A Principled Case Against Mandatory GMO Labels

August 16, 2014 Marc Brazeau Policy 85

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photo: Tasso Art | flickr | cc

I am opposed to government mandated GMO labels, though I started of in favor of them. In fact I helped a little on the campaign for labeling when I was working for Hartford Food System in Connecticut. Once I developed a stronger understanding of the issues surrounding genetically engineered crops, I realized that, not only do mandatory GMO labels make no sense, but they go against my principles.

Many people have a hard time wrapping their heads around how anyone could be opposed to a government mandated label for foods with ingredients derived from crops bred using the techniques of genetic engineering. They tend to assume that there is no principled case to be made and that all the opponents of mandatory GMO labels must have some financial stake in the issue. (I do not. In fact, not being opposed to genetically engineered crops narrows my horizons as a progressive writing about the food system.)

Critics of GE crops will ask, “Well then, what is wrong with asking for a simple label. How is that too much to ask? After all, don’t we have a right to know what’s in our food? How can you possibly be against labeling GMOs?”

There actually is a principled, common sense case to be made against mandatory GMO labels, but there are a few things we need to get out of the way before getting to that.

First of all, about that ‘right’:

“People are usually surprised to learn that there is no legal right to know,” said Michael Rodemeyer, an expert on biotechnology policy at the University of Virginia in Charlottesville.

A variety of rules and regulations control the words that appear on food packages. Such rules must be balanced against companies’ constitutionally protected right of commercial speech, experts said.

“It’s an unsettled area in the law,” said Hank Greely, director of the Stanford Center for Law and the Biosciences in Palo Alto. “If I were a betting man, I think the odds are good that the Supreme Court would … strike down a GMO labeling requirement.”

I would argue that people do have a “right to know” what is in their food, but that government isn’t always the proper vehicle for mediating that right.

To understand why someone would oppose a mandatory label identifying GE ingredients, you first have to understand the philosophical case against government overreach when it comes to commercial speech. This is laid out quite clearly in the four part test established by the Supreme Court in Central Hudson Gas & Electric Corp. v. Public Service Commission of New York.

Since 1980, the courts have analyzed regulations affecting advertising for commercial products or professional services (i.e., commercial speech) under the four-part test set forth by the U.S. Supreme Court in Central Hudson Gas & Electric Corp. v. Public Service Commission of New York. The “Central Hudson” test asks:

1. whether the speech at issue concerns lawful activity and is not misleading;
2. whether the asserted government interest is substantial; and, if so,
3. whether the regulation directly advances the governmental interest asserted; and
4. whether it is not more extensive than is necessary to serve that interest.

In this analysis, the government bears the burden of identifying a substantial interest and justifying the challenged restriction: “The government is not required to employ the least restrictive means conceivable, but it must demonstrate narrow tailoring of the challenged regulation to the asserted interest — a fit that is not necessarily perfect but reasonable; that represents not necessarily the single best disposition but one whose scope is in proportion to the interest served.”

Or as the court found in International Dairy Foods vs. Amestoy:

Accordingly, we hold that consumer curiosity alone is not a strong enough state interest to sustain the compulsion of even an accurate, factual statement, … (compelled disclosure of “fact” is no more acceptable than compelled disclosure of opinion), in a commercial context.

A mandatory GMO label is likely to fail the test of Central Hudson because it does not address anything misleading nor does it address the state’s interest in communicating relevant health, safety or nutrition information. GE crops have been shown to be substantially and compositionally equivalent [pdf] to their conventional counterparts. There is no credible* evidence that GE crops aren’t nutritionally equivalent to their conventional counterparts and pose no greater risks. Because the certified organic and non-GMO labels already exist, it would be difficult to show that a mandatory label is not more extensive than what is necessary to serve any substantial interest, if one was shown. Without any credible scientific evidence for a substantial government interest, we are left with mere ‘consumer curiosity’ and the courts have told us that isn’t enough.

All of that tells why a mandatory label is likely to be found unconstitutional by a court (especially the Roberts court). It doesn’t tell us why we might oppose such a law. It does, however, raise the question as to why people in other states, like my state of Oregon are pushing for these laws now, instead of waiting to see what happens in Vermont. (I’ve got some theories.)

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Here are five reasons why I oppose mandatory GMO labels.

1.This is not the proper role of government
I personally think that Central Hudson provides a common sense framework not just for judging whether the state HAS the right to compel speech, but whether it SHOULD. Because there are an infinite number of things that consumers COULD be curious about, we need some criteria for judging when the government SHOULD step in to address that curiosity.

