CounterPoint: The Case Against Mandatory Labeling of GE Food

Vol. 28 No. 2

Mr. Marchant is Regents’ Professor and Lincoln Professor of Emerging Technologies, Law & Ethics at the Sandra Day O’Connor College of Law, Arizona State University.

Labeling of genetically engineered (GE) foods seems, on first impression, to be a no-brainer. But as one digs more deeply into the arguments and evidence, many of the claims that initially appear to support GE labeling—such as consumer choice and public opinion—actually cut the other way. Moreover, although most of the public sentiment in favor of labeling is well intentioned, the campaign to label GE foods is actually a cynical, antiscientific, and an antidemocratic attempt to manipulate our food system to economically benefit the very organic food interests that are funding this campaign.

In this article, I address the major arguments put forward in favor of mandatory GE labeling and show how they not only do not affirmatively support GE labeling but also actually weigh against mandatory labeling. The first argument advanced in favor of GE labeling is that public opinion polls overwhelmingly support labeling, but if the data are examined more carefully they show that the public is unwilling to pay the costs that would be imposed by mandatory labeling. The second argument is that it will help inform the consumer, but GE labeling as it is currently being proposed will only confuse and mislead consumers. Finally, GE labeling is advocated to give consumers a choice in selecting foods, but the consequence of mandatory GE labeling will be to force GE foods off of the grocery shelves and deny consumers a choice, the not-so-secret agenda of the organic food interests funding the GE labeling campaigns.

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What Does the Public Really Think?

Start with the oft-cited claim that the public overwhelmingly supports GE labeling. It is true that polls asking people if they support labeling GE foods consistently report that about 90 percent of respondents are in favor. But if asked the more neutral question of whether there is any additional information that people would like to see on food labels, less than 2 percent of respondents volunteer GE labeling. See International Food Information Council (IFIC), 2012 Consumer Perceptions of Food Technology Survey (2012). Moreover, if asked whether they support the Food and Drug Administration’s (FDA’s) policy on GE labeling (which rejects mandatory labeling of all GE foods) 66 percent, a strong majority, of the public supports the FDA policy, while only 14 percent oppose. Id.

More importantly, none of the polls discussed above ask if respondents are willing to pay the costs of GE labeling. The costs of GE labeling are likely to be substantial, involving more than simply slapping a label on packaging. It requires tracing and segregating GE from non-GE ingredients at every step of the food production system from farm to fork, an expensive undertaking, especially for large-volume commodity crops such as corn and soybeans. Estimates of the actual costs of mandatory GE labeling vary from about $10 to $200 per year for a family of four. Guillaume P. Gruère & S. R. Rao, A Review Of International Labeling Policies of Genetically Modified Food to Evaluate India’s Proposed Rule. 10 AgBioForum 51, 56–57 (2007). GE labeling supporters claim that labeling in Europe and elsewhere has not imposed large costs on consumers, which is partially true but only because the requirements to trace GE ingredients throughout the food chain were so burdensome that almost no food producers are doing it, and so there are virtually no labeled GE foods on store shelves, and hence no “costs” for labeling nonexistent GE products. Id. at 54.

The key question that should be asked is what percentage of the population is willing to pay the cost of labeling GE foods? The Center for Science in the Public Interest has been the only polling organization to ask this more relevant question and found that only 28 percent of the population would be willing to pay $50 or more per household per year for such labeling. See National Opinion Poll on Labeling of Genetically Modified Foods (2001). So, although GE proponents constantly claim overwhelming public support for GE labeling, the truth is that only a minority of the population would choose mandatory labeling if required to pay for it, which in the real world they would.

We can see this dynamic at work in the mandatory GE labeling propositions voted on in Oregon (2002) and California (2012), where notwithstanding overwhelming 3:1 popular support initially, both propositions were defeated as people became aware of the price tag and other problems that went with mandatory labeling.

Confusing, Not Informing, Consumers

A second contradiction of mandatory GE labeling is that it is touted as helping inform consumers, but in fact will only confuse them. People perceive a government-mandated label as a warning. As Jose Fernandez, Assistant Secretary of State under President Obama, cautioned, “[I]f you label something there’s an implication there’s something wrong with it.” Quoted in Obama Administration: GMO Labels Are Scary, Organic Bytes, Oct. 20, 2011. Mandatory labeling would single out GE foods as being of greater concern than other foods, even though GE foods are the only foods on the market that have been consistently safety tested and involve much more precise modifications than most other foods on the market. Very few of the foods we eat, even most raw vegetables and fruits, are “natural,” but rather have been created and manipulated by humans through cross-breeding or chemical or nuclear mutagenesis. Channapatna S. Prakash, The Genetically Modified Crop Debate in the Context of Agricultural Evolution, 126 Plant Physiology 8, 10 (2001). Whereas genetic engineering very precisely changes just one or a few specific genes, mutagenesis (which has been used to create over 2000 foods on the market) creates hundreds of different mutations, and even traditional cross-breeding rearranges thousands of different genes. Rita Batista et al., Microarray Analyses Reveal That Plant Mutagenesis May Induce More Transcriptomic Changes Than Transgene Insertion, 105 PNAS 3640 (2008).

