It’s been a few years since biotech foods have been regular front page news. The anti-technology activists cried wolf a few too many times, and none of the scare stories have come true. Still, the activists have re-grouped and are making an all out, well-financed assault on state and federal governments this year, agitating for mandatory labeling of biotech foods.
Stonyfield Farm Chairman Gary Hirshberg even gave up his position as president and CEO of one of the world’s largest organic food purveyors to lead what’s being billed as the “Just Label It” campaign, organized by a veritable who’s who of the organic and “natural” foods industry. And they've been busy -- petitioning FDA and the White House, and lobbying Congress and state legislatures to mandate warning labels on biotech foods. But arguably the crown jewel in this year's campaign is an initiative that will likely appear on California ballots this coming November.
I've written before about why mandatory labeling is a bad idea and why consumers don't need mandatory labeling to exercise their choice to purchase non-biotech foods. But the simple fact is that labeling mandates of this type are also unconstitutional. In a case called International Dairy Foods Assoc. v. Amestoy, the U.S. Second Circuit Court of Appeals held that a Vermont statute requiring dairy products from cows given the biotech growth hormone rbST violated the First Amendment, and that food labeling cannot be mandated simply because some people would like to have the information. The Vermont law was unconstitutional because it forced producers to make involuntary statements contrary to their views even though there was no substantial governmental interest in requiring the label statement.
"We are aware of no case in which consumer interest alone was sufficient to justify requiring a product’s manufacturers to publish the functional equivalent of a warning about a production method that has no discernable impact on a final product. … Absent some indication that this information bears on a reasonable concern for human health or safety or some other sufficiently substantial governmental concern, the manufacturers cannot be compelled to disclose it. Instead, those consumers interested in such information should exercise the power of their purses by buying products from manufacturers who voluntarily reveal it."
That should mean that the California ballot initiative would also be invalidated. Although the Second Circuit's decision is only binding on courts in Vermont, New York, and Connecticut, other courts would view the decision as persuasive precedent. But I've just now been alerted to a recent California federal court decision providing a different legal theory for invalidating state labeling mandates.
In November of last year, the U.S. District Court for the Central District of California dismissed a class action suit against ConAgra Foods premised on the allegation that ConAgra misleadingly advertised Wesson cooking oil as "100% Natural," even though it is made with genetically engineered canola. The case, Briseno v. ConAgra Foods, Inc., was dismissed on procedural grounds that should permit the plaintiffs to re-file at a future date. But, before dismissing it, the court addressed several of ConAgra's other arguments, including a claim that the action should be preempted by Section 403A of the Food, Drug and Cosmetic Act, which states that "no State … may directly or indirectly establish … any requirement respecting any claim of the type described in section 343(r)(1) of this title, made in the label or labeling of food that is not identical to the requirement of section 343(r) of this title." The court concluded that, because the FDA has never defined what constitutes "natural" or "all natural," a definition of those terms under California law could not conflict with federal standards, so the suit was not preempted.
The plaintiffs -- perhaps unwittingly -- screwed themselves, however, by trying to piggyback an unrelated demand into the case. In addition to seeking monetary damages and an injunction preventing ConAgra from claiming in the future that Wesson oil is "natural," they also demanded that the court require ConAgra "to adopt and enforce a policy that requires appropriate disclosure of GM (sic) ingredients." But, while the FDA has not taken action to define what constitutes "natural" on a food product label, it has taken action regarding when and how biotech ingredients must be labeled.
In its 1992 "Statement of Policy: Foods Derived From New Plant Varieties," the FDA made clear that biotech methods do not inherently change the composition of a food product in any way relevant to consumer safety, and that "The regulatory status of a food, irrespective of the method by which it is developed, is dependent upon objective characteristics of the food and the intended use of the food (or its components)." FDA categorically rejected claims that all biotech foods should be labeled and explained that its policy would require specific labeling if, and only if, the composition of those foods differs “significantly” from their conventional counterparts. Such differences would include, among other things, the introduction of an allergen that is not present in the new plant’s conventional counterpart, a reduction or increase in nutrients from what would be expected of the conventional counterpart, or even a change in the expected taste, smell, or feel of the food or its expected storage or preparation characteristics.
In that regard, the FDA's policy is consistentwith the general scientific consensus that plants developed with new biotechnologies are not inherently more risky than those developed with conventional techniques, and that regulation and labeling ought to be based on the specific characteristics of the products that could make them more or less safe, not how they were created. And, because the FDA has explicitly established a policy on the labeling of biotech foods, the Briseno court concluded that "Entering an order of the type Briseno seeks would impose a requirement that is not identical to federal law, and his prayer for such relief is thus preempted." That is, according to the U.S. District Court for the Central District of California, a state requirement that biotech foods be labeled as such would be preempted by federal law.
Of course, the decision only has controlling precedential authority over future cases brought in the Central District of California, meaning that the Northern District or Southern District of California (or any other federal district court in the country for that matter) could reject the preemption rationale. And any future decision in the Central District of California could theoretically be reversed by the Ninth Circuit Court of Appeals. But it doesn't take a rocket surgeon to see that, if the California ballot initiative were to win a majority of votes this coming November, food industry plaintiffs would race to the federal courthouse in Los Angeles and argue that that court has already explained why the initiative must fail.
Regardless of where such a challenge is brought, the case law regarding federal preemption in this area is well developed, as the Briseno court explains in a lengthy discussion of what types of state laws are and are not barred. So, it would be highly unusual, to say the least, for another court to reach a different conclusion. And, even if it did, there's always the First Amendment argument, which is similarly well developed.
That said, let's just hope that we can explain to California voters over the next six months why a biotech food labeling mandate is unnecessary and unwarranted.