A mandatory label simply is not a common sense or principled use of state authority. For someone who cares about seeing policy that is grounded in principle and effective in accomplishing its goals, a mandatory GMO label is a disaster. A government-mandated food label should provide the consumer with relevant, actionable health, safety, and nutritional information and/or it should help the consumer from being misled. I have to agree with the courts that mere consumer curiosity is not sufficient to justify government involvement in product labeling. The burden is on advocates to explain why mere “consumer curiosity” should provide the basis for government mandated labeling. I haven’t heard that issue being addressed yet.

As I said, the things that a vocal majority of citizens might be curious about are endless and we need firmer principles as to when to invoke the power of the state.

The only two rationales that I’ve seen put forward by proponents are “It’s popular” and “Transparency”. Using the popularity of something to justify public policy is hardly worth addressing. It should be self evident that the fact that something is popular is not a firm foundation for establishing public policy. (Don’t make me give you examples). A variation  on this theme is that “64 other countries have labeling, why can’t we?”.  Plenty of bad policies can be found in a collection of 64 or more countries. Again, popularity is not a justification for public policy. (Don’t make me give you examples.)  If 64 other countries jumped off a bridge …

As to “Transparency”, a mandatory GMO label does nothing to create transparency. Being transparent with information requires that the information is relevant and substantial. A mandatory GMO label tells us nothing about which ingredient(s), which trait(s), it tells us nothing about the properties of the ingredients and how they differ from non-GE ingredients. It tells us nothing about other breeding techniques that someone may be curious about. People say they are concerned about pesticides, and yet non-GE crops often require more pesticides and the label would tell us nothing about pesticide use either. It certainly doesn’t tell us if any of the ingredients are necessarily from herbicide-resistant crops, since there are also non-GE herbicide resistant crops.

What’s more, these laws have huge carve-outs that render the transparency argument laughable. Most GE crops produced for food are fed to livestock, and yet meat is exempt. Most Americans consume a huge proportion of their meals in restaurants and yet restaurants are exempt. There are other nonsensical exemptions, but those are the big ones.

Nor does a mandatory GMO label provide information that consumers my have about other breeding techniques. Mutagenic breeding, where plant tissue cultures are exposed to radiation or harsh chemicals to induce (hopefully) useful. Mutagenic breeding is far more prone to unintended consequences than the precise methods of genetic engineering. Yet, mutagenic breeding is exempt from labeling. Clone grafting in fruits leads to monocultures in orchard fruits, bananas and grapes. Because these crops are genetically identical (far less genetic diversity than we see in corn and soy) more pesticides are needed in their cultivation than say, corn and soy. Yet, clone graft breeding is exempt from labeling. Run of the mill selective breeding has been responsible for taking common food crops and making them dangerous for humans. There have been a number of mishaps, but the most notorious was the Lenape Potato in the 1960s which ended up toxic as the alkaloid solanine was dialed up beyond tolerable levels in the quest for a better potato chip. Someone with concerns about mutagenic, clone graft breeding, or even selective breeding gone awry is not served by a mandatory GMO label. Singling out one breeding technique from the others doesn’t provide transparency, it obscures other potential risks. This is not to say that any of these techniques are particularly risky, just to say that they all carry similar, very small risks. There are risks associated with all plant breeding. The risks associated with breeding using the techniques of genetic engineering are as small as those of other techniques.

Furthermore, ingredients like oils and sugars have no proteins and no genetic material. Versions of these products are chemically identical to those derived from crops bred by other methods. What does a label tell you in this case? Nothing about the ingredients or properties of the product. “But,” you may protest, “it’s not the DNA I want to avoid, but being implicated in the use of excessive herbicides.” I hate to break it to you, when a conventional farmer moves from RoundUp Ready canola to a non-GE alternative, it’s likely to be Clearfield sunflowers or canola which are bred to withstand applications of imazethapyr. Are you sure you prefer imazethapyr to glyphosate? Don’t worry, you can sleep on that one. In fact, we did a discussion in Food and Farm Discussion Lab on the question, “What Are the Weed Control Strategies for Non-GMO Conventional Soy Farmers?” Hint: It wasn’t unicorn farts.

The bottom line is that if people have a right to know things about their food that don’t relate to health, safety, nutrition, or the prevention of fraud, then a voluntary label is the correct vehicle to mediate that right. People have a right to know if their food is kosher or halal, but in those cases, government is not the correct vehicle to mediate that right. Instead, that right is mediated for the consumer by private third-party certification in a voluntary system. The same principles apply for addressing consumer curiosity about genetically engineered ingredients.

