Labeling of Genetically Engineered Foods: A Constitutional Analysis of California's Proposition 37

Culinaria Monograph Series of the Southern Food and Beverage Museum Center for Food Law, Policy and Culture and Tulane University Law School, No. 1, 2012

26 Pages Posted: 1 Nov 2012  

Lauren Handel

Fosolo & Handel PLLC

Date Written: October 23, 2012

Abstract

According to polls, the vast majority of the American public wants genetically engineered foods to be labeled. On November 6, 2012, California voters will decide whether that state will become the first jurisdiction in the nation to require such labeling. The ballot initiative known as Proposition 37 would require genetically engineered foods to be labeled with a statement disclosing that fact. The proposed law also would prohibit manufacturers from claiming on labels or other marketing materials that genetically engineered or processed foods are "natural."

Apart from the policy merits of Proposition 37, the initiative raises interesting constitutional issues that will be relevant for other jurisdictions' efforts to require labeling of genetically engineered foods. This article explores the constitutionality of Proposition 37 with regard to First Amendment free speech rights and under the doctrine of federal preemption of state law. The article concludes that Proposition 37 is likely, at least in part, unconstitutional. Proposition 37's prohibition on "natural" claims most likely violates the First Amendment because it does not further a legitimate state interest, such as preventing consumer deception, and because there are less speech-restrictive means of accomplishing the state's interest. The initiative's requirement to disclose genetic engineering on labeling is not likely to survive a First Amendment challenge unless the courts recognize a state interest in supporting consumers' "right to know" which may trump the commercial speech rights of food companies. Finally, federal law governing the labeling of meat and poultry products would preempt Proposition 37 to the extent it would impose different or additional requirements for the labeling of such products, but the initiative likely is not preempted by federal law regulating the labeling of other food products.

Keywords: Proposition 37, Prop 37, GMO labeling, genetically modified, genetically engineered, food labeling, First Amendment, preemption, natural labeling

JEL Classification: K39, K23, L66

Suggested Citation

Handel, Lauren, Labeling of Genetically Engineered Foods: A Constitutional Analysis of California's Proposition 37 (October 23, 2012). Culinaria Monograph Series of the Southern Food and Beverage Museum Center for Food Law, Policy and Culture and Tulane University Law School, No. 1, 2012. Available at SSRN: https://ssrn.com/abstract=2169440

Lauren Handel (Contact Author)

Fosolo & Handel PLLC ( email )

PO Box 205
Sag Harbor, NY 11963
United States
(888) 908-4959 (Phone)

HOME PAGE: http://www.foodlawfirm.com

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