Regardless of the policy merits of their position, opponents of Proposition 37 have a valid point that the referendum will be unconstitutional on the grounds that it infringes on freedom of speech protected by the First Amendment.

The First Amendment not only limits government’s power to prohibit speech; it also limits government’s power to compel speech.  Prop 37 would regulate speech both by prohibiting certain statements—that foods are “natural” if they have been produced with genetic engineering or processed in any way—and by compelling certain statements—that products are “Genetically Engineered,” “Partially Produced with Genetic Engineering” or “May Be Partially Produced with Genetic Engineering.”

From a First Amendment standpoint, Prop 37’s prohibition on “natural” claims is its most problematic provision.  To defend that part of the law, California would have to establish that it has a substantial interest in protecting consumers from being deceived by “natural” claims and that the prohibition directly serves the state’s interest without overly infringing on speech.  With regard to genetically-engineered products, there is at least some reason to think that “natural” claims confuse consumers and cause them to believe products are not genetically engineered.  (Remember the Kashi story?)  And many lawsuits have been brought (for example, against Snapple and General Mills) alleging that “natural” claims are deceptive when products contain highly processed ingredients, such as high fructose corn syrup.  However, it is utterly implausible that a ban on “natural” claims is necessary to prevent consumer confusion with regard to minimally processed, traditional foods that most people would think of as natural—including non-genetically-engineered canned, cooked, or frozen foods containing no artificial ingredients.  In that regard, Prop 37 goes too far.

Prop 37’s requirement to compel disclosure statements identifying genetically-engineered foods has a somewhat better chance of withstanding a First Amendment attack.  The government may compel purely factual  disclosures to consumers for purposes of preventing consumer deception.  The disclosures required by Prop 37—simple statements indicating that the product is genetically engineered—are factual in nature.  But there is room for debate as to whether the disclosures serve the state’s interest in preventing consumer deception.

Opponents of Prop 37 will argue that consumers cannot be deceived by the absence of a “genetically engineered” label because genetically-engineered foods are deemed not materially different than their traditional counterparts.  In fact, it is the policy of the federal government, as determined by FDA, that genetically-engineered foods are not materially different than traditional foods and, therefore, labeling  is not needed to prevent consumer deception.  If there is no material difference between genetically-engineered foods and traditionally-produced foods, the opponents of Prop 37 will argue, the law would serve only an interest in satisfying consumer curiosity.  But the interest in consumer curiosity, by itself, has been held by one federal appeals court to be insufficient to support a law compelling commercial speech—in that case, a Vermont law requiring labeling of dairy products produced with synthetic hormones.

To defend Prop 37’s disclosure requirement, California will have to convince the court that the provision is related to the government’s interest in preventing consumer deception (as opposed to merely gratifying curiosity) or that it directly serves another substantial state interest, such as an interest in protecting human health or the environment.  Given that science has not proven genetically-engineered foods to be dangerous, it may be difficult for California to establish that Prop 37’s disclosure requirement serves a legally-recognized, substantial state interest.  At the heart of the matter will be a dispute about whether the state has a legitimate interest in protecting consumers’ “right to know” how their food has been produced.  That Americans overwhelmingly support labeling of genetically-engineered foods indicates that they believe they should have such a right; but, so far, it has not been recognized by the courts.

I predict that if Prop 37 passes, the lawsuit challenging it will contain a First Amendment Element.