2. Government has enough on its plate
As a progressive, I want government to do a number of things really well. What I don’t want is for government to try to do every single thing that the citizenry can dream up and then do it poorly. In Oregon, the state struggled to make the website for the Oregon Health Plan work. I really want my governor and his administration focused on doing what they have already been tasked with well. Not seeing how many plates they can get spinning at once. The certified organic label and the Non-GMO label are already providing the relevant information for those wishing to avoid GMOs and they already have the necessary infrastructure to carry out their mission. The state of Oregon does not currently have that infrastructure. I don’t see any reason to further stretch an already overextended government. I don’t imagine I need to provide a much different explanation for conservatives.

3. A mandatory GMO label is potentially misleading
Since government has traditionally mandated only useful and important information, a mandatory GMO label could potentially mislead some (not all) consumers into thinking that a GMO label contains useful and important information. Government usually doesn’t single out ingredients unless there is a health or safety concern, like trans fats (before they were removed) or wheat and peanuts for those with allergies. Many may construe a front of the package label as a warning label. And in fact, the other countries, the ones label proponents are so fond of touting, don’t have front of the package labels. The labeling is integrated into the ingredient label. Telling that this isn’t the model being proposed, no? Since “64 other countries” already do it that way. As was pointed out above, singling out a single set of breeding techniques implies that other breeding techniques carry no risks. That is dishonest.

Simply, I don’t believe the government should mandate misleading labels.

4. A patchwork of state legislation will be a nightmare
Has everyone forgotten the Articles of Confederation? A patchwork system of state laws governing commerce didn’t turn out very well the first time we tried it. Is there any reason to believe that approach is going to work any better today?

How is a single state supposed to inspect and certify product with complex supply chains entering not only from other states, but all over the world? Where does the money for enforcement come from? How are companies supposed to try to comply with inconsistent and contradictory labeling regimes in different states? This seems like a completely unworkable, poorly thought out Rube Goldberg approach to a (non) issue. It’s hard enough to make well-conceived public policy work. Starting from this basket case is a recipe for failure.

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5. The environment
Finally, the reason most animating to me, personally, is that a mandatory GMO label would likely lead to an increase in the use of non-GE crops in conventional agriculture. This would lead to a large increase in the use of soil-applied insecticides and an increase in the environmental impact of herbicides used [more here – pdf].** It would also lead to a decrease in no-till cultivation. That would result in a loss of carbon sequestration, increased erosion, and decreased soil fertility. That would be a very bad thing for the environment.

I just want food labels based on science and a firm understanding of the proper role of government. Is that too much to ask?

* Note the use of the word ‘credible’. “Studies” by Seralini and Seneff don’t count. Nor do poorly designed in vitro studies. Nor does the Carman pig “study”. Nor does a group of mothers mailing in urine samples without any controls or verification.

** Please read the links before you try to disagree in the comment section.

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78 Comments

  5. I’m also an Oregonian, and I’ve recently registered to vote specifically to vote against Measure 92, mandatory GM labeling. Food labeling by manufacturers is a misleading practice in the first place. There are 2 useful labels on food: 1) Nutritional Facts 2) Ingredients. Just about every other label like “multigrain”, or “all natural”, or “made with real fruit”, or claims of health benefits are irrelevant and generally untrue BS used to entice naive consumers into buying their product at a premium.

    An example of useless labeling that has nothing to do with the nutrition of food is the “Dolphin Safe” label seen on packed and canned tuna packages. First, what tuna manufacturer doesn’t use the label? Second, there’s no standard for labeling such that there’s a “non-Dolphin Safe” equivalent. Even if there was, who would use it? Meanwhile, there are only a few people who even know what it means. It doesn’t even indicate that dolphins aren’t killed in the process of capturing the tuna. It only refers to a method of fishing. Not much different from the “organic” label, where people have given themselves the impression that no pesticides are used on them. Again, it’s just a reference to a method. It tells you nothing about the nutrition or safety of the food.

    Food labeling needs to be reformed, period. Either there needs to be greater awareness and universal standards of what labels even mean in the first place, or even better, scrap unnecessary labeling altogether. If the consumer doesn’t understand what a label even means, they shouldn’t feel obligated to pay more for a product that has no real benefit to them. At best, the GM-labeling movement is snake oil salesmen doing what they can to increase public fear so that people are more inclined to by their product instead of someone else’s. That’s all, and it has no place in government.

