- According to polls, the vast majority of the American public wants genetically engineered foods to be labeled. On November 6, 2012, California voters will decide whether that state will become the first jurisdiction in the nation to require such labeling. The ballot initiative known as Proposition 37 would require genetically engineered foods to be labeled with a statement disclosing that fact. The proposed law also would prohibit manufacturers from claiming on labels or other marketing materials that genetically engineered or processed foods are "natural."
Apart from the policy merits of Proposition 37, the initiative raises interesting constitutional issues that will be relevant for other jurisdictions' efforts to require labeling of genetically engineered foods. This article explores the constitutionality of Proposition 37 with regard to First Amendment free speech rights and under the doctrine of federal preemption of state law. The article concludes that Proposition 37 is likely, at least in part, unconstitutional. Proposition 37's prohibition on "natural" claims most likely violates the First Amendment because it does not further a legitimate state interest, such as preventing consumer deception, and because there are less speech-restrictive means of accomplishing the state's interest. The initiative's requirement to disclose genetic engineering on labeling is not likely to survive a First Amendment challenge unless the courts recognize a state interest in supporting consumers' "right to know" which may trump the commercial speech rights of food companies. Finally, federal law governing the labeling of meat and poultry products would preempt Proposition 37 to the extent it would impose different or additional requirements for the labeling of such products, but the initiative likely is not preempted by federal law regulating the labeling of other food products.