As the endless debate about GMO labeling continues, the LA Times has a nice article on an issue I’ve highlighted before — that the First Amendment might preclude legislation or ballot initiatives that mandate the labeling of GMO ingredients. The article notes that:
Courts have ruled that forcing companies to label GM products violates their 1st Amendment right of free speech. In a 1996 case, a federal appeals court blocked a Vermont law that required dairy producers to label milk from cows that had been treated with a growth hormone made by genetically engineered bacteria. The hormone helped cows produce more milk, but the milk itself was the same as milk from untreated cows, the FDA determined. Because the law required labels to contain information that wasn’t “material” to the product, it was unconstitutional, the 2nd Circuit Court of Appeals ruled in a 2-1 decision.
Labels can be required only if they alert consumers to a change that affects a food’s composition or nutrition, its physical properties (such as shelf life), or the qualities that influence the sensory experience of smelling, tasting and eating it, the FDA says.
Not surprisingly, the FDA’s position is shaped by Court rulings on the First Amendment. In that regard, government-mandated disclosures (i.e., “compelled commercial speech”) does not generally offend the First Amendment when it prevents (or “cures”) deception or confusion. In addition, compelled disclosures may serve interests in promoting public health, which explains labeling requirements for nutritional data and common allergens.