2. State GMO Labeling Laws: Constitutionally Questionable Conference of Western Attorneys General Park City, Utah July 23, 2014 John G. Dillard Olsson Frank Weeda Terman Matz PC www.ofwlaw.com (202) 789-1212 jdillard@ofwlaw.com

3. Our Global Food Production Challenge 3 Source: UN FAO, H IGH -L EVEL E XPERT F ORUM : H OW TO F EED THE W OLRLD IN 2050, Rome, Italy (Oct. 12-13, 2009), available at http://www.fao.org/wsfs/forum2050/wsfs-forum/en/ UN FAO Estimates Global Food Needs Will Increase 70% by 2050

4. Biotechnology Applications Herbicide Resistance Insect resistance Yield enhancement Disease resistance Drought tolerance Spoilage reduction Nutraceuticals 4 John G. Dillard – jdillard@ofwlaw.com

5. Benefits of Herbicide Resistance Enables “no till” and reduced tillage practices – Reduced erosion – Reduced runoff – Reduced water pollution – Improved nutrient retention – Facilitates carbon sequestration 5 John G. Dillard – jdillard@ofwlaw.com

6. Disease Resistance Rainbow Papaya – GE technology saved Hawaii’s industry from the papaya ringspot virus 6 John G. Dillard – jdillard@ofwlaw.com

7. Why not just label it? NY Times Poll (7/28/2013) – 93% of survey respondents support mandatory GMO labeling 7 John G. Dillard – jdillard@ofwlaw.com

8. Why not just label it? NY Times Poll (7/28/2013) – 93% of survey respondents support mandatory GMO labeling BUT... – 75% concerned about effect of GMOs in food – 37% feared it causes cancer, allergies – 26% believe they are toxic – 40% believe most fruits, vegetables are GMO 8 John G. Dillard – jdillard@ofwlaw.com There are serious misconceptions about genetic engineering

9. Why not just label it? 2012 International Food Information Council survey (open-ended) – 3% believe biotech foods should be labeled – 2% concerned about biotechnology’s effect on food safety 9 John G. Dillard – jdillard@ofwlaw.com

10. Why not just label it? Mandatory labeling stigmatizes biotechnology – GMO foods are scarce in most countries that require labeling Not related to health, safety or nutrition Increased food costs Food labeling should be a federal issue Marketplace already offers GMO-free alternatives 10 John G. Dillard – jdillard@ofwlaw.com

11. Constitutional Issues with GMO Labeling GMO label is “controversial” – Central Hudson test applies Vermont has not demonstrated a “substantial” state interest Exemptions undercut necessity of labeling “Natural” label prohibition is a restriction on commercial speech Mandates a government viewpoint 11 John G. Dillard – jdillard@ofwlaw.com

12. GMO label is “controversial” Central Hudson controls commercial speech – Exception: Zauderer – purely factual, uncontroversial disclosures (rational basis) Labeling compels food manufacturers to use labels to convey an opinion with which they disagree: – Consumers should assign significance to the fact that a product contains an ingredient derived from a genetically engineered plant 12 John G. Dillard – jdillard@ofwlaw.com

13. Central Hudson Test Does the government have a substantial interest in compelling the commercial speech? – Heightened, intermediate scrutiny Does compulsion directly advance the government’s interests? Is the compulsion more extensive than is necessary to serve the government’s interests? 13 John G. Dillard – jdillard@ofwlaw.com

14. Vermont has not demonstrated a “substantial” state interest Labeling does not serve a governmental interest – Satisfying consumer curiosity is not a gov’t interest Legislative “findings” are based on speculation and conjecture about “unintended consequences,” not concrete facts Litigation funding mechanism illustrates lack of governmental interest – State acting as pass-through for labeling advocates 14 John G. Dillard – jdillard@ofwlaw.com

15. Exemptions undercut necessity of GMO labeling Broad exemptions demonstrate that law does not “directly advance” state interest – Alcohol – Food service – Products from animals fed GMO crops – Cheese produced with GMO enzymes 15 John G. Dillard – jdillard@ofwlaw.com Why does “right to know” vary based on form or location of GMO consumption?

16. “Natural” label prohibition Vermont proscribes labeling GMO foods as “natural” or “words of similar import” – Restrictions of commercial speech fall under Central Hudson Exemptions undercut necessity – Restricts “natural” in grocery store, but not restaurants Singles out biotechnology as not “natural” – Ignores other food production technologies and processes 16 John G. Dillard – jdillard@ofwlaw.com

17. Mandated expression of government viewpoint GMOs are a hotly contested public issue Labeling requires food manufacturers to espouse the government’s view – Gov’t is subject to the same scrutiny as content- based restrictions on speech 17 John G. Dillard – jdillard@ofwlaw.com

18. State GMO Labeling Laws: Constitutionally Questionable Conference of Western Attorneys General Park City, Utah July 23, 2014 John G. Dillard Olsson Frank Weeda Terman Matz PC www.ofwlaw.com (202) 789-1212 jdillard@ofwlaw.com