“Genetically Engineered” In California: A Food Label We Don’t Need

From “food miles” to farmers’ markets, it seems that consumers have never been more interested in the ways their food is grown. That’s one motivation for Proposition 37, an initiative on California ballots in the coming election that would require labeling of “genetically engineered” (GE) foods.

It is a bad idea, and also an unlawful one. We discussed its legal problems in a previous Forbes.com column.

Labeling advocates claim that GE foods are somehow “unnatural” and might be unsafe. At the very least, they say, consumers have a right to know what’s in their food, so, why not tell people if their corn flakes have been engineered and let them decide what to buy?

That might sound reasonable and seem to reflect how our choice-driven marketplace works, but there are several problems with it. For starters, GE foods are not in any way a meaningful “category,” which makes any choice of what to include wholly arbitrary. Nor are they unsafe or any less “natural” than thousands of other common foods. If anything, they are likely to be safer, because the techniques used to make them are far more precise and predictable than older, conventional methods of genetic improvement. But as federal regulators have said, a mandatory label implies erroneously a meaningful difference where none exists.

Genetic modification has been with us for millennia. It is ubiquitous and includes much more than the relatively simple changes associated with crossing one tomato plant with another. Breeders regularly move genes between wholly unrelated species. Scientists long ago discovered, for example, how to give crop plants new traits by forcibly mating them with unrelated wild species known to contain natural pesticides, carcinogens, and anti-nutrients. On average, we consume dozens of these varieties of fruits, vegetables, and grains every day.

Breeders also routinely use radiation or chemical mutagens on seeds to scramble a plant’s DNA to generate new traits. More than 2,250 of these “mutant” varieties have been bred in the United States and at least 50 other countries. They include some of our most popular fruits and vegetables, such as Ruby Red grapefruit and most of the durum wheat varieties used to make pasta.

That history might be a little unsettling to some, but these are conventional breeding methods, not GE. They are subject to no mandatory testing, and as now, they would not have to be labeled under the terms of Proposition 37.

The genetic changes that result from any conventional technique are far less precise, predictable, and controllable than those associated with modern genetic engineering. That is why dozens of scientific bodies, ranging from the National Academy of Sciences to the UN’s World Health Organization and Food and Agriculture Organization, agree that genetic engineering is at least as safe as, and often safer than conventional breeding.

It is also why the U.S. Food and Drug Administration does not require blanket labeling of GE foods. The FDA doesn’t take a laissez-faire approach to novel foods, however. The feds do require an intensive review and can require labeling if foods differ significantly from their conventional counterparts in ways related to safety or proper use – such as a reduction in nutrients, the introduction of an allergen where consumers would not expect it, or a change in customary storage or preparation characteristics.

In poll after poll, millions of Americans say they favor mandatory labeling of GE products but few are familiar with the FDA’s existing policy or its scientific rationale. In a series of polls commissioned by the non-profit International Food Information Council, respondents were first read a summary of the FDA rule and then asked their opinion. In every one of the 15 surveys, conducted between 1997 and 2012, a majority agreed with FDA’s risk-based approach – which does not require mandatory labeling of all GE products.

Yet even for shoppers wishing to single out GE foods, Proposition 37 doesn’t deliver what it promises. The wording of the initiative is, to be charitable, chaotic and confusing. Many of the foods that meet the initiative’s legal definition of “genetically engineered” are explicitly exempted from the labeling requirement, courtesy of special interests.

Cheeses made with a GE clotting agent? Beer and wine fermented with GE yeasts? Milk from cows injected with an engineered growth hormone? They’re all exempt. But corn or soybean oil from GE crops – which contain no DNA from the plants themselves – would be captured. Proposition 37 would leave consumers worse informed that they are now.

Between 2000 and 2009 alone, roughly 7,000 new foods and beverages with voluntary “GE-free” labeling made their debuts in U.S. supermarkets. Among these are countless dairy products that proudly advertise their non-GE pedigrees – information you won’t get from Proposition 37.

The organic industry boasts that certified foods cannot contain GE ingredients, and various food companies and activist groups have created websites, pocket guides, and even smart phone apps that direct purchasers to GE-free products. With all this information freely available, consumers already have what they need to choose.

Why then are Proposition 37 supporters so adamant about singling out genetic engineering? It’s simple: Labeling only GE foods would stigmatize those products, raise the costs of making them, discourage the use of the technology and encourage money-seeking lawsuits for inconsequential violations. In fact, the initiative seems to have been drafted with these very goals in mind.

Ironically, Proposition 37 would also impose huge costs on producers who try to avoid GE. Those committed to using GE ingredients can slap a “Genetically Engineered” label on their products and be done. But producers who want to sell non-GE foods must bear the costs of tracing the source of every ingredient they use and getting sworn guarantees that they “are not knowingly or intentionally” engineered.

A single slip-up – for example, in the form of a missing link in the paper trail — could result in criminal prosecution or a private lawsuit filed by anyone who has ever bought a “mislabeled” product in a grocery store, food stand, or farmer’s market. The initiative is a trial lawyer’s dream, which is not surprising given that it was written by a trial lawyer who has spent his career suing small food producers in California.

A concern of many food producers is the ripple effect if Proposition 37 were to be approved. “It could affect farmers and consumers throughout the nation,” according to agricultural economists Jayson Lusk and Brandon McFadden, who performed a poll on the popularity of the proposition.

Finally, federal law preempts state laws that conflict, as in the case of Prop. 37, and federal appeals courts have found repeatedly that mandatory labeling must pertain to issues of health or safe use. The labeling required by Prop. 37 does not. If the proposition passes, California would need to spend years and millions of taxpayer dollars defending the indefensible.

Mandatory GE labeling isn’t needed, it’s anti-consumer, and it doesn’t make sense. It is Proposition 37 that needs a warning label.