Citizens in Colorado and Oregon will soon vote on bills that mandate labeling of GMO foods. These new regulations have numerous legal and philosophical problems and I couldn’t support them. For the benefit of my friends in those states I’ve put this article together to explain the situation as I understand it today. My current home state, Maine, has a mandatory label law passed by the legislature last year, but it will not go into effect until five other surrounding states adopt similar laws.
Supporters of these laws claim they have a “right to know what is in our food”. While people may assume this is a natural right of humans, it is not explicitly named as a Constitutional right. If this is a legitimate right, we have to ask how far it extends. Can a person who is racist demand to know if a person of certain racial heritage has handled the food during production? If not, why is their right to know invalid? Does the reason why a person wants to know have any bearing? Can a person who believes in astrology demand to know the date and location a given ingredient was harvested, so they can conduct an astrological analysis to optimize their health? If not, why not? Why is their “right to know” invalid?
There are problems with the assertion of “right to know” that courts have previously recognized. There are innumerable details that consumers might wish to know. Should all consumers bear the expense of providing a small subset with those rights? Do we recognize this right only when it is a majority which desires it? Are there any other such rights that only apply when a majority wants to exercise them? If not, why is this one special?
If food labels enumerate all possible factors of production that any consumer wants to know, at what point does the density of information on the label hinder perception? How much information is too much, obscuring what is truly essential?
We do have laws that require ingredient and nutrition labels. In one sense, consumers already exercise a limited right to know when they buy food with ingredient labels. But there are exceptions. Restaurants don’t provide such ingredient labels for the foods they sell, though known allergens are often noted on the menu. Some formulations are considered trade secrets and so some ingredient labels list “natural herbs and spices”.
In the case of actual GMO ingredients, consumers know that they are buying a product that contains corn or soy or sugar because the label tells them this information. They truly know what is in the food, but not the manner in which it was created (i.e. by traditional breeding or by biotechnology).
Consumers of Jewish and Muslim faiths have special dietary needs, and a desire to know how their food was produced as a matter of adhering to their religious codes. Would we endorse a legal mandate to label all food with respect to Kosher and Halal status? In fact, the proposed Colorado legislation specifically mentions religious objections to biotechnology:
PERSONS WITH CERTAIN RELIGIOUS, CULTURAL AND MORAL BELIEFS OBJECT TO CONSUMING GENETICALLY MODIFIED FOOD BECAUSE OF OBJECTIONS TO TAMPERING WITH THE GENETIC MAKEUP OF LIFE FORMS AND THE RAPID INTRODUCTION AND PROLIFERATION OF GENETICALLY ENGINEERED ORGANISMS;
It is worth noting that Jewish and Muslim groups are not demanding labels with regard to the status of Kosher and Halal foods because the marketplace has already solved their “right to know” needs with service marks that denote a food’s status with regard to those dietary needs.
So if these laws are aimed at protecting people who wish to avoid foods with GMO ingredients, we have to ask: why are the existing Non-GMO Project and USDA Organic labels insufficient? The marketplace solved the Kosher and Halal consumer needs with a servicemark in the same way it serves the non-GMO consumer needs. Why is the existing voluntary negative labeling of GMO-free foods not good enough?
At this point in my examination of the issue it becomes clear that “right to know” is really covering another agenda. Activists are not proposing labels so people can avoid GMO foods. We already have the power to avoid those foods via USDA Organic and Non-GMO Project. What they want to do is use a government-mandated label to drive those products out of the marketplace. A number of anti-GMO thought leaders have openly acknowledged that this is the real purpose of mandatory labeling:
Of course it would be possible to organize consumers to not buy GMO foods today by promoting the USDA Organic and Non-GMO Project labels. Underlying the “right to know” rhetoric is a paternalism that sees the masses as too stupid to know what is really in their own best interests. By creating the appearance of a government-mandated warning label, it isn’t necessary to educate the public about what GMO or biotechnology is, or how it differs from conventional breeding methods.
Setting aside the consumer “right to know” arguments, there are other Constitutional rights that are involved and under which these mandatory label laws will almost certainly be struck down. Namely, the First Amendment protection of speech also includes a right to be free of compulsory speech. The courts have held that states may only compel commercial speech when there is a legitimate state interest at stake, namely protecting public health and preventing consumer deception.
