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California Prop 37 Fails to Pass

Among the casualties on election day this year was California Prop 37, defeated by a vote of 53% to 47%.  Proposition 37, the California Right to Know Genetically Engineered Food Act, was a ballot initiative that would have required special labeling of foods that have been genetically engineered or contain genetically engineered ingredients.

According to press reports, some proponents of mandatory GMO labeling are vowing to introduce a similar ballot initiative in Washington state, while others say they will shift their focus to the U.S.  Food and Drug Administration (FDA) and Congress.  Unfortunately, “GMO” has become the widely recognized shorthand for recombinant DNA technology, or biotechnology.  FDA considers “GMO,” which stands for “genetically modified organism,” to be potentially misleading.  It is too broad since nearly all foods have been genetically modified in one way or another, and at the same time it is too narrow since very few foods actually contain organisms.

As I previously posted, even if Prop 37 had passed, it would have been vulnerable to a court challenge.  There is a good chance that a court would have struck down Prop 37 as an unconstitutional infringement of food companies’ First Amendment rights.  Under case law interpreting the First Amendment, a law regulating commercial speech must directly advance a substantial government interest, and consumers’ mere “right to know” is not a substantial government interest.

If this is correct, the proponents of GMO labeling may want to reconsider their strategy.  Even if Congress were to enact legislation or FDA were to issue regulations mandating GMO labeling, the constitutional infirmity would not go away.  Proponents of mandatory GMO labeling must demonstrate some substantial government interest in labeling, such as scientific evidence of a public health concern about GMOs.