Amongst all of the important local proposals voted on yesterday across a multitude of states, few were arguably more important than Initiative Measure No. 522, a public initiative in Washington state.  With thousands of ballots still left to be counted, the Seattle Times reports that 522 trailed late 45% to 55%, and intimated that the measure was all but certain not to pass.  This was the latest in the David and Goliath battle concerning whether food manufactured with genetically modified ingredients would be required to announce on its packaging the inclusion of such ingredients.  Although this ballot measure would only affect food sold in Washington, the national implications cannot be understated.  Simply, a win by health advocates could pave the way for successful passage in other states and would immediately be considered a step in leveling the playing field after a last-minute defeat of a similar measure in California last year.

Sources supporting and opposing 522 respectively painted a drastically different picture of 522.  After reportedly spending upwards of $44 million to narrowly (53 to 47) defeat Proposition 37 in California in 2012, the current estimate obtained by the Seattle Times is that opponents of 522, thought to include Coco-Cola, DuPont, and Monsanto, among others, invested $22 million ($550 of which has come from individuals and companies actually based in Washington).  522 has also allegedly led to very serious violations of Washington’s campaign disclosure laws.

Specifically, 522 mandated that any food that is or may have been entirely or partly produced with genetic engineering must disclose such fact in the following manner:

“(a) In the case of a raw agricultural commodity, on the package offered for retail sale, with the words “genetically engineered” stated clearly and conspicuously on the front of the package of such a commodity, or in the case of such a commodity that is not separately packaged or labeled, on a label appearing on the retail store shelf or bin where such a commodity is displayed for sale;

(b) In the case of any processed food, on the front of the package of such food produced by a manufacturer, with the words “partially produced with genetic engineering” or “may be partially produced with genetic engineering” stated clearly and conspicuously; and

(c) In the case of any seed or seed stock, on the seed or seed stock container, sales receipt or any other reference to identification, ownership, or possession, with the words “genetically engineered” or “produced with genetic engineering” stated clearly and conspicuously.”

Had the measure passed, the second line of defense for opponents would inevitably have been through the courts.  Labeling such as that proposed by 522 is commercial speech, which is defined as “expression related solely to the economic interests of the speaker and its audience.”  Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of New York, 447 U.S. 557, 561 (1980).  Government is not able to regulate commercial speech without constitutional justification.  Id.  The government must directly and materially advance a substantial state interest with a narrowly tailored burden.  See R.J. Reynolds Tobacco Co. v. Food & Drug Admin., 696 F.3d 1205, 1212 (D.C. Cir. 2012).  In some cases specifically involving particular speech mandated by the government in the form of disclaimer, such regulation is governed by a more lenient standard where the government must only establish that the disclaimer is “reasonably related” to the state interest and not unjustified or unduly burdensome.  See Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626, 651 (1985).  The United States Supreme Court has yet to settle the issue among the Circuits about which standard to apply, however, the Ninth Circuit has cited Zauderer in prior cases that concern imposed-speech laws.  See, e.g., Dex Media W., Inc. v. City of Seattle, 790 F. Supp. 2d 1276, 1278 (W.D. Wash. 2011) appeal dismissed as moot, 696 F.3d 952 (9th Cir. 2012) (upholding requirement that “yellow pages phone books” display a message about Seattle’s program for opting out of receiving phone books); CTIA-Wireless Ass’n v. City & Cnty. of San Francisco, Cal., 494 F. App’x 752, 754 (9th Cir. 2012) (enjoining a San Francisco ordinance that required cell phone carriers to disclose information regarding radiofrequency energy emissions).

Opponents will undoubtedly challenge such laws at every turn, including the state interests described in bills and/or public initiatives like 522.  States are unlikely to be unable to support such measures that are based strictly on a “consumer curiosity” state interest.  At least one Circuit has found that a state interest based on the public’s “right to know” would be “insufficient” for First Amendment purposes.  See Int’l Dairy Foods Ass’n v. Amestoy, 92 F.3d 67, 81 (2d Cir. 1996) (“mere consumer concern is not, in itself, a substantial interest”).  522 seems to have anticipated this, not only citing concerns of public knowledge, education, and choice, but also of public safety, including the benefits of tracking potential health effects possibly caused by consuming foods with genetically modified ingredients; environmental impact; and state job growth and local economy.

Those of us who have not merely watched, but have taken part directly in this debate understand that regardless of how this one battle ended, the proverbial war over mandatory labeling and GMO foods is far from over.  Both sides have far too much invested to turn back.  Indeed, the casual observer/voter/consumer will at some point be forced to confront the intricacies of this conversation because health and free speech affect all.

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