Jayson Lusk is correct that radical activists will likely continue their efforts to lobby state governments to require labeling of certain "genetically engineered" foods ("The Food Police Are Routed at the Ballot Box," op-ed, Nov. 20). However, whatever such requirements state legislatures or electorates attempt to impose, those efforts are destined to fail in the courts.
Federal law pre-empts state labeling rules that conflict with FDA policy, which requires labeling only if a food raises questions related to nutrition or safe use. Just last year, a federal court in Los Angeles ruled that a California requirement to label genetically engineered foods "would impose a requirement that is not identical to federal law" and would therefore be pre-empted.
More fundamentally, the U.S. Second Circuit Court of Appeals ruled over a decade ago that labeling mandates based solely on an alleged consumers' "right to know," rather than on a product's measurable characteristics, violate the U.S. Constitution's First Amendment.
A Vermont statute enacted in 1994 mandated labels on milk from cows treated with a bioengineered protein. The court found the law unconstitutional because it forced producers to make involuntary statements when there was no material reason to do so.
"Were consumer interest alone sufficient," the court wrote, "there is no end to the information that states could require manufacturers to disclose about their production methods."
Antibiotech activists can huff and puff, but they can't blow away constitutional guarantees.
Henry I. Miller, M.D.
Dr. Miller was the founding director of the FDA's Office of Biotechnology.Note from KBJ: I had no idea that an M.D. degree conferred legal expertise.