California's GMO Labeling Law Isn't the Answer

How Prop 37 restricts speech and needlessly meddles in consumer choice.

In November, California voters will consider whether the state can force sellers of genetically modified foods and other organisms (GMOs) to slap a "GMO" label on their products.

The state ballot measure, which also includes other provisions, is formally known as the Mandatory Labeling of Genetically Engineered Food Initiative. 

Prop 37 supporters—including organic producers in California and elsewhere—argue that the law is necessary to help consumers make informed choices. Just Label It, a group set up to push the measure, cites polls showing more than 90 percent of Americans support labeling of products that contain GMOs.

Prop 37 opponents, not surprisingly, see things differently. Led by Monsanto (which has donated more than $4 million to the campaign to defeat the measure, outpacing all other donors), they argue that the law would be unconstitutional, would increase food prices, and would create a government-mandated scarlet letter.

Critics of Prop 37 also compare the measure to Prop 65, another California ballot initiative that voters approved in 1986. That measure, ostensibly requiring warnings on products known to cause cancer or birth defects, "has benefited almost no one but litigators," writes Walter Olson of the Cato Institute.

"Even as cancer remains just as much of a problem in California as elsewhere," Olson writes, "a cadre of lawyers in the state have made many, many tens of millions of dollars filing inadequate-labeling suits against purveyors of such products[.]"

What are some of those products? They're probably not the ones you might think.

As I noted in a 2010 Chapman Law Review article, "The California Effect and the Future of American Food," Prop 65 "requires proprietors of restaurants that serve olives, bread, and chicken to warn customers that they sell cancerous products" because each of those foods (and hundreds of others) contain trace amounts of substances known to cause cancer in rodents.

It's not that these substances are somehow added by evil food companies to olives, bread, and chicken. Rather, the substances occur naturally in these prepared foods. Still, a seller's options under Prop 65 are almost a Hobson's choice: label or be sued.

Consequently, in addition to enriching litigators in the state, Prop 65 has created the absurd but necessary (to avoid litigation) practice of food sellers in the state overwarning to such an extent that the warnings lose any meaning they might otherwise have had.

That same flaw in Prop 65 would no doubt be evident under Prop 37, which would make not just the producer of a food product but also any seller further down the stream of commerce (from wholesalers to grocers to food trucks and restaurants) strictly liable for any food containing GMOs sold without either the requisite labeling or a sworn statement from the original manufacturer or producer of the food. It appears to be for this reason that the Natural Products Group, a trade association that includes members like Burt's Bees, opposes the ballot measure.

The nonprofit I lead, Keep Food Legal, neither advocates in favor of nor against GMOs (consistent with our advocacy of food choice, rather than food choices). So I'm neither here to extol the virtues of GMOs nor to damn their evils.

But on the issue of mandatory GMO labeling, I view Prop 37 as needless meddling in consumer choice and an unconstitutional intrusion into both the economic rights of food sellers and the FDA's authority in the area of food labeling.

But it's the FDA—rather than Prop 37 supporters—that's really to blame for giving rise to the measure. After all, if the agency didn't have in place its own unconstitutional policy of severely restricting how makers of non-GMO foods can tout the non-GMOness of their products, I hazard there would be little or no impetus for the California law.

So I'd like to see Prop 37 fail. But I'd also like to see Prop 37 opponents support serious reform at the federal level by urging the FDA to reconsider its opposition to voluntary labeling that would permit non-GMO producers and sellers to openly tout their products as such. From a First Amendment perspective, the right to speak is, after all, on par with the right not to speak—which is largely what Monsanto and other Prop 37 opponents are fighting for here.

I'd also like to see more non-GMO food producers opt out of the USDA's largely meaningless "organic" labeling certification regime and instead consider private certification, an increasingly attractive alternative to FDA labeling policy in general and (potentially) California law.

By respecting the rights of those with whom they disagree, both opponents and supporters of GMOs can find common ground and protect their own rights to eat what and how they please.