Can the government mandate that GMO foods be labeled?
Sheldon Krimsky and Jeremy Gruber have compiled the best, most thought-provoking essays on genetically modified food by leading scientists, science writers and public health advocates in The GMO Deception (Skyhorse Publishing, 2014), offering a comprehensive look at the social, political and ethical implications of food-based biotechnology. This essay from "Labeling and Consumer Activism," contributed by Phil Bereano, considers GEF labeling as an issue of free speech.
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Genetic engineering consists of a set of new techniques for altering the basic makeup of plants and animals. Genes from insects, animals, and humans have been added to crop plants; human genes have been added to pigs and cattle. Most genetic engineering is designed to meet corporate—rather than consumer—needs. Foods are engineered, for instance, to produce “counterfeit freshness.” Consumers believe that the engineered physical characteristics, such as color and texture, indicate freshness, flavor, and nutritional quality. Actually, the produce is aging and growing stale, and nutritional value is being depleted. Genetic engineering techniques are biologically novel, but the industry is so eager to achieve financial success that it argues that the products of the technologies are the same, or “substantially equivalent” to normal crops. Despite the gene tinkering, the new products are not being tested extensively to find out how they differ from normal food crops, and whether they present unacceptable hazards.
Genetically engineered foods are now appearing in the supermarkets and on our dinner plates, despite consumer attempts to label these “novel foods” in order to distinguish them from more traditional ones.
The failure of the US government to require that genetically engineered foods be labeled presents consumers with a number of quandaries: issues of free speech and consumers’ right to know, religious rights for those with dietary restrictions, and cultural rights for people, such as vegetarians, who choose to avoid consuming foods of uncertain origins. Some genetic recombinations can lead to allergic or auto-immune reactions. The products of some genes which are used as plant pesticides have been implicated in skin diseases in farm and food market workers.
Product labels perform an important social function, namely communication between a seller and a would-be buyer. The struggle over labeling is occurring because industry knows that consumers do not want to eat GM foods, and that labeled products will likely fail in the marketplace. However, as the British publication The Economist noted, “if Monsanto can not persuade us it certainly has no right to foist its products on us.” Labels would counter “foisting” and are legally justifiable.
In 1992, the government abdicated any supervision over GEFs. Under the Food and Drug Administration’s rules, the agency does not even have access to any industry information about a GEF unless the company decides voluntarily to submit it. Moreover, important information bearing on questions of assessment of risks is often withheld from the public as being proprietary, “confidential business information.” So “safety” cannot be judged in a precautionary way; we must await the inevitable hazardous event.
James Maryanski, the biotechnology coordinator of the FDA, claims that whether a food has been genetically engineered is not a “material fact” and the agency would not “require things to be on the label just because a consumer might want to know them.”
Yet a standard law dictionary defines “material” as “important,” “going to the merits,” and “relevant.” Since labeling is a form of speech from growers and processors to purchasers, it is reasonable, therefore, to interpret “material” as including whatever issues a substantial portion of the consuming public defines as “important.”
Numerous public opinion polls, in the US and abroad over the past decade, have shown great skepticism about GEFs; a large proportion of respondents, usually majorities, are reluctant to purchase and consume such products. Regardless of whether they would consume genetically engineered foods, consumers feel even more strongly that such foods should be labeled. In a 1998 Toronto Star poll reported on June 2, 98 percent favored labeling. Bioindustry giant Novartis surveyed US consumers and found that 93 percent of them wanted information about genetic engineering of their food products.
However, the US government has been resisting attempts to label genetically engineered food. Despite the supposed environmentalist and consumer sympathies of the Clinton-Gore Administration, the government holds an ideological belief that nothing should impede the profitability of biotech as a mainstay of the future US economy. In addition, the Clinton Administration’s hostility to labeling may be attributed to documented political contributions made to it by the biotechnology industry.
Last May, several religious leaders and citizen groups, including members of the Council for Responsible Genetics Board of Directors, sued the FDA to change its position and to require that GEFs be labeled. The lawsuit is based on scientific and religious grounds; the less explored issue of free speech and the right to know will be discussed in this article.
Some government officials have said that labeling should contain information only about the food product itself, not the process by which it is manufactured. Yet, the US has many process food labels: kosher, dolphin-free, Made in America, union-made, free-range (as applied to chickens, for example), irradiated, and a number of “green” terms such as “organic.” For many of these products, the scientific difference between an item which can carry the label and one that cannot is negligible or non-existent. Kosher pastrami is chemically identical to non-kosher meat. Dolphin-free tuna and tuna caught by methods which result in the killing of dolphins are the same, as are many products which are “made in America” when compared to those made abroad, or those made by unionized labor as opposed to those made by workers who are not organized.
These labeling rules recognize that consumers are interested in the processes by which their purchases are made and have a legal right to such knowledge. In none of these labeling situations has the argument been made that if the products are “substantially equivalent” no label differentiation is permissible. It is constitutionally permissible for government to require that food producers provide certain information, even when it intrudes slightly on the commercial speech of producers, in order to expand the First Amendment rights of consumers to know what is of significant interest to them.
