The New GMO Law: Is It Constitutional?

The GMO labeling debate has gone national! Those of us that live out west have been hearing these rumblings for years, but since the Congress has taken up the issue, now we may debate it as a country.  It seems no one has a lukewarm opinion of GMOs; people either hate them passionately, or hate the people who hate them1)with an equal amount of passion.

There are currently three states2)Vermont, Connecticut and Maine that have passed laws requiring food companies to note on their label if the food product being sold was produced with a GMO. However, there are 85 more GMO related bills in 29 additional states addressing GMO labeling3)Source. The anti-GMO folks consistently cite poll numbers that say 90% of the public would prefer that food made with a GMO be labeled as such. We cannot count on our friends in the House of Representatives for much, but when a super majority of the populace agree on a matter, they most often will take a strong stand on that issue.

The opposite seems to be occurring with the GMO legislation.  Last week, the House passed the Safe and Accurate Food Labeling Act of 20154)the latest in ironic bill names from the House, the details of which we will go into in a moment.   For now, know that the environmentalist crowd is quite irritated with the bill. Before we take sides, point fingers and do a little name-calling, we will need a little background on what a GMO is and why everyone is so upset.

 

What is a GMO and is it necessary to label them in our food?

A GMO is a “genetically modified organism” which means food that was grown from seeds that are manufactured5)the correct verb choice here is difficult, the scientists are splicing genes and attempting to optimize desirable attributes.  Currently, there are only eight GMO products that are permitted to be sold on the U.S. market:

  1. Corn
  2. Soy
  3. Alfalfa
  4. Canola
  5. Cotton
  6. Papaya
  7. Sugar Beets
  8. Zucchini and Yellow Summer Squash6)Source

You may be interested to know that the majority of processed food7)think food you buy in a box is also on this list because most corn syrup is made with GMO corn. Also, the majority of animals that we eat (cows, pigs, chickens) are fed with GMO produce. With that in mind, know that since GMO produce have been on the market since the 1980s. In turn, we all are one big case study of the effects of GMO produce on humans.

I do not have a strong opinion on this issue, one way or the other8)that should sufficiently upset everyone so please do not take the above statement as a GMO endorsement. The Europeans have done hundreds of tests on GMO products for years now and have yet to come back with any conclusive evidence that GMO food products are harmful for humans to consume. This does not mean that GMO foods are not harmful, only that there is no scientific evidence to suggest such. Everyone offended now? Good. Let us take a glance at the bill that passed the House.

 

How does the Safe and Accurate Food Labeling Act of 2015 affect GMO labeling?

The proposed bill states the following:

Section 424. Food derived from new plant varieties

(2)Labeling required

The Secretary may require that the labeling of a food produced from, containing, or consisting of a genetically engineered plant contain a statement to adequately inform consumers of a difference between the food so produced and its comparable food if the Secretary determines that—

(A)there is a material difference in the functional, nutritional, or compositional characteristics, allergenicity, or other attributes between the food so produced and its comparable food; and

(B)the disclosure of such material difference is necessary to protect public health and safety or to prevent the label or labeling of the food so produced from being false or misleading in any particular.

 

As I am sure you can tell, “material difference” is the key term here. Because American scientists have not found a difference in taste, nutritional value, or form of GMO crops, the federal government considers there to be no “material difference” between organic and GMO bread produce.  Until science discovers9)if there is one a “material difference,” Big Food10)tm pending? will not be required to label their GMO grown products.

Section 113. Preemption

Regardless of whether regulations have been promulgated under section 112, beginning on the date of the enactment of this Act, no State or political subdivision of a State may directly or indirectly establish under any authority or continue in effect as to any food in interstate commerce any requirement with respect to the sale or offering for sale in interstate commerce of a genetically engineered plant for use or application in food that is not identical to the requirement of section 461 of the Plant Protection Act (as added by section 111 of this Act).

 

This language, as you will see below, explicitly states how federal and state laws interplay. If the Congress passes a law about a subject matter, then the states are not permitted to pass laws that regulate the legal area in a different manner. This is the Supremacy Clause (of the Constitution) in action.

