The issue of labeling of genetically modified foods is hotly debated, and not only among strident proponents and opponents of the technology. There are a number of prominent and influential journalists who are sympathetic to the technology, whose views and thoughtfulness I respect immensely, including British environmentalist Mark Lynas, Washington Post food writer Tamar Haspel, risk expert David Ropeik and Guardian sustainability writer Marc Gunther. All but Gunther have endorsed one version or another of GMO food labeling and Gunther believes labeling is inevitable, and soon. Many of them argue that it might be wise for the food and seed industries to throw in the towel and embrace it, believing that activists rhetoric would die down or the public would ignore the noise.

Although I admire their sincerity, on this issue we part ways, on three grounds: Mandatory GMO labeling and most forms of voluntary labeling would likely have a destructive impact on: (1) consumers; (2) supply chain of farmers, shippers, food processors and food outlets; and (3) science and the law. I addressed some of these issues most recently in an article in The HIll. Here is more elaboration:

Consumers

First, it’s important to note that those who are aggressively lobbying for mandatory labeling, despite their high visibility in the press and social media, remain a distinct minority. While as many as 93 percent of people have responded in polls that they believe foods containing GMOs should be “identified”, those were classic “push” polls in which consumers were asked various forms of the leading question: “Do you support labeling of GMOs?” That’s a combination of negative stigmatization and suggestive questioning.

When not-prompted—when asked the open-ended question in a survey released this summer if there was anything not now on labels that they would like to see added—only 4 percent of Americans mention GM labeling as information not presently on labels that they want on labels. Among all respondents, 8 percent wanted additional nutritional information; 5 percent wanted more ingredient information. Some 28 percent reported viewing GMOs unfavorably, but equal numbers of people had positive or neutral impressions. This survey, as many others, have shown that the overwhelming majority of people have little understanding of the technology or its potential impact, good or bad.

I don’t believe there is any question among reasonable people that labeling GMO on foods, no matter what the specifics would create a lot of uncertainty and likely instill unnecessary fears about what constitutes healthy food—fears that those who stand to gain from public concern, the organic industry in particular, would be incentivized to try to exacerbate.

Claims that one study suggests that most consumers would shrug about a GMO label are entirely theoretical. There is no case study for instituting labeling in a country where products have gone unlabeled for 18 years, where labeling creates a stigma that can radically impact consumer behavior, and anti-GM activists would continue to aggressively try to stigmatize products produced by a process that science says has no material impact on the crop or food product.

If a label is ultimately approved, those ideologically opposed to GM foods and crops would likely quickly transmute their “right to know” effort into a massive campaign to associate that label with health dangers and ecological disaster. Some already make such claims. Check out this infographic that the Genetic Literacy Project put together with statements by leading proponents of a “right to know”. It’s clear their goal is to shut down a technology and not inform the public.

They may not be entirely successful, but as I explain below, they do not have to “win”—they just have to slightly impact the balance of conventional and organic food sales. Remember, a loss of a few percentage points of market share for some products and/or companies could dramatically impact the health of a company.

If the pro-labeling forces were not so well organized and influential, particularly in social media, perhaps various stakeholders could be convinced to take that riverboat gamble. But I think it’s presumptuous for journalists or commentators to make the kind of argument that some journalists are now making.

Supply chain

Labeling costs a lot of money. Don’t believe anyone who says it’s only the cost of the ink. Some of the costs incurred by enacting mandatory labeling can be known a priori. The costs apply independent of whether a company is producing GM or non-GM products. They apply to everything moving through the system once labeling is mandatory.

Let’s look at costs that will accrue regardless of what decisions the players make. Once a GM-Free or Contains-GM label is required by law, producers would have a legal obligation to test to determine the GM or non-GM status of what they produce.

Farmers and processors are already paid a price premium for GM free grain and ingredients, which is one reason why foods labeled GM-free are significantly more costly than their unlabeled and presumably GM-containing counterparts. A recent meta-analysis of the research literature establishes that GM crops increase farmers’ yields significantly often by as much as 10-20%, and lower labor and input costs. This is why farmers are willing to pay a premium for GM seeds.

