Opinion: Free speech rights at heart of GMO labeling court fight

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U.S.Department of Agriculture

A woman at a grocery store.

Dave Dickey

Dave Dickey

Agriculture Committee Chairman Sen. Pat Roberts’ train wreck of a bill to short circuit Vermont’s GMO labeling law set to go into effect July 1 couldn’t pass cloture muster.

While Roberts (R-Kan.) vows to resume fighting after the Easter holiday recess, it will likely be tough finding compromise with Democrats, whose votes are needed along with six Republicans to break a filibuster.

Roberts’ tweaked-out bill included provisions allowing food makers to use websites, cell-phone scanning and call centers to disclose what products contain GMOs, putting the onus on the consumer to ferret out information.

And that didn’t sit well with Agriculture Committee ranking member Sen. Debbie Stabenow (D-Mich.),who not only voted no but also left Roberts with little wiggle room by saying:

Consumers want information about the food they eat. It’s as simple as that. In fact, the bill continues the status quo on providing information to consumers.”

And make no mistake about it: The public by and large truly does care about GMOs, no matter what the science might be saying about how safe they are.

An Environmental Working Group survey conducted in Delaware, Indiana, Michigan, Minnesota, North Dakota and Virginia last June found consumers in large numbers favor requiring GMO labels on food items.

While Roberts and Stabenow are saying all the right things in public about finding something both Dems and the GOP can live with, major food producers are becoming increasingly doubtful.

Witness General Mills Chief Operating Officer Jeff Harmening’s reaction after the failed vote.

“As the discussions continue in Washington, one thing is very clear: Vermont state law requires us to start labeling certain grocery store food packages that contain GMO ingredients or face significant fines. We can’t label our products for only one state without significantly driving up costs for our consumers and we simply will not do that.”

Harmening all but raised a white flag at the possibility of GMO labels coming very soon.

Should Congress fail to stop Vermont’s GMO labeling law, the food industry will be rooting like crazy for the Second Circuit Court of Appeals to kill it.

The Grocery Manufacturing Association maintains that Vermont’s GMO labeling law violates the Constitution’s First Amendment rights because GMO labels – while a form of free speech – impose a burden on food manufacturers due to the speech’s content.

The Grocery Manufacturing Association sought an appeal after U.S. District Court Judge Christina Reiss denied a preliminary injunction last April to block Vermont’s law.

In doing so, Reiss applied  Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio admittedly a less stringent First Amendment hurdle then what the GMA was hoping for.

According to one analysis, the Zauderer case established that “while core political speech is highly protected by the First Amendment and commercial speech is somewhat less protected, the government is usually allowed to compel a business to disclose factual information in order to prevent deception.”

The Grocery Manufacturing Association is counting on the Second Circuit to use a different First Amendment measuring stick, the U.S. Supreme Court’s decision in Central Hudson Gas & Electric Corp. v. Public Service Commission of New York –  which it says is needed due to what the association calls “controversial” disclosures in sticking GMO labels on goods sold in Vermont.

The association’s appeal case was argued in October 2015 and a decision could be immediate.

For its part, the state of Vermont continues to say Reiss was correct in applying Zauderer in that its GMO labeling law provides consumers factual and not controversial information.

“Having determined that strict scrutiny does not apply to Act 120’s GE disclosure requirement, the court turns to the parties’ competing requests for a lesser form of judicial scrutiny. Plaintiffs argue that intermediate scrutiny as set forth in Central Hudson applies because Act 120’s GE disclosure requirement compels speech that requires Plaintiffs’ members to convey controversial information for the sole purpose of appeasing consumer curiosity.

The State counters that Zauderer’s less exacting scrutiny applies because Act 120’s GE disclosure requirement compels only factual, noncontroversial commercial information and furthers governmental purposes beyond merely satisfYing a consumer’s right to know whether food products contain GE ingredients.”

Should Vermont’s Act 120 stand, food manufacturers will likely have two viable options:  either produce food without GMOs or slap some sort of GMO label on every product that contains them… not just for Vermont, but for national distribution.

About Dave Dickey

Dickey spent nearly 30 years at University of Illinois at Urbana-Champaign’s NPR member station WILL-AM 580 where he won a dozen Associated Press awards for his reporting. For the past 13 years, he directed Illinois Public Media’s agriculture programming. His weekly column for Big Ag Watch covers agriculture and related issues including politics, government, environment and labor. Email him at dave.dickey@investigatemidwest.org.

This column reflects the writer’s own opinions and not those of Big Ag Watch.

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