Genetically modified organisms (GMOs) leaped into the spotlight last year with California’s Proposition 37, which proposed mandatory labeling for all foods containing GMOs. Consumers argued they have a right to know what’s in their Cheerios. Manufacturers fought back that such state labeling laws would be expensive and unwieldy, and would provide little benefit for a great burden. Despite the ballot initiative failing at the polls, a growing number of states are pursuing labeling schemes, and food producers and grocery stores such as Whole Foods are scrambling to respond to the growing consumer demand. The FDA, however, has stepped back and excused itself from the debate, refusing to regulate GMOs. The question remains: Can states constitutionally legislate in the area of GMO labeling? This Note addresses the preemption and Commerce Clause implications of such labeling.
This Note argues that under both preemption and Commerce Clause evaluations, mandatory GMO labels originating in state laws are unconstitutional. This Note further argues both that the FDA has the authority to enact GMO labeling regulations and that it should do so based on consumer concern. The suggested labeling solution balances the consumer “right to know” with the lack of definitive scientific evidence of negative effects from GMOs. This Note suggests a voluntary labeling regulation with GMO presence defined and measured in the finished product rather than in ingredients. Voluntary labeling allows manufacturers to capitalize on the demand for GMO-free products while establishing consistent label standards that consumers can rely on. It also avoids negative effects on national food supplies, as this Note argues mandatory labeling is likely to result in. While this solution may not allow consumers to know what’s in every box on the grocery shelf, it does provide them an option to pursue and encourage non-GMO products by putting their money where their mouth is.