Dubious Labeling Rationales

Proponents of state GE labeling requirements argue that GE labeling is necessary to warn consumers of risk. For example, the mandatory GE labeling Proposition 37 recently defeated in California begins with the dubious statements that genetic engineering of foods “can lead to adverse health or environmental consequences” and that “genetic engineering can increase the levels of known toxicants in foods and introduce new toxicants and health concerns.”

Any claim that labeling is required to warn of health risks should be discredited, as numerous governmental and scientific organizations have studied this issue and consistently concluded that GE foods produce no greater risks than non-GE foods, including the FDA, the European Food Safety Authority, the U.S. National Academy of Sciences, and the British Royal Society. The American Medical Association (AMA) declared in 2012 that “there is no scientific justification for special labeling of bioengineered foods, as a class, and that voluntary labeling is without value unless it is accompanied by focused consumer education.AMA, Report 2 of the Council on Science and Public Health: Labeling of Bioengineered Foods (2012). The American Association for the Advancement of Science (AAAS) issued a statement in October 2012 that “the science is quite clear: crop improvement by the modern molecular techniques of biotechnology is safe” and that attempts to mandate labeling are based on misconceptions and “can only serve to mislead and falsely alarm consumers.” AAAS, Statement by the AAAS Board of Directors on Labeling of Genetically Modified Foods (2012). Even the European Union (EU), which has adopted the world’s most restrictive GE policies, recently concluded that GE foods present no unique risks:

The main conclusion to be drawn from the efforts of more than 130 research projects, covering a period of more than 25 years of research, and involving more than 500 independent research groups, is that biotechnology, and in particular GMOs, are not per se more risky than e.g. conventional plant breeding technologies.

European Commission, A Decade of EU-Funded GMO Research (2001–2010).

Ignoring these mainstream scientific conclusions, GE labeling supporters seize on any scrap of purported evidence of GE risks, while ignoring the vast body of peer-reviewed studies and scientific assessments that have found no unique risks. Although GE opponents keep citing the old canard that GE foods have not been adequately safety tested, the simple fact is that GE foods are the most tested foods for safety in history, with over 450 published, peer-reviewed studies in the scientific literature finding no risks. Every GE food on the market has been subject to many millions of dollars of safety tests, compared to the zero safety tests for most other foods, including organic foods. Nicholas Kalaitzandonakes et al., Compliance Costs for Regulatory Approval of New Biotech Crops, 25 Nature Biotechnology 509 (2007).

The history of GE foods has been characterized by a series of dubious studies claiming to find risks from GE foods, typically promulgated by activist “scientists” with a clear ideological agenda, that upon further review are found to be noncredible. By the time the last study has been scientifically discredited, the activists seize on the next study, most recently the French study by Gilles-Eric Seralini, a longtime anti-GE activist, whose recent study often cited by GE labeling supporters has been discredited by every government and mainstream scientific body that has reviewed it. This pattern of junk science is similar to that of other fringe believers such as antivaccine activists and “scientific” creationists who cherry-pick dubious scraps of evidence that support their ideological agenda while disregarding the vast body of more credible scientific data that refute their beliefs. As Bob Goldberg, a distinguished University of California, Los Angeles molecular biologist stated, “Bioengineered crops are the safest crops in the world. . . There is not one credible scientist working on this that would call it unsafe.” Stacy Finz, Biotech Food Measure Prop. 37 on Ballot, S.F. Chronicle (Aug. 14, 2012).

Consumer choice may be a more legitimate rationale for GE labeling than unjustified warnings about phantom risks, but even that rationale is problematic for at least four reasons. First, if the objective is truly to allow consumers to choose to avoid GE ingredients completely, the objective will fail because every existing GE labeling program necessarily includes a threshold below which labeling is not required. This threshold ranges from 0.9 percent in Europe to 5 percent in Korea or Japan (California’s Prop 37 would have imposed a 0.5 percent threshold, the strictest in the world). The upshot is that with GE labeling regimes some GE can exist below the threshold and will not be indicated on the label, frustrating any consumer who seeks to avoid GE ingredients entirely for philosophical or other reasons. A zero-based threshold would be naive and not feasible—for the same reason we can’t have zero thresholds for rodent feces, bug parts, and other undesirable ingredients in food.

Second, mandating labeling for the purpose of public choice would be legally suspect. A number of courts have held that requiring companies to label their products to satisfy a consumer right to know violates the commercial free speech doctrine, absent a government finding of risk or other important governmental goal. For example, the Second Circuit Court of Appeals, in striking down Vermont’s mandatory labeling of milk from cows treated with recombinant bovine somatotropin, held that labeling regulation based on the consumer’s alleged “right to know” was unconstitutional, noting that

[w]ere consumer interest alone sufficient, there is no end to the information that states could require manufacturers to disclose about their production methods…. 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. Instead, those consumers interested in such information should exercise the power of their purses by buying products from manufacturers who voluntarily reveal it.

Int’l Dairy Foods Assn. v. Amestoy, 92 F.3d 67, 74 (2d Cir. 1996).