Consumers International, a global alliance of more than two hundred consumer groups, has suggested that “because the effects [of GEFs] are so difficult to predict, it is vital to have internationally agreed upon and enforceable rules for research protocols, field trials, and post-marketing surveillance.” In a movement towards the establishment of such rules, the “Precautionary Principle,” has actually entered into the regulatory processes of the European Union. The “Precautionary Principle” reflects the oldest commonsense aphorisms such as “look before you leap,” “better safe than sorry,” or “an ounce of prevention is worth a pound of cure.” It rests on the notion that parties who wish to change the existing social order (often to profit or increase their power and influence) ought not to be able to slough off the costs and risks onto others. The proponents of genetically engineered foods ought to bear the burden of proof that the new procedures are safe and socially acceptable rather than forcing regulators or the general citizenry to prove a lack of risk.
The process of applying the Precautionary Principle must be open, informed, and democratic, and must include potentially affected parties. It must also involve an examination of the full range of alternatives. For GEFs, labeling performs important functions in carrying out the Precautionary Principle. It places a burden on industry to show that genetic manipulations are socially beneficial and provides a financial incentive for them to conduct research to reduce uncertainty about the consequences of GEFs.
Democratic notions of free speech include the right to receive information as well as to disseminate it. It is fundamental to capitalist market theory that for transactions to be maximally efficient all parties must have “perfect information.” The realities of modern food production create a tremendous imbalance of knowledge between producer and purchaser. Our society has relied on government intervention to redress this imbalance in order to make supermarket shopping a fairer and more efficient—as well as safer—activity. The notion of “consumer right to know” articulates the perspective that in an economic democracy, choice is the fundamental prerogative of the purchaser.
As some biologists have put it, “the category of risk associated with genetically engineered foods is derived from the fact that, although genetic engineers can cut and splice DNA molecules with . . . precision in the test tube, when those altered DNA molecules are introduced into a living organism, the full range of effects on the functioning of that organism cannot be predicted or known before commercialization . . . [T]he introduced DNA may bring about other unintended changes, some of which may be damaging to health.”
Can the government prohibit certain commercial speech, i.e., such as barring a label “this product does not contain genetically engineered components”? The government is constrained by the First Amendment from limiting or regulating speech in the content of labels except for the historic functions of protecting the public health and safety and eliminating fraud or misrepresentation.
In several recent cases, the US Supreme Court has restricted government regulation of commercial speech, in effect allowing more communication. The First Amendment directs us to be especially skeptical of regulations that seek to keep the public in the dark. Thus, it would seem difficult for the government to sustain an effort to prohibit labeling GM foods. In 1995, James Maryanski of the FDA stated that “the FDA is not saying that people don’t have a right to know how their food is produced. But the food label is not always the most appropriate method for conveying that information.”
Is it acceptable for a government bureaucrat to make decisions about what are appropriate methods of information exchange among citizens? The first food product bearing a label “No GE Ingredients,” a brand of corn chips, made its appearance this summer. A trend may be developing as other brands, such as the RAIN food company, announced recently that they too would begin labeling their foods as “free from genetically engineered organisms.”
Can the government mandate commercial speech, requiring that GM foods bear a label? The government does require some labeling information which goes beyond health effects, and not every consumer must want or need mandated label information in order for it to be required by law. Such requirements have never been judged an infringement of the producers’ constitutional rights. For example:
• Very few consumers are sensitive to sulfites, although all wine must be labeled.
• The burden is put on tobacco manufacturers to carry the Surgeon General’s warning, even though the majority of cigarette smokers will not develop lung cancer and an intended effect of the label is to reinforce the resolve of non-consumers to refrain from smoking.
• The burden of labeling virtually every processed food with its fat analysis (saturated and unsaturated) and caloric values is mandated even though vast numbers of Americans are not overweight nor suffering from heart disease, and are not interested in this information.
• Irradiated foods (other than spices) must carry a specific warning.
• Finally, the source of hydrolyzed proteins in foods must be on a label to accommodate vegetarian cultural practices and certain religious beliefs.
These legal requirements are in place because large numbers of citizens want such information, and a specific fraction needs it. An identifiable fraction of consumers actually needs information about genetic modifications—for example, regarding allergenicity—as the FDA itself has recognized in the Federal Register, and almost all consumers want it. Foods which are comprised, to any extent, of genetically altered components or products should be required to be labeled. Indeed, such labeling is necessary to prevent fraud and misrepresentation, so that consumers do not mistakenly purchase GEFs when they wish regular foods.
Consumers’ right to know is an expression of an ethical position which acknowledges individual autonomy; it is also a social approach which helps to rectify the substantial imbalance of power which exists in a modern society where commercial transactions occur between highly integrated and well-to-do corporations, on the one hand, and consumers on the other. We should be willing to let genetic engineering run the test of the market place; if industry and government officials believe in it so strongly they should fly their genetic engineering flags proudly in the sunshine rather than seeking to obtain profits and economic advantage through concealment.
Philip L. Bereano, JD, PhD, is professor emeritus in the field of Technology and Public Policy at the University of Washington, a cofounder of AGRA Watch, the Washington Biotechnology Action Council, and the Council for Responsible Genetics. This article originally appeared in GeneWatch, volume 12, number 1, February 1999.
Reprinted with permission from The GMO Deception: What You Need to Know about the Food, Corporations, and Government Agencies Putting Our Families and Our Environment at Risk, edited by Sheldon Krimsky and Jeremy Gruber and published by Skyhorse Publishing, 2014. Buy this book in our store: The GMO Deception.
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