In October, the Federal Supreme Court (STF) concluded the judgment of Direct Action of Unconstitutionality (ADI) No. 4,619, filed by the National Confederation of Industries (CNI) against São Paulo State Law No. 14,274/2020, which governs the labeling of transgenic products.

CNI requested a declaration of unconstitutionality of the state law on two main arguments: (i) usurpation of residual and complementary jurisdiction, therefore the state is not allowed to deal with the issue in a general manner, but only on a regional basis; and (ii) invasion of exclusive jurisdiction of the Federal Government to legislate on interstate commerce.

STF dismissed the suit, pursuant to the opinion drafted by Justice Rosa Weber, and upheld the validity of the state rule. In general terms, the main discussion brought about by the suit was the question of legislative jurisdiction of the Federal Government and the states.

According to Justice Rosa Weber's opinion, the great difficulty in understanding the limits of each state to legislate lies in the lack of a definition of basic concepts such as general rules and special rules. Article 24 of the Federal Constitution provides for concurrent jurisdiction to legislate between the Federal Government, the states, and the Federal District, granting the Federal Government the prerogative to legislate on general rules and the states and the Federal District on special rules. Although there is no clear definition of these concepts, in a simplistic manner it is possible to conclude that the Federal Constitution sought to limit the purview of each state, with the states and the Federal District being responsible for complementing the federal rule.

In the specific case, the analysis revolves around identifying whether the state rule has replaced or supplemented the federal rule, considering that the matter subject to the state law at issue, the right to information and the duty to label food and food ingredients intended for animal or human consumption and produced from genetically modified organisms (GMOs), already finds a provision in federal norms, namely, the Biosafety Law and its regulatory decree (Law No. 11,105/05 and Decree No. 5,591/05), as well as Decree No. 4,680/03, which regulates the right to information (provided for in Law No. 8,078/90 - Consumer Protection Code) on food and food ingredients intended for human or animal consumption that contain or are produced from GMOs.

Among the federal rules mentioned, Decree No. 4,680/03 establishes the limits and criteria for the duty of information on the labels of products that contain or are derived from GMOs. While the federal decree establishes the duty of information on transgenic nature of products produced from GMOs when there is presence above 1% limit of the product, the state rule provides for the duty of information in the marketing of products intended for human or animal consumption, or, further, those used in agriculture, when the presence of GMOs is found in a proportion equal to or above the 1% limit.

According to Justice Rosa Weber's opinion, considering that products derived from transgenics or of transgenic origin offer potential risks to consumers’ health , they, as final recipients, must have their rights to choose ensured, through the right to information.

According to STF’s decision, it is incumbent on the states to establish requirements for labelling of genetically modified food, which does not mean legislating in a manner contrary to the federal rule.

As a parallel, Justice Rosa Weber made reference to Regulation No. 1.829/03 of the European Parliament and Council, which disciplines that labelling of genetically modified food and animal feed requires the presence of more than 0.9% in the products.

In addition, the Justice sets out the arguments by which she understands that the case under analysis is distinct from the precedent formed in judgment of ADI No. 3,645, handed down in 2006 and mentioned by CNI as an analogous case. STF granted ADI No. 3,645 for the purpose of declaring the unconstitutionality of a law of the state of Paraná that required consumers to be informed of the presence, in any percentage, of genetically modified ingredients in a product to be purchased.

The legal basis used by STF at the time was violation of article 24 of the Federal Constitution, as the state normative act, by establishing the obligation to label products intended for human and animal consumption containing GMOs, in any percentage, inaugurated parallel regulations explicitly opposed to the federal legislation in force (Federal Decree No. 4,680/03).

On the other hand, in this case, the legislation of São Paulo provides for the obligation to provide information on the label of products that contain GMOs in a percentage that is more protective for the right of consumers and human health - not in a generic manner and contrary to the federal rules -, unlike the Paraná law. In the conclusion of her opinion, Justice Rosa Weber contends that there is no usurpation of the Federal Government's jurisdiction to legislate on commercial law and interstate commerce since when legislating on consumer protection, São Paulo’s legislation deals with matters of concurrent jurisdiction.

The conclusion is that STF's understanding in the case of labelling of products containing GMOs appears to be in line with recent court rulings in the analysis of conflicts of legislative jurisdiction in environmental matters. As an example, on December 10, 2019, Justice Celso de Mello issued a sole judge decision rejecting a petition for in limine injunctive relief submitted by the Liberal Party in the record of ADI No. 6.218/RS, which deals with the suspension of the effects of Law No. 15.223/18 of the state of Rio Grande do Sul on prohibition of trawling in the coastal area of the state.

As in GMOs’ case , Justice Celso de Mello found that the state of Rio Grande do Sul has legislated on a matter of concurrent jurisdiction, establishing measures to protect the marine environment, such that there is nothing to be said of usurpation of legislative jurisdiction in matters exclusive to the Federal Government relating to maritime law and the rules of navigation.

These precedents are important in guiding the states when it comes to issuing laws on environmental matters, the subject of so many discussions.