Some people will object that corporations are not people and have no free speech rights. GMO labels put the horse ahead of the cart in that case. There’s a mistaken belief that the Citizens United decision by the Supreme Court established legal personhood for corporations. This is not correct:
The critics are correct, of course, that the First Amendment does not say anything about corporations having free speech rights. This is because it does not say anything about which individuals and groups have free speech rights. The First Amendment provides: “Congress shall make no law . . . abridging the freedom of speech.” It does not say, “Only persons have the right to free speech.” It does not say, “Corporations do not have free speech rights,” nor does it say, “Congress shall make no law abridging the freedom of speech of individuals.” It does not say, “Congress shall make no law abridging freedom of speech, except for two or more people.” It does not say, “Congress shall make no law abridging freedom of speech, except when the speaker is capable of amassing immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporation’s political ideas.”
The critics of Citizens United thus forget an important fact about the First Amendment: it is not a grant of rights. Instead, the First Amendment is a restriction on government power. The First Amendment restricts the ability of government to restrict the rights listed in the amendment—it certainly does not create a limitation on those rights so that they apply only to individuals acting by themselves. It does not lay out who does and does not have the right of free speech because it assumes every American, acting collectively or individually, does.
Instead, the First Amendment defines what legislation Congress can pass that affects this right, which is none. The Founders believed the rights guaranteed by the Bill of Rights are inherent in the American people and that these rights prevail whether they act independently or in concert with one another. The Bill of Rights is an explicit recognition that Congress cannot interfere with these inherent rights. It was not a positive grant of privileges, but a restriction on government.
It is difficult to believe that the critics of Citizens United really believe that only individuals may exercise constitutional rights. Taken to its logical conclusion, the belief that “only individuals have constitutional rights” would have serious consequences for American liberty and would reduce the U.S. to little more than a legislative dictatorship. If only individuals are protected by the Bill of Rights, can the government seize Apple’s intellectual property without paying for it, regardless of the Fifth Amendment? Can the government quarter troops at the AFL-CIO’s headquarters, despite the Third Amendment? Can it search the ACLU’s offices without a warrant because the Fourth Amendment does not apply? Why would any corporation continue to operate in the United States if the fundamental protections that have made America a free and prosperous nation can be ignored by the government? Could the government destroy organized labor by means commonly viewed as forbidden by the Bill of Rights?
The problem that label proponents face is that there are no legitimate public health concerns behind these label laws. Under the principle of “substantial equivalence” there is no reason to believe consumers are being deceived. With regard to current offerings, foods that derive from genetically modified crops are nutritionally equivalent to their non-GMO counterparts:
When the scientists compared the biochemicals of the GM tomato and a wide assortment other non-GM tomatoes, including modern and heirloom varieties, they found no significant differences overall. Thus, although the GM tomato was distinct from its parent, its metabolic profile still fell within the “normal” range of biochemical diversity exhibited by the larger group of varieties.
(It is always possible a new crop will be developed that will provide additional nutritional benefits, and if it isn’t substantially equivalent then there will be a basis for labeling it!)
Not only is there no credible evidence of a threat to human health from GMO foods, there’s no plausible mechanism by which such a health threat would manifest. At least, not as a general result of biotechnology processes. Any breeding method may produce a food crop that is hazardous to human health. GMO crops are the only crops on the market that undergo screening by three regulatory agencies in the US before commercial approval (EPA, FDA and USDA). In terms of risk, GMO are lower risk than other foods produced by conventional breeding methods. For more on this point, see my article Precisely Modified Organisms
The courts have previously stated that mere consumer interest is not a sufficient basis to compel speech (i.e. mandate label disclosures). We’ve been down the GMO label road before, back in the mid-90s when Vermont tried to mandate labels for milk from cows treated with rBST. See GMO Labeling: Can Vermont Survive First Amendment Challenge?:
“Although the Court is sympathetic to the Vermont consumers who wish to know which products may derive from rBST-treated herds, their desire is insufficient to permit the State of Vermont to compel the dairy manufacturers to speak against their will. Were consumer interest alone sufficient, there is no end to the information that states could require manufacturers to disclose about their production methods,” the 2nd Circuit explained.
“For instance, with respect to cattle, consumers might reasonably evince an interest in knowing which grains herds were fed, with which medicines they were treated, or the age at which they were slaughtered. Absent, however, 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,” the 2nd Circuit continued. “Instead, those consumers interested in such information should exercise the power of their purses by buying products from manufacturers who voluntarily reveal it.”
As noted, there are innumerable things that consumers may honestly wish to know, and satisfying all of them could substantially raise the price of producing food. Why should people who are uninterested in the use of agricultural biotechnology be compelled to subsidize the costs of informing people who are interested in it (especially when those concerned people already have voluntary negative labeling established in the market to allow them to avoid GMOs)?
