Legal expert says rBGH-free labeling bans infringe on free speech, federal law

State bills that prohibit dairy companies from labeling their products rBGH-free may impinge on free speech rights and federal law, says Neil Hamilton, law professor and director of the agricultural law center at Drake University.

“It directly implicates the issue of free speech,” says Hamilton. “The free speech issue is on the side of marketers and what’s truthful. It’s not clear that state regulators can force you to be silent on this.”

Hamilton says the US Food and Drug Administration has allowed dairy manufacturers to label their products as rBGH-free as long as they use a disclaimer stating there is “no significant difference” between milk derived from cows injected with the hormone and those not injected.

Dairy companies could argue that the labeling bans interfere with interstate commerce, says Hamilton. “They could say they are following FDA rules, and that states can’t impose a higher standard. Federal law trumps state law,” he says.

Hamilton calls the rBGH-free bill bans a “slippery slope” that could lead to other labeling restrictions. “Would they require labels on organic food to say that there is no significant difference between organic and something else?”

Having a patchwork of state labeling laws would be difficult for dairy manufacturers, including major companies such as Kraft Foods, which recently introduced an rBGH-free cheese product. “How do you label that in a state that prohibits the labels?” asks Hamilton. “Does Kraft not sell in that state or ignore the label in that state?”

Before Pennsylvania rescinded their rBGH-free labeling ban, there were reports that dairy manufacturers in the state and beyond would file a lawsuit to overturn the ban. If a state does pass a ban, would dairy companies sue to stop it?

Hamilton says Monsanto is “picking a fight with the largest dairy companies in the country” over rBGH-free labels.

Further, he says the battle over rBGH-free labeling exposes a “fault line” between food manufacturers and biotechnology companies that first appeared with the StarLink corn debacle in 2001. Back then, StarLink, a GM corn not approved for food use, ended up in food products, forcing food recalls that costs millions of dollars. The incident damaged relations between food and biotechnology companies.

A similar division may appear if there are restrictions on rBGH-free labels. “Food companies may see the value in rBGH-free labels, and they may oppose laws that limit their ability to sell products in markets they see as valuable,” says Hamilton.

© Copyright The Organic & Non-GMO Report March 2008.