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Labeling for better or worse As US legislatures and voters continue to wrestle with GM labeling, what is at stake? Jim Kling investigates.
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his November, voters in Colorado and Oregon voted down referenda that would require the labeling of foods with genetically modified (GM) ingredients, joining California and Washington, where similar ballot measures have failed. However, the issue is far from settled. In May, the Vermont legislature passed the first mandatory law, scheduled to go into effect July 2016—but not without a fight. In June, the Grocery Manufacturers Association of Washington, DC, a leading opponent of state labeling laws, joined with other food trade organizations in filing a lawsuit contesting the Vermont law. Success in Vermont is emboldening activists in other states. Already, 25 states have considered bills or referenda on the topic according to the Council for Agricultural Science and Technology, which issued a report last April on the impacts of mandatory labeling of GM foods. “I do not expect them to go away,” says Val Giddings, senior fellow at the Washington, DC– based Information Technology and Innovation Foundation. This activity has spurred efforts at the national level, with two bills in consideration— one for labeling and the other against. Scientific arguments have taken a back seat to legal and philosophical debates of freedom of expression and a consumer’s right to know—itself a thorny legal issue. Legal battle lines The challenge to the Vermont law could come on several grounds. The law could violate free speech if one state attempts to dictate labeling of a product because it could compel manufacturers in another state to “speak as the government wants them to speak,” says Drew Kershen, who is a law professor at The University of Oklahoma in Norman. But commercial speech gets fewer protections than political speech, according to George Kimbrell, senior attorney for the nonprofit Center for Food Safety, in Portland, Oregon. “Its main value is to inform consumers—that’s why it’s protected at all,” he says. Legally, Vermont just has to show that there is a rational basis for requiring disclosure. Potential health risks, environmental impacts of GM crops, concerns about how such crops affect sustainable farming practices, and even religious or ethical concerns could be brought up. “Those provide the state 1180
with more than sufficient bases to require that disclosure,” says Kimbrell. Kershen is not convinced. Previously, courts have ruled that consumers may be curious about many aspects of food production, but concerns vary from person to person and should not be a state interest. For example, a 1996 Vermont law that sought to require labeling of dairy products produced with recombinant bovine somatotropin (rBST) was found to violate the First Amendment because the state was trying only to satisfy consumer curiosity. Lauren Handel, an attorney with Sag Harbor, New York–based Foscolo & Handel, which specializes in food law, believes that the current law might be undermined by the same argument. “Vermont will have a difficult time, I think, in distinguishing its present interest in informing consumers about the presence of GMOs [genetically modified organisms] from its earlier interest in disclosure of rBST,” she wrote in a recent blog post1. The new law might also violate the interstate commerce clause of the US Constitution by placing an unnecessary burden on trade between the states. As a condition of joining the union, states agreed not to discriminate or cut off commerce with other states. If labeling is considered discriminatory, it could be thrown out. According to Kershen, the Vermont law could be considered discriminatory, as it does not apply to animal feed, to food served in restaurants or to GM enzymes used in the production of cheese. Those “have the practical effect of protecting the Vermont agricultural products [such as dairy and cheeses] while discriminating against non-Vermont agricultural products [like corn, soybeans and canola],” says Kershen. Similar exemptions are found in bills being considered in other states, he says. The Vermont law would also require a change in national strategy for businesses that engage in interstate commerce. Companies would have to choose between dropping the Vermont market, developing a Vermont-only label for thousands of products or changing labels nationwide. Companies will argue that the latter two choices would be burdensome to interstate commerce, says Kershen. Kimbrell, who said he provided expertise during the Vermont legislative process and has helped draft legislation and voter initiatives in other states, does not believe Vermont’s law interferes with interstate commerce because it
requires labeling of foods no matter what state they are produced in. Any effect would therefore be indirect, and courts have set “a very low bar” for indirect effects to be unconstitutional, he says. “The burden of labeling on the manufacturer must clearly outweigh the benefits to the state and consumers. I don’t think the burden is clearly excessive. Manufacturers already change their labels. In fact, some of the plaintiffs already [have different] labels in 64 countries [that require GMO labeling],” according to Kimbrell. However, many of the 64 countries where labeling is required (Fig. 1) have no GMOs; in the EU, for example, only a few GM foods can actually be found on grocery shelves—mostly oils and some imported processed goods. This might be attributed to the tightening of the European GM labeling law, which since 2003 has included foods that make use of GMOs anywhere in their production. (An earlier version of the law required only foods that contained GM ingredients to be labeled). However, according to a 2010 report by the European Commission evaluating GM food and feed legislation, food producers had made changes to their suppliers before the 2003 law went into effect. Hence, the report says, the impact on the market was negligible2. Others, however, feel that the lost opportunity costs are difficult to calculate but could be large3. Yet another argument is the doctrine of preemption, which says that federal laws trump state laws if they are in conflict. Kimbrell points out that there are no federal laws that were passed with GM ingredients in mind. Instead, the US Department of Agriculture (USDA), the Food and Drug Administration (FDA) and the Environmental Protection Agency rely on previous legislation enacted well before genetic modification was introduced. He believes that effectively leaves a void in federal regulation. “Having state labeling is a step forward for having labeling for all Americans, that’s how democracy works. The states are the laboratories, and they move ahead when we have lack of leadership at the federal level,” Kimbrell says. However, the Vermont law may run afoul of the USDA, according to Handel. Products like frozen dinners that contain meat or poultry would be subject to labeling if the other components contain GM ingredients. But meat and poultry fall under the purview of the USDA, which operates under the Federal Meat Inspection Act and the Poultry Products Inspection Act, both of which forbid states from imposing labeling requirements that conflict with federal requirements. A court could rule that Vermont’s law is preempted by USDA’s authority. Another potential argument against state laws, and even potentially federal legislation, is the fact that the US is a signatory to
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Figure 1 Genetically modified food labeling laws around the globe. Three countries (Zambia (blue), Benin and Serbia) have banned genetically modified (GM) food imports and cultivation. Countries with mandatory GM food labeling laws include 37 (dark green) that require labeling of nearly all GM foods and a labeling threshold of 0.9–1% GM content (threshold refers to content per ingredient in each food item); 10 (light green) with mandatory labeling of many GM foods and a labeling threshold higher than 1% or undefined (this includes laws with a threshold of 1% for the entire food item); 15 (pale green) with mandatory labeling of some GM foods, but with numerous exceptions and no labeling threshold defined, or a vague mandatory GM food labeling law that lacks implementation and enforcement provisions. Unshaded: No GM food labeling law. (Source: Center for Food Safety, Washington, DC.)