There are a lot of disputes over the cost to implement a GMO label law. Proponents of the GMO label laws claim that ink is cheap and companies change their labels all the time. This is a deceptive argument for a couple reasons.
First, if the real purpose of the labeling laws is to force food manufacturers to reformulate their products to remove the GMO ingredients, we can expect more than just a change in ink. There will be costs associated with changing suppliers. One of the benefits of biotechnology is to provide yield protection. This in turn helps keep commodity prices stable, which translates into more stable food prices. So we can expect food prices to become more volatile in turn under this scenario. There are other cost benefits to GMOs that will be lost, and so the replacement ingredients will likely raise the prices because of additional inputs (i.e. pesticides in the case of Bt-traits).
Second, there is a false presumption that food manufacturers know today which ingredients are genetically modified and which aren’t. In fact, traceability ends at the local grain elevator when the farmer unloads her crop. She buys seed on the basis of specific traits which may or may not have an origin in biotechnology. The primary beneficiary of the traits is the farmer, and the grain elevator has no particular use for the information, nor the means to segregate crops by trait. Real traceability on a per-trait basis means constructing thousands of new storage bins in grain elevators across the country, and there will be substantial material and labor costs to do so.
Now it is possible that some of the label laws will allow manufacturers to specify “May contain GMO ingredients”, so no traceability is required. I’d argue that no information of value is being imparted by these labels. Any educated consumer already knows that processed foods may contain GMO ingredients unless explicitly labeled Non-GMO/Organic.
For some background on this issue, please see How American Food Companies Go GMO-Free in a GMO World at NPR:
Allen Williams, who grows grain for Lynn Clarkson, says the choice to grow non-GMO grain simply comes down to money. “You’re just trying to improve your profit,” he says. “There’s not a lot of ways to do that, if you’re growing commodities. This is one way to do that.”
He’ll sell his non-GMO grain for 10 percent or 15 percent more than the standard market price. But there are complications. Some of the extra income gets eaten up by extra costs. He’ll spend more money on pesticides, for instance, for his non-GMO soybean fields. [ML: emphasis added]
He also has to make sure the grain he sends to Clarkson Grain doesn’t contain any traces of his GMO crops. So when he finishes harvesting one of his GMO fields, he has to spend hours cleaning out his combine.
It costs more to grow non-GMO crops for the reasons stated above. It’s likely that farmers growing for ethanol and animal feed will continue to use GMO-traited corn. As a result, it will almost certainly be necessary for grain elevators to expand their storage to accommodate the non-GMO commodities that the market will demand (at least if reformulation is the response of manufacturers).
It’s also not clear how enforceable the law will be. It turns out that some GMO ingredients are chemically identical to their non-GMO counterparts. If there’s no chemical test that can discern GMO from Non-GMO, why is the label important for consumers again? Via Kevin Folta’s blog:
I want to conclude by briefly addressing some points that a friend raises in explaining why he thinks he’ll vote for the issue. Via private email:
My main reason is that there hasn’t been enough inquiry and skepticism about genetic engineering, so some pushback is needed to hopefully stimulate some needed conversation and study. Obviously Monsanto studies concluding “it’s safe, trust us” aren’t worth squat. Adding Vitamin A genes to soybeans or whatever is one thing, but Roundup Ready genes are another, not just in terms of needing demonstrated safety in not having effects on such things as the human immune system but also in the negative environmental consequences of promoting the widespread use of broad-spectrum herbicides when what we need, if anything, are very narrow-spectrum herbicides.
Many people are unaware of just how extensively GMO crops and foods have been studied, or that many of those studies are independently funded and conducted outside of the organizations producing the GMO seeds. Marc Brazeau has an excellent article exploring the issue that is titled About Those Industry Funded GMO Studies.
I could write an entire separate article about Roundup (glyphosate). It is impossible to explore the GMO issue in depth without addressing it. As this is already too long, I’ll leave just a few bullet points I think are most salient:
* Glyphosate is one of the least toxic pesticides that humans have ever used in agriculture. It’s far less toxic than the USDA organic-approved pyrethrum, for example. In terms of LD-50, it takes between 2-28x as much glyphosate to kill a rat as does pyrethrum (depending on formulation). See How to sell a toxic pesticide the smart way–call it organic by Hank Campbell for information on pyrethrum. See also The dose makes the poison by Cami Ryan for an excellent chart comparing LD-50 values of glyphosate and other common chemicals. My source for pyrethrum LD-50 values says: Oral LD50 values of pyrethrins in rats range from 200 mg/kg to greater than 2,600 mg/kg. Some of this variability is due to the variety of constituents in the formulation. Glyphosate, by comparison, is 5,600 mg/kg. The larger number means it takes more of the chemical to kill the target, and so the larger number means lower toxicity. I recognize there’s more to toxicity than LD-50. By every other measure, glyphosate is still the safest pesticide we’re using!
