Vermont, GMOs, and Compelled Speech

June 24, 2014

By Ricardo Carvajal

As widely reported in the press, several food industry trade associations sued the state of Vermont to overturn its recently enacted law requiring that a food “entirely or partially produced with genetic engineering” be labeled with the “clear and conspicuous words ‘produced with genetic engineering’” – with certain exceptions that we won’t delve into here.  That requirement is based in part on legislative findings that “genetically engineered foods potentially pose risks to health, safety, agriculture, and the environment.”  The requirement is intended to help consumers “make informed decisions regarding the potential health effects of the food they purchase and consume and by which, if they choose, persons may avoid potential health risks of food produced from genetic engineering.”

An allegation central to the complaint is that Vermont’s labeling requirement violates the First Amendment because it “compels manufacturers to use their labels to convey an opinion with which they disagree, namely, that consumers should assign significance to the fact that a product contains an ingredient derived from a genetically engineered plant.”  Indeed, as noted above, the law is premised in part on a finding that genetically engineered foods pose potential health and safety risks to which consumers must be alerted so that they can choose to avoid those risks.  The complaint notes that more than twenty years’ worth of federal government reviews have reached contrary conclusions – a contradiction that would seem to lie at the heart of the law’s potential vulnerability.

Setting aside the fact that Vermont’s perspective on the risks posed by genetically engineered foods is at odds with that of the federal government, Vermont’s perspective highlights a conundrum faced by opponents of genetic engineering: the more they emphasize the purported risks presented by genetically engineered foods as a means of justifying labeling requirements, the more the speech that they seek to compel takes on the character of a warning.  In that regard, we were reminded of recent litigation successfully challenging FDA’s regulation requiring graphic warnings for cigarettes (see here).  Obviously, those graphic warnings were qualitatively different from the words “produced with genetic engineering.”  However, from a manufacturer’s perspective, the intended underlying message is similar – in essence, “don’t buy this product.” 

Under what circumstances can the government constitutionally compel a manufacturer to convey such a message?  In the cigarette warning case, the DC Circuit put the question thusly:

[H]ow much leeway should this Court grant the government when it seeks to compel a product’s manufacturer to convey the state’s subjective – and perhaps ideological – view that consumers should reject this otherwise legal, but disfavored, product?

The court was able to side-step that question because FDA’s regulation did not survive the court’s Central Hudson analysis.  We’ll see if a permutation of that question resurfaces as the litigation over Vermont’s law moves forward.