international trade treaties and has agreed not to discriminate against trade with other countries. Kershen believes that whereas a federal law could be largely immune from constitutional issues, international trade agreements could be a potent challenge to mandatory federal labeling. “The case will be very interesting to watch and very important in its outcome,” says Kershen, who predicts it will eventually make its way to the Supreme Court. Meanwhile, Kimbrell worked on the ballot measure in Oregon, as well as a state bill in California. Neither differed substantially from their failed predecessors, except to include some language designed to counter claims made in advertisements by opponents in the run-up to the earlier vote. For example, in Washington State, claims were made that farmers could be sued if labeling laws were put in place. “It’s always been the case that you can’t sue farmers, but we put it in the ballot initiative language that farmers were not to be held liable,” he says. Rather than saying that they oppose labeling outright, industry groups have resorted to saying that the law is poorly written, or it has too many holes or it will cause food prices to go up. “They know they can’t say they oppose labeling because that’s a no-win [position] for them,” says Kimbrell.
The federal response The various bills under consideration threaten to make a patchwork of state laws. If they survive legal challenge, they will inevitably prompt a federal solution to supersede them, says Bob Woods, CEO of Seattle-based Targeted Growth. “You [would have to have] a Washington-only label, a California-only label… that’s impossible. If [labeling] is going to happen, it has to be federal.” In fact, two federal bills are already in the works. One, introduced by Kansas Republican Congressman Mike Pompeo, would place labeling decisions in the hands of the FDA, which, as comments made by FDA Commissioner Margaret Hamburg last March suggest, is likely to keep labeling voluntary. It also would require FDA to be notified and to review new GM food ingredients, something that is currently done on a voluntary basis. Voluntary or not, “all companies [already] do that,” according to Karen Batra, communications director at Washington, DC’s Biotechnology Industry Organization. The bill would also require the FDA to make public the data associated with those reviews. The other bill, sponsored by Senator Barbara Boxer (CA-D), would mandate labeling of food with GM ingredients. It would direct FDA to go through a rule and comment process to determine a labeling standard,
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including threshold percentages above which a food would have to bear a GM label. That approach would encourage public discussion, according to Colin O’Neil, director of government affairs at the Washington, DC–based Center for Food Safety. “The Pompeo bill simply halts the conversation,” he says. Giddings thinks both federal bills are doomed to failure, in part because of congressional gridlock and in part because efforts to discourage labeling are redundant. They attempt to codify what is already current policy at FDA, which has not changed since 2001 (despite calls to do so from legislators as well as consumers), when a draft guidance was issued suggesting voluntary labeling measures. Mutual mistrust Arguments for and against labeling seem to be characterized by mistrust at their core (Box 1). Those who push for labels believe the food manufacturers and the biotech industry are seeking to profit at the expense of the health of consumers or the environment. Those who oppose such measures fear that labels will mislead consumers and lead to fear-driven abandonment of any food with a GM label. Though he opposes mandatory labeling, Giddings has some sympathy for the opposing argument. “People have a reflexive and I think 1181
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Box 1 Pros and cons of GMO labeling Voluntary labeling Pros Paid for only by consumers who want labels Relies on market forces to drive consumer choice Provides information for those who are interested Cons Has not been undertaken for any GM food in the 15 years since the FDA guidance Could be used as a marketing tool and lead to higher prices Mandatory labeling
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Pros A majority of Americans favor labeling when asked specifically if the government should require GM label Is in harmony with 64 nations requiring labeling (Fig. 1) Cons May be construed as a reason for caution. Paid for by everyone to satisfy those who want labels Has not increased consumer choice in other localities Requires changes to the system for food processing and distribution to segregate GM from non-GMO In unprompted polls on food labels, majority do not volunteer GM food label Requires regulatory intervention and system for monitoring and enforcement
a very healthy desire to have access to information, and a healthy, skeptical reluctance [towards] something that looks like someone is trying to withhold information,” he says. An oft-heard argument against labeling is that consumers already have plenty of choices. They can purchase foods that are labeled ‘certified organic’, which don’t contain GM ingredients, or they can shop at grocery chains like Trader Joe’s, whose products are all GM-free. “I think it’s pretty easy for the consumer who doesn’t want to eat [GM] ingredients to do that,” says Gregory Jaffe, director of the biotech project at the Center for Science in the Public Interest in Washington, DC. But labeling advocates argue that non-GM products are more expensive, so that low income people can’t easily avoid GM ingredients. “It is often more expensive, and there are consumers that can’t afford that. They should have a choice,” says Doug Gurian-Sherman, director of sustainable agriculture and senior scientist at the Center for Food Safety. At least one labeling opponent sees the effort as victimizing the poor. “All this labeling is a means to frighten people [away from GM foods],” says David Zilberman, professor of agricultural and resource economics at the University of California, Berkeley. Abandonment of GM technology is likely to raise food costs. “A lot of people who are against [GM food] live in their own elitist world. They don’t really care [about the cost of food]—they can waste money on expensive stuff,” Zilberman adds. 1182