Section 203. Effective date; preemption

(b)Prohibitions against mandatory labeling of food developed using genetic engineering

(1)In general

Subject to paragraph (2), no State or political subdivision of a State may directly or indirectly establish under any authority or continue in effect as to any covered product (as defined in section 291 of the Agricultural Marketing Act of 1946, as added by section 201 of this Act) in interstate commerce, any requirement for the labeling of a covered product indicating the product as having been produced from, containing, or consisting of a genetically engineered plant, including any requirements for claims that a covered product is or contains an ingredient that was produced from, contains, or consists of a genetically engineered plant.(emphasis added)

 

If you have come across the Safe and Accurate Food Labeling Act of 2015 in a press account, this is the section of the law folks are most upset about.11)Not that I have a dog in the fight but the political party sponsoring this bill is the same one that has been arguing for a few years now that Obamacare violates states’ rights. Some folks on the other side of the aisle are perturbed. I say if you want logically consistency, politics is not the place to look The text above would make it illegal for the three states that have passed GMO labeling legislation to put it in effect and prevent any other states from taking similar action. Folks on both sides12)once they are finished with the ad hominems think the opposition is violating the Constitution. We will have to dig deeper to find out for sure.

 

There must be a Constitutional violation here somewhere; we may need to round up the usual suspects

Each side in this debate feels the other is violating the constitution. First, our libertarian/state’s rights friends claim that the federal government does not have the constitutional authority to dictate to a state government if it is permitted to require a GMO label on food sold in their state.13)Source.

It is time to get out our pocket Constitutions! To comprehend the constitutionality question, we need to understand the Commerce Clause. I call your attention to Article I, Section 8, Clause 3, which states that the Congress has the power:

“To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;”

I bet you are wondering how broad the term “Commerce” is in that context. If so, you have latched onto one of the most controversial areas of constitutional law. The interpretation continues to develop with the change in norms of each generation of Americans14)good thing the Constitution is a living, breathing document. See also Missouri v. Holland 252 U.S. 416 [1920]

I will avoid a summary of the history of Commerce Clause interpretations15)for the sake of time, space, and your sanity and instead excerpt a summary from Justice Stevens from Gonzalez v. Raich:16)In this case, the federal government raided a Californian’s medical marijuana supply. The Respondent, Mr. Raich [You may remember Mr. Gonzalez as President Bush’s Attorney General] claimed that the federal government had no legal authority prohibit his growth or use of medical marijuana that took place exclusively in the state of California. The Court disagreed with Mr. Raich.

In assessing the validity of congressional regulation, none of our Commerce Clause cases can be viewed in isolation. As charted in considerable detail in United States v. Lopez, our understanding of the reach of the Commerce Clause, as well as Congress’ assertion of authority thereunder, has evolved over time. The Commerce Clause emerged as the Framers’ response to the central problem giving rise to the Constitution itself: the absence of any federal commerce power under the Articles of Confederation. For the first century of our history, the primary use of the Clause was to preclude the kind of discriminatory state legislation that had once been permissible. Then, in response to rapid industrial development and an increasingly interdependent national economy, Congress “ushered in a new era of federal regulation under the commerce power,” beginning with the enactment of the Interstate Commerce Act in 1887, 24 Stat. 379, and the Sherman Antitrust Act in 1890, 26 Stat. 209, as amended, 15 U. S. C. §2 et seq.

Cases decided during that “new era,” which now spans more than a century, have identified three general categories of regulation in which Congress is authorized to engage under its commerce power. First, Congress can regulate the channels of interstate commerce. Perez v. United States, 402 U. S. 146, 150 (1971). Second, Congress has authority to regulate and protect the instrumentalities of interstate commerce, and persons or things in interstate commerce. Ibid. Third, Congress has the power to regulate activities that substantially affect interstate commerce. Ibid.; NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 1, 37 (1937). Only the third category is implicated in the case at hand.

Our case law firmly establishes Congress’ power to regulate purely local activities that are part of an economic “class of activities” that have a substantial effect on interstate commerce. See, e.g., Perez, 402 U. S., at 151; Wickard v. Filburn, 317 U. S. 111, 128–129 (1942). As we stated in Wickard, “even if appellee’s activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce.”17) 545 U.S. 1, 12-13 [2005](emphasis added).

