CEAC GMO Subcommittee - July 1, 2014
Item IV (c)
CEAC GMO Subcommittee - July 1, 2014
Item IV (c)
If the communication is neither misleading nor related to unlawful
activity, the government’s power is more circumscribed. The State must
assert a substantial interest to be achieved by restrictions on commercial
speech. Moreover, the regulatory technique must be in proportion to that
interest… First, the restriction must directly advance the state interest
involved; the regulation may not be sustained if it provides only
ineffective or remote support for the government's purpose. Second, if the
governmental interest could be served as well by a more limited restriction
on commercial speech, the excessive restrictions cannot survive.
(Central Hudson Gas & Elec. Corp. v. Public Service Commission of New York (1980)
447 U.S. 557, 563-64 [100 S.Ct. 2343, 2350, 65 L.Ed.2d 341], citations and footnote
omitted.)
The second relevant doctrine is that prohibiting compelled speech. “[T]he right of
freedom of thought protected by the First Amendment against state action includes both
the right to speak freely and the right to refrain from speaking at all.” (Wooley v.
Maynard (1977) 430 U.S. 705, 714 [97 S.Ct. 1428, 1435, 51 L.Ed.2d 752].) The right
not to speak inheres in political and commercial speech alike. (International Dairy Foods
Ass'n v. Amestoy (2nd Cir. 1996) 92 F.3d 67, 71.) And even compelled disclosure of
factual information violates the First Amendment under certain circumstances. (Riley v.
National Federation of the Blind (1988) 487 U.S. 781, 797–98 [108 S.Ct. 2667, 2677–78,
101 L.Ed.2d 669].)
Under Central Hudson, as an alternative to prohibiting misleading or deceptive speech,
the government may require that such speech be accompanied by additional information
that prevents it from being misleading or deceptive, as long as the additional information
is reasonably related to the State’s interest in preventing deception of consumers.
(Zauderer v. Office of Disciplinary Counsel of the Sup. Ct. of Ohio (1985) 471 U.S. 626,
651 [105 S.Ct. 2265, 85 L.Ed.2d 652].) In so holding, the Supreme Court relied on the
distinction between a fact and a personal or political opinion to distinguish factual,
commercial-speech disclosure requirements, to which courts apply a rational-basis rule,
from the type of compelled speech on matters of opinion that is “as violative of the First
Amendment as prohibitions on speech.” (Id. at 650, citation omitted.) In distinguishing
the regulation at issue in Zauderer from those involving compelled speech, the Supreme
Court stated, “Ohio has not attempted to ‘prescribe what shall be orthodox in politics,
nationalism, religion, or other matters of opinion or force citizens to confess by word or
act their faith therein.’ The State has attempted only to prescribe what shall be orthodox
in commercial advertising, and its prescription has taken the form of a requirement that
appellant include in his advertising purely factual and uncontroversial information about
the terms under which his services will be available.” (Id. at 651.)
Since Zauderer was decided in 1985, lower courts have held that protection of the
environment from pollutants (National Elec. Mfrs. Ass’n v. Sorrell (2nd Cir.2001) 272
CEAC GMO Subcommittee - July 1, 2014
Item IV (c)
F.3d 104, 113–14) and protection of public health and safety (Discount Tobacco City &
Lottery, Inc. v. U.S. (6th Cir. 2012) 674 F.3d 509, 554 cert. denied, (U.S. 2013) [133
S.Ct. 1996, 185 L.Ed.2d 865]), were additional grounds for mandating disclosure of
factual information in the context of commercial speech. 1 As the U.S. District Court in
San Francisco recently stated:
In the commercial marketplace, the First Amendment permits a
government to require businesses to disclose accurate and uncontroversial
facts as long as the disclosures are reasonably related to a governmental
interest in preventing deception or in protecting public health and safety,
(CTIA — The Wireless Association v. City and County of San Francisco (N.D. CA 2011)
827 F.Supp.2d 1054, 1059, aff’d. (9th Cir. 2012) 494 Fed.Appx. 752
In sum, to “fit within the framework of Zauderer” a mandated disclosure or warning must
be: (1) factual; and (2) reasonably related to a state interest that is recognized under
Zauderer and its progeny.
“If a commercial-speech disclosure requirement fits within the framework of Zauderer
and its progeny, then we apply a rational-basis standard. If it does not, then we treat the
disclosure as compelled speech under Wooley v. Maynard, 430 U.S. 705, 97 S.Ct. 1428,
51 L.Ed.2d 752 (1977), and its ilk and apply strict scrutiny.” (Discount Tobacco City &
Lottery, Inc., supra, 674 F.3d at 554.)
To survive strict scrutiny, [a regulation] “must be narrowly tailored to
promote a compelling Government interest.” Generally, “a statute is
narrowly tailored only if it targets and eliminates no more than the exact
source of the ‘evil’ it seeks to remedy.” Put another way, a statute is not
narrowly tailored if “a less restrictive alternative would serve the
Government's purpose.”
(Entertainment Software Ass'n v. Blagojevich (7th Cir. 2006) 469 F.3d 641, 646, citations
omitted.) 2
1
At present the FDA takes the position that there is no material difference between bioengineered foods and their non-bio-engineered counterparts. Thus it is unlikely that a
court would find Zauderer applicable.
2
Strict scrutiny under the First Amendment is an exacting standard that generally results
in a determination that a regulation violates the First Amendment.
CEAC GMO Subcommittee - July 1, 2014
Item IV (c)
2. Requirements for GMO Labeling Program
In this case, the proposed GMO 3 labeling ordinance would have to satisfy both criteria
for the applicability of Zaudere, to survive judicial scrutiny. We discuss each below.
a. Factual Information
In order to fall under Zauderer, the proposed labeling program would have to be limited
to requiring factual, or possibly “accurate and uncontroversial”, disclosures. However, as
the Council item makes clear, there is considerable controversy as to the safety and
environmental impacts of GMOs, and no scientific consensus. Currently, the FDA
appears to have taken the position that GMO products are not harmful. Thus, pending
further scientific research that results in a consensus (or at least a majority opinion) that
GMOs are harmful, or a science-based determination to that effect by a government
agency charged with regulating food safety or the environment (such as the FDA or the
EPA), an ordinance requiring labeling of GMOs would have difficulty satisfying the first
precondition for the applicability of Zauderer.
b. Government Interest
The second criterion for the applicability of Zauderer is that the disclosure be reasonably
related to the government interest in preventing deceptive or misleading speech, or
protecting health and safety or the environment. While the proposed labeling program is
in part based on these interests, it appears (from the September 10, 2013, Council report)
to be primarily, or at least substantially, based on the right of consumer to be informed.
This government interest does not satisfy Zauderer. (International Dairy Foods Ass'n v.
Amestoy (2nd Cir. 1996) 92 F.3d 67, 73.) The Commission would need to articulate a
government interest that is permissible under the applicable case law, and a labeling
program that is reasonably related to serving that interest.
cc:
Mayor and City Council
City Manager
City Clerk
Index: V.F.1
3
The FDA’s most current guidelines regarding the voluntary labeling of GMO foods
(2001) distinguishes between the term “GM” and “bio-engineered,” preferring the latter
as scientifically more accurate and thus less confusing to the consumer. The term “GM”
would include plants or animals that have been naturally bred (as in Mendel’s peas) and
thus is inherently misleading. Also, the FDA states it is misleading to label a food as
“free of bio-engineering” or “GMO-free” because of the implication there is something
unsafe in the bio-engineered or GM counterpart.