California ’ s Proposition 37 and the WTO Agreements

Steve Sexton......................................9 Proposition 37 is an initiative peti­ tion that, if adopted by Califor­ nia voters in November 2012, will impose mandatory labeling on a broad range of raw and processed foods. Specifically, proposed Section 110809 mandates that a food that “is or may have been entirely or partially produced with genetic engineering” state that fact through specifically worded labels. In addition, Subsection 110809.1 prohibits the use of the words “natural,” “naturally made,” “naturally grown,” “all natural,” or “words of similar import” for processed foods. Even if adopted by California voters, Proposition 37 assuredly faces multiple legal challenges prior to its entry into force in 2014. Three legal grounds often mentioned include: • U.S. constitutional challenge under the dormant commerce clause doctrine; • U.S. constitutional challenge under the First Amendment com­ mercial free speech doctrine; • U.S. constitutional challenge under the First Amendment prohibit­ ing the establishment of religion. By contrast, I provide an analysis of Proposition 37 and the World Trade Organization (WTO) Agreements, more specifically the Agreement on the Application of Sanitary and Phytos­ anitary Measures (the SPS Agreement) and the Agreement on Technical Bar­ riers to Trade (the TBT Agreement). The WTO Agreements