I wish to quote from
International Dairy v. Amstoy (1996) because it so directly addresses the issue of a "right to know" or simple curiosity, which several people here have asserted as a reason for mandatory labeling of GM foods. In
Int'l Dairy, plaintiffs challenged the constitutionality of Vermont's law that required dairy manufacturers to label or otherwise identify products that were or might have been produced from dairy cows treated with the synthetic growth hormone Bovine Somatotropin (rBST). Plaintiffs moved for a preliminary injunction seeking to enjoin enforcement of the statute. The district court denied the motion, and the Second Circuit ruled on plaintiffs' appeal, for which the court had to determine plaintiffs' likelihood of success on the merits.
Please note that I do not necessarily agree with the court's or the FDA's conclusion that there are no "health concerns associated with food products derived from cows treated with rBST." I know basically nothing about rBST, or about cows or milk from cows injected with rBST. As the dissent notes, many people consider giving cows rBST to be abuse of the animal (of course, dairy cows are abused every day of their pitiful lives). A further difference between milk from cows given rBST and genetically modified plant foods is that the dairy product contains at least detectable amounts of this synthetic hormone, whereas there is no such distinction between plants whose genomes have been modified by rDNA techniques and those whose genomes have been modified by conventional breeding and hybridization techniques--indeed, it is the latter that show greater genetic difference from the reference plant.
In any case, I quote from
Int'l Dairy merely to inform on the standard relating to mandatory labeling:
In [Central Hudson Gas & Elec. Corp. v. Public Serv. Commission], the Supreme Court articulated a four-part analysis for determining whether a government restriction on commercial speech is permissible. 447 U.S. at 566, 100 S.Ct. at 2351. We need not address the controversy concerning the nature of the speech in question--commercial or political--because we find that Vermont fails to meet the less stringent constitutional requirements applicable to compelled commercial speech.
Under Central Hudson, we must determine: (1) whether the expression concerns lawful activity and is not misleading; (2) whether the government's interest is substantial; (3) whether the labeling law directly serves the asserted interest; and (4) whether the labeling law is no more extensive than necessary. See id.; see also Edenfield v. Fane, 507 U.S. 761, 766-67, 113 S.Ct. 1792, 1798, 123 L.Ed.2d 543 (1993). Furthermore, the State of Vermont bears the burden of justifying its labeling law. See Edenfield, 507 U.S. at 770-71, 113 S.Ct. at 1800; Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 71 n. 20, 103 S.Ct. 2875, 2882 n. 20, 77 L.Ed.2d 469 (1983). As the Supreme Court has made clear, “[t]his burden is not satisfied by mere speculation or conjecture; rather, a governmental body seeking to sustain a restriction on commercial speech must demonstrate that the harms it recites are real and that its restriction will in fact alleviate them to a material degree.” Edenfield, 507 U.S. at 770-71, 113 S.Ct. at 1800; see also Ibanez v. Florida Dep't of Business and Prof. Reg., Board of Accountancy, 512 U.S. 136, ----, 114 S.Ct. 2084, 2089, 129 L.Ed.2d 118 (1994) ( “State's burden is not slight”).
In our view, Vermont has failed to establish the second prong of the Central Hudson test, namely that its interest is substantial. In making this determination, we rely only upon those interests set forth by Vermont before the district court. See Edenfield, 507 U.S. at 766-67, 113 S.Ct. at 1798 (“[T]he Central Hudson standard does not permit us to supplant the precise interests put forward by the State with other suppositions.”). As the district court made clear, Vermont “does not claim that health or safety concerns prompted the passage of the Vermont Labeling Law,” but instead defends the statute on the basis of “strong consumer interest and the public's ‘right to know’․” 898 F.Supp. at 249. These interests are insufficient to justify compromising protected constitutional rights.1
Vermont's failure to defend its constitutional intrusion on the ground that it negatively impacts public health is easily understood. After exhaustive studies, the FDA has “concluded that rBST has no appreciable effect on the composition of milk produced by treated cows, and that there are no human safety or health concerns associated with food products derived from cows treated with rBST.” 898 F.Supp. at 248. Because bovine somatotropin (“BST”) appears naturally in cows, and because there are no BST receptors in a cow's mammary glands, only trace amounts of BST can be detected in milk, whether or not the cows received the supplement. Id. Moreover, it is undisputed that neither consumers nor scientists can distinguish rBST-derived milk from milk produced by an untreated cow. Id. at 248-49. Indeed, the already extensive record in this case contains no scientific evidence from which an objective observer could conclude that rBST has any impact at all on dairy products. It is thus plain that Vermont could not justify the statute on the basis of “real” harms. See Edenfield, 507 U.S. at 770-71, 113 S.Ct. at 1800.
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. 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. See, e.g., Ibanez, 512 U.S. at ----, 114 S.Ct. at 2090 (invalidating state requirement that Certified Financial Planner (“CFP”) disclose in advertisement that CFP status was conferred by unofficial private organization despite unsubstantiated claim that public might otherwise be misled by CFP's advertisement). Cf. Riley, 487 U.S. at 797-98, 108 S.Ct. at 2677-78 (holding unconstitutional state requirement that professional fundraisers disclose to prospective donors factual information concerning the percentage of contributions actually passed on to charities notwithstanding the fact that prospective donors might find the truthful information relevant and persuasive).
Although the Court is sympathetic to the Vermont consumers who wish to know which products may derive from rBST-treated herds, their desire is insufficient to permit the State of Vermont to compel the dairy manufacturers to speak against their will. Were consumer interest alone sufficient, there is no end to the information that states could require manufacturers to disclose about their production methods. For instance, with respect to cattle, consumers might reasonably evince an interest in knowing which grains herds were fed, with which medicines they were treated, or the age at which they were slaughtered. Absent, however, some indication that this information bears on a reasonable concern for human health or safety or some other sufficiently substantial governmental concern, the manufacturers cannot be compelled to disclose it. Instead, those consumers interested in such information should exercise the power of their purses by buying products from manufacturers who voluntarily reveal it.
Accordingly, we hold that consumer curiosity alone is not a strong enough state interest to sustain the compulsion of even an accurate, factual statement, see Riley, 487 U.S. at 797-98, 108 S.Ct. at 2677-78 (compelled disclosure of “fact” is no more acceptable than compelled disclosure of opinion), in a commercial context. See, e.g., United States v. Sullivan, 332 U.S. 689, 693, 68 S.Ct. 331, 334, 92 L.Ed. 297 (1948) (upholding federal law requiring warning labels on “harmful foods, drugs and cosmetics”) (emphasis added); see also Zauderer, 471 U.S. at 651, 105 S.Ct. at 2282 (disclosure requirements are permissible “as long as [they] are reasonably related to the State's interest in preventing deception of consumers.”); In re R.M.J., 455 U.S. 191, 201, 102 S.Ct. 929, 936, 71 L.Ed.2d 64 (1982) (“warning or disclaimer might be appropriately required ․ in order to dissipate the possibility of consumer confusion or deception.”); Bates v. State Bar of Arizona, 433 U.S. 350, 384, 97 S.Ct. 2691, 2709, 53 L.Ed.2d 810 (1977) (state bar association could not ban advertising that was neither misleading nor deceptive); Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 771-72, 96 S.Ct. 1817, 1830-31, 48 L.Ed.2d 346 (1975) (regulation aimed at preventing deceptive or misleading commercial speech would be permissible). Because Vermont has demonstrated no cognizable harms, see Edenfield, 507 U.S. at 770-71, 113 S.Ct. at 1800, its statute is likely to be held unconstitutional.
http://caselaw.findlaw.com/us-2nd-circuit/1210635.html
