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Guest blogger Rob Hebert is a second-year student at Georgetown Law. Before moving to DC, he lived in Brooklyn, NY, just blocks from a bar that had over twenty-five beers on tap and thirty arcade machines that all played for a quarter. He can draw you a pretty interesting graph relating “Drinks Consumed” to “Last Score on Pac-Man.”

Consumer advocacy groups are a strange animal. It seems that for every influential lobbying group with a senator’s ear, there are hundreds or thousands with only vague mission statements and no clear agenda for attaining their stated goals. I once spent a summer working for the latter type. A hallmark of this kind of crew is the use of the petition (bonus points if it’s online and has been circulating for more than a year). Issue-specific petitions almost never work when directed at agencies; they are often unsophisticated (in a legal sense) and rife with ambiguous language and emotional rhetoric. If I were more cynical, I might point out the possibility that many people in charge of these groups are aware of their petitions’ miniscule chances for success and instead use them to gin up controversy and interest in their cause, which is always a great way to get a few email addresses or financial contributions–some petitions even have a convenient donate button right next to where you “sign” your name!

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A quick google search for “gm labeling petition” pulls up, well, more petitions than I really care to count. Most make seemingly modest demands about the “right to know,” consumer education, and truth in advertising. Is that an accurate view of the debate: Consumer education versus corporate secrecy? Truth is, the legal reality is a little more complex than these petitions would seem to indicate. Below, I’ve written a short synopsis of the government’s current stance on GMO labeling. It’s written for people without any legal training, so it’s only a sketch. I’ve also listed a few helpful resources at the bottom for anyone who wants to dig a little deeper. This is exclusively about U.S. law, but in future posts, I’ll discuss recent developments in the biotech laws of Canada, the European Union, and Japan.


Food Labeling in the U.S.
In the U.S., food labeling is overseen by the FDA according to the Food, Drug, and Cosmetic Act (FDCA). The FDA first discussed the labeling of biotechnology food products in 1992, with a policy statement titled “Foods Derived From New Plant Varieties.” In it, the FDA said it had no reason to single out bioengineered foods for special labeling, because recombinant DNA techniques were really just extensions of traditional methods for developing new plant varieties–such as hybridization–which had not received special attention in the past. Without decent evidence that bioengineered foods differed from their conventional counterparts in terms of safety, the FDA determined that they should be labeled with the same name (called the “common” or “usual” name) as the conventional crop (i.e., “corn” or “tomatoes”).

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Safety is basically the main issue whenever the FDA requires new labeling for foods. For instance, if a tomato is created using a peanut protein, the FDA may require its producer to put a label saying “this tomato has been bioengineered with a peanut protein that may be allergenic to some individuals with nut allergies.” In the past, the courts have found that consumer curiosity alone is not enough to require special labeling (see International Dairy Foods Assoc. v. Amestoy, 92 F.3d 67 (2d Cir. 1996); Alliance for Bio-Integrity v. Shalala, 116 F. Supp. 2d 166 (D.D.C. 2000)). The reasoning behind this is simple: First, it places an enormous financial burden on industries that would have to investigate, document, and label the “level” of bioengineering that went into their product; second, it may mislead consumers into thinking that bioengineered crops are somehow less safe than their conventional counterparts; third, it places a burden on the FDA itself which must then divert efforts from safety labeling issues to consumer curiosity labeling issues; and fourth, it places no end on the information that consumers could require manufacturers to disclose.

Some groups are now demanding that the FDA allow voluntary labeling for “No GMO” or “GMO Free” products. While the FDA does not punish producers for labeling their products as such, they do discourage that practice. In January 2001, the FDA announced a “draft guidance” (a non-binding document that informally tells people how to act in a way that won’t attract the ire of the agency) outlining the reasons against voluntary labeling of food products as “GMO Free.” The FDA had three major concerns, which I’ve taken the liberty of paraphrasing below:

1) that the terms “GMO,” “GM,” and “GE,” were not technically precise and did nothing to inform the average consumer, and that “genetic modification” was overly broad, since it would include conventional means of generating new plant varieties (the FDA prefers the terms “bioengineering” or “biotechnology”–which they use interchangeably–to distinguish newer transgenic processes from conventional practices);

2) that the term “free” implied “zero,” and that the prevalence of bioengineered products made such a claim false, misleading, or unprovable; and

3) that the label would be misleading to the extent that it implied that foods not labeled as “GMO free” were in some way unsafe or inferior (a claim that is, in the FDA’s opinion, unsubstantiated by the scientific literature).

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The FDA did express support for certain types of voluntary labeling, so long as the information contained therein is not vague or inaccurate. For example, a producer may use a label that says “Our tomato growers do not plant seeds developed using biotechnology” (assuming such a label would be accurate). On the other side, another producer may use a label that says “Our tomato growers use genetically engineered tomato seeds to increase total crop yields,” adding a purposive explanation to the label for greater consumer understanding. The FDA reserves the right to ask for substantiation, through validated testing means or appropriate recordkeeping, for any claims a producer makes through labeling. A quick side note: this draft guidance has been neither finalized nor withdrawn since its announcement almost nine years ago, and therefore does not itself create legal duties or liabilities. In the meantime, the FDA has not chosen to actually go after anyone touting their product as “GMO Free,” despite their draft guidance. Just today I drank an overpriced (but tasty) Odwalla juice that proudly advertised itself as “No GMO.”

