California’s Unconstitutional Proposition 37

Writing in the Daily Caller, legal commentator Walter Olson says that California’s Proposition 37 is bad policy that will only enrich opportunistic lawyers:

Prop. 37 on this fall’s California ballot, pleasantly billed as the Right to Know campaign, would require labeling of food with genetically modified (GMO/GE) ingredients. Backers say Europe already has similar rules and there’s no reason California shouldn’t follow suit. And even though health fears about GMO/GE products have been debunked by virtually every scientific authority to look into the matter — from the AMA to the World Health Organization, and including science reporting in such perhaps unexpected venues as Mother Jones and the Huffington Post — voters in a new Pepperdine poll still approve of the idea by a lopsided 69 to 22 percent. After all, how much could it cost just to put labels on foods?

We may soon find out. California’s fabled Proposition 65, enacted in 1986, requires the labeling of products that expose consumers to substances linked to cancer. That’s a pleasant-sounding idea too, but 26 years later the law has benefited almost no one but litigators. Even as cancer remains just as much of a problem in California as elsewhere, a cadre of lawyers in the state have made many, many tens of millions of dollars filing inadequate-labeling suits against purveyors of such products as candles, fireplace logs, Christmas lights, hammers, billiard cue chalk, matches, grilled chicken, life-saving drugs, brass doorknobs, car exhaust in parking garages, and on and on. (Most of the money in the resulting settlements goes to the lawyers, which is one reason defendants often describe Prop 65 litigation as legalized extortion.)

Weirdly, it might even reduce the availability of certain non-GMO foods, those currently distributed by middlemen that currently sell mostly GMO foods, and don’t want to establish parallel tracks for GMO and non-GMO foods: “By some estimates, 70 percent of the current American food supply would need a ‘contains GMOs’ label” under Prop. 37,” notes Olson in the article. Proposition 37′s enormous documentation burdens and liability risks will have a large chilling effect on suppliers.

Given the utter lack of a health and safety rationale for requiring labeling of GMO foods (much of the food we eat is GMO already), Proposition 37′s compulsory labeling also runs afoul of the First Amendment, which requires that government labeling requirements advance a valid public interest and be reasonably related to that interest.

As CEI biotech expert (and lawyer) Greg Conko previously noted, such scientifically baseless labeling requirements violate the First Amendment:

In a case called International Dairy Foods Assoc. v. Amestoy (1996), 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.

In addition to violating the First Amendment, GMO food labeling mandates can also be invalid by virtue of being preempted by federal law, as Conko previously explained. He discussed a 2011 federal court ruling that rejected, as preempted by federal law, class-action plaintiffs’ attempt to sue over the fact that food had not been labeled to include disclosure of its “GM [sic] ingredients,” since such GM origins did not affect the “objective characteristics of the food” and thus had no relevance to health or safety in the eyes of the FDA.