Commercial Free Speech Trumps the Politics of Food Labeling: The Legacy of rbST-Free Milk Mandate and Prohibition Cases for Genetic Engineering Disclosure Laws

Abstract

Commercial speech rights have expanded under federal court decisions dating back to the 1970s. This paper examines application of commercial free speech precedents to two contemporary dairy labeling cases, where states required or prevented labeling of products derived from cows treated with genetically-modified hormones. Decisions in both cases strengthened commercial speech freedom regarding food products and processes and limited state regulatory power, though the outcomes for anti-genetic engineering interest groups were divergent. The courts struck down Vermont’s labeling mandate as unconstitutional compulsory speech and found consumer “right to know” an inadequate state interest. In striking down Ohio’s labeling prohibition, the courts protected voluntary speech to label dairy products as “rbST-free” as long as labels were not false or misleading. The author projects the likely negative impact of these court rulings on the constitutionality of genetically-modified food labeling mandates proposed in many states and considers future directions of genetically-engineered food labeling regulation in competitive and politically-contested environments.