Editor's note: The following article was featured in the July/August issue of PorkNetwork magazine.
The COOL and Conflicts Minerals cases are just the tip of the compelled speech iceberg. Perhaps the biggest food fight today is being debated in multiple states, in referenda and in state and proposed federal legislation regarding “genetically modified organisms” (“GMO”) used in food production. Consumers and environmentalists are seeking mandatory disclosure of GMOs in food. While referenda in California and Washington have been defeated, the issue is very much alive in the legislative arena. Maine and Connecticut have already passed laws requiring GMO disclosure; however, those laws only become effective upon adoption of similar laws in a sufficient number of New England or neighboring states or upon implementation in states with a minimum population requirement.
However, in May, Vermont’s governor signed a stand-alone mandatory GMO labeling law that becomes effective in mid-2016. The law establishes a $1.5 million “legal defense fund” to which private individuals can contribute. The legal costs of defending the law are being estimated between $5 and $8 million. Meanwhile competing mandatory and voluntary labeling, with state preemption of mandatory labeling, bills have been introduced in the U.S. Congress. U.S. legislation does not appear to be moving in either direction for the time being.
Let the Market Decide
In the private arena, Whole Foods has moved to require its vendors to disclose GMO use in products sold at Whole Foods beginning by 2018. The rBST debate may be quite instructive in that consumer demand eventually drove disclosure. The question of course is: why should our government tell us what to say when the marketplace of ideas appears to work so well? Moreover, the AMI panel decision would open the door to mandatory speech on a host of fronts, and perhaps those who want mandatory disclosure of COOL or Conflicts Minerals or non-GMO won’t want future disclosure rules that government may require based upon its “interests.”
The First Amendment can and should prevent government compelled speech at least unless there is actual consumer deception. As both the rBST debate and Whole Foods’ requirements show, the marketplace can more efficiently and legally address any need for speech.
Editor’s Note: Chip English is a partner at Davis Wright Tremain, LLP, Washington, D.C. He concentrates on complex commercial litigation and regulatory matters and is a seasoned litigator with extensive experience in the food and agriculture industry.