In the spring of 1982, Ohio lawyer Philip Zauderer ran an advertisement in 36 newspapers publicizing his willingness to represent women who suffered injuries from the use of a contraceptive device. The ads caught the attention of the state Office of Disciplinary Counsel in what shaped up to be a First Amendment case that was eventually resolved by the nation’s highest court.
The U.S. Supreme Court’s 1985 ruling remains relevant today as the food industry tussles with the State of Vermont in an effort to overturn Act 120. The law requires labeling of genetically engineered (GE) foods and takes effect in approximately one year.
In Zauderer, the Supreme Court found that a disclosure requirement pertaining to lawyer advertisements did not violate the commercial speech protections that are afforded under the First Amendment. Justice Byron White referenced Ohio’s requirement that the lawyer “include in his advertising purely factual and uncontroversial information about the terms under which his services will be available."
“Because the extension of First Amendment protection to commercial speech is justified principally by the value to consumers of the information such speech provides, appellant's constitutionally protected interest in not providing any particular factual information in his advertising is minimal," White wrote. “We recognize that unjustified or unduly burdensome disclosure requirements might offend the First Amendment by chilling protected commercial speech. But we hold that an advertiser's rights are adequately protected as long as disclosure requirements are reasonably related to the State's interest in preventing deception of consumers."
In April, a federal judge considered the Zauderer ruling in denying the Grocery Manufacturers Association’s request to preliminarily enjoin Act 120 from taking effect. As part of her finding that Vermont’s GE labeling requirement is likely not unconstitutional, Chief Judge Christina Reiss rejected the argument that the disclosure was controversial. She distinguished the political controversy surrounding genetically modified organisms (GMOs) from the disclosure itself.
“Because Act 120’s GE disclosure requirement mandates the disclosure of only factual information—whether a food product contains GE ingredients—in conjunction with a purely commercial transaction, it does not require the disclosure of ‘controversial’ information," Reiss concluded.
In a brief filed Wednesday with the U.S. Court of Appeals for the Second Circuit, the Grocery Manufacturers Association (GMA) and other groups challenging Act 120 argued the judge made a mistake by refusing to grant the preliminary injunction. Among their arguments: the GE disclosure may be factual but it is not without controversy.
“Requiring manufacturers to highlight the presence (or possible presence) of GE ingredients conveys that there is something to be noted about that particular attribute of the product—put another way, that GE-derived foods are different from other foods," wrote the appellants, which include GMA, Snack Food Association, International Dairy Foods Association and the National Association of Manufacturers.
The food groups denied GE foods are any different from other foods, declaring: “Foods produced from GE plant varieties, as a class, do not occupy any special regulatory status, because there is no evidence that they vary in their objective characteristics ‘in any meaningful or uniform way.'"
The Second Circuit where the GE labeling appeal is pending is the same court that examined a Vermont law that required labels for milk that was produced from cows treated with a growth hormone known as recombinant Bovine Growth Hormone or rGBH. In the 1996 case of Int’l Dairy Foods Ass’n v. Amestoy, the Second Circuit found Vermont’s stated interests—“strong consumer interest and the public’s right to know"—were inadequate to justify the labeling requirement under a test laid out by the Supreme Court in a 1980 case (Central Hudson Gas & Elec. Corp. v. Public Serv. Commission) to determine whether the government can restrict commercial speech.
"We do not doubt that Vermont's asserted interest, the demand of its citizenry for such information, is genuine; reluctantly, however, we conclude that it is inadequate," the Second Circuit wrote. "We are aware of no case in which consumer interest alone was sufficient to justify requiring a product's manufacturers to publish the functional equivalent of a warning about a production method that has no discernable impact on a final product."
The food groups argued Vermont’s GMO labeling law cannot survive under the ruling in Amestoy because the government’s interest in the labels amounts to nothing more than satisfying consumers’ curiosity.
“The state legislature explained that the law assists consumers in making ‘informed decisions’ about the potential health or environmental effects of the food they purchase, or in acting ‘for religious reasons,’" the appellants wrote in the brief. “Therein lies the First Amendment problem. This Court has already instructed Vermont that it cannot trammel manufacturers’ free-speech rights to appease ‘consumer curiosity.’"
Reiss, the federal judge that denied the request for the injunction, distinguished Amestoy from the present litigation, referencing the legislative record in Vermont on the debate over the safety of GE ingredients.
“This record includes studies about the safety of consuming GE plant-based foods, as well as studies about the environmental impacts of GE and GE crops," Reiss wrote. “The State also points to its interest in accommodating religious beliefs about GE, as well as its interest in providing factual information for purposes of informed consumer decision-making."
The food groups argued in their appellate brief that Reiss’s analysis was erroneous. A “state’s invocation of a lopsided ‘debate’", they wrote, “cannot remotely suffice to establish a substantial state interest."
FPD will continue to follow developments in this appeal, including the response that will come from the law-enforcement agency that is charged with defending and implementing Act 120: the office of Vermont Attorney General William Sorrell.