November 01, 2017 GPSolo

GMOs Engender Passion (and That’s a Poor Basis for Lawmaking)

Baylen J. Linnekin

In 2017 Arkansas, Missouri, and Tennessee took the unusual step of temporarily banning the sale and use of dicamba, an herbicide previously approved by the Environmental Protection Agency (EPA) that’s been in use for decades. The bans came after dicamba allegedly caused massive die-offs in soybean fields across these and other states. The still-unfolding story of these crop losses, totaling in the millions of dollars, is the latest chapter in a long-standing and complex battle over genetically modified organism (GMO) foods.

Notably, the dicamba in question is not genetically modified. Rather, GMO giant Monsanto and other competitors market dicamba-resistant seeds. The dicamba-related crop losses began to occur in 2017 after some farmers bought and planted GMO soybeans that are genetically engineered to be resistant to dicamba. Although the seeds were approved for sale, a newer version of dicamba—said to be less prone to drift, the act of traveling through the air to neighboring fields—was not yet approved for sale. This caused some farmers who planted the GMO soybeans to rely on older versions of dicamba. The dicamba protected the GMO soybeans from invasive weeds, but some of it also allegedly drifted to neighboring farms and killed non-GMO soybeans that are not resistant to dicamba.

GMO: A Primer

What exactly does the term “GMO” mean? The World Health Organization defines GMOs “as organisms (i.e. plants, animals or microorganisms) in which the genetic material (DNA) has been altered in a way that does not occur naturally by mating and/or natural recombination” (tinyurl.com/mjz7foh). GMO foods, then, are foods made in whole or in part from these organisms.

GMO agriculture and foods are controversial. Supporters contend GMOs are more environmentally friendly than non-GMO competitors because they argue these crops help reduce agricultural pesticide and herbicide use, increase yields, reduce acreage, and lower costs for farmers and consumers. Detractors of GMO foods claim they’re unnatural, dangerous, and could open a Pandora’s box for farmers and consumers.

Smart and well-meaning people I know disagree about whether GMOs are the key to feeding our growing population, are a technology gone too far, or are something else altogether. Because of the widespread nature of these disparate viewpoints, it’s worth stating from the start where I stand on the issue. Generally—and this may disappoint you—I am entirely indifferent to GMO crops and foods. I believe GMOs—like DNA and genes—have no inherent negative or positive traits. And I believe a particular GMO crop or food containing GMO ingredients could solve many problems or create many new ones. My only firm belief pertaining to GMOs qua GMOs is that farmers and consumers alike should be equally free to choose or to avoid GMOs.

But what about the government’s role? What sort of principles should guide laws and regulations pertaining to GMOs? This, to me, is the key question. Yet, the government often speaks out of both sides of its mouth on GMOs. Sometimes the government appears to go out of its way to promote and favor GMOs. Other times the government seeks to restrict, malign, or even ban GMOs. Such fractious lawmaking is not just unproductive. It’s also bound to agitate and foster discord among those who favor and oppose GMOs.

In talks at various law schools around the country in recent years—including in discussion with my own law students—I’ve asked a version of my key question: Should government policy be to favor GMOs or to oppose GMOs? At a talk I first gave at the University of New Hampshire Law School in 2016, I asked this question to a crowded room. Many people in the room at the law school, which has a strong focus on intellectual property, said government policy should favor GMOs. A couple said government policy should be to oppose GMOs. One faculty member said I’d asked the wrong question. He was wrong. But he was less wrong, in my estimation, than the others in the room who’d said the government should favor or should oppose GMOs.

Should government policy be to favor GMOs or to oppose GMOs? “No,” I answered finally. In other words, I don’t believe it’s in the best interests of farmers, consumers, science, fairness, justice, or any other reasonable measure of government’s purpose in regulating our food supply for the government to favor one side or the other. No, government policy should not favor GMOs. No, government policy should not oppose GMOs.

And yet that’s exactly what the government has done in recent years: pick sides—often opposing sides—in the debate over GMOs. In my estimation, these decisions by the government are responsible for supplying much of the oxygen to the GMO fire that’s raged in this country for a decade or more. And farmers, consumers, and many others are worse off for that. How did we fall into this mess? And how can we climb out together?

