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COOL ruling could impact a GMO label lawsuit

Mateusz Perkowski

Capital Press

A recent ruling on country-of-origin labeling may have implications in legal battles over the labeling of genetically modified organisms.

A recent court ruling that upheld mandatory country-of-origin labeling of meat may come to bear on litigation over labels for genetically engineered food.

The U.S. Court of Appeals for the D.C. Circuit last month found that requiring meat producers to label their products with country-of-origin information doesn’t violate their free speech rights.

The ruling essentially said the government has a substantial interest in enforcing the COOL law even though the mandatory labels aren’t meant to correct consumer deception.

Meat packers had argued that COOL simply aims to satisfy consumers’ idle curiosity and thus the government doesn’t have a substantial interest in compelling such speech, but the court rejected this argument.

Advocates of labeling foods with ingredients containing genetically modified organisms, or GMOs, believe the ruling buttresses their argument that such labels are constitutional.

“You have a factual disclosure. The court ruled that companies don’t have the right to hide that information from consumers,” said George Kimbrell, attorney for the Center for Food Safety, a nonprofit that supports GMO labeling.

The free speech implications of mandatory GMO labeling are becoming a key legal question, as food manufacturers are suing the government of Vermont over a recently passed state law that requires such labels.

Such litigation may also be on the horizon in Oregon if voters pass a GMO labeling ballot initiative in November.

In the Vermont case, the alleged infringement of free speech is one of the primary arguments against GMO labels.

Kimbrell said the grocery manufacturers are “equally wrong” about GMO labeling as the meat packers were about COOL.

“From the perspective of commercial speech, it doesn’t matter if it’s the federal government or state government. The legal analysis is the same,” he said.

Drew Kershen, an agricultural biotechnology law professor at the University of Oklahoma, said the COOL ruling broadens what is considered a significant government interest in compelling speech.

“They’ve downplayed the First Amendment free speech aspect of commercial speech” while bolstering the consumers’ right to information, Kershen said.

The repercussions for GMO labeling are not clear-cut, however.

The D.C. Circuit’s ruling in the COOL case appears to be at odds with an earlier ruling from the 2nd U.S. Circuit Court of Appeals, which held that Vermont can’t require growth hormone labels for milk, Kershen said.

It’s unknown if the meat packers will appeal the COOL decision, but such disagreement between federal appellate courts raises the chances of review by the U.S. Supreme Court, he said.

“It’s set up a conflict between the D.C. Circuit and the 2nd Circuit,” he said.

If GMO labels are ever required in Oregon or another Western state, federal judges and the 9th U.S. Circuit Court of Appeals could take either approach.

“You don’t know which one is going to get the preference,” said Kershen.


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