 

If you are not familiar with Wickard18)cited in the paragraph above, you would not believe how angry a dispute of selling wheat would make people (seriously, really angry).  As much as my libertarian friends would like to think the Safe and Accurate Food Labeling Act of 2015 is unconstitutional, it is difficult to make a distinction from Wickard or Raich because, even though, states like Vermont19)In the 19th/early 20th century, the Commerce Clause cases were concerned with states protecting local industries and arbitrarily punishing competitive industries from foreign states[protectionism is as old as any type of politics]. Interestingly, the Vermont law exempts cheese and beer from the food products requiring GMO labeling. are only regulating commerce within their own borders, their regulations will have a “substantial effect on interstate commerce,” and therefore, the regulation from a federal level is likely constitutional.20)Some critics of commerce clause jurisprudence find that contemporary courts decisions to be blatantly results-oriented, meaning that the courts will use the commerce clause to allow the federal government to regulate industries they find displeasing (marijuana, small business) but not for issues where they are sympathetic to the users (guns, big business), for instance see United States v. Alfonso D. Lopez, Jr., 514 U.S. 549 (1995), where the court struck down a federal law banning guns near schools. I would defend my justice friends with more passion if the distinctions drawn made more sense. I find it unlikely, if the Safe and Accurate Food Labeling Act of 2015 is signed into law,21)also unlikely, even if it gets through the Senate that a court would declare that the federal government overreached.

In fact, a few months ago a federal judge in Vermont (Act 120 is the law I am referring to) examined the inverse of the question, whether it is unconstitutional for a state to pass laws requiring food manufacturers to label GMOs if they want to sell in the state.  Big Food22)tm pending? sued the state to prevent Vermont from instituting the new GMO labeling law.  They threw the kitchen sink at Vermont, saying they violated the First Amendment23)mandatory speech?, the Equal Protection Clause, and the Supremacy Clause. The Court only upheld the last constitutional objection, because the FDA promulgated laws through FMIA24)The Federal Meat Inspection Act and PPIA25)Poultry Products Inspection Act that concerned the sphere of influence of GMO labeling:

Act 120 mandates a GE26)genetically engineered disclosure that is clearly in addition to and different than the marking, labeling, and packaging requirements imposed under the FMIA and PPIA. Act 120’s GE disclosure requirement is therefore expressly preempted for products subject to those federal laws.27)Grocery Manufacturers Association et al v. Sorrell et al, No. 5:2014cv00117 – Document 95 [D. Vt. 2015] p. 42(emphasis added)28)Mr. Dillard has more on the Vermont opinion.

 

Although Judge Reiss29)author of the Vermont opinion is not the final authority of what is and is not constitutional, her contention that Act 120 may violate the Supremacy Clause is persuasive.  Granted, on its face, this seems confusing. States are permitted to regulate cigarette smoking, both in terms of where and how much it costs, and alcohol (with respect to the liquor content of certain beverages, for example). Why would states not be permitted to regulate if GMOs are permitted in her citizen’s food? Any legislative arena that the federal government has abdicated (by lack of legislative action) or is forbidden to regulate (by the Constitution) is in the purview of the states. The FMIA and PPIA (with respect to meat) and the new bill would assign the arena of GMO labeling exclusively to the federal government. Dislike this as an anti-GMO person/states’ rights individual? Time to call your Congress-person.

 

How will we address our GMO concerns in the long run?

First, we need to have a better understanding of why so many folks want GMO labels on our food. Unfortunately for them, but Monsanto has been straw-manned into the evil corporate entity that wants to overtake our food supply30)not that the other GMO companies have much better reputations. Many of us are familiar with the rumors of what Monsanto produced during the Vietnam War31)rhymes with cagent dorange, and a lot of folks, justly or unjustly, are uncomfortable with the same company selling us food. Maybe one or more of these companies could use a Blackwater-esq rebranding?

Often cited is the fact that more than 60 countries have banned GMO produce. If a GMO is not harmful, than why the worldwide ban? A little conjecture, given that I am not privy to internal politics of any other countries (or even ours): Perhaps the ban is political. The majority of the companies that sell GMO seeds are American, and American corporations do not have the best reputation abroad32)rightly or wrongly. Perhaps all these countries do not want to be dependent on American corporations for their food supply. Although state autonomy is a valid motive, it is distinct from GMO food being dangerous.

In fact, the American Association for the Advancement of Science ends their paper discussing the research of the health effects of GMO foods with the statement “Legally mandating such a label can only serve to mislead and falsely alarm consumers.”33)Source I am not sure I buy that claim, but I will take them at their word.

This New York Times debate on GMO products has a nice segment that middles the issue:

Currently, there are two paradigms of agriculture being widely promoted: local and organic systems versus globalized and industrialized agriculture. Each has fervent followers and critics. Genuine discourse has broken down: You’re either with Michael Pollan or you’re with Monsanto. But neither of these paradigms, standing alone, can fully meet our needs.