Regulating GMOs

First, let’s consider how GMOs are regulated. The U.S. Department of Agriculture (USDA) currently regulates GMOs in two key ways. First, the department’s Animal and Plant Health Inspection Service (APHIS) rejects or approves new GMO crops under the Plant Protection Act. To market GMO seeds, a producer first must file what’s known as a Petition for Determination of Non-Regulated Status with the USDA. The agency will then determine, as part of an environmental assessment, whether to study the potential environmental impact of the seed or to issue what’s known as a FONSI (a Finding of No Significant Impact).

Separately, the USDA, under the Farm Bill, also administers subsidies to farmers who grow a variety of crops, including GMO crops. Whether intentional or not, the Farm Bill, passed every five years or so by Congress to advance federal farm (and nutrition) programs, incentivizes farmers to grow GMO crops. According to data from the Environmental Working Group (EWG), much of today’s farm subsidies go to farmers who grow corn, cotton, and soybeans (tinyurl.com/yas5bw7z). “According to USDA data, nine out of ten corn plants grown in America is genetically modified,” I write in my recent book, Biting the Hands that Feed Us: How Fewer, Smarter Laws Would Make Our Food System More Sustainable (Island Press, 2016). “Nearly all of the country’s soybeans, also subsidized and used in animal feed, are also produced through genetic engineering.” And 94 percent of the nation’s cottonseed is of the GMO variety (tinyurl.com/d8eugyd).

The Food and Drug Administration (FDA) regulates the safety of food ingredients, including GMO ingredients. The FDA’s role is to ensure “the safety of food for humans and animals, including foods produced from” GMO crops or containing GMO ingredients (tinyurl.com/ycf7lhkj). These foods “must meet the same food safety requirements as foods derived from traditionally bred plants.”

Finally, the EPA regulates pesticides and herbicides, including those intended for application on GMO crops. Even before the recent problems with dicamba, the EPA had been investigating whether the agency can track the risks of approved pesticides.

The Government’s Prerogative

Notably, federal laws also empower each agency to change its mind if evidence of harm caused by a regulated product arises.

The ability to reconsider an agency approval was at the heart of a recent law spurred by a U.S. Supreme Court decision. Federal law presumes GMO crops are “plant pests,” and requires the USDA, under APHIS, to assess the potential environmental impact of a crop and determine whether or not to “deregulate” it, a necessary step before seeds for growing such a crop may be marketed and sold. In its 2010 decision in Monsanto v. Geertson Seed Farms, 561 U.S. 139 (2010), the Supreme Court found a lower court had abused its discretion in enjoining APHIS from partially deregulating and permitting the planting of Monsanto’s GMO alfalfa.

While GMO opponents were outraged, I think the Court’s ruling was largely correct, particularly because it ensured any farmer who might be injured by another farmer who’d planted a deregulated GMO crop to use the courts to seek redress. But that Supreme Court victory wasn’t enough for some in Congress.

Soon after the Monsanto decision, Congress eliminated the ability for a farmer to seek redress by passing a much-derided law that critics dubbed the “Monsanto Protection Act.” The law, the Farmer Assurance Provision, gave the USDA secretary authority to override a court ruling—such as a court-ordered injunction—even if the party granted the injunction was able to show “present or imminent risk of likely irreparable harm.”

The law, which expired after six months, was deeply troubling and likely unconstitutional, at least since the seminal U.S. Supreme Court decision in Marbury v. Madison, 5 U.S. 137 (1803), decreed no law may “bar a citizen from asserting, in a court of justice, his legal rights, [n]or shall forbid a court to listen to the claim.”

Beyond its dramatic constitutional defects, the Farmer Assurance Provision was the sort of crummy GMO lawmaking that only serves to make GMO opponents and supporters alike more prone to hardening their positions and, even less optimally, to seeking future government actions that advance their goals and harm those of their opponents.

