The Supreme Court Must Rule on Mandatory GMO Labelling

Congress, the states, and courts all vie to decide the future of GMO labeling.


Last week, Congress proposed a sweeping federal GMO-labeling bill that would establish rules for labeling foods that are free of or that contain GMO ingredients.

The Safe and Accurate Food Labeling Act of 2015, introduced by Rep. Mike Pompeo (R-KS) and co-sponsored by a bi-partisan group of his colleagues—twelve Republicans and eight Democrats—would amend both FDA and USDA law.

It contains several key provisions. The bill would prohibit the federal government from enforcing any mandatory labeling of foods that contain GMO ingredients. It would also permit the voluntary use of GMO-free labeling claims and the use of claims pertaining to GMO ingredients.

The bill would prevent makers of foods that are GMO-free or that contain GMOs from touting the safety of their foods based solely on that status. In other words, neither foods containing GMOs nor foods free of GMOs could say either choice is a safer one than the other.

The bill would also require the federal government to "establish a non-bioengineered food certification program" and set national standards for the labeling of non-GMO food. And it would permit the use of the term "natural" (and similar terms) so long as such use is consistent with the government's "existing policy for such claims."

Finally, and perhaps most controversially, the bill would preempt states from enacting laws that conflict with any language in the bill.

A similar bill stalled in Congress last year.

This year's bill "has the support of the food, biotechnology and agriculture industries," reports POLITICO. Newspapers—including The Washington Post—have hailed the measure.

"Congress is right to be moving toward a more sensible policy that allows companies to label products as free of GM ingredients but preempts states from requiring such labels," the Post's editorial board wrote this week.

"Creating unique labeling standards in different states has the effect of taking the United States' unified food system and breaking it into pieces," argued Richard Felts, the head of Kansas's farm bureau, in an op-ed last week.

I agree with Felts's concerns. As I've written before, mandatory state labeling schemes are unconstitutional.

"GMO-labeling laws restrict interstate commerce," I wrote last year. "That's the primary reason why I opposed proposed laws in Washington state and California, both of which were rejected by voters."

Whether or not such laws are unconstitutional is a question now before a federal court, thanks to a lawsuit filed by the Grocery Manufacturers Association against the state of Vermont after that state passed a mandatory GMO-labeling law last year (which I discussed here).

Critics have cleverly dubbed Rep. Pompeo's bill the DARK Act, short for "Deny Americans the Right to Know."

Rep. Peter DeFazio (D-OR), who opposes the House bill, said it violates GOP sensibilities.

"They are states' rights people and they are for a capitalist system under the precepts of Adam Smith," said DeFazio, "who said you're supposed to give information to the consumers that they want."

Meanwhile, a competing Senate bill calls for mandatory labeling of all foods containing GMO ingredients.

As I wrote last year, I believe Rep. Pompeo's bill is mostly sensible. Food companies and consumers can't coexist under a host of conflicting state labeling laws. When those laws violate the Constitution, then a solution is needed.

Voluntary, privately certified labeling is the best solution. But Rep. Pompeo's bill is a flawed version of a voluntary labeling law, as it would expand the government's role in food labeling by creating new bureaucracies to carry out the mandated voluntary non-GMO certification.

Ultimately, I think this is an issue most properly decided by courts—not Congress or the states. That's why I'd prefer the Supreme Court strike down the Vermont GMO-labeling law and effectively settle the issue once and for all.