    • I can see why an non-GMO label on a food with no GE crop counterpart could get under your skin. It’s annoying to me as well, but ultimately, given how widespread the knowledge is that a ton of corn and canola are bred with GE techniques, I think it is something that I have to shrug and file under “Fair enough.”

      I don’t think it is fair to make the case the voluntary labels are the proper vehicle for companies to communicate this information and then want to micro-manage how voluntary labeling works as well.

    • Here’s a thought on that. Many people have no clue about which vegetables or fruits may be genetically modified, so telling them a particular kind of produce isn’t modified is providing information they want, and didn’t know until reading the label. I hear people complaining about GMO tomatoes and wheat all the time, though there are none on the market. Of course, doing a bit of homework would provide the same info, but as a former teacher I can tell you people do not tend to want to do homework:-)

      • With wheat, it is my understanding that an herbicide is applied near harvest because it ‘speeds ripening’ &/or causes the grain to swell. What is the information about that?

        • I’m only going by memory, but, yes, I believe there is more likelihood of Roundup residue on wheat, which is non GMO, than on any GM crop. Wheat is sprayed with Roundup (or equivalent glyphosate product) near harvest time, while RR GMOs are sprayed much earlier in the planting cycle. So GMOs are far less likely to have a residue. If you find a technical reference on this before I do, please post it, thanks!

          • roundup is labeled to be applied to wheat before harvest it speeds dry down. No one actually does that that I know of I cant believe it would be feasible.

          • Thanks, Charlie. I had read that Roundup was used to speed up desiccation, but I don’t recall where. Apparently it’s suggested by the manufacturers, but even a farmer friend recently told me it’s extremely uncommon, if it is done. Serves me right for going by memory!

          • It’s done where the growing season is short for the crop, like in Canada. Of course, it won’t work on RR crops.

          • How feasible is it though roundup last year was $22 a gallon the rate for corn and beans is 1/2 to 1 qt per acre thats $4 ish per acre plus the cost of applying it. Might be feasible in Canada but i dont see it in Pennsylvania

  7. Thanks for this very articulate analysis. It finally tipped the balance for me. As an environmental science and studies professor, I’ve been very torn about my own position on GM foods. While I still have concerns about food sovereignty, this post certainly helped me come to a clearer stance on the role of labeling.

  8. This is excellent, Marc! You’ve clarified a few sides to the issue that I knew nothing about. At this point, I’ve read your article three times over the last few days, so it definitely has me mulling things over. Personally, I think you’ve hit the nail on the head and I have no argument with any of your points or logic. However, my concern is just the problem of human nature. From my Facebook newsfeed to the people commenting online after articles, I see fear, resentment, and hostility constantly building up because people have swallowed so many lies about GMO dangers, and they feel very helpless about avoiding them. They fantasize that GMO tomatoes and wheat (which aren’t even on the market) are causing them health problems, for example. Some of these people just can’t afford to buy only organic foods.

    I can’t accept the idea of putting GM labels on purified ingredients that contain no genes or protein and are identical to those from non-GMO crops, but I wonder if it would be very expensive to label only fresh produce and things like cornmeal as modified. Earlier, when you felt labeling would be a good idea, what was your reason for that? I wish I could make up my mind on this.

    • My thought was that it would put the issue behind us so we could move on. The problem is that it throws the principle of science based government mandated labels under the bus and establishes a precedent for enshrining superstitions into food labels just because a group was successful as political mobilization. I can’t stomach that.

      • That’s what I was thinking, too, but I have to admit that labeling produce but not oil isn’t going to satisfy the GMO-fearing crowd.

        Your last point about the terrible precedent of giving in to superstition is one I can relate to. Thanks!

    • Thank you for your response. I dont do forums because they usually descend to the least common demeaneator, but I have been impressed with the opinions in this debate.

  9. I currently farm 70% non-GMO and 30% GMO. Some of my non-GMO is by request for a non-GMO customer. That customer pays a premium for my extra costs, and even sometimes accepts an inferior product if things don’t go “just right” during the growing season–the reason for the latter is the customer has few options.

    There are real costs for separating, and there is no real benefit.

    I have to farm my non-GMO required product almost as if it were another separate farm. I can’t switch between storages, or at times even harvest from one to the other.

    I”m certainly willing to do whatever the customer wants, but do the consumers really want this? I don’t think if they review all teh facts that they’d want this anymore than they’d want the added expense of separating my Jersey cow milk from my Holstein cow milk.