Anti-GMO Legislation

Although most GMO supporters were pleased with the Supreme Court’s ruling in the Monsanto case and with the Farmer Assurance Provision, there has been no shortage in recent years of controversial state and local laws that harmed GMO seed producers and farmers who raise GMO crops. In recent years, for example, local governments in Oregon and Hawaii have gone so far as to ban the planting of GMO crops. Hawaii’s ban, later overturned in federal court, exempted GMO papayas—which literally saved the state’s papaya industry from extinction—from the ban. This sort of hometown exemption is common when it comes to GMO laws. Vermont’s labeling law exempted GMO “processing aids or enzymes,” including an enzyme used to produce approximately 90 percent of cheeses. A proposed Colorado labeling law did the same.

In response to these and other state labeling efforts—and with the added pressure from a federal lawsuit challenging the Vermont labeling law, which took effect briefly in 2016—Congress began several years ago to weigh passage of a federal GMO-labeling law. One such bill, the Biotechnology Food Labeling and Uniformity Act, was similar to Vermont’s mandatory-labeling law and was championed by anti-GMO forces. The second such bill, the Safe and Accurate Food Labeling Act, was championed by pro-GMO forces and dubbed by opponents the DARK (Deny Americans the Right to Know) Act. It would have barred existing and future state labeling laws, required the USDA to create a GMO-labeling scheme, and prohibited food companies touting benefits of non-GMO or GMO foods.

Both bills failed to become law. But in 2016—less than two weeks after Vermont’s law took effect—President Barack Obama signed the National Bioengineered Food Disclosure Standard, the first nationwide, mandatory GMO-labeling law. The law prohibits existing and future state labeling laws, orders the USDA to establish a minimum percentage of GMO content that would trigger mandatory labeling; leaves room to consider “other factors and conditions” that would trigger labeling, and mandates disclosure of a food’s GMO content via “text, symbol, or electronic or digital link” on food packaging. Supporters, mostly from the pro-GMO camp, called it a major step forward for GMO-labeling uniformity. But critics panned the bill, arguing it effectively served to veto local democratic decision making.

A Different Approach

While divisive legislative decisions like these only serve to perpetuate the controversial nature of GMOs, there’s hope to be found outside of Washington’s corridors of power. Earlier this year, I interviewed Scott Hamilton Kennedy, the Academy Award–nominated filmmaker behind the recent documentary Food Evolution. The film, narrated by astrophysicist Neil deGrasse Tyson, sought to inject scientific rigor into the emotional debate over GMOs. The apocalyptic tone of many (if not most) existing GMO documentaries—titles include GMO OMG and Seeds of Death—struck Hamilton and Tyson as unhelpful.

“I would hope the ultimate goal of Food Evolution is that it is going to be a turning point in the conversation around food and ag[riculture], and how we make decisions beyond food and agriculture,” Hamilton told me. “[W]e need to use science and data, not emotion and ideology, to make these important decisions from how we feed our children to what policies we put in place to make good decisions about what food we have available to feed our children.”

How can we move forward and create policies, laws, and regulations that neither favor nor oppose GMOs? Removing incentives for and impediments to growing GMO crops, for one, would get us much closer to such a goal. “Subsidizing GMO crops that supporters claim are technologically superior to natural versions of the same crops is downright bizarre,” I write in Biting the Hands that Feed Us. “If they’re superior, let them—like most non-GMO crops—stand on their own without taxpayer subsidies.” Policies that denigrate GMOs—such as mandatory labeling requirements—are equally mistaken.

Americans may not agree about GMOs now, and they might never. But the government’s role concerning GMOs should be to ensure GMOs meet the same basic environmental and food safety requirements as other crops and foods. Period. No more. No less.

Baylen J. Linnekin is a food lawyer, columnist, scholar, lecturer, expert witness, and adjunct law professor. Linnekin is author of the book Biting the Hands that Feed Us: How Fewer, Smarter Laws Would Make Our Food System More Sustainable (Island Press, 2016), which reveals how regulations often proscribe sustainable food practices. Linnekin’s writings have appeared in the Wisconsin Law Review, Hastings Constitutional Law Quarterly, New York Post, and elsewhere. He lives with his partner of more than 20 years in Seattle, where they tend a small, organic garden plot.