— by Gabriella Agostinelli
Last week, the Connecticut legislature passed a milestone bill requiring special labels on genetically-modified (GMO) food products. Once Connecticut governor Dannel Malloy signs the bill into law, Connecticut will officially become the first state to successfully enact a mandatory GMO labeling law.
In 2013, 95 GMO labeling bills were introduced in 28 states. Some have failed and others are still pending, but few go as far as Connecticut’s law. The bill’s advocates call the law “historic” and aver that “Connecticut will now set the standard for states around the country to follow.”
Unlike past efforts to regulate GMO products in other states, the Connecticut law seeks to defuse some potent Constitutional arguments against state-to-state GMO labeling laws.
In an effort to shield the state’s producers from competitive disadvantage, Connecticut’s legislation stipulates that GMO labels would be required to appear on products in the state’s supermarkets only after two conditions are met. First, four other states, including one bordering Connecticut, must enact similar labeling rules. Second, the aggregate population of any Northeast states (Maine, New Hampshire, Vermont, Massachusetts, Rhode Island, New York, Pennsylvania or New Jersey) that enact such a law must have a total population of more than 20 million people.
This legislative jui jitsu is probably intended to side-step the Dormant Commerce Clause, which forbids individual states from unduly burdening interstate commerce. Given the national and regional nature of food distribution, when one state requires special labeling, the practical effect is to require manufacturers to use the special labels on products they supply to other states in the region. State regulation that has a practical effect of forcing out-of-state compliance with in-state requirements may pose an unconstitutional burden on interstate commerce in violation of the Dormant Commerce Clause. Acknowledging the interests of neighboring states is Connecticut’s way of mitigating a Dormant Commerce Clause objection to the GMO labeling law.
This is not the only time a state legislature has tried to accommodate this principle of Constitutional law. The Maine legislature also passed a similar bill just days after Connecticut’s legislature passed theirs. This is a very good sign that state GMO legislators are learning from the failure of past efforts.
If it feels like we are having the same argument about GMO’s, we are. The state-by-state approach to GMO labeling will inevitably come up against other constitutional obstacles. Just because lawmakers are becoming more adept does not mean smooth sailing for state GMO regulation. The issue is ripe for federal resolution that holds manufacturers to a singular labeling standard. That is the reason why giant food companies like Pepsi, ConAgra Foods and Walmart have convened to discuss lobbying for such legislation. After last year’s Prop 37 initiative in California, where corporations spent more than $40 million to oppose GMO labeling, some food companies have developed a different mentality: if you can’t beat ’em, join ’em. While federal GMO labeling bills have struggled to gain a toe-hold in Congress, we will all have to stay tuned to see what the future holds.