  10. Very good article. I have leaned lately toward some manner of labeling, but only as a matter of risk perception and as a matter of political inevitability. I have no illusion whatsoever that for leading advocates of labeling that it is only about transparency. I don’t believe for a second that labeling is the endgame. It is entirely a springboard for continued harrassment and pressure.

    The label has as much ability to misinform as to inform. As you point out, a gmo label does not provide any definitive guarantee that a product is sourced from a non herbicide tolerant plant as herbicide tolerance occurs without ge as well. Corn is naturally tolerant to atrzine, not as a consequence of recombinant DNA. Chipotles is switching from corn and soy oil to sunflower oil as part of its gmo free campaign, but most sunflower varieties have acquired tolerance to hla class herbicides. I guess nothing would stop farmers supplying sunflowers from “drenching” their crop in HLA’s. Nothing except perhaps there are over 100 weed species with resistant populations to HLA herbicides compared to less than 30 for glysophate.

    One ironic thing that I predict will occur is that labeling will devalue the organic and non-gmo voluntary certification. Lack of biotech source labeling is a large factor driving popularity of these certifications. For those products that continue to use biotech source prducts or ingredients sourcec from biotech traited crops, the labeling will undermine risk perception. Those that decide to utilize non biotech source crops will most likely switch to conventional bred sources. In either case, it erodes the market distinction and consequentially consumer’s motivation to both demand organic/nongmo and willingness to pay a premium. Those highly motivated to avoid gmo by choosing organic or non-gmo certification are already served by the voluntary labels the marketplace provides. Each increment of the public will be progressively less apprehensive and harder to sway to organic and non-gmo certified when there are cheaper sources of food products not derived from crops having one or more traits acquired by biotech methods readily available. Labeling may very well have the ironic effect of slowing or even reversing organic marketshare.

    I agree, the label is for conveying accurate and pertinent nutrituonal information, not a mechanism for social engineering. The just label it trend, has the potential to undermine the trust and value of content labelling.

  12. This is like a breath of fresh air. Fresh, rational, factually-based air. I can’t say I agree with it 100.0%, but I agree 110% with 95% of it.

  13. I’m for labelling period. I don’t care if it’s GMO or Organic. I want to know so I can choose. While yes, most consumers don’t do their homework, the bottom line I see with this is profit margins. it costs more to label so all parties involved don’t get to make as much money. If labels don’t do anything, why bother labelling anything at all?

  14. To paraphrase Emerson, there is so much wrong here, one knows not where to begin to set you straight.

    At the end, you talk about the roll of government. Measure 92 is neither a legislative act nor government agency regulation. It is an initiative measure, the purest form of democracy. If it passes, it will be the purest expression of the will of the people. That’s what people institute governments for.

    You say you would want labels that are science based. It is a fact that our society takes a reactive rather than a proactive stand toward public health. We put stuff out there then wait for bad things to happen but hope for the best. The FDA was first established to be a bit more proactive in the face of snake-oil medicines and food adulterants around a hundred years ago, but it doesn’t address everything and still a lot gets through short term testing. Examples of things that put on the market that have subsequently wrecked lives include Thalidomide and many other medicines that, after short-term testing, have proven dangerous and even fatal. How about leaded gas, DDT, trans-fats, asbestos…. I could go on an on. GMOs appear to be safe in the short term. There is a significant uptick in food allergies and other food related illnesses in the period since the introduction of GMOs, but the dots between those issues and GMOs have not been connected and may never be. However, the presence of GMOs in the food supply amount to a long term science experiment the hypothesis of which is that GMOs are safe. Right now we are all part of the experimental group. Labeling would allow us to opt out of the experimental group and into the control group if we so choose. It’s that simple. Inclusion in the experimental group without informed consent is unethical.

    There is nothing in M92 that would limit the access of GMO-laden foods to the market nor the access of people to GMO foods in the market place. It’s just a label that supports a free market.

    I have heard arguments from the people against labeling that M92 is poorly written, that it has the wrong exclusions, that it doesn’t go far enough, etc. But given that we now have the experience of several attempts at labeling laws, I should think the folks who raise those arguments and the large GMO corporations they align with could have come up with a labeling law they could support by now. And getting such a labeling law established nation-wide through the FDA, currently headed by a Monsanto ex-executive, should be easy. The fact that none of this has happened makes that argument seem…. how shall I put this politely….. disingenuous.

    Your guess as to their true motivations is as good as mine, but I’m pretty sure their not acting in the people’s best interests.

  16. Are you saying that only farmers planting GE seeds use no-till cultivation? Am confused by that. The first place I learned of no-till cultivation was at a small organic farm.

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