This article originally ran at Forbes and has been republished here with permission of the author.
Washington State is about to become the latest battleground in a cynical, well-coordinated scare campaign against genetically engineered (GE) foods.
Initiative I-522, “The People’s Right to Know Genetically Engineered Food Act,” which would mandate the labeling of certain “genetically engineered” (GE) foods, will be on the November ballot. Similar to California’s Proposition 37, which was defeated in November 2012, the Washington measure would require conspicuous labeling on the front of packages of most foods that contain or may contain GE ingredients. This would encompass at least three quarters of food currently on supermarket shelves.
Mandatory GE labeling fails every test: scientific, economic, legal and common sense.
Nevertheless, labeling advocates claim that GE foods are somehow “unnatural” and might be unsafe. And what could be wrong with letting consumers know what’s in their food and letting them decide what to buy?
The term “genetically engineered” itself is misleading. GE foods are not in any way a meaningful “category,” which makes any choice of what to include wholly arbitrary. Nor are they less safe or less “natural” than thousands of other common foods. In fact, as federal regulators have said, a mandatory label erroneously implies a meaningful difference where none exists.
Genetic modification has been with us for millennia. Breeders routinely use radiation or chemical mutagens on seeds to scramble a plant’s DNA to generate new traits. “Wide cross” hybridization has given rise to plants that do not and cannot exist in nature; these plants include the varieties of corn, oats, pumpkin, wheat, tomatoes and potatoes we buy every day. (Yes, even “heirloom” varieties and the overpriced organic stuff at Whole Foods.) On average, every day we consume dozens of servings of these varieties of fruits, vegetables, and grains derived from wide crosses .
Even some prominent former anti-GE activists have now seen the error of their ways. The day before the Washington petitions were filed, Mark Lynas, one of the leaders of the anti-GE movement in the 1990s, announced a dramatic epiphany. In his lecture at the Oxford (England) Farming conference, he said that organisms made with the most modern genetic engineering techniques are “safer and more precise than conventional breeding.” Lynas’s apostasy extended to the accusation that anti-GE activism is “an anti-science movement.”
Likewise, Patrick Moore, who in the 1960s helped to co-found Greenpeace, which staunchly opposes GE foods, did a volte-face by 2004, when he acknowledged their “many potential benefits for humankind and the environment.” “The environmentalists’ campaign against biotechnology in general and genetic engineering in particular, has exposed their intellectual and moral bankruptcy,” he wrote.
But what of consumers’ experience with GE foods? Americans have already consumed more than 3 trillion servings of them with not even a single tummy ache.
The imposition of GE labeling requirements via referendum issues is populism run amok, and in the case of I-522, there is the confounding element of arbitrary special-interest exemptions. Even for shoppers wishing to avoid GE foods, I-522 doesn’t deliver what it promises. Many GE-containing foods are explicitly exempted from the initiative, courtesy of special interests.
Cheeses made with a GE clotting agent? Beer fermented with GE yeasts? Food at a restaurant? They would all be exempt from I-522, but a product containing corn or soybean oil from GE crops — which contains no DNA from the plants themselves — would need a label. If the initiative were really about helping consumers to make informed choices, the law would have been written to apply across the board.
Further illustrating the inconsistency and irrationality of I-522, consider that corn, soybean or canola oil from genetically engineered plants – all of which we consume routinely now — would be required to have the label, although as their current labels attest, they contain exactly zero grams of either carbohydrate or protein. In other words, they are virtually pure oil and contain nothing that reveals their pedigree. Bottles of identical oil obtained from conventionally-modified crops would not be required to bear the label. This makes no sense.
Activists’ claims to the contrary, consumers already have plenty of information about the source of the foods they buy. From 2000 to 2009 alone, roughly 7,000 new foods and beverages with voluntary “GE-free” labeling debuted in U.S. supermarkets. Among these are large numbers of dairy products that proudly advertise their non-GE pedigrees.
The organic industry boasts that certified foods cannot contain GE ingredients, and various food companies and activist groups have created websites, pocket guides, and even smart phone apps that direct purchasers to GE-free products. With all this information freely available, consumers already have what they need to choose.
Labeling to identify GE foods stigmatizes those products, raises the costs of making them, discourages the use of the technology and encourages money-seeking lawsuits for inconsequential violations. I-522 is a trial lawyer’s dream: It specifies that the court may award (at the expense of manufacturers) attorneys’ fees not only for prosecuting the case, but for the entire investigation.
And here’s the kicker: Even if state GE labeling proposals were to succeed at the ballot box, they would still fail. Federal law preempts state laws when there is a conflict, and FDA does not discriminate between genetically engineered and conventionally modified foods. The required label information pertains to changes in the food’s composition or use, not the techniques used to make it.
The FDA’s approach to labeling has been upheld both directly and indirectly by various federal court decisions that have consistently struck down mandatory labeling not supported by data. In the 1990s, a group of Wisconsin consumers sued the FDA, arguing that the agency’s decision not to require the labeling of dairy products from cows treated with a bioengineered protein called bovine somatotropin, or bST, allowed those products to be labeled in a false and misleading manner. (In other words, the plaintiffs wanted the same sort of mandatory labeling that would be required by I-522.) However, because the plaintiffs failed to demonstrate any material difference between milk from treated and untreated cows, the federal court agreed with the FDA, finding that “it would be misbranding to label the product as different, even if consumers misperceived the product as different.”
In another federal case relevant to I-522, several food associations and companies challenged a Vermont statute that required labeling to identify milk from cows treated with bioengineered bovine somatotropin. Because the state could not demonstrate that its labeling requirement was motivated by anything more than satisfying consumer curiosity, the court said it could not compel milk producers to include that information on product labels: “We are aware of no case in which consumer interest alone was sufficient to justify requiring a product’s manufacturers to publish the functional equivalent of a warning about a production method that has no discernible impact on a final product. … Absent some indication that this information bears on a reasonable concern for human health or safety or some other sufficiently substantial governmental concern, the manufacturers cannot be compelled to disclose it,” because it would violate constitutional guarantees of commercial free speech. “Were consumer interest alone sufficient,” said the court, “there is no end to the information that states could require manufacturers to disclose about their production methods.”
In other words, there is no consumers’ “right to know” obscure information about food, and neither the wishful thinking of activists nor state initiatives can create one. If I-522 were to pass, state officials would need to spend years and millions of taxpayer dollars defending the indefensible in the federal courts.
There would be other costs as well: The Washington Research Council estimated that I-522’s requirements would increase grocery costs for a family of four in the state by more than $450 a year, and administering and enforcing the mandate would necessitate the creation of a new state bureaucracy – with no benefits to consumers.
Mandatory GE labeling isn’t needed. It’s deceptive, anti-consumer, unconstitutional, and abusive to taxpayers. Proposals to require it themselves deserve a warning label.
Henry I. Miller, a physician, is the Robert Wesson Fellow in Scientific Philosophy & Public Policy at Stanford University’s Hoover Institution. He was the founding director of the FDA’s Office of Biotechnology. Follow him on Twitter @henryimiller.