Supporters of state GE labeling initiatives attempted to pass national legislation in June 2012 authorizing such state legislation, but that proposal was soundly defeated in the democratically controlled U.S. Senate by a vote of 73–26.

Third, there are already existing methods available to allow consumers to choose to avoid GE foods. The U.S. Department of Agriculture (USDA) “organic” label, at the insistence of organic food activists, was revised to specifically exclude GE foods, so consumers can generally avoid GE foods by purchasing organic products. Moreover, foods can be voluntarily labeled as not containing GMOs, and there are private certification systems such as The Non-GMO Project that actively identify foods that do not contain GE ingredients. These existing mechanisms allow consumers to choose non-GE foods without imposing heavy-handed government mandates on food producers and retailers. As the market has spoken with only lukewarm support for such initiatives, the anti-GE activists are trying to override these voluntary mechanisms and force labels even when not wanted or needed.

Fourth, and most importantly, while most supporters of mandatory GE labeling innocently believe such a policy would enhance consumer choice, the darker reality is that mandatory GE labeling will have the impact of excluding GE products from the market, denying consumers the right to choose such products. This is exactly what has happened in Europe and other places that enforce a mandatory GE labeling—the very same groups that called for labeling to promote consumer choice promptly switched gears once the labeling was in place and called for boycotts of any retailer that dared to stock a product with the GE label. These boycotts are effective even if only a small percentage of customers support the boycott; foods sold in the grocery store have one of the lowest profit margins of any consumer product, and so no grocery chain can afford to lose 10 or 15 percent of its customer base and still be profitable. This boycott pressure, combined with the increased costs of segregating GE ingredients at every step of the farming, shipping, and processing pathway, would impose a de facto tax on GE ingredients and force them out of the highly competitive, low-margin food market.

This is the dark secret of the organic activists funding and powering the mandatory GE labeling campaign, their goal is to remove GE foods from the marketplace, not to label them. It is not to give consumers a choice, it is to deny consumers (and farmers) a choice. Having successfully pressured the USDA to exclude GE foods from the definition of “organic” food, the organic food activists now find their future market growth blocked by the clear preference of farmers for GE crops. Studies by credible organizations such as the USDA have documented the improved yields, reduced costs, and improved environmental performance offered by GE crops. USDA, The First Decade of Genetically Engineered Crops in the United States (2006); Janet E. Carpenter, Peer-reviewed Surveys Indicate Positive Impact of Commercialized GM Crops, 28 Nature Biotechnology 319 (2010). The anti-GE groups sponsor analyses (generally not peer reviewed) by “scientists” being paid directly by the activists and their allies that try to throw doubts on the well-documented benefits of GE foods, but farmers are not buying it, as they see first-hand the benefits of GE crops in their fields.

The goal of the leaders of the mandatory GE labeling campaign, funded by the organic food industry, is to force GE foods off the market, and thus to dramatically increase sales and profits of organic foods. For example, Ronnie Cummins, director of the Organic Consumers Association, one of the leading organizations behind Prop 37 in California, wrote, “[t]he burning question for us all then becomes how—and how quickly—can we move healthy, organic products from a 4.2 percent market niche, to the dominant force in American food and farming? The first step is to change our labeling laws.” Open Letter to the Organic Community: The California Ballot Initiative to Label GMOs. He elsewhere elaborated,

Once food manufacturers and supermarkets are forced to come clean and label genetically engineered products, they will likely remove all GE ingredients, to avoid the ‘skull and crossbones’ effect, just like the food industry in the EU has done. In the wake of this development American farmers will convert millions of acres of GE crops to non-GMO or organic varieties.

Ronnie Cummins, Millions Against Monsanto: The Food Fight of Our Lives, AlterNet (Apr. 11, 2012).

This cynical, disguised campaign to eliminate GE foods will be harmful for the United States but even worse for the poor and starving around the world. As Nobel Peace Prize winners Norman Bourlaug and Jimmy Carter wrote, “[T]he debate over biotechnology in the industrialized countries continues to impede its acceptance in most poor, food-insecure countries. . . . Because there are so many hungry and suffering people, particularly in Africa, attacks on science and biotechnology are especially pernicious.” Norman Borlaug & Jimmy Carter, Food for Thought, Wall St. J., (Oct. 14, 2005).

It is time to call out and expose the pseudoscientific, antievidence smear campaign fueling the drive for unnecessary and harmful mandatory GE labeling. As Mark Lynas, a longtime leading anti-GE campaigner who has recently recanted his anti-GE position as scientifically and ethically bankrupt, stated in a recent speech at Cornell:

I think the controversy over GMO’s represents one of the greatest science communications failures of the past century. Millions, perhaps billions, of people have come to believe what is essentially a conspiracy theory, generating fear and misunderstanding about a whole class of technologies on an unprecedented global scale. . . I believe the time has come for everyone with a commitment to the primacy of the scientific method and evidence-based policy-making to decisively reject the anti-GMO conspiracy theory and to work together to begin to undo the damage that it has caused over the last decade and a half.

Mark Lynas, Speech, Time to Call Out the Anti GMO Conspiracy Theory (Cornell University, Apr. 29, 2013). Amen.

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