June 01, 2013

The Labeling of Genetically Modified Foods Debate

Sudhir Burgaard

Genetic engineering allows scientists to splice a specific gene that exhibits certain traits into a plant without the trial and error of selective breeding. Today, upwards of 70 percent of processed foods contain genetically modified (GM) ingredients, which originate in a lab when a plant’s genetic makeup is changed or altered. See Center for Food Safety, “Genetically Engineered Crops.” Nearly 85 percent of U.S. corn is genetically engineered, according to the Center for Food Safety, as is 91 percent of soybeans and 88 percent of cotton—which produces the cottonseed oil often used in food products. Id. 

Polls have shown that a majority of Americans wish for GM foods or foods that contain GM ingredients to be labeled. See Mario F. Teisl, et al., “Labeling Genetically Modified Foods: How Do U.S. Consumers Want to See It Done?” 6 AgBioForum 48–54 (2003). GM foods have many potential benefits, including the decreased use of pesticides, increased food production in lesser developed countries, lower food prices, increased vitamins and minerals, increased disease resistance in crops, increased antioxidant levels, longer shelf life, removal of allergens, decreased need for irrigation, and increased frost resistance. Id.

But the use of GM foods also raises many concerns, including unknown long-term health effects, increased risk of antibiotic resistant bacteria, increased use of pesticides, unknown toxins produced, unknown long-term environmental effects, genetic contamination of the environment, increased use of herbicides, risks to wildlife and insects, introduction of unknown allergens, spread of disease and pest resistance, herbicide tolerance in weeds, and risks to species diversity. Id. These long-term uncertainties are consumers’ primary concerns with GM foods and the main drivers for consumers’ labeling preferences. A mandatory labeling regimen would better inform consumers about the nature of food products and allow consumers to choose to have direct or indirect experience with GM foods.

Despite polls consistently showing that as many as 90 percent of Americans favor GM food labeling, efforts supporting labeling in the United States have been unsuccessful to date. Twenty states have considered bills requiring labeling for or prohibiting GM food over the past three years. In California, Prop 37, the Mandatory Labeling of Genetically Engineered Food Initiative, was defeated in the November 2012 election. Prop 37 would have required that raw foods produced entirely or in part through genetic engineering be labeled with the words “Genetically Engineered” on the front package or label. Processed foods produced entirely or in part through genetic engineering would have had to be labeled with the words, “Partially Produced with Genetic Engineering” or “May be Partially Produced with Genetic Engineering.” But Prop 37 was criticized on the basis that it was a poorly written measure because it would have exempted up to two-thirds of food products consumed by Californians, including alcohol, restaurant food, medical food, and dairy and food products from animals fed with genetically engineered crops. While the law would require labeling of food products containing 0.5 percent of GM ingredients by mid-2014 and any GM ingredients by mid-2019, it would have excluded products that unintentionally contained smaller amounts of GM ingredients. These inconsistent labeling requirements could arguably mislead consumers and lead to frivolous lawsuits. A similar measure will be on the ballot for Washington voters this year.

Several other states have debated labeling and marketing requirements for GM foods. A measure to require the labeling of genetically engineered fish failed in California’s legislature. Maryland, New York, Oregon, Tennessee, North Carolina, and Vermont also considered measures to require the labeling of genetically engineered food. But a single-state labeling requirement would create confusion, especially if other states adopt different rules. The lack of harmonization of policies across states would make GM food labeling an interstate commerce issue. Food companies would be more likely to label their foods with just one label to comply with the most stringent of all state requirements, regardless of the states in which they are distributed.

In most countries where GM foods exist, a national standard governs. And in the United States, most consumers desire a federal agency to administer this program; yet these agencies have been reluctant to take on this task. The U.S. Federal Food and Drug Administration (FDA), under the Food, Drug, and Cosmetic Act, ensures the safety of all domestic and imported foods except meat, poultry, and egg products, which the U.S. Department of Agriculture (USDA) regulates. People rely heavily on FDA and USDA scientists to determine appropriate and consistent food labeling and enforcement practices that apply to every store and every product in the country. But the FDA maintains that GM foods are substantially equivalent to non-GM foods and are therefore not subject to more stringent labeling. FDA, Statement of Policy: Foods Derived from New Plant Varieties, 57 Fed. Reg. 22984, § IV (May 29, 1992).

