The Disclosure Debates Recap: Food and Product Labeling Panel

This post, written by Vermont Law Review Articles Editor Caitlin Stanton, first appeared on Vermont Law School’sEnvironmental Health blog

During Vermont Law School’s 13th Annual Law Review PosterSymposium, the Disclosure Debatesanother panel discussion related to environmental health was theInformation Disclosure through Food & Product Labeling panel. Panelists included Brian Dunkiel, co-founder ofDunkiel Saunders; David Zuckerman, Vermont State Senator and Farmer,Full Moon Farm; George Kimbrell from the Center for Food Safety and Lewis and Clark Law School; Christine DeLorme from the Federal Trade Commission’s Division of Advertising Practices; and Walter Olson from theCato Institute. The panelists discussed labeling generally and specifically focused on labeling of genetically modified organisms (GMO).

Corn, soy, and canola oil are the most common genetically engineered crops, and are present in 70 percent of popular processed foods like breakfast cereal, cookies, chips, soda and frozen meals.  Government approval of GMOs is generally based on short-term studies using animal models, which cannot determine the long-term consequences of consuming genetically engineered foods over the course of a lifetime.  While more than 40 countries label GMOs, including the European Union, Australia, Saudi Arabia, Russia, Japan and China, and while polls show that the majority of Americans would like labeling of GMOs, their presence in commercially available foods is not currently regulated. The panelists discussed the balance between the public’s desire to know what they are eating, the legal barriers to mandatory disclosure, and how much information consumers need.

As a farmer, David Zuckerman discussed GMOs from the perspective of a farmer and a consumer. He focused on the relative uncertainty surrounding the health impacts of GMOs, including the connection between the introduction of modified crops and an increase in gastrointestinal problems. To providecontext, David explained the process of splicingBacillus thuringiensis, a bacteria found in soil, into the genes of plants. The bacteria affect a protein mechanism that causes toxicity in insect larvae, but is not known to be present in humans, and is used as an organic pesticide in liquid form. When spliced into the genes of an entire crop, however, the level of exposure can lead to resistant larvae. More importantly for health, the health effects of this modification, and others, are unknown. Some studies indicate that Bacillus thuringiensis damage the ileum (a portion of the small intestine), which may cause chronic illnesses. Nevertheless, the health effects of this modification, and others, are generally unknown. These unknowns raise concerns and creates a demand for information about what, exactly, consumers are putting into their bodies.

George Kimbrell noted that almost all Americans (between 90 and 95 percent) believe that

they have the right to know if their food is genetically modified. Despite this consensus, there are several legal issues that could prevent labeling requirements, including preemption, the First Amendment, and the Dormant Commerce Clause. Dismissing preemption due to a lack of federal laws, George also explained that while the First Amendment protects commercial speech, courts will review any challenge under a rational basis test. Due to the lack of federal oversight, and because labeling is legitimately related to state interests, including health, the economy (preventing contamination which would result in export bans), and the environment, First Amendment challenges are unlikely to prevail. George discussed two recent cases that indicate a similar outcome for any challenges to labeling requirements under the Dormant Commerce Clause.

In Rocky Mountain Farmers Union v. Goldstene, the Ninth Circuit held that California’s low carbon fuel standard (LCFS), adopted to reduce emissions from fuel sold in the state, does not facially discriminate against out-of-state ethanol or crude oil. Referring to the commerce clause balancing test in Pike v. Bruce Church Inc., 397 U.S. 137 (1970), the court held that “absent discrimination, we will uphold the law ‘unless the burden imposed on [interstate] commerce is clearly excessive in relation to the putative local benefits.’” In American Meat Institute v. U.S. Department of Agriculture, the District Court for the District of Columbia declined to issue a preliminary injunction to prevent USDA’s Country of Origin Labeling regulations for meat from going into effect. The court applied the rationality test fromZuaderer because the rule would impose a disclosure requirement of “purely factual and uncontroversial” information, and determined that the threshold from Zauderer was easily met because there was “clearly a reasonable relationship between the government’s interest in preventing consumer confusion about the origins of muscle cut meat . . . and the required disclosure of specific production step information.” The judge also addressed First Amendment issues, asserting that the government has the power to impose regulations that eliminate confusion, and that “in the First Amendment context, it is the burden on speech, not pocketbook, that matters.”

These decisions correspond to a topic introduced by Brian Dunkiel: the consumer as regulator. While consumers base purchasing decisions on marketing claims, these decisions are based on consumer trust in the claims. Their power therefore lies in the potential that demand translates into environmental change. As Walter Olsen argued, however, information also has the power to overwhelm consumers. The power of disclosure is therefore tied to the information itself, and whether consumers have the capacity to understand and interpret the information. Too much information can decrease the perception of risk or even pique a consumer’s curiosity. A successful disclosure rule would therefore encourage judicious disclosure.