The economic benefits don’t accrue just to farmers. Higher productivity reduces the cost of animal feed and food ingredients which in turn benefits consumers. Any shift to non-GM varieties by farmers in order to meet demand for non-GM ingredients will tighten supplies and drive up prices for both GM and non-GM whole grain and ingredients made from them. Food companies will either absorb the cost increases— which is not likely — or pass it on to all consumers, not just those who select GM-free foods.

It’s also worth pointing out that the cost of the state labeling laws in Maine and Vermont, and the others being proposed at the state level, would not only (perhaps even not primarily) be born by producers who knowingly use GM ingredients. After all, if you’re using commodity corn or soy, you can be pretty sure you’ve got GM ingredients in the mix. However, if you’re a producer who wants to sell your product as “GM-free” — or even if you don’t care about promoting your product as GM-free but think you’re not using GM ingredients — the burden still falls on you to get written certifications from your suppliers that your ingredients do not contain GM.

Those certifications in turn require the use of more costly raw materials, segregation and testing. It costs money to segregate a GM crop from a non-GM crop. You need separate facilities from one end of the food chain to do that effectively. There is research that shows facilities for separate handling are needed to meet a 1 percent threshold, which is higher than most state initiatives have proposed. Setting a far more liberal level of 5 percent mixing of GM with non-GM using the same facilities—and again no bill has proposed this flexible a level—would make compliance a possibility in theory but a company would need to be very careful.

The biggest cost burden of mandatory GM labeling falls on those who don’t label their products as containing GM. Most people who support mandatory labeling think they’re just putting the burden of labeling on GM-containing foods. The facts are that producers who want to avoid GM have to pay significant costs in order to avoid liability for unintentional presence of GE ingredients. If you’re a grocery retailer who sells unlabeled foodstuffs, and someone ‘finds’ GM content in that food, you’re on the hook for massive fines, penalties and perhaps lawsuits from disgruntled consumers who were actively trying to buy GM-free products. You can be sure that the ‘food police’ will be actively testing products for violations of labeling laws. In a word, everybody pays for mandatory labeling.

There’s a parenthetical sidebar here that at the current sampling rate the non-GM category in the EU which has a 0.9 percent upper limit for GM has only a 95 percent chance that the product will be between 0.2 and 2.0 percent GM content so the whole idea of GM free is a big laugher. Some samples with GM content above 0.9% will be accepted and other samples with content below 0.9% will be rejected.

If this isn’t clear to you, put 11 black beans in a jar with 989 white beans and mix them up thoroughly—that’s 1.1 percent black beans. Repeatedly sample 10 beans and you will see how hard it is to determine if a load of beans meets the 1 percent standard. I’ll give you a clue, most samples will contain 10 white beans but if you label the jar “black bean free” you will have violated the law because the bottle contains greater than 1 percent black beans. And by the way, you will have used up a lot of your beans doing this testing. Not an economical thing to do.

Every company along the supply chain network, from farmers to storage facilities, transport vehicles, processors, etc., would need to test and document each batch that comes to a silo or collection point anywhere in the country. From that point on every time a batch of any grain or food ingredient changed hands, was processed or was added to a product, it would have to be tested and documented.

The lateral flow strips that are used for this cost only $5-$10 a piece and you only need a few for each load to sample correctly. But the number of samples you take and where you take them from determines how much chance there is you get the right or wrong answer—remember the bean example above. This is true every step of the way so multiple time-consuming tests, would be required every time you test to ensure statistical reliability.

Once the grain is transported and pooled and the processing into fractions begins, you would often have to use much more costly DNA tests—about $100 per test. Depending on the raw material and the product just the cost of all the tests would add 10 to 25 percent to the cost of the product. This isn’t conjecture and it isn’t theory. Thus it is quite disingenuous when the pro-labeling people say it costs nothing to print GMO free or contains GM on the label. It is in fact an out and out lie.