Fallout Fallout from GM labeling laws in the US is difficult to predict. A law in a state like Vermont can be accommodated because there are enough organic or non-GM products to satisfy demand. “But once you get into a big market like California, then you start to nudge up against the capacity of the system to meet that supply. There’s a really big difference if you go national,” says Julian M. Alston, professor of economics at the University of California, Davis, who coauthored a report commissioned by ‘No on 37’, a coalition against proposition 37, which fought California’s labeling initiative. A key issue in labeling is the threshold. The Vermont law dictates that any foods containing more than 0.9% by weight must be labeled. The EU’s labeling requirement has the same threshold. Japan has a threshold of 5%. California’s proposition 37 would have had zero tolerance for GM ingredients. According to Nicholas Kalaitzandonakes, director of the Economics and Management of Agrobiotechnology Center at the University of Missouri in Columbia, declining thresholds rapidly escalate costs. For seed or grain corn, a threshold of 0.9% increases segregation costs by 20%. A 0.1% threshold ups it by as much as 70%. Costs for soybeans would likely be somewhat less. Segregation poses challenges at every level of the supply chain. At lower thresholds, farmers must maintain greater isolation distances and buffer zones between GM and non-GM crops, and equipment must be cleaned more carefully when switching between GM and non-GM
crops. Intermixing can occur at each level of the supply chain, so each step must aim for levels well below the final threshold to account for later additions. Mistakes force manufacturers to discard some lots. “As you get lower and lower in those thresholds… you have larger volumes of rejected product,” says Kalaitzandonakes. Some foods, such as oils and sugars, can be GM but contain no transgene or exogenous proteins. Such food stuffs are chemically identical to conventional ingredients and therefore impossible to detect. GM labeling laws in Australia and New Zealand, for example, exempt such foods, but the Vermont law does not. “Most [US] bills say they need to be labeled as [containing GM], not just derived from them. There is no biological or chemical difference to labeling in the case of oil and sugar. Then the question becomes, is that misleading in some way to a consumer? We think it is,” says Center for Science in the Public Interest’s Jaffe. Enforcement is another concern. There is no way to test a product for GM-derived sugar or oils, and Vermont’s law has no requirement for testing. Instead it relies on manufacturers maintaining paper trails all along the supply chain. Some maintain that the system is ripe for fraud, says Jaffe. If a federal law mandates labeling, or enough states pass laws, food manufacturers will have to decide if they are willing to face the risks of using labeled GM ingredients, or to source entirely from conventional crops. “If they decide to say, ‘we don’t mind putting that label on everything,’ then the consequences will be negligible. Our best guess from talking to people in the food industry was that they’re very reluctant to put a label like that on [their products] because their reading is that it signals to consumers that there’s something wrong with that food. Their morelikely response would be to do everything they could to avoid putting such labels on things, and that leads to a high-cost outcome for the industry and then ultimately for consumers,” says Alston. Food manufacturers contacted by Nature Biotechnology refused to comment. “My guess is if you asked any manufacturer today, I don’t believe most would have an answer today,” says Kalaitzandonakes. Labeling requirements represent a dilemma for food companies, says Nicholas Fereday, executive director and senior analyst of food and consumer trends for Utrecht, Netherlands– based Rabobank, which specializes in financing food and agriculture ventures. But they are somewhat insulated by the fact that most of them have broad portfolios, with both conventional and organic lines of products. “They play both sides, and they have some brands that are (already) GMO-free. By differentiating your
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N E W S F E AT U R E market, you can probably make more money,” says Fereday. The nature of the products themselves will likely influence labeling decisions. “There are products [like some organic breakfast cereals] where the consumer is really looking for [GM content]. But for a Twinkie bar, one has to believe that not everyone is reading the label,” says Fereday. The biggest obstacle could be sourcing nonGM ingredients. It won’t be easy for companies to ramp up production quickly. “Farmers [have to be] persuaded to plant the stuff and that there’ll be a market [for non-GM varieties], and at what price. It would make procurement a lot harder if everyone switched [to non-GM ingredients] overnight. There would be a bit of a scramble for source material,” says Fereday. To meet demand, manufacturers will have to pay higher prices to compensate farmers for the higher costs and lower yields associated with non-GM varieties, or farmers will have to bring acreage into production that isn’t as well suited for non-GM products. Today in the US, non-GM food product is a niche market. “[They] self-select for such production systems and they do so because their farms are wellsuited for such production (e.g., by employing isolated fields to minimize pollen flow). In the face of increasing demand for non-GM crops, additional (less well-suited land) would have to come into non-GM production, which would tend to increase the average cost of non-GM production,” says Kalaitzandonakes. Gurian-Sherman disagrees. He cites a study showing that if the cost of corn were to go up by 50%, it would add 1.6 cents to the cost of a box of corn flakes4. “The point is that even with a very dramatic increase in the cost of the main ingredient, it would be a tiny increase because the overwhelming cost of processed foods is processing, advertising, distribution and those kinds of things. The actual cost of the food inputs is tiny,” he says. Aside from costs, some worry that labeling could vilify GM ingredients and lead to a disinvestment in agbiotech. “That has longterm competitive implications for agriculture in the US. Will we be in a situation like Europe where we can’t adopt these technologies, and we’ll have a less competitive agricultural sector?” says Alison Van Eenennaam, cooperative extension specialist in animal genomics and biotech at the University of California, Davis. Public perceptions have a big effect on the research programs of small companies like Targeted Growth, which is engineering crops with improved yields and quality by enhancing growth and manipulation of cell cycle regulation. The company is developing corn, canola,
