Second Circuit to consider First Amendment challenge to GMO labeling law

Guest post by Julie Murray (Public Citizen Litigation Group)

Some states have recently adopted, and dozens of others have considered, laws that require food manufacturers to disclose whether their products have been made through genetic engineering (GE). These laws would at least give consumers useful information to guide their purchasing decisions amid the federal delay in updating standards to evaluate GE products. Vermont’s labeling law is the first in the nation to take effect, and a First Amendment challenge to the law by industry groups is now wending its way through the Second Circuit.

The Vermont law generally requires that companies disclose on food labels whether the products were produced in full or in part with genetic engineering. It also bans companies from using the term “natural” or similar words in advertising or labeling of GE food, in light of survey evidence showing that consumers are misled by these descriptions.

The Grocery Manufacturers Association and other industry groups sought a temporary injunction of the law in federal court in Vermont, raising various constitutional arguments and asserting that the law was preempted. That court denied their request, and the groups appealed.

In the Second Circuit, the groups contend that the labeling law violates companies’ First Amendment rights, teeing up yet another court decision to address the appropriate First Amendment test for assessing the constitutionality of commercial disclosure requirements. (We’ve blogged about some of the cases in which Public Citizen has been involved here and here.) The plaintiffs argue, among other things, that the lenient First Amendment review set out in Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985), does not apply to the labeling law because the disclosure relates to the controversial topic of GE food, conveys an implicit message that companies believe production through genetic engineering is an important fact about a product, and serves no interest other than consumer curiosity.

In a brief filed last week, Vermont contends that the disclosure requirement mandates only a factual, accurate statement and serves state interests in preventing deception, protecting the environment, preventing risks to human health, and accommodating religious practices. Accordingly, Vermont says, Zauderer review applies, and even if it doesn’t, the disclosure requirement satisfies the more stringent First Amendment standard—set out in Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980)—that is typically reserved for commercial speech prohibitions rather than disclosures.

Amici of all stripes are participating, including Public Citizen, in a brief here. Other key briefs in the district court and court of appeals are here.