers Association v. Sorrell serves as a case study on the constitutional implications of state GE food labeling laws and provides some insight on the judicial consideration of GE labeling as Congress considers GE labeling legislation in the 114th Congress. Key Takeaways of This Report  The Food and Drug Administration (FDA) does not impose specific labeling requirements on food just because it may or may not contain GE ingredients, but some states have responded to public demand for GE labeling by enacting state laws requiring such a labeling scheme. As of the date of this Report, three states have passed mandatory labeling laws for GE foods: Vermont, Connecticut, and Maine. These laws have been controversial and have raised various constitutional considerations, particularly relating to the First Amendment, the Commerce Clause, and the Supremacy Clause.  While none of these state labeling schemes are yet in effect, certain industry participants have filed suit in federal court against the State of Vermont, in Grocery Manufacturers Association (GMA) v. Sorrell, claiming that Vermont’s GE labeling law, Act 120, is unconstitutional by imposing undue burdens on speech, and by interfering with federal oversight of the food industry, and the federal regulation of commerce. Vermont’s law is scheduled to go into effect on July 1, 2016.  The litigation in GMA v. Sorrell is in its early stages; as of the date of this Report, the court has denied the plaintiffs’ request for a preliminary injunction and dismissed some of their claims, but has allowed other claims to continue to trial.  The plaintiffs argued that Act 120’s prohibition of the use of “natural” on food labeling and the statute’s mandate to label GE food violated the plaintiffs’ First Amendment rights to freedom of speech. While the court has allowed both of these claims to continue to trial, the court indicated that it found the claim that the prohibition of the term ‘natural’ on food labels violates the First Amendment to be more likely to succeed at trial, suggesting that a state law that contains disclosure requirements generally, such as mandating labeling food as GE, rather than prohibits companies from using certain words on their labels, may be more likely to pass constitutional muster, at least in the U.S. Court of Appeals for the Second Circuit.  The plaintiffs argued that various federal laws on food labeling should preempt Act 120, but the court dismissed these claims (except in the context of meat labeling), concluding that congressional intent to preempt state GE labeling laws, such as Act 120, is not sufficiently clear and manifest. Congress could legislate in this area were it to determine that federal laws should preempt state GE labeling laws.  The plaintiffs argued that Act 120 violated the dormant Commerce Clause by impermissibly burdening interstate commerce, but the court dismissed these claims because the statute does not require GE food manufacturers to alter their labeling practices nationwide. The court did note that, were more states to pass conflicting GE food labeling laws, this may strengthen a claim in the future that the laws violate the dormant Commerce Clause.  The U.S. House of Representatives recently passed the Safe and Accurate Food Labeling Act of 2015 (H.R. 1599), which would impose voluntary labeling and certification schemes for foods that contain GE plants, and has raised the issue of whether the legislation would preempt state GE labeling laws, including Vermont’s Act 120.