Free Speech Decision Helps Genetically Modified Foods

A recent Forbes Magazine carried a story which caught my eye regarding GMO (genetically modified organisms) food labeling.

The Forbes article discusses a little noticed June 18, 2015, U.S. Supreme Court decision Reed v.Town of Gilbert. The article was entitled, Supreme Court – Free Speech Clobbers GMO Food-Labeling Activists.

I was not aware the Court had any GMO issue before it, and it did not. However, the Reed case may turn out to be very helpful to agriculture as it generates foods from genetically engineered plants. We are seeing major battles being waged over the use of GMOs in the media, state legislatures, and now in the federal courts.

Vermont is one legislature which has passed a food labeling law that takes effect July 1, 2016. Vermont will require foods to be identified with a label as containing “genetically engineered” ingredients.

The Forbes article provides an excellent summary on a possible victory for agriculture.

A review of the Reed case provides interesting insights regarding environmental activists’ efforts to label foods as containing GMO ingredients. Obviously it is hoped by environmentalists that such labeling will stop the use of genetic engineering or harm the sale of food products containing GMO material.

In the U.S. Constitution, the First and Fourteenth amendments clearly “prohibit the enactment of laws “abridging the freedom of speech.”

This seems pretty simple, but it is not.

The Town of Gilbert, Ariz., according to the Court opinion, has a comprehensive code regulating the display of outdoor signs without a permit. There are 23 categories of signs allowed without a permit, including temporary directional signs directing the public to a church. The sign is classified as “content” neutral or “content” free.

It is hard to believe that the town fathers found that a pastor, Clyde Reed, posted signs each Saturday morning bearing his church’s name, time and location of services and thus broke the law.  Pastor Reed was cited for allowing his temporary directional signs to remain up past midday Sunday.

It may be hard to believe that facts such as these have any impact on agriculture. It has taken time for lawyers and journalists to determine that a case decided on June 18, 2015, may impact GMO labeling – but it does.

The Supreme Court goes into a detailed discussion of whether a directional sign to a church can be governed by a “content”-based law because a “content”-based law targets speech in its communicative content. Such a law is “presumptively unconstitutional.”

Vermont’s law, Act 120, will require special labeling for genetically engineered agricultural products. Grocery Manufacturers Association argued in U.S. District Court in Vermont that it’s GMO labeling regulation is “content”-based and presumptively unconstitutional. The U.S. District Court judge disagreed and claimed that Vermont’s labeling requirements were reasonably related to the state’s interest of knowing about genetically engineered food being placed on its grocers’ shelves.

The Reed decision, even though it starts from a silly set of facts and involving silly municipal bureaucrats being concerned about church directional signs, has now created a Supreme Court case which is most helpful to agriculture. If the direction-based sign of the church is considered “content” speech, therefore it is protected from the First and Fourteenth amendments.

It is hard to believe that there must be labeling of foods as genetically engineered as Vermont argues. Vermont’s law is “content” speech and is surely unconstitutional The Forbes article states it quite well when it says “genetically engineered ingredients – which in no way [are] systematically different from ‘non-genetically engineered’ foods – would appear to fail strict scrutiny.” 

So, a simple church directional sign in Gilbert, Ariz., may point the way to giving all agriculture a huge victory on the GMO labeling controversy.

(This article first ran in Farm Futures on September 21, 2015)

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