By: MacKenzie Battle
Genetically modified organisms (GMOs) were introduced into the U.S. food system less than three decades ago. In that relatively short time frame GMOs have come to make up approximately 70 percent of all food on grocery store shelves. Despite how prevalent GMOs are in the food that we eat, they are subject to astoundingly little regulation. The FDA sees GMO products as “substantially equivalent” to conventionally produced foods, meaning that GMO products are not subject to any specific labeling or consumer disclosure requirements. In spite of their apparent safety, there are a number of outstanding questions regarding the long-term impacts of GMOs on the environment and public health. Until there is clarity about these long-term impacts, government oversight of GMO use is crucial. A key component of that oversight should be mandatory labeling of GMOs on applicable food products to not only keep consumers safe, but also to allow consumers to make purchasing decisions that align with their values. Consumers have also made it clear that they overwhelmingly support mandatory GMO labeling, and in 2016 Congress finally responded to this demand.
Congress passed the National Bioengineered Food Disclosure Law (Disclosure Law) in July of 2016 to compel the U.S. Department of Agriculture (USDA) to establish a national mandatory label for disclosing that a food product has been genetically modified. USDA released their labeling standard in 2018, and it will go into effect in 2022. The USDA final rule requires regulated entities to disclose the presence of GMO ingredients by labeling products as “bioengineered,” but prohibits the actual use of the phrases “genetically modified” or “genetically engineered.” The rule allows for GMO disclosures on labels in only three ways: 1) the food can be labeled “bioengineered;” 2) the food can have the USDA approved “bioengineered” symbol; or 3) the food can have a QR code on its label that customers may scan to obtain nutritional informational about the food. At best, this rule is a lackluster attempt to provide information to consumers about their food, and at worst the rule is an unlawful attempt to confuse consumers and keep them in the dark.
Food labels are considered commercial speech under the First Amendment, and as such, they are subject to government regulation in some circumstances. The Supreme Court established a four-part test for government regulation of commercial speech in Central Hudson Gas and Electric Corporation v. Public Service Commission of New York. To qualify as protected commercial speech under the First Amendment, the speech in question must concern lawful activity and not be inherently misleading. If the speech qualifies, courts then consider whether there is a substantial government interest in regulating the speech, whether the relevant regulation “directly advances” the government’s interest, and whether the regulation is “more extensive than is necessary” to serve the interest. An alternative standard for when the government may compel speech is also offered under the Supreme Court case, Zauderer v. Office of Disciplinary Counsel. This case held that the government could require the disclosure of “accurate, factual commercial information” in the interest of promoting the efficient exchange of information, so long as the compulsion was “reasonably related” to a legitimate government interest. Required disclosures under Zauderer may not be “unjustified or unduly burdensome.”
Both of these standards should prohibit the USDA from forbidding the inclusion of the terms “GMO” and “genetically engineered” on food products that are, in fact, genetically engineered. Under these cases, the USDA’s final rule unconstitutionally and inexplicably restricts the language that food producers and sellers can use to inform customers about which foods contain GMOs. The First Amendment guarantees the right of producers and sellers to disclose truthful, non-misleading information on food labels, and by prohibiting the voluntary use of the terms “GMOs” and “genetically engineered” on labels, the USDA is infringing on this fundamental free speech right. Restricting GMO labeling in this way directly violates the Central Hudson test; it is certainly more extensive than necessary, and it is questionable as to whether it actually even serves the government interest of informing consumers about GMOs. The terms “genetically engineered” and “GMOs” have been used for more than 25 years to describe the issues relating to this process of growing food. There is no justification for banning the use of these terms and only allowing the term “bioengineered” on food labels, when doing so will needlessly confuse consumers.
The QR code labeling that the USDA plans to use without additional on-package labeling is also unlawful. Upon learning that the USDA planned to use electronic disclosure methods, Congress mandated that USDA perform a study to evaluate the effectiveness of this disclosure method. If QR codes were found to be ineffective, Congress’s Disclosure Law required USDA to “provide additional and comparable options” for consumers. The USDA study conclusively found not only that electronic labeling did not work for most consumers, but also that it would effectively eliminate the ability of approximately 20 percent of the population (primarily poor, elderly, rural, and minority populations) to determine whether food products labeled in this way contain GMOs. In spite of this finding, USDA moved forward with the labeling plan in direct opposition to Congressional intent and the language of the Disclosure Law.
Consumers deserve the ability to make informed choices about the food that they purchase, but the USDA GMO labeling rule as it currently stands will only cause confusion. Increased regulation of GMOs is long overdue, and clear, mandatory labeling will be a critical aspect of this regulation to ensure that consumers have accurate information about the foods they choose to buy. The USDA’s final rule unconstitutionally limits the ability of food producers and sellers to convey information to consumers. The USDA should vacate all unnecessarily restrictive aspects of the rule, or instead, simply institute a rule that allows food producers to refer to GMOs as “genetically modified” or “genetically engineered” in the same way that scientists, policy makers, legislators, and consumers have for 25 years.
 Food & Drug Admin., Science and History of GMOs and Other Food Modification Processes (2020), https://www.fda.gov/food/agricultural-biotechnology/science-and-history-gmos-and-other-food-modification-processes.
 Alison Moodie, GMO Food Labels are Coming to More US Grocery Shelves – Are Consumers Ready?, The Guardian (Mar. 24, 2016, 6:09 PM), https://www.theguardian.com/sustainable-business/2016/mar/24/gmo-food-labels-general-mills-kellog-mars (stating that between 70 and 80 percent of packaged food in the US contains GMOs).
 Mary Angelo, Jason Czarnezki, & Bill Eubanks, Food, Agriculture, and Environmental Law 100 (2013).
 Id. at 96-97 (describing how GMO use may result in evolved species of plants and insects with unknown environmental impacts and describing concerns that GMOs may trigger allergic reactions in certain people).
 Allison Kopicki, Strong Support for Labeling Modified Foods, NY Times (Jul. 27, 2013), https://www.nytimes.com/2013/07/28/science/strong-support-for-labeling-modified-foods.html?_r=0 (stating that 93 percent of respondents to a NY Times poll thought genetically modified foods should be labeled).
 National Bioengineered Food Disclosure Standard, 7 C.F.R. 66 (2018).
 Id. at § 66.100(1)-(3).
 Id. at § 66.102.
 Id. at § 66.100(1)-(3).
 447 U.S. 557, 561-66 (1980).
 471 U.S. 626, 651 (1985).
 U.S. Const. amend. I; Rubin v. Coors Brewing Co., 514 U.S. 476, 484-85 (1995) (stating that the First Amendment guarantees the right to disclose truthful and non-misleading information on food labels).
 Ctr. for Food Safety, Lawsuit Challenges “Bioengineered” GMO Food Labeling (Jul. 28, 2020), https://www.centerforfoodsafety.org/press-releases/6100/lawsuit-challenges-bioengineered-gmo-food-labeling.
 7 U.S.C. § 1639(c)(4) (2016).
 U.S. Dept. of Agric., Study of Electronic or Digital Link Disclosure 66-70 (Jul. 2017), https://www.ams.usda.gov/sites/default/files/media/USDAD eloitteStudyofElectronicorDigitalDisclosure20170801.pdf.