What might happen if companies or individuals along the supply chain were found to have violated a set level—most likely 1 percent or less based on current bills. Based on the legislation proposed to date in Oregon, California, Colorado and Vermont, they would be subject to tort actions, which even if not successful could cost tens of million or even hundreds of millions of dollars. The fear of such a lawsuit alone could prompt producers to drop all foods with GM ingredients just as a matter of fiduciary self-protection. If a company should lose such a suit, considering its likely class action status, liabilities could stretch into the billions of dollars, rivaling tobacco settlements. Worse, if different states adopt different standards as has been the case so far with state ballot initiatives, 50 percent of GM-containing products will not be required to be labeled but some products will be considered GM in one state but not in another. This will create legal chaos for the food industry.

Some have asked why food companies spend millions fighting state GM labeling ballot initiatives. For them, the cost of fighting the flawed, expensive, and chaotic state regulations is absolutely peanuts compared to the cost of testing, segregation and documentation forever and ever.

Is it really worth it to force a major shift away from GM crops and force major increases in costs just to satisfy a very small minority who care about this issue and whose needs could be met by the current voluntary labeling system? Remember, there are more than 20,000 certified GM-free products, as well as all GM-free but untested organic products, available in stores today.

Now if the law allowed a manufacturer to say on the label that the product had not been tested for GM content that would change the cost picture a good bit because legally challengeable tests wouldn’t be necessary. It would not resolve the issue of how consumers feel about it but I have always felt most consumers don’t care much about the GM issue and it wouldn’t bother more than half of them one way or the other if the GM status was unknown. My suspicions, however, do little to assuage the fears of food industry executives that such labels will cost them market share.

To date no state has considered a “not tested for GM statement” or even a “may contain GM statement.” The “does” or “doesn’t contain GM” laws that have been proposed to date mean big increases in costs apply. I could add here that if the maximum threshold of GM in non-GM was set at 5% as noted above it would make life a lot easier but no state has proposed that either.

Another alternative of course would be to have those who insist on “knowing what’s in their food” be the ones to absorb the extra costs to the food system. In other words, there could be a label that read “Contains no GMO Ingredients,” with the testing and legal responsibility falling to those who demand such a label rather than forcing the vast majority of those who apparently do not care much about this issue to carry the extra cost burden.

None of these options would be of much relief for food companies that participate in an extremely competitive market and cannot afford to lose even a few percent of market share. Surely different players would likely take different approaches and the cost outcome for consumers would depend on what mix of responses food companies make. The potential impacts of mandatory labeling were addressed in a report published in June by the Council for Agricultural Science and Technology.

No we can’t predict exactly which brands would lose how much market share but to a food industry executive that isn’t good enough. Good stewardship of brand image and the need to continue to maximize sales will force most of them to switch as many products as possible to GM free status. Those are the market realities and that’s what’s happened in most other countries.

Some companies may not have options because they may not be able to source enough GM free ingredients and/or may not be able to afford them. Without a doubt, if mandatory labeling is adopted the cost of GM-free ingredients will go up—how much depends on how many companies attempt to go GM free. There is not a single executive in the food business that I have ever spoken to who is ready to bite the bullet and put “contains GM” on any of their products and I have studied the food industry since before the first GM crop. Please understand the calculus here. To a bit market player like organic, chiseling off 5% of conventional sales through mandatory labeling laws represents a 100% increase in their market share and to a big food company losing 5% is cause for the Board of Directors to start firing people.

Science and the Law

Under U.S. law labels are required when there is a material or safety difference that consumers would not otherwise be aware of or have reason to expect. Research shows and FDA affirms that there is no safety or compositional difference between GM foods and their conventional counterparts. But a few percent of people believe there is a difference and therefore believe labels are appropriate. At the end of the day, it will be up to courts to decide if there is a material difference to the extent that it trumps the developer’s First Amendment rights which protect them from forced prejudicial speech. State labeling laws have in addition the problem of pre-emption of federal labeling authority so they will be headed to court (Vermont is defending against a suit over their law).