soybean and wheat, and it is striking that the only product that would be primarily consumed by humans—wheat—is explicitly described on the company’s website as non-GMO. They considered GM techniques in its wheat program but opted against them. “It was [due to] public acceptance. Farmers just aren’t ready to fight that battle,” says Woods. Alston agrees. “The thing that bothers me is that you eliminate any incentive to continue to [develop] any technology of that sort,” he says. All or nothing Even some who support GM crops are beginning to embrace labeling, if only because continued opposition may be a losing battle. To date, GM companies have argued that labeling is unnecessary because the products are proven safe, and labels would potentially confuse consumers. But that’s a losing argument, according to Mark Lynas, a visiting fellow at Cornell University and author of The God Species, in which he argues that humanity must embrace genetic engineering, nuclear power and other technologies to save the planet. “This is a political issue, not a scientific one. We have, I think, a big majority of the population that is sufficiently concerned about the GM issue, that they have control over whether these new products are in their food supply or not, and that means they have to have the information to make an informed choice.” Embracing labeling carries a considerable risk that consumers will be turned off from those products, which is why many still oppose labels. “I think that’s a risk we have to take because the framing of the issue otherwise, of industry versus the consumer’s right to know, is not a winnable proposition, and I think it does a lot of damage to biotech in general,” says Lynas. The logical arguments may eventually fade in the face of a strong consumer push, and some on both sides of the issue are conceding the point. “The bottom line is that in a democracy, when people repeatedly say [they want GM labeling], we don’t second guess them and say, maybe they don’t really mean it,” says Gurian-Sherman. Such labels, if widespread, could make consumers more comfortable with GM foods and undercut opposition to the foods because no one could reasonably argue that GM is being hidden from consumers. Lynas believes that biotech companies would be willing to accept ubiquitous labeling of GM products, but it is unclear how that could be achieved. No one wants to be the first with a labeled product. “The danger is that if there are just one or two products that are labeled, those are demonized and campaigned against and they come off the shelves,” says Lynas.
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As currently enacted, Vermont’s label— which gives companies several variations, “produced with genetic engineering,” or “partially produced with genetic engineering”, depending on whether the food is raw or processed— doesn’t say much, but labels don’t have to be limited to printing on a package. A scannable bar code could pull up information about a food, what ingredients are GM, and even what genes have been inserted. Such an approach could even allow companies to trumpet the benefits of a genetic modification. Current US Secretary of Agriculture Tom Vilsack endorsed the idea, suggesting that FDA and USDA could help coordinate such a system5. A bar code with an associated website could inform shoppers with environmental concerns. The same consumers might be accepting of Golden Rice, which is modified to contain high levels of the vitamin A precursor beta-carotene, though it is not currently sold anywhere. Or they might be willing to support a product that rescued an industry. The Hawaiian papaya industry was hit hard by the ringspot virus in the 1990s, so researchers developed the Rainbow Papaya. It contains a bit of an envelope protein of the virus, which prompts the plant to produce an RNA silencing defense6. The papaya is distributed by Calavo Grower, which took out an ad that loudly proclaimed the rainbow papaya’s story in Hana Hou, the in-flight magazine of Hawaiian Airlines. “We’ve made it very public that we’re GMO and we’re proud of it, and we did for the right reasons,” says Eric Weinert, general manager for Calavo Grower’s Hawaii operation. Such approaches might soften public attitude toward GM crops. “It could be a matter of losing the industry or convincing the public that [GM technology] is okay. When people know why we [engineered papayas], I think they are definitely more open to it,” says Weinert. Jim Kling, Bellingham, Washington
1. Handel, L. Will Vermont’s GMO labeling law survive legal challenge? http://www.foodlawfirm.com/2014/05/ will-vermonts-gmo-labeling-law-survive-legal-challenge/ (May 5, 2014). 2. European Commission Directorate General Health and Consumers, “Evaluation of the EU Legislation framework in the field of GM Food and Feed, 12 July, 2010. 3. Speath, B. GM crops: reaping the benefits but not in Europe. Socio-economic impacts of agricultural biotechnology. 2nd Edn. (EuropaBio, August 2011). 4. Leibtag, E. Corn prices near record highs, but what about food costs? http://www.ers.usda.gov/amberwaves/2008-february/corn-prices-near-record-high,but-what-about-food-costs.aspx#.U6HVN_ldXwo (USDA Economic Research Service, Feb. 1, 2008). 5. Revkin, A.C. The Agriculture Secretary sees a smart (phone) solution to GMO labeling. http://dotearth. blogs.nytimes.com/2014/06/27/the-agriculture-secretary-sees-a-smart-phone-solution-to-the-gmo-labelingfight/?_php=true&_type=blogs&_r=0 The New York Times (June 27,2014) 6. Ruanjan, P., Kertbundit, S. & Juncek, M. Biol. Plant. 51, 517–520 (2007).
