Last week, in a victory for California’s radical anti-technology minority, S.B. 131 passed the state’s senate Health Committee by a vote of five to two. This misguided piece of legislation, introduced by state senator Noreen Evans, would require that “any food, except as provided, offered for retail sale in the state be considered misbranded if it is entirely or partially genetically engineered, as defined, and that fact is not disclosed in a specified manner.” In other words, it would require a label to inform consumers that the newest, most precise and predictable techniques of genetic modification had been employed in the food’s production.
The bill rests on the same mistaken assumptions that Senator Dianne Feinstein, the senior U.S. senator from California, expressed in a letter she wrote to President Obama in December, which read in part:
It is my strong opinion that consumers have the right to know whether their food originates from genetically modified organisms. Your administration should reevaluate the Food & Drug Administration’s outdated policy that genetically engineered food does not need to disclose this fact on required labels.
The push to require labeling of genetically modified (GM) or genetically engineered (GE) food is one of those causes that sounds worthy — like “protect the Delta smelt” or “save the snail darter” — until you actually learn a little about them.
What, one might ask, could be wrong with letting consumers know what’s in their food and allowing them to decide what to buy? Actually, plenty.
The terms “genetically modified” and “genetically engineered” are themselves misleading; the choice of what to include in these pseudo-categories is wholly arbitrary. Foods made with the precise techniques of genetic engineering are every bit as safe and “natural” as thousands of other common foods. In fact, as federal regulators have said repeatedly, a mandatory label would erroneously imply a meaningful difference where none exists.
Contrary to what activists would have you believe, genetic modification of one sort or another has been with us for millennia and there is a seamless continuum from crude, older techniques to newer, more precise and predictable ones. One genetic-modification technique, “wide cross” hybridization, has been performed by plant breeders since the 1930s. With this method, breeders move large numbers of “alien” genes from one species or one genus to another in order to create plant varieties that cannot and do not exist in nature. Common commercial crops derived from wide crosses include tomato, potato, sweet potato, oat, rice, wheat, corn, and pumpkin. Another technique, in use since the 1950s, is induced-mutation breeding, which involves exposing seeds or cells to ionizing radiation or toxic chemicals to induce high numbers of random genetic mutations, and then entering the plants that mutate in desirable ways into conventional breeding and testing programs. Thousands of such mutation-bred crop varieties have been commercialized in North America and Europe and are part of our diet.
When plant breeders use these “conventional” technologies, they do not know the exact genetic changes that produced the desirable traits; and more important, they have no idea what other changes their genetic modifications have caused in the plant, including those that could raise toxin levels or alter the plant’s ability to cause allergic reactions. These older techniques, unlike genetic engineering, are subject to no government regulation at all. The greater precision and predictability of modern genetic engineering make it more versatile and safer than older techniques.
On a daily basis, Americans consume dozens of varieties of fruits, vegetables, and grains derived from wide crosses. (They include, by the way, even the “heirloom” varieties sold at farmers’ markets and “health food” stores.) As for foods made from plants derived from the modern molecular techniques of genetic engineering — the only kind that Evans and Feinstein want labeled — Americans have already consumed more than 3 trillion servings of them. The record shows no ill effects from this, not a single tummy ache.
The reason the FDA does not require labeling of foods with genetically engineered ingredients is that such information is not “material” — a legal term of art that means related to safety or appropriate usage — and would be misleading. Such a label, if mandatory, and not the lack of one, would arguably make the product “misbranded” and would violate federal law, which requires that labels be truthful and not misleading.
Federal courts have consistently struck down mandatory-labeling policies not supported by data. In the 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 bioengineered protein called bovine somatotropin (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 that Feinstein and Evans are seeking.) 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, in 1994, several food associations and companies challenged a Vermont statute that required labeling to identify milk from cows treated with bST. Because the state could not demonstrate that its labeling requirement was motivated by anything more than satisfying consumer curiosity, the court said it could not compel milk producers to include that information on product labels: “We are aware of no case in which consumer interest alone was sufficient to justify requiring a product’s manufacturers to publish the functional equivalent of a warning about a production method that has no discernible impact on a final product. . . . Absent some indication that this information bears on a reasonable concern for human health or safety or some other sufficiently substantial governmental concern, the manufacturers cannot be compelled to disclose it,” because it would violate constitutional guarantees of commercial free speech. “Were consumer interest alone sufficient,” said the court, “there is no end to the information that states could require manufacturers to disclose about their production methods.”
