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GMO Row Comes to Kansas Congressional Race

The Kansas Republican primary race pitting incumbent Rep. Mike Pompeo against his 4th congressional district predecessor Todd Tiahrt has become heated lately. The generally reliable conservative Tiahrt is hammering Pompeo for sponsoring a bill the former says is a sellout of free market conservative principles. In truth, the bill to limit state power over genetically modified (GM) foods is something conservatives and other free market advocates should get behind.

In April, Rep. Pompeo and North Carolina Democrat Rep. G.K. Butterfield introduced the “Safe and Accurate Food Labeling Act of 2014.” Among other things, the bill would establish federal standards for labeling GM foods, give the U.S. Food and Drug Administration (FDA) sole authority over food labeling, and preempt a growing patchwork quilt of state action on GM food labeling.

Within the last year, the states of Vermont, Connecticut, and New Hampshire enacted laws requiring special labels on most foods with genetically modified ingredients (with some generous carve outs for popular food businesses, of course). Two dozen other states are considering similar rules, and a ballot initiative in Oregon recently qualified for this November’s Election Day.

These laws would needlessly raise the cost of producing and selling safe, nutritious and wholesome food. And they could scare millions of consumers away from a technology that is already delivering tremendous environmental benefits. They’re also scientifically pointless, as dozens of the world’s leading health authorities have concluded GM foods are at least as safe as conventionally bred ones.

Nor would state labeling laws give consumers any actual knowledge about what’s “in their food” – the ostensible purpose of those state measures.

The FDA’s current policy requires foods to be labeled when a material difference has been made in their composition – and the labels must say what the actual change is, not simply what technique was used to make the change. The state laws merely require product labels to say “made with genetically engineered ingredients.” So, in many ways, the FDA’s existing policy does a better job telling consumers what’s actually in their food than a GM labeling mandate ever could.

By explicitly preempting state interference and making clear that FDA policy on GM food labeling is the law of the land, the Pompeo bill would serve an extremely valuable function.

Enter popular former congressman Todd Tiahrt, Pompeo’s primary opponent, who has tried to convince Kansas GOP voters that the bill is nothing but a sop to big business – and certainly not something good conservatives should support.

Tiahrt isn’t saying whether he supports mandatory labeling, only that he thinks the issue should be kept in the states. “It’s not that I’m targeting GMOs; it’s just that I’m protecting the Constitution and keeping a free flow of information,” he told Politico. "What we have with Pompeo’s bill is big government at the breakfast table.”

Trouble is, big government bureaucrats are already at the table. Now Tiahrt is inviting them to bring their friends. The chance to vastly expand the regulatory authority of states is why left-wing environmental groups like Food Policy Action and the Environmental Working Group are siding with Tiahrt.

It is true that our federal government too often tries to regulate local activities best left to state supervision. But the packaged food products subject to GM labeling laws are the epitome of interstate commerce, traded in a national market. As such, they have been subject to strict regulation by the FDA for over 100 years. Most, including those with genetically modified ingredients, are also regulated by the US Department of Agriculture and the Environmental Protection Agency. Subjecting them to 50 different state regulatory regimes on top of the oversight by three federal regulators surely isn’t the free market solution Tiahrt is looking for.

For one thing, Tiahrt is apparently arguing that enactment of 50 new state labeling laws would represent the free market at work. But it’s hard to square the view that MORE legislative mandates will protect freedom better than fewer.

Mandates certainly are not needed to give consumers more information or choices. Hundreds of food producers are already selling thousands of products voluntarily labeled as containing no GE ingredients. And various consumer groups have created websites, print pocket guides, and even smart phone apps that direct shoppers to “GM-free” products, giving consumers all the information they need to pick and choose.

More importantly, subjecting any activity to regulation by both federal AND state governments runs afoul of the very Constitution Tiahrt says he’s trying to protect.

The framers of our Constitution created a federal system intended to safeguard state authority over purely intra-state activity, but also one in which inter-state activity would be regulated only by the national government. In order to keep governments accountable to their citizens, the framers believed, no activity should be subject to oversight by more than a single sovereign. The simultaneous exercise of regulatory authority by both states and the national government “consistently produces an orgy of bureaucratic blame-shifting,” according to constitutional scholar and George Mason University law professor Michael Greve, making it difficult, if not impossible, for we the people to hold our elected representatives accountable.

This fundamental principle of federalism also protects both producers and consumers from the damaging economic impacts of conflicting rules that vary from state to state or between the states and national government.

Unfortunately, beginning with the Progressive Era and the New Deal, courts began to surrender the default presumption that the national government must keep its hands off what is best regulated by states and that states must step aside when an activity is national in scope. They now too often permit states to interfere with interstate commerce unless Congress explicitly preempts state laws. That’s why, today, dozens of national regulatory statutes – ranging from the Occupational Safety and Health Act to the Clean Air Act to parts of the Food, Drug and Cosmetic Act – have for decades precluded state regulation of countless products and activities, ranging from workplace safety equipment to auto emissions to medical devices, and even to food labeling. 

Keeping the regulation of interstate commerce in the hands of a single, national regulator helps to protect economic productivity and the free flow of commerce from the bureaucratic overreach of both federal and state governments. It also helps prevent a further erosion of political accountability and transparency.

Rep. Pompeo’s bill would merely restore the type of federal separation of powers the framers intended – or, more specifically, would apply it to genetically engineered food regulation. Like most proposed legislation, the bill has its weaknesses, which I have written about here. Those of us who care about sound science and risk-based, rather than fear-based, regulation should work tirelessly to ensure those concerns are addressed before the bill becomes law. But protecting federalism and accountability are things everyone should get behind.