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Labeling for better or worse As US legislatures and voters continue to wrestle with GM labeling, what is at stake? Jim Kling investigates.
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his November, voters in Colorado and Oregon voted down referenda that would require the labeling of foods with genetically modified (GM) ingredients, joining California and Washington, where similar ballot measures have failed. However, the issue is far from settled. In May, the Vermont legislature passed the first mandatory law, scheduled to go into effect July 2016—but not without a fight. In June, the Grocery Manufacturers Association of Washington, DC, a leading opponent of state labeling laws, joined with other food trade organizations in filing a lawsuit contesting the Vermont law. Success in Vermont is emboldening activists in other states. Already, 25 states have considered bills or referenda on the topic according to the Council for Agricultural Science and Technology, which issued a report last April on the impacts of mandatory labeling of GM foods. “I do not expect them to go away,” says Val Giddings, senior fellow at the Washington, DC– based Information Technology and Innovation Foundation. This activity has spurred efforts at the national level, with two bills in consideration— one for labeling and the other against. Scientific arguments have taken a back seat to legal and philosophical debates of freedom of expression and a consumer’s right to know—itself a thorny legal issue. Legal battle lines The challenge to the Vermont law could come on several grounds. The law could violate free speech if one state attempts to dictate labeling of a product because it could compel manufacturers in another state to “speak as the government wants them to speak,” says Drew Kershen, who is a law professor at The University of Oklahoma in Norman. But commercial speech gets fewer protections than political speech, according to George Kimbrell, senior attorney for the nonprofit Center for Food Safety, in Portland, Oregon. “Its main value is to inform consumers—that’s why it’s protected at all,” he says. Legally, Vermont just has to show that there is a rational basis for requiring disclosure. Potential health risks, environmental impacts of GM crops, concerns about how such crops affect sustainable farming practices, and even religious or ethical concerns could be brought up. “Those provide the state 1180
with more than sufficient bases to require that disclosure,” says Kimbrell. Kershen is not convinced. Previously, courts have ruled that consumers may be curious about many aspects of food production, but concerns vary from person to person and should not be a state interest. For example, a 1996 Vermont law that sought to require labeling of dairy products produced with recombinant bovine somatotropin (rBST) was found to violate the First Amendment because the state was trying only to satisfy consumer curiosity. Lauren Handel, an attorney with Sag Harbor, New York–based Foscolo & Handel, which specializes in food law, believes that the current law might be undermined by the same argument. “Vermont will have a difficult time, I think, in distinguishing its present interest in informing consumers about the presence of GMOs [genetically modified organisms] from its earlier interest in disclosure of rBST,” she wrote in a recent blog post1. The new law might also violate the interstate commerce clause of the US Constitution by placing an unnecessary burden on trade between the states. As a condition of joining the union, states agreed not to discriminate or cut off commerce with other states. If labeling is considered discriminatory, it could be thrown out. According to Kershen, the Vermont law could be considered discriminatory, as it does not apply to animal feed, to food served in restaurants or to GM enzymes used in the production of cheese. Those “have the practical effect of protecting the Vermont agricultural products [such as dairy and cheeses] while discriminating against non-Vermont agricultural products [like corn, soybeans and canola],” says Kershen. Similar exemptions are found in bills being considered in other states, he says. The Vermont law would also require a change in national strategy for businesses that engage in interstate commerce. Companies would have to choose between dropping the Vermont market, developing a Vermont-only label for thousands of products or changing labels nationwide. Companies will argue that the latter two choices would be burdensome to interstate commerce, says Kershen. Kimbrell, who said he provided expertise during the Vermont legislative process and has helped draft legislation and voter initiatives in other states, does not believe Vermont’s law interferes with interstate commerce because it
requires labeling of foods no matter what state they are produced in. Any effect would therefore be indirect, and courts have set “a very low bar” for indirect effects to be unconstitutional, he says. “The burden of labeling on the manufacturer must clearly outweigh the benefits to the state and consumers. I don’t think the burden is clearly excessive. Manufacturers already change their labels. In fact, some of the plaintiffs already [have different] labels in 64 countries [that require GMO labeling],” according to Kimbrell. However, many of the 64 countries where labeling is required (Fig. 1) have no GMOs; in the EU, for example, only a few GM foods can actually be found on grocery shelves—mostly oils and some imported processed goods. This might be attributed to the tightening of the European GM labeling law, which since 2003 has included foods that make use of GMOs anywhere in their production. (An earlier version of the law required only foods that contained GM ingredients to be labeled). However, according to a 2010 report by the European Commission evaluating GM food and feed legislation, food producers had made changes to their suppliers before the 2003 law went into effect. Hence, the report says, the impact on the market was negligible2. Others, however, feel that the lost opportunity costs are difficult to calculate but could be large3. Yet another argument is the doctrine of preemption, which says that federal laws trump state laws if they are in conflict. Kimbrell points out that there are no federal laws that were passed with GM ingredients in mind. Instead, the US Department of Agriculture (USDA), the Food and Drug Administration (FDA) and the Environmental Protection Agency rely on previous legislation enacted well before genetic modification was introduced. He believes that effectively leaves a void in federal regulation. “Having state labeling is a step forward for having labeling for all Americans, that’s how democracy works. The states are the laboratories, and they move ahead when we have lack of leadership at the federal level,” Kimbrell says. However, the Vermont law may run afoul of the USDA, according to Handel. Products like frozen dinners that contain meat or poultry would be subject to labeling if the other components contain GM ingredients. But meat and poultry fall under the purview of the USDA, which operates under the Federal Meat Inspection Act and the Poultry Products Inspection Act, both of which forbid states from imposing labeling requirements that conflict with federal requirements. A court could rule that Vermont’s law is preempted by USDA’s authority. Another potential argument against state laws, and even potentially federal legislation, is the fact that the US is a signatory to
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Figure 1 Genetically modified food labeling laws around the globe. Three countries (Zambia (blue), Benin and Serbia) have banned genetically modified (GM) food imports and cultivation. Countries with mandatory GM food labeling laws include 37 (dark green) that require labeling of nearly all GM foods and a labeling threshold of 0.9–1% GM content (threshold refers to content per ingredient in each food item); 10 (light green) with mandatory labeling of many GM foods and a labeling threshold higher than 1% or undefined (this includes laws with a threshold of 1% for the entire food item); 15 (pale green) with mandatory labeling of some GM foods, but with numerous exceptions and no labeling threshold defined, or a vague mandatory GM food labeling law that lacks implementation and enforcement provisions. Unshaded: No GM food labeling law. (Source: Center for Food Safety, Washington, DC.)