The bill that California’s Senate Health Committee just passed, SB 1831, follows the same line of argument that these earlier cases have already invalidated: “California consumers have the right to know, through labeling, whether the foods they purchase were produced with genetic engineering.” But the FDA, federal courts, and the U.S. Constitution say otherwise. Federal appeals courts’ citing of constitutional concerns is significant because the U.S. Constitution takes precedence over state and federal laws. Thus, if SB 1831 were passed and signed by the governor, the federal courts would probably void it on grounds of the constitutional right to free speech. To get us to that point, however, the state would have to spend years and millions of dollars defending the indefensible.
It is worth considering two other misconceptions in the text of SB 1381, which reads like a “how not to” example in a civics lesson.
“Genetic engineering of plants and animals can cause unintended consequences. It has been demonstrated that manipulating genes through genetic engineering and inserting them into organisms is an imprecise process.” This shows that Noreen Evans and her staffers know little about plant breeding. Her bill would require labeling only for food made with modern molecular techniques of genetic engineering; but, as I noted above, the modern techniques are in fact the most precise ones for improving seeds and plants. The older methods “tinker with Nature” — as activists put it — in far more drastic ways, and scientists have much greater uncertainty about the results from these methods, but they are essentially unregulated by the government, and no labeling of them is required. This is the fundamental inconsistency in Evans’s bill.
“Polls consistently show that the vast majority of the members of the public, more than 90 percent, want to know, for health, economic, environmental, religious, and ethical reasons, if the food they purchase was produced with genetic engineering.”
Such surveys are notoriously dependent on how the questions are worded and in what order they are asked, and the questions are often deliberately crafted to yield a specific result. In a series of more reliable surveys commissioned by the non-profit International Food Information Council, respondents were first read a summary of the FDA rule on labeling and then asked their opinion. In every one of the 15 surveys, conducted between 1997 and 2012, a majority agreed with the FDA’s risk-based approach, which does not mandate labeling according to the techniques employed in producing the food.
Moreover, Evans should know that when voters had the chance, via referenda in California in 2012 and in Washington in 2013, to weigh in on the issue of labeling for GE food, they rejected the mandates. Actual votes cast by millions of voters certainly trump trumped-up polls.
A little passing knowledge of the state’s history might further chasten California’s pro-labeling activists. One of California’s most important genetic engineers, Luther Burbank (1849–1926), made it his life’s work to increase the world’s food supply by manipulating the characteristics of plants. During his illustrious career, Burbank developed and introduced “more than 800 new varieties of plants — including over 200 varieties of fruits, many vegetables, nuts and grains, and hundreds of ornamental flowers,” notes the Burbank Home and Gardens website. It just so happens that the gardens that showcase Burbank’s work are one of the most popular tourist attractions in Evans’s own senatorial district. A good many visitors clearly appreciate the geneticist’s work rather than decry it.
Adding to the absurdity of all this is my 2012 e-mail exchange with Senator Feinstein’s office. As a constituent, I wrote to express my opposition to labeling. Her response read, in part: “I recognize you have serious concerns about the health effects and environmental implications of genetically altered foods. I too believe that consumers have the right to know when the food that they eat contains these genetically-altered ingredients. . . . Please know that I appreciate learning of your support for labeling genetically engineered products and ingredients, and I will certainly keep the issues you have raised in mind.” I’ve heard of a pro forma response, but Feinstein and her staff interpreted my opinion as being exactly the opposite of what I had communicated to her.
Finally, there is plenty of information freely available that enables consumers to choose “non–genetically engineered” foods — as meaningless as that term is scientifically — if they prefer them.
Those who are opposed to modern techniques of genetic engineering have made it clear that they regard labeling as a first step toward eliminating the technology entirely. “We are going to force them to label this food,” said one anti-biotechnology activist. “If we have it labeled, then we can organize people not to buy it.” Another activist recently stated the goal forthrightly: “Personally, I believe GM foods must be banned entirely, but labeling is the most effective way to achieve this.”
Evans’s and Feinstein’s efforts, if successful, would move us toward just such a ban on genetically engineered foods. The irony is that legislation intended to help consumers would have exactly the opposite effect, killing much-needed innovation. Drought-resistant genetically engineered plants now in testing will be invaluable to California’s drought-plagued farmers, and modified orange trees will be needed to save the state’s citrus industry from an insect-spread bacterial disease called citrus greening.
How, then, can we explain the lawmakers’ missteps? Poor due diligence by staffers? Big campaign contributions from the organic-food lobby? Whatever the reason, Noreen Evans owes her constituents an apology and the withdrawal of S.B. 1381, and Feinstein should retract her letter to President Obama.
— Henry I. Miller, a physician and molecular biologist, is the Robert Wesson Fellow in Scientific Philosophy and Public Policy at Stanford University’s Hoover Institution. He was the founding director of the FDA’s Office of Biotechnology.