Labeling Of Biotech Foods Is Unnecessary And Unconstitutional

This piece was co-written with Henry Miller.

Should the government require that labels on cans of marinara sauce contain information about whether the tomatoes in it were hand- or machine-picked?   No way!  Ridiculous and irrelevant, you’d say.  Right on all counts.  But that label makes as little sense as the demands of food activist and Forbes contributor Michelle Maisto.

Maisto’s latest Forbes article calls for compulsory, government-mandated labels to indicate foods that have been genetically improved. Yet the foods that Maisto wants to target are those manipulated with the most modern and precise gene-splicing techniques — and only those techniques. Such labels would not only put groundless fears ahead of science — promoting ignorance and hysteria among consumers — they would also be unconstitutional.

Product labeling that conveys essential information is important, but mandatory labeling of gene-spliced foods is a bad idea.  First, it implies risks for which there is no evidence.  Second, it flies in the face of worldwide scientific consensus about the appropriate basis of regulation, which focuses palpable risks, not the use of certain techniques.  Third, it would push the costs of product development into the stratosphere.  Finally, the requirement would constitute a punitive tax on a superior technology.

Maisto is misinformed in so many ways.

Let’s begin with her assertion that there’s “a lot of debate about whether or not it’s safe to eat GM [genetically modified] foods.”  In the parlance of Maisto and other radical food activists, “GM” refers to products that come from plants, animals or microorganisms crafted with sophisticated gene-splicing techniques, in which genes are moved around precisely and predictably.  Without any scientific basis, the term implies that gene-splicing is a meaningful “category” and that its use somehow gives rise to products the risks of which are higher or more uncertain than other techniques for genetic modification.  However, a broad and decades-long scientific consensus holds that modern techniques of genetic modification are an extension, or refinement – that is, an improvement – on the kinds of genetic modification that have long been used to enhance plants, microorganisms, and animals for food.

One has to wonder whether Maisto knows that with the exception of wild game, wild berries, wild mushrooms and fish and shellfish, all the plant- and animal-derived foods in our diets – even the overpriced organic stuff at Whole Foods – have resulted from genetic modification that employs techniques that are far less precise and predictable than the ones that concern her.  Likewise, is she aware that every major scientific and public health organization that has studied gene-splicing – from the American Medical Association to the National Academy of Sciences and dozens more – has concluded that gene-spliced foods are at least as safe, and probably safer, than conventional ones?

The safety record of gene-spliced plants and foods derived from them is extraordinary.  After the cultivation of more than 3 billion acres (cumulatively) of gene-spliced crops worldwide and the consumption of more than 3 trillion servings of food and food ingredients from such crops by inhabitants of North America alone, there has not been a single ecosystem disrupted or a single confirmed adverse reaction.

What are the advantages of gene-spliced crops?  Every year, farmers planting gene-spliced varieties spray millions fewer gallons of chemical pesticides and prevent less erosion of topsoil.  In addition, many gene-spliced varieties are less susceptible to mold infection and have lower levels of fungal toxins, making them safer for consumers and livestock.

Now let’s get to the labeling issue.

Maisto complains that “food can be tinkered with at the DNA level and no one is obligated to say so.”  True, but irrelevant.  For one thing, with the exceptions mentioned above, all the foods in our diet have been altered “at the DNA level” – because that’s how changes in organisms occur.  When plant breeders cross a tangerine with a grapefruit to get a tangelo or construct a variety of potato resistant to viruses, the genetic changes are mediated by alterations in the DNA.

There are good reasons that such “tinkering at the DNA level” need not be revealed on labels.  Federal regulation requires that food labels be truthful and not misleading and prohibits label statements that could be misunderstood, even if they are strictly accurate.  For example, although a “cholesterol-free” label on a certain variety or batch of fresh spinach would be accurate, it transgresses the FDA’s rules because it could be interpreted as implying that spinach usually contains cholesterol, which it does not.

Following long-standing precedents in food regulation, the FDA requires labeling only to indicate that a new food raises questions of safety, nutrition or proper usage.  But instead of educating or serving a legitimate consumers’ “need to know” certain information, mandatory labels on gene-spliced food would imply a warning.

The FDA’s approach to labeling has been upheld both directly and indirectly by various federal court decisions that have consistently struck down mandatory labeling not supported by data.  In the early 1990s, a group of Wisconsin consumers sued the FDA, arguing that the agency’s decision not to require the labeling of dairy products from cows treated with a gene-spliced protein called bovine somatotropin, or bST, allowed those products to be labeled in a false and misleading manner.  (In other words, the plaintiffs wanted the same sort of mandatory labeling advocated by Maisto.)  However, because the plaintiffs failed to demonstrate any material difference between milk from treated and untreated cows the federal court agreed with the FDA, finding that “it would be misbranding to label the product as different, even if consumers misperceived the product as different.”

In another federal case several food associations and companies challenged a Vermont statute that required labeling to identify milk from cows treated with gene-spliced bST. The U.S. Second Circuit Court of Appeals ruled that a labeling mandate grounded in consumer perception rather than in a product’s measurable characteristics raises serious constitutional concerns. Namely, it violates commercial free speech. The court found both the labeling statute and companion regulations unconstitutional because they forced producers to make involuntary statements when there was no material reason to do so.

What’s more, consumers don’t need a mandatory “GM” label: The First Amendment protects the right of food purveyors to sell non-gene-spliced products and to advertise that fact to consumers by means of labeling.  (This would be similar to the way that halal and kosher products are offered to consumers.)

Note to Ms. Maisto: If you really want to influence consumers’ views on genetic engineering try to gain at least a rudimentary understanding of the subject.  We suggest two ways to start: the film Mandy and Fanny: The Future of Sustainable Agriculture and the book The Frankenfood Myth: How Protest and Politics Threaten the Biotech Revolution by the two of us. Maybe then your articles on this subject won’t mislead your readers.