international trade treaties and has agreed not to discriminate against trade with other countries. Kershen believes that whereas a federal law could be largely immune from constitutional issues, international trade agreements could be a potent challenge to mandatory federal labeling. “The case will be very interesting to watch and very important in its outcome,” says Kershen, who predicts it will eventually make its way to the Supreme Court. Meanwhile, Kimbrell worked on the ballot measure in Oregon, as well as a state bill in California. Neither differed substantially from their failed predecessors, except to include some language designed to counter claims made in advertisements by opponents in the run-up to the earlier vote. For example, in Washington State, claims were made that farmers could be sued if labeling laws were put in place. “It’s always been the case that you can’t sue farmers, but we put it in the ballot initiative language that farmers were not to be held liable,” he says. Rather than saying that they oppose labeling outright, industry groups have resorted to saying that the law is poorly written, or it has too many holes or it will cause food prices to go up. “They know they can’t say they oppose labeling because that’s a no-win [position] for them,” says Kimbrell.
The federal response The various bills under consideration threaten to make a patchwork of state laws. If they survive legal challenge, they will inevitably prompt a federal solution to supersede them, says Bob Woods, CEO of Seattle-based Targeted Growth. “You [would have to have] a Washington-only label, a California-only label… that’s impossible. If [labeling] is going to happen, it has to be federal.” In fact, two federal bills are already in the works. One, introduced by Kansas Republican Congressman Mike Pompeo, would place labeling decisions in the hands of the FDA, which, as comments made by FDA Commissioner Margaret Hamburg last March suggest, is likely to keep labeling voluntary. It also would require FDA to be notified and to review new GM food ingredients, something that is currently done on a voluntary basis. Voluntary or not, “all companies [already] do that,” according to Karen Batra, communications director at Washington, DC’s Biotechnology Industry Organization. The bill would also require the FDA to make public the data associated with those reviews. The other bill, sponsored by Senator Barbara Boxer (CA-D), would mandate labeling of food with GM ingredients. It would direct FDA to go through a rule and comment process to determine a labeling standard,
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including threshold percentages above which a food would have to bear a GM label. That approach would encourage public discussion, according to Colin O’Neil, director of government affairs at the Washington, DC–based Center for Food Safety. “The Pompeo bill simply halts the conversation,” he says. Giddings thinks both federal bills are doomed to failure, in part because of congressional gridlock and in part because efforts to discourage labeling are redundant. They attempt to codify what is already current policy at FDA, which has not changed since 2001 (despite calls to do so from legislators as well as consumers), when a draft guidance was issued suggesting voluntary labeling measures. Mutual mistrust Arguments for and against labeling seem to be characterized by mistrust at their core (Box 1). Those who push for labels believe the food manufacturers and the biotech industry are seeking to profit at the expense of the health of consumers or the environment. Those who oppose such measures fear that labels will mislead consumers and lead to fear-driven abandonment of any food with a GM label. Though he opposes mandatory labeling, Giddings has some sympathy for the opposing argument. “People have a reflexive and I think 1181
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Box 1 Pros and cons of GMO labeling Voluntary labeling Pros Paid for only by consumers who want labels Relies on market forces to drive consumer choice Provides information for those who are interested Cons Has not been undertaken for any GM food in the 15 years since the FDA guidance Could be used as a marketing tool and lead to higher prices Mandatory labeling
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Pros A majority of Americans favor labeling when asked specifically if the government should require GM label Is in harmony with 64 nations requiring labeling (Fig. 1) Cons May be construed as a reason for caution. Paid for by everyone to satisfy those who want labels Has not increased consumer choice in other localities Requires changes to the system for food processing and distribution to segregate GM from non-GMO In unprompted polls on food labels, majority do not volunteer GM food label Requires regulatory intervention and system for monitoring and enforcement
a very healthy desire to have access to information, and a healthy, skeptical reluctance [towards] something that looks like someone is trying to withhold information,” he says. An oft-heard argument against labeling is that consumers already have plenty of choices. They can purchase foods that are labeled ‘certified organic’, which don’t contain GM ingredients, or they can shop at grocery chains like Trader Joe’s, whose products are all GM-free. “I think it’s pretty easy for the consumer who doesn’t want to eat [GM] ingredients to do that,” says Gregory Jaffe, director of the biotech project at the Center for Science in the Public Interest in Washington, DC. But labeling advocates argue that non-GM products are more expensive, so that low income people can’t easily avoid GM ingredients. “It is often more expensive, and there are consumers that can’t afford that. They should have a choice,” says Doug Gurian-Sherman, director of sustainable agriculture and senior scientist at the Center for Food Safety. At least one labeling opponent sees the effort as victimizing the poor. “All this labeling is a means to frighten people [away from GM foods],” says David Zilberman, professor of agricultural and resource economics at the University of California, Berkeley. Abandonment of GM technology is likely to raise food costs. “A lot of people who are against [GM food] live in their own elitist world. They don’t really care [about the cost of food]—they can waste money on expensive stuff,” Zilberman adds. 1182
