As Joe Six-pack munches Fritos and popcorn during the opening games of the NFL season, does he care what variety of corn was used to make them? Should he? Should the government require labels that tell him?
Most rational people would say no. But California’s Proposition 37, which will appear on the state’s ballot in November, would create just such a requirement. Supporters claim it is a simple measure designed to provide useful information to consumers about so-called genetically engineered (“GE”) foods. It is not, and the deceptive measure fails every test, from science and economics to law and common sense.
A broad scientific consensus holds that modern techniques of genetic engineering are essentially an extension, or refinement, of the kinds of genetic modification that have long been used to enhance the foods we eat.
Except for wild berries and wild mushrooms, virtually all the fruits, vegetables and grains in our diet have been genetically improved by one technique or another – often as a result of seeds being irradiated or genes being moved from one species or genus to another in ways that do not occur in nature. But because genetic engineering is more precise and predictable, the technology is at least as safe as – and often safer than – the modification of food products in cruder, “conventional” ways. This superior technology is the target of Prop. 37.
The safety record of genetically engineered plants and foods derived from them is extraordinary. Even after the cultivation worldwide of more than 3 billion acres of genetically engineered crops (by more than 14 million farmers) and the consumption of more than 3 trillion servings of food by inhabitants of North America alone, there has not been a single ecosystem disrupted or a single confirmed adverse reaction.
The advantages are also remarkable. Every year, farmers planting genetically engineered varieties spray millions fewer gallons of chemical pesticides and substantially reduce topsoil erosion. In addition, many of these varieties are less susceptible to mold infection and have lower levels of fungal toxins, making them safer for consumers and livestock.
The mandatory labels required by Prop. 37 would convey none of this information. Instead, these labels would imply that the buyer needs to be warned of unspecified dangers. Compliance would also vastly inflate costs to everyone in the distribution chain, resulting in higher prices  in grocery stores of up to $350-$400 a year for California families.
Perhaps most important, the required labels would actually reduce consumers’ choices.
How can that be? Britain’s labeling law, touted early on by a senior regulator as “a question of choice, of consumer choice,” has had the opposite effect. Consumers naturally think that government mandated labels signal a cause for concern, so food producers, retailers and restaurant chains in Britain quickly rid their products of genetically engineered ingredients to avoid having to put “warning” labels on their foods.
In the United States, on the other hand, the Food and Drug Administration followed the science and declined to require special labeling for genetically engineered foods. The agency does require foods to be labeled if they raise questions related to nutrition or safe use — if, for example, they contain substances new to the food supply, allergens presented in an unusual or unexpected way (such as a peanut protein in wheat) or increased levels of toxins found normally in foods.
The same FDA policy applies to both genetically engineered and conventionally modified foods. The required label information pertains to changes in the food’s composition or use, not the breeding method used, because that’s what consumers really need. Similar to informing them about whether a fruit or vegetable was hand- or machine-picked, telling them only that a product was “genetically engineered” conveys no useful information.
The FDA’s risk-based approach has been upheld repeatedly in federal court. In the early 1990s, a group of Wisconsin activists sued the FDA, arguing that its policy allowed products to be labeled in a false and misleading manner. However, because the plaintiffs could not demonstrate any material difference between genetically engineered and conventional foods, the federal court agreed with the FDA and concluded that “it would be misbranding to label the product as different, even if consumers misperceived the product as different.”
Ironically, Prop. 37 has so many loopholes and carve-outs that it doesn’t even cover all so-called genetically engineered foods. Trying to figure out what would and would not be covered is a nightmare. It is noteworthy that producers cannot even avoid the higher costs associated with labeling by choosing non-genetically engineered ingredients, because to keep from being sued, they would still have to trace the pedigree of every ingredient they use.
Prop. 37 would not only create a large new bureaucracy but also encourages bounty-hunter, or shakedown, litigation to enforce the rules. Lawsuits could be filed even against those following the law, because no proof of a violation is required. In fact, according to California’s independent non-partisan Legislative Analyst Office, Prop. 37 would allow trial lawyers “to sue without needing to demonstrate that any specific damage occurred as a result of the alleged violation.” The initiative is a trial lawyer’s dream – and an invitation to abuse — which is not surprising given that it was written by a California trial lawyer who has spent his career suing large and small businesses.
Even if Prop. 37 is passed, it is unlikely to withstand legal challenges on at least two grounds.
First, federal law preempts state labeling rules that conflict with FDA policy. Just last year, a federal court in Los Angeles ruled that a California requirement to label genetically engineered foods “would impose a requirement that is not identical to federal law” and would therefore be preempted.
Second, and more fundamentally, the U.S. Second Circuit Court of Appeals ruled over a decade ago that labeling mandates based solely on an alleged consumers’ “right to know,” rather than on a product’s measurable characteristics, violate the U.S. Constitution’s First Amendment. A Vermont statute enacted in 1994 mandated labels on milk from cows treated with a bio-engineered protein. The court found the law unconstitutional because it forced producers to make involuntary statements when there was no material reason to do so. “Were consumer interest alone sufficient,” the court wrote, “there is no end to the information that states could require manufacturers to disclose about their production methods.”
In order to pass constitutional muster, labeling laws must bear directly on safety, nutrition or similar concerns. Prop. 37 clearly does not, and if it were approved by the voters, the state would need to spend years and millions of taxpayer dollars defending a lost cause in the federal courts.
Consumers do have viable alternatives, however. The Constitution also protects the right to sell non-genetically engineered foods and to advertise that fact on product labels, and over just the last decade, more than 7,000 new food and beverage products have been introduced in the United States with explicit non-GE labeling, joining thousands of others that have been on the market since the early 1990s. And groups ranging from Greenpeace to the Organic Consumers Association have created websites, printed pocket guides and even smart phone apps that direct purchasers to “GE-Free” products.
In short, consumers who want to avoid genetically engineered foods have plenty of information that enables them to do so. Thus, even if they were legal, government mandates are not needed.