Mandatory Labeling of Genetically Enhanced Foods: Why It's Not On the Policy Menu

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New York Times Magazine columnist and best-selling author Mark Bittman has  a powerful microphone in the government food policy world.  His books, online Times Opinionator column, and his modestly named iPhone/iPad application, How to Cook Everything, can turn that microphone into a megaphone, through which he has broadcast his deeply skeptical views on the genetic enhancement of food products (“GE” foods).  A recent Opinionator column urges federal regulators to follow through on a part of candidate Barack Obama’s policy platform which so far hasn’t been pursued: mandatory labeling of any food product containing a GE ingredient.

Is there a chance that federal policy on GE labeling will shift, perhaps as part of the Administration’s wide-ranging efforts to encourage “healthier” eating? To this point, the Administration has not budged, opposing mandatory labeling guidance language in the World Health Organization’s Codex Alimentarius food labeling standards just last year. The foodie elites and Luddite activists are persistent, however, and food regulators will have to consistently and effectively defend their position against prominent critics like Mr. Bittman.  Regulators have strong arguments supporting their position on both broader policy and narrower constitutional grounds.

Mandatory GE labeling advocates openly march under the banner of public health, but if that is in fact their motivation, they are on the wrong side of the debate.  While mentioning new enhanced food products, Mr. Bittman proclaims, “It’s unlikely that these products’ potential benefits could possibly outweigh their potential for harm.”  He doesn’t bother to explain this conclusion, and in fact goes on later in the op-ed to admit, “two of the biggest fears about G.E. crops and animals [allergic reactions and transfer of antibiotic-resistance] . . . have not come to pass.”  Biotechnology allows crops to grow larger, faster, with fewer or no pesticides, and in otherwise intolerable climates.  More efficient production means lower costs, and thus lower prices, a public health benefit that is more important than ever in this era of rising food prices.  No less an authority on food production and the needs of malnutritioned populations around the world than the late Norman Borlaug – the Nobel Prize winning father of the “Green Revolution” – has extolled the benefits of genetic enhancement: “The new biotechnology can help us to do things that we could not do before, and to do it in a more precise, predictable, and efficient way.”

Federal regulators have thankfully not adopted the ideological aversion to technology which lurks behind the demands for mandatory GE labeling.  Instead regulators have stuck to protecting the public health.  They have determined the science reflects that enhanced crops are substantially equivalent to their non-biotech counterparts, and thus labeling is not needed for health and safety protection.  In fact, as indicated by the U.S. government’s correspondence in the WHO’s Codex process, federal officials are concerned that GE warning labels will deeply stigmatize many food products, needlessly deter consumption, and chill future biotech-driven innovations in food production.

On the constitutional side, mandatory labeling arguably treads on food processors’ First Amendment right to not speak.  Mr. Bittman’s Opinionator column makes the ironic point, “They [GE foods] are arguably different, but more importantly, people are leery of them.”  This is ironic because in the constitutional context, it is more important that the enhanced product is different.

Courts have evaluated government’s authority to impose labeling on products under the jurisprudence of commercial speech.  A key part of this jurisprudence is to determine what is the state’s interest in restricting or requiring certain speech.  In the 1996 U.S. Court of Appeals for the Second Circuit ruling IDFA v. Amestoy, the court held that a Vermont law requiring milk producers to affix a label if the milk came from herds given bovine growth hormone (rBST) violated the First Amendment.  The court explained that Vermont’s stated interests in adopting the law – strong consumer interest and the public’s right to know – were not substantial enough to justify “the functional equivalent of a warning about a production method that has no discernible impact on a final product.”  Had Vermont advanced a public health or safety purpose for the labeling law, the court would likely have held it to be substantial.  But the state could make no such case, as FDA had definitively concluded that rBST “has no appreciable effect on the consumption of milk.”

The situation in Amestoy parallels the GE food labeling matter.  If FDA or the Agriculture Department had determined that genetically enhanced foods were different, then such a finding would provide the substantial interest government needs to compel a “warning.”  But that is not the case, and the fact that people may be “leery” of GE foods would be, under the reasoning of Amestoy, an insufficient justification for mandatory GE labels.  If the government imposed a label to support some inchoate “consumer interest,”  there would, as the Amestoy court put it, be “no end to the information that states could require manufacturers to disclose about their product methods.”

Food labels carry a great deal of weight with consumers.  What must be included on the ever-shrinking real estate of those labels must be based on sound science and the need to protect public health, not on the ideologically stoked fears of activists, no matter how well respected they may be or where their views are published.

Cross-posted at Washington Legal Foundation's The Legal Pulse.