Fallout Fallout from GM labeling laws in the US is difficult to predict. A law in a state like Vermont can be accommodated because there are enough organic or non-GM products to satisfy demand. “But once you get into a big market like California, then you start to nudge up against the capacity of the system to meet that supply. There’s a really big difference if you go national,” says Julian M. Alston, professor of economics at the University of California, Davis, who coauthored a report commissioned by ‘No on 37’, a coalition against proposition 37, which fought California’s labeling initiative. A key issue in labeling is the threshold. The Vermont law dictates that any foods containing more than 0.9% by weight must be labeled. The EU’s labeling requirement has the same threshold. Japan has a threshold of 5%. California’s proposition 37 would have had zero tolerance for GM ingredients. According to Nicholas Kalaitzandonakes, director of the Economics and Management of Agrobiotechnology Center at the University of Missouri in Columbia, declining thresholds rapidly escalate costs. For seed or grain corn, a threshold of 0.9% increases segregation costs by 20%. A 0.1% threshold ups it by as much as 70%. Costs for soybeans would likely be somewhat less. Segregation poses challenges at every level of the supply chain. At lower thresholds, farmers must maintain greater isolation distances and buffer zones between GM and non-GM crops, and equipment must be cleaned more carefully when switching between GM and non-GM
crops. Intermixing can occur at each level of the supply chain, so each step must aim for levels well below the final threshold to account for later additions. Mistakes force manufacturers to discard some lots. “As you get lower and lower in those thresholds… you have larger volumes of rejected product,” says Kalaitzandonakes. Some foods, such as oils and sugars, can be GM but contain no transgene or exogenous proteins. Such food stuffs are chemically identical to conventional ingredients and therefore impossible to detect. GM labeling laws in Australia and New Zealand, for example, exempt such foods, but the Vermont law does not. “Most [US] bills say they need to be labeled as [containing GM], not just derived from them. There is no biological or chemical difference to labeling in the case of oil and sugar. Then the question becomes, is that misleading in some way to a consumer? We think it is,” says Center for Science in the Public Interest’s Jaffe. Enforcement is another concern. There is no way to test a product for GM-derived sugar or oils, and Vermont’s law has no requirement for testing. Instead it relies on manufacturers maintaining paper trails all along the supply chain. Some maintain that the system is ripe for fraud, says Jaffe. If a federal law mandates labeling, or enough states pass laws, food manufacturers will have to decide if they are willing to face the risks of using labeled GM ingredients, or to source entirely from conventional crops. “If they decide to say, ‘we don’t mind putting that label on everything,’ then the consequences will be negligible. Our best guess from talking to people in the food industry was that they’re very reluctant to put a label like that on [their products] because their reading is that it signals to consumers that there’s something wrong with that food. Their morelikely response would be to do everything they could to avoid putting such labels on things, and that leads to a high-cost outcome for the industry and then ultimately for consumers,” says Alston. Food manufacturers contacted by Nature Biotechnology refused to comment. “My guess is if you asked any manufacturer today, I don’t believe most would have an answer today,” says Kalaitzandonakes. Labeling requirements represent a dilemma for food companies, says Nicholas Fereday, executive director and senior analyst of food and consumer trends for Utrecht, Netherlands– based Rabobank, which specializes in financing food and agriculture ventures. But they are somewhat insulated by the fact that most of them have broad portfolios, with both conventional and organic lines of products. “They play both sides, and they have some brands that are (already) GMO-free. By differentiating your
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N E W S F E AT U R E market, you can probably make more money,” says Fereday. The nature of the products themselves will likely influence labeling decisions. “There are products [like some organic breakfast cereals] where the consumer is really looking for [GM content]. But for a Twinkie bar, one has to believe that not everyone is reading the label,” says Fereday. The biggest obstacle could be sourcing nonGM ingredients. It won’t be easy for companies to ramp up production quickly. “Farmers [have to be] persuaded to plant the stuff and that there’ll be a market [for non-GM varieties], and at what price. It would make procurement a lot harder if everyone switched [to non-GM ingredients] overnight. There would be a bit of a scramble for source material,” says Fereday. To meet demand, manufacturers will have to pay higher prices to compensate farmers for the higher costs and lower yields associated with non-GM varieties, or farmers will have to bring acreage into production that isn’t as well suited for non-GM products. Today in the US, non-GM food product is a niche market. “[They] self-select for such production systems and they do so because their farms are wellsuited for such production (e.g., by employing isolated fields to minimize pollen flow). In the face of increasing demand for non-GM crops, additional (less well-suited land) would have to come into non-GM production, which would tend to increase the average cost of non-GM production,” says Kalaitzandonakes. Gurian-Sherman disagrees. He cites a study showing that if the cost of corn were to go up by 50%, it would add 1.6 cents to the cost of a box of corn flakes4. “The point is that even with a very dramatic increase in the cost of the main ingredient, it would be a tiny increase because the overwhelming cost of processed foods is processing, advertising, distribution and those kinds of things. The actual cost of the food inputs is tiny,” he says. Aside from costs, some worry that labeling could vilify GM ingredients and lead to a disinvestment in agbiotech. “That has longterm competitive implications for agriculture in the US. Will we be in a situation like Europe where we can’t adopt these technologies, and we’ll have a less competitive agricultural sector?” says Alison Van Eenennaam, cooperative extension specialist in animal genomics and biotech at the University of California, Davis. Public perceptions have a big effect on the research programs of small companies like Targeted Growth, which is engineering crops with improved yields and quality by enhancing growth and manipulation of cell cycle regulation. The company is developing corn, canola,
