3.16.2012 – Labeling Food Produced with Genetic Engineering

This week, the House Agriculture Committee took testimony on H.722, an act relating to consumer affairs, food labeling, and genetic engineering. After hearing testimony from our Legislative Council and the Attorney General’s office, it is clear that this is a very complicated issue, to say the least. This will be the first of several columns on this subject as we work on H.722.

Commonsense tells us that consumers should have a right to know what is in their food, however that right alone is not borne out in court when factual information about a product does not exist. According to Dr. Michael Hansen, Senior Staff Scientist at Consumer Reports, the Food and Drug Administration (FDA) has accepted the testing done by the biotech companies regarding their own products and offers no opinion on it. Historically, there have been no requirements for safety assessments for genetically engineered (GE) products, while even food additives have been subjected to such assessments.

In 1996, the Second Circuit Court of Appeals ruled against the State of Vermont in the International Dairy Foods Association (IDFA) v. Amestoy case after Vermont passed a law requiring the disclosure of recombinant bovine somatotropin (rBST) use in the production of milk. rBST, also known as recombinant bovine growth hormone (rBGH) is a genetically engineered drug that, when injected into a cow, increases milk production. In other words, the State of Vermont required by law that milk containers be labeled if rBST was used to produce the milk.

When a court rules on an issue of commercial speech, part of its decision depends on what the state offers as its “substantial interests.” These include consumer protection from potentially deceptive advertising, environmental concerns, and economic development, to name a few. What Vermont offered as its substantial interest in the IDFA v. Amestoy case was “strong consumer interest and the public’s ‘right to know.’” The Court ruled that “these interests are insufficient to justify compromising protected constitutional rights” and that “consumer curiosity alone is not a strong enough state interest to sustain the compulsion of even an accurate, factual statement.”

How the court rules potentially depends on which First Amendment “test” it applies. The two that are applicable in this case are the more lenient “Zauderer” test for government regulations that compel purely factual and uncontroversial commercial speech and the stricter “Central Hudson” test for regulations that restrict accurate commercial speech.

In the case of IDFA v. Amestoy, the court applied the Central Hudson test, which was interesting because Vermont statute was compelling speech (by requiring labeling), not restricting it. Also, as mentioned earlier, in order for there to be substantial interest, the labeling would have had to be required due to “a reasonable concern for human health or safety or some other sufficiently substantial governmental concern.” At the time, there was little or no evidence that rBST produced milk was different from milk produced without it.

It is important to understand the details regarding the IDFA v. Amestoy case because they bear similarities to the labeling of GE food.

What is clear is that the first state that passes this legislation will be brought to court like Vermont was brought to court in the IDFA v. Amestoy case. It is hard to predict which test – Zauderer or Central Hudson – might be applied. We would rather not repeat the IDFA v. Amestoy experience because it is expensive and if we were to lose, we would potentially pay for the winner’s legal costs.

Currently, in Vermont, New Hampshire, and Maine, milk is being produced without the use of rBST and most containers include labeling indicating that fact. Time has passed and studies indicate that milk produced with rBST is different and has higher levels of the insulin –like growth hormone IGF-1, lower nutritional quality when produced at certain points in the cow’s lactation cycle, and higher somatic cell counts.

What is interesting to note is that in a recent MSNBC poll, 96% of those polled expressed a desire to know if their food contained GE ingredients. There is a movement to petition the FDA to require labeling of GE foods. If you are interested in signing the petition, go to www.justlabelit.org – more than 900,000 people have already signed on.
On March 12, Sen. Barbara Boxer (D-CA) and Congressman Peter DeFazio (D-OR) sent a letter to the FDA urging them “to require the labeling of GE food so that consumers can make informed choices about what they feed their families.” The entire Vermont delegation signed the letter.

The House Agriculture Committee will continue to work on H.722. An exception from the crossover rule was requested and granted by Speaker Shap Smith and Senate President Pro Tem John Campbell.