GMO Food Labeling Law, Constitutional Considerations

Henry I. Miller,  a fellow at Stanford University’s Hoover Institution and the founding director of the FDA’s Office of Biotechnology, penned an opinion column in today’s Los Angeles Times which stated that, “The push for labels on ‘genetically modified’ or engineered food is one of those social movements that sounds unimpeachable — like ‘Free the Whales’ or ‘Save the Planet’

What could be wrong with empowering consumers with knowledge about their food?


After discussing some technical aspects of plant biology, Mr. Miller explained that, “It is not the source of genetic material, or whether DNA from different organisms are mixed, that should concern us. What is important is the function of the genetic change. Could it, for example, make a plant produce a toxin or become more weedlike? Vermont’s labels don’t make such distinctions. Legislators, regulators, activists and ordinary consumers have had difficulty grasping that ‘GMO’ or ‘genetically engineered’ labels convey nothing useful — or ‘material,‘ in the jargon of Food and Drug Administration regulators.

And that raises the question of whether Vermont’s labeling requirement is even constitutional. In a 2015 decision, the U.S. Supreme Court ruled that labeling requirements like Vermont’s are ‘compelled commercial speech‘ and subject to ‘strict scrutiny‘ to ensure they don’t run afoul of the free speech guarantees of the 1st Amendment.

Without some compelling state interest, such as consumer safety or proper usage, Vermont’s requirement to label foods that contain ‘genetically engineered’ ingredients is unlikely to survive the strict scrutiny standard. The Vermont law already has been challenged by a variety of food industry groups, and a decision from the U.S. 2nd Circuit Court of Appeals could come at any time.”

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