There are other legal arguments against forced labeling. Suffice to say that if the states or federal government pass such laws the courts will ultimately decided their legitimacy. Thus labeling is not about what the people want or what the industry wants, it’s about how the courts interpret our constitution and laws. One role of the court system is to temper public passions. Another is to hold those who govern in check. We are in for a long legal battle on labeling.

I do not agree with those who predict that these state initiatives will go on and on. The Vermont case will tell us a great deal. If the courts find the law unconstitutional it’s going to be very hard for other states to mount ballot initiatives. And if it is expensive for the industry to keep defending ballot initiatives, it can’t be easy for the labeling advocates to keep spending on a losing cause. The most likely states to say yes have already voted no on ballot initiatives so the chances of success get even smaller in each successive state in which initiatives appear on the ballot.

The second thing that might happen—although less likely—is a national law that mandates voluntary labels and affirms FDA’s authority. That would have a chilling effect on state labeling initiatives too. I oppose such a law because I oppose any law that makes GM a distinct legal entity which is different from organisms bred by any other modality of breeding. From a science perspective I don’t like pro-labeling or no-labeling laws because GM is just another way of breeding—all breeding introduces genetic modifications. And it’s a moving target. The technology keeps moving so fast—most recently with the introduction of various forms of gene editing—that last year’s definition of GM won’t capture next-year’s technology.

Labeling would cause chaos in the food industry, raise prices, reward retailers and the organic industry with windfall profits and accomplish absolutely no good. Consumers who can’t define what a GMO is wouldn’t even be told if half the products they eat are GM or not. I am not foolish enough to think that the court declaring mandatory labeling unconstitutional or the passage of a national law against mandatory labeling would stop anti-GM activism. In fact, there is already evidence that activists are now focusing on city and county GM bans and other kinds of local ordinances. It’s a kind of assymetric grass roots guerilla warfare to which the food industry will be hard pressed to respond. I don’t think anything will cause anti-GMO and food and agricultural activists to ‘lay down their arms’ until the people who are advocating vast restrictions on GM products succeed and/or find another issue and another source of financial support for their campaigns. Their agenda is to become a political force and a broader mainstream movement.

As a society we have to decide if we are going to let small groups of well-financed professional activists drive the public policy agenda on issues like the labeling fight. These groups claim to represent the people but they are self-appointed rather than elected. They accuse those who oppose them of being shills for industry but they are in the full time pay of so-called non-profit corporations, particularly in the organic industry, which is poised to reap huge profits if labeling laws are put in place.

There is no mechanism to hold them accountable for what they say. Absent accountability they use misinformation and fear-mongering to whip up support for their agenda. And who funds them? In many cases groups who stand to profit from their activities. I wonder how the voters who have supported what they believed were grass roots efforts to bring “right to know” labeling to their state would think if they knew that the statute that passed in Vermont was written by the notorious law firm Emord & Associates, a Washington DC law firm that represents key players in the organic, dietary supplement and alternative natural products industry—including Mike Adams, founder of the quack site NaturalNews.com—in its drive to prevent labeling of its products. Embord, working with the Center for Food Safety, has been a key advisor to activists drafting anti-GMO labeling initiatives around the United States.

Like the Chinese proverb says “may you live in interesting times.” We do. Yogi Berra said “predictions are hard, especially about the future.” My prediction is that eventually the future will tell us who was right about whether this is or is not a seminal issue, and we will also learn if we did the right things to ensure that 10-12 billion people in 2050 can sustainably produce enough food. I won’t be here to find out but when I think about my children’s and grandchildren’s future, I am not encouraged that we any longer have the will to resolve our differences and move forward. Labeling being just one example.

Bruce Chassy is Professor Emeritus of Food Science and Human Nutrition, University of Illinois-Urbana-Champaign