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.)

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.

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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