* Glyphosate is also used to cultivate non-GMO crops and isn’t unique to GMOs. For example, as a dry-down treatment before harvesting wheat, farmers will spray their fields to kill the wheat so it will dry out and be easier to harvest. If the wheat were genetically engineered to be Roundup Ready, this technique wouldn’t work.
* Herbicide resistance traits can be bred using traditional breeding methods. See How a Sunflower Gene Crossed the Line From Weed to Crop at NPR for an example.
* If pesticides are a concern, then why give a free pass on labeling the wheat treated with glyphosate? Why give a free pass to the sunflowers that have herbicide resistance bred the old-fashioned way? GMO labeling is not the solution to ridding the world of pesticides. The label will tell you nothing at all about pesticides. Some products may not have used any pesticides at all, but still require the GMO label.
Finally, I made an inquiry to some friends about the issue of broad-spectrum vs. narrow-spectrum herbicides. It isn’t clear to me that there’s a solid benefit to more narrow spectrum. Farmers face a wide variety of weed challenges. This necessitates *something* to control them. With a narrow-spectrum herbicide, this means more chemicals tailored to each species. This not only raises costs for the farmer, but also presents issues of synergistic effects between the chemicals. I personally feel better consuming a product treated with a single broad-spectrum herbicide than a wider mix of narrow-spectrum herbicides whose interactivity has not been studied as extensively as the broad-spectrum was.
And even there, GMO isn’t particular to broad-spectrum. The new Enlist trait by DOW is herbicide-tolerance to 2,4-D which is more selective (narrow-spectrum). 2,4-D is also a very safe herbicide that’s been in use in agriculture since just after WWII:
2,4-D was brought to market as an herbicide called “Weedone” starting in 1945 by the American Chemical Paint Company. It revolutionized weed control, as it was the first compound that, at low doses, could selectively control dicots (broadleaf plants), but not most monocots – narrow leaf crops like wheat, maize (corn), rice, and similar cereal grass crops. At a time when labor was scarce and there was a huge need for increased food production, it literally “replaced the hoe”.
Herbicide tolerance has been a boon for no-till farming practices. No-till in turn has numerous environmental benefits, mainly related to soil and water conservation. Tilling disturbs the soil, bringing anaerobic (oxygen-intolerant) bacteria to the surface, while burying and suffocating the aerobic bacteria underground. Tilling leads to erosion and loss of topsoil, and that in turn pollutes waterways. Weeds are mainly a problem early in the growing season, until crops have grown tall enough to shade them out. With herbicide resistance, farmers are able to control weeds after their crops have emerged with herbicides instead of a plow.
I do respect that people have a variety of economic, political, philosophical and religious objections to GMOs. Consumers don’t need to mandate labeling in order to vote with their wallets. The misuse of mandatory GMO labels to effect those ideological goals will backfire. After enactment the costs of food will likely go up and hurt the poorest the most (if manufacturers reformulate, or if suppliers have to retool and redesign supply chains for traceability). Ultimately we can expect the courts to overturn these label laws because the state doesn’t have a legitimate interest in compelling this kind of commercial speech.
Colorado voters have previously approved at least two measures that turned out to be unconstitutional and were struck down (Amendment 2 and Amendment 48). What might initially seem like a good idea in this case (“more information is always good, right?”) turns out to have numerous flaws on closer inspection. But I expect one or both laws to pass, and ultimately to be overturned in court (so costing the state money to defend, and the unwind).
P.S. I meant to also address the “if they have nothing to hide, they have nothing to fear” argument that is often used in this battle. This is probably the very worst argument made by anti-GMO opponents, because the logic is generally corrosive of individual privacy rights. Each of us have things we hide (from bank passwords to medical records to our bedroom activities) that we fear being disclosed publicly. Having something to hide does not mean there is wrongdoing. In the case of GMO labeling, the lack of traceability through the supply chain means that the information is NOT being hidden. Rather, it is lost in production at an early stage. Preserving it will be costly, and so everyone from the biotechnology companies, farmers, commodity buyers, food manufacturers and grocers face implementation costs that will impact their bottom lines. If I was in any of those industries I’d fight the laws for the same reason they are: it’s a waste of resources with no tangible benefits to anyone (including consumers who already have a choice!)
P.P.S. I am concerned about the effects of Citizens United, and would support a Constitutional Amendment to set limits on campaign spending.