Organic agriculture teaches us important lessons about soils, nutrients and pest management. And local agriculture connects people back to their food system. Unfortunately, certified organic food provides less than 1 percent of the world’s calories, mostly to the wealthy. It is hard to imagine organic farming scaling up to feed 9 billion.

Globalized and industrialized agriculture have benefits of economic scalability, high output and low labor demands. Overall, the Green Revolution has been a huge success. Without it, billions of people would have starved. However, these successes have come with tremendous environmental and social costs, which cannot be sustained.34)I found each entry of this debate interesting; it is worth a look

 

Like it or not, GMO foods will likely be part of our future. For those concerned about their safety, it might be wise to engage in the debate so that there is at least some regulation35)My guess is that many of the anti-GMO folks have similar passions toward fracking. Disengagement and protest have not resulted in any less domestic drilling, nor any progress in having the drilling companies identify what is in the fracking liquids

More GMO reading for your perusal, in particular I enjoyed the material written by grist.org36)also a silly Jimmy Kimmel video as a reward for all your hard work:

 

The Hill

Open Secrets

Nature News

RT

USA Today

Mother Jones

Common Dreams

Scientific American (subscription required)

Grist

Grist II

 

Footnotes   [ + ]

1. with an equal amount of passion
2. Vermont, Connecticut and Maine
3. Source
4. the latest in ironic bill names from the House
5. the correct verb choice here is difficult, the scientists are splicing genes and attempting to optimize desirable attributes
6. Source
7. think food you buy in a box
8. that should sufficiently upset everyone
9. if there is one
10, 22. tm pending?
11. Not that I have a dog in the fight but the political party sponsoring this bill is the same one that has been arguing for a few years now that Obamacare violates states’ rights. Some folks on the other side of the aisle are perturbed. I say if you want logically consistency, politics is not the place to look
12. once they are finished with the ad hominems
13. Source
14. good thing the Constitution is a living, breathing document. See also Missouri v. Holland 252 U.S. 416 [1920]
15. for the sake of time, space, and your sanity
16. In this case, the federal government raided a Californian’s medical marijuana supply. The Respondent, Mr. Raich [You may remember Mr. Gonzalez as President Bush’s Attorney General] claimed that the federal government had no legal authority prohibit his growth or use of medical marijuana that took place exclusively in the state of California. The Court disagreed with Mr. Raich.
17. 545 U.S. 1, 12-13 [2005]
18. cited in the paragraph above
19. In the 19th/early 20th century, the Commerce Clause cases were concerned with states protecting local industries and arbitrarily punishing competitive industries from foreign states[protectionism is as old as any type of politics]. Interestingly, the Vermont law exempts cheese and beer from the food products requiring GMO labeling.
20. Some critics of commerce clause jurisprudence find that contemporary courts decisions to be blatantly results-oriented, meaning that the courts will use the commerce clause to allow the federal government to regulate industries they find displeasing (marijuana, small business) but not for issues where they are sympathetic to the users (guns, big business), for instance see United States v. Alfonso D. Lopez, Jr., 514 U.S. 549 (1995), where the court struck down a federal law banning guns near schools. I would defend my justice friends with more passion if the distinctions drawn made more sense
21. also unlikely, even if it gets through the Senate
23. mandatory speech?
24. The Federal Meat Inspection Act
25. Poultry Products Inspection Act
26. genetically engineered
27. Grocery Manufacturers Association et al v. Sorrell et al, No. 5:2014cv00117 – Document 95 [D. Vt. 2015] p. 42
28. Mr. Dillard has more on the Vermont opinion
29. author of the Vermont opinion
30. not that the other GMO companies have much better reputations
31. rhymes with cagent dorange
32. rightly or wrongly
33. Source
34. I found each entry of this debate interesting; it is worth a look
35. My guess is that many of the anti-GMO folks have similar passions toward fracking. Disengagement and protest have not resulted in any less domestic drilling, nor any progress in having the drilling companies identify what is in the fracking liquids
36. also a silly Jimmy Kimmel video as a reward for all your hard work
Clear Counsel Law group

Contact Info

1671 W Horizon Ridge Pkwy Suite 200,
Henderson, NV 89012

+1 702 522 0696
info@clearcounsel.com

Daily: 9:00 am - 5:00 pm
Saturday & Sunday: By Appointment Only

Copyright 2018 Clear Counsel Law Group ©  All Rights Reserved

Nothing on this site is legal advice.