While policymakers understand that individuals have the right to know what they are putting in their bodies and where it came from, the FDA has stated that GM foods pose no greater health risks than traditional foods and that GM crops must meet existing regulatory standards and consultation standards to ensure they are safe. Id. The FDA requires labeling only if the food is substantially different from the common variety, has different nutritional value, or includes an unexpected allergen. Voluntary labeling is allowed. The USDA and the California Farm Bureau Federation also oppose labeling of GM food, and the American Medical Association, the National Academy of Sciences, the World Health Organization, and more than twenty-five Nobel Prize-winning scientists have concluded that there is no scientific evidence that GM food carries any risk to human health and that genetically engineered crops are safe.

Nonetheless, in November 2011, the Center for Food Safety filed a groundbreaking legal petition with the FDA demanding that the agency require labeling of genetically engineered food. The petition advocated labeling under the Federal Food Drug and Cosmetic Act, which prohibits the marketing or sale of foods if the “labeling is false or misleading in any particular.” The petition asserts that food labels are misleading to consumers if they do not disclose that the food was produced using genetic engineering or that it contains genetically engineered ingredients. The petition states that consumers are misled when food labels do not differentiate foods with known health properties from novel foods with unknown health consequences. The petition calls for the issuance of new regulations under 21 C.F.R. § 101, requiring the labeling of all foods produced using genetic engineering. See Wen S. Chern, et al., “Consumer Acceptance and Willingness to Pay for Genetically Modified Vegetable Oil and Salmon: A Multiple-Country Assessment,” 5 AgBioForum 105 (2002) (reporting that 87.1 percent of American respondents preferred to have their food products labeled GM or non-GM).

Proponents of a labeling regime, including organic farmers, health food retailers, organic food processors, and consumers, contend that GM foods could pose allergy and other health risks and that labels provide consumers with this valuable information. They claim that consumers have a right to know exactly what they are buying and that food products should be appropriately labeled to allow consumers to make more informed choices. Opponents claim that it would increase the average cost of groceries by hundreds of dollars per year because food producers and processors would shift to higher-priced organic ingredients, and food packagers would have to add labels to or repackage their foods. Opponents also recognize that requiring labeling of GM foods could tie up farmers and agricultural businesses in expensive litigation.

Research conducted by the Center for Food Safety shows that sixty-one nations, including member nations of the European Union, Russia, China, Brazil, Japan, Australia, Turkey, Kenya, Saudi Arabia, and South Africa, enforce consumer “right to know” laws for GM foods. See Center for Food Safety, Center for Food Safety Releases New Genetically Engineered Food Labeling Laws Map. These countries’ labeling mandates have led food producers and farmers to switch to ingredients that are not genetically modified because food companies would rather reformulate their ingredients than label their products genetically engineered. Some countries completely ban GM foods, including Zambia, because of the concern that genetically modified strains entering its food market would affect the country’s future ability to export to more wary European markets.

If GM food labeling is to occur in the United States, policymakers need to carefully consider the form of the labeling program. Any labeling requirements should be imposed on a national scale to avoid interstate commerce issues that may result from regulation on a state level. Policymakers will have to consider a variety of other issues, including whether the labeling regime should be mandatory or voluntary; what foods should be labeled; what kind of information should be provided; and who should be in charge of monitoring compliance.

A simple label stating that foods contain GM ingredients without providing more information about the reasons for or effects of the genetic engineering would be of limited use to consumers. A label should state which ingredients in a product are genetically modified, why ingredients are genetically modified, and how ingredients are genetically modified. Consumers should be provided with information about the benefits and disadvantages of GM foods. Some consumers who otherwise would not consume GM foods may change their minds if they know of the potential benefits these foods pose and can balance the benefits against any potential disadvantages. A label should also include the contact information of the party certifying that the food product contains GM ingredients, including phone number and website address, so consumers can seek more information.

With so many countries requiring the labeling of GM foods and so many states considering it on their ballot measures and in their legislatures, it seems only a matter of time before the labeling of GM foods will be mandatory in the United States.

Sudhir Burgaard

Ms. Burgaard is an attorney with Morris Polich Purdy LLP in Los Angeles, California, and a member of the editorial board of Natural Resources & Environment.