soybean and wheat, and it is striking that the only product that would be primarily consumed by humans—wheat—is explicitly described on the company’s website as non-GMO. They considered GM techniques in its wheat program but opted against them. “It was [due to] public acceptance. Farmers just aren’t ready to fight that battle,” says Woods. Alston agrees. “The thing that bothers me is that you eliminate any incentive to continue to [develop] any technology of that sort,” he says. All or nothing Even some who support GM crops are beginning to embrace labeling, if only because continued opposition may be a losing battle. To date, GM companies have argued that labeling is unnecessary because the products are proven safe, and labels would potentially confuse consumers. But that’s a losing argument, according to Mark Lynas, a visiting fellow at Cornell University and author of The God Species, in which he argues that humanity must embrace genetic engineering, nuclear power and other technologies to save the planet. “This is a political issue, not a scientific one. We have, I think, a big majority of the population that is sufficiently concerned about the GM issue, that they have control over whether these new products are in their food supply or not, and that means they have to have the information to make an informed choice.” Embracing labeling carries a considerable risk that consumers will be turned off from those products, which is why many still oppose labels. “I think that’s a risk we have to take because the framing of the issue otherwise, of industry versus the consumer’s right to know, is not a winnable proposition, and I think it does a lot of damage to biotech in general,” says Lynas. The logical arguments may eventually fade in the face of a strong consumer push, and some on both sides of the issue are conceding the point. “The bottom line is that in a democracy, when people repeatedly say [they want GM labeling], we don’t second guess them and say, maybe they don’t really mean it,” says Gurian-Sherman. Such labels, if widespread, could make consumers more comfortable with GM foods and undercut opposition to the foods because no one could reasonably argue that GM is being hidden from consumers. Lynas believes that biotech companies would be willing to accept ubiquitous labeling of GM products, but it is unclear how that could be achieved. No one wants to be the first with a labeled product. “The danger is that if there are just one or two products that are labeled, those are demonized and campaigned against and they come off the shelves,” says Lynas.
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As currently enacted, Vermont’s label— which gives companies several variations, “produced with genetic engineering,” or “partially produced with genetic engineering”, depending on whether the food is raw or processed— doesn’t say much, but labels don’t have to be limited to printing on a package. A scannable bar code could pull up information about a food, what ingredients are GM, and even what genes have been inserted. Such an approach could even allow companies to trumpet the benefits of a genetic modification. Current US Secretary of Agriculture Tom Vilsack endorsed the idea, suggesting that FDA and USDA could help coordinate such a system5. A bar code with an associated website could inform shoppers with environmental concerns. The same consumers might be accepting of Golden Rice, which is modified to contain high levels of the vitamin A precursor beta-carotene, though it is not currently sold anywhere. Or they might be willing to support a product that rescued an industry. The Hawaiian papaya industry was hit hard by the ringspot virus in the 1990s, so researchers developed the Rainbow Papaya. It contains a bit of an envelope protein of the virus, which prompts the plant to produce an RNA silencing defense6. The papaya is distributed by Calavo Grower, which took out an ad that loudly proclaimed the rainbow papaya’s story in Hana Hou, the in-flight magazine of Hawaiian Airlines. “We’ve made it very public that we’re GMO and we’re proud of it, and we did for the right reasons,” says Eric Weinert, general manager for Calavo Grower’s Hawaii operation. Such approaches might soften public attitude toward GM crops. “It could be a matter of losing the industry or convincing the public that [GM technology] is okay. When people know why we [engineered papayas], I think they are definitely more open to it,” says Weinert. Jim Kling, Bellingham, Washington
1. Handel, L. Will Vermont’s GMO labeling law survive legal challenge? http://www.foodlawfirm.com/2014/05/ will-vermonts-gmo-labeling-law-survive-legal-challenge/ (May 5, 2014). 2. European Commission Directorate General Health and Consumers, “Evaluation of the EU Legislation framework in the field of GM Food and Feed, 12 July, 2010. 3. Speath, B. GM crops: reaping the benefits but not in Europe. Socio-economic impacts of agricultural biotechnology. 2nd Edn. (EuropaBio, August 2011). 4. Leibtag, E. Corn prices near record highs, but what about food costs? http://www.ers.usda.gov/amberwaves/2008-february/corn-prices-near-record-high,but-what-about-food-costs.aspx#.U6HVN_ldXwo (USDA Economic Research Service, Feb. 1, 2008). 5. Revkin, A.C. The Agriculture Secretary sees a smart (phone) solution to GMO labeling. http://dotearth. blogs.nytimes.com/2014/06/27/the-agriculture-secretary-sees-a-smart-phone-solution-to-the-gmo-labelingfight/?_php=true&_type=blogs&_r=0 The New York Times (June 27,2014) 6. Ruanjan, P., Kertbundit, S. & Juncek, M. Biol. Plant. 51, 517–520 (2007).
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