So, if you want to label your product “GMO Free,” knock yourself out–the FDA probably won’t do anything (except maybe send you a strongly worded letter if you’re being blatantly dishonest). As for mandatory labeling, I hate to break it to the numerous purveyors of all those internet petitions, but the FDA is unlikely–absent some very convincing evidence showing the danger of bioengineered food (and, no, eyewitness reports of pigs turning their noses up at Bt corn do not count)–to reconsider its position on the matter. This might change through two ways: Either the FDA can initiate a rule-making procedure to make consumer curiosity a material issue (highly unlikely and easily challenged in court), or Congress can amend the FDCA to make special provisions for bioengineered products (still a longshot considering it doesn’t have traction right now, but you never know). Technically, President Obama, et al. have little, if anything, to do with the decision, so petitions directed towards them will have no effect on the labeling law. But they sure are a good way to add emails to your list-serv.

Disclaimer: The information contained on this page has been compiled for educational purposes only; though it is wholly accurate to the best knowledge of me, the author, it does not constitute legal advice and should not be taken as such.

Resources:
FDA policy statement for regulating biotechnology products. 43 Fed. Reg. 50878 (Dec. 31, 1984), 51 Fed. Reg. 23309 (June 26, 1986).
Food and Drug Administration, Statement of Policy: Foods Derived From New Plant Varieties. 57 Fed. Reg. 22984 (May 29, 1992).
International Dairy Foods Assoc. v. Amestoy, 92 F.3d 67 (2d Cir. 1996).
Alliance for Bio-Integrity v. Shalala, 116 F. Supp. 2d 166 (D.D.C. 2000).
Food and Drug Administration, Guidance for Industry: Voluntary Labeling Indicating Whether Foods Have or Have Not Been Developed Using Bioengineering; Draft Guidance. 66 Fed. Reg. 4839 (Jan. 18, 2001).

Comments

  1. #1 altın çilek
    March 29, 2011

    Altın Çilek meyvesi pürüzsüz, kolay şekil alan, parlak ve turuncu-sarı bir dış yüzeye sahiptir. Özü sulu ve içerisinde çok ufak açık sarı çekirdekleri vardır. Dinlendirildiğinde tadı tatlılaşır.

  2. #2 Ewan R
    March 25, 2011

    The reason GMO’s are banned in Australia, New Zealand and Europe is the food was linked to cancer in rats.

    Amazing considering that GMOs categorically aren’t banned in Australia (where they grow a lot of em) New Zealand (at least afaik) or Europe (where they grow some of them, not very many though – they do howeve rimport a bunch, and it would be rather odd of them to increase the %age allowed contamination from 0.1 to 0.9% if they were outright banned)

  3. #3 Joe
    March 25, 2011

    Don’t have time to dig up the research for you. The reason GMO’s are banned in Australia, New Zealand and Europe is the food was linked to cancer in rats. Also GMO crops have NOT shown a greater increase in yield over organic agriculture.

    The FDA research is full of bias. This is a method of food control being used throughout the world. Just google “GMO India Suicide”

    Good luck living healthy and making healthy choices for yourself your family and the planet.

  4. #4 Rock Star
    June 23, 2010

    Prometheus,
    “I read the ingredients and they were unhappy with me for pointing out that the gelatin had been replaced with two bio-polymers that are also used as industrial adhesives.”

    Do you remember the names of those bio-polymers, just out of curiosity.

    “The same idiots who prattle on about too much sugar in everything are complaining because the strawberries and tomatoes provided by the capitalist reptilian agrimafia overlords aren’t sweet enough.”

    In terms of sugar, from my limited knowledge I believe that sugar metabolism from fruit and vegetables is very different than from refined sources. Berries especially have a low glycemic index.

  5. #5 Rock Star
    June 23, 2010

    Hmmm… Lots going on here. The voluntary non-biotechnology labels should not really present a problem to anyone here – especially if FDA provides some standard of what that label means and the companies do the testing and labeling – the companies will pay for this themselves so why are people getting upset? The organic companies are the ones likely to add the non-biotech label to their foods – since organics has not taken over the grocery shelves of all those who want their GMO and conventional produce then why should non-biotech products do that?
    As for labeling – it would be important for tracking any safety issues because if it is not labelled then how do you know if an allergic reaction a person (for example) is having is to corn or to the recombinant corn-bacteria DNA.
    Here is an analogy – some medicines which have been tested for safety (undergone all the proper stages of studies – animal, human, etc) sometimes have to be withdrawn because people have allergic reactions that the company did not foresee. This could be similar. If a doctor gives you a handful of headache pills that are not labelled and you have a reaction then you don’t know what kind of pills you took and what to avoid? The next time you are at the doctors office the only thing he can give you is just the unlabelled batch again coming from many different sources because he does not know what the pills are either.

  6. #6 Hinemoana
    April 30, 2010

    Please note, I meant ‘no known adverse human health effects from GM crops’ as in ‘common to all GM organisms’.

  7. #7 Hinemoana
    April 30, 2010

    @ Moe Dubreuil #40

    So you support increased regulations for varieties developed using mutagenesis? Surely you dont like being guinea pig for mutagenised crops? Perhapse, to give people CHOICE, there shoulds be a range of lables:

    “COMTAINS MUTAGENISED ORGANISMS”
    “CONTAINS GENETICALLY MODIFIED ORGANISMS”
    “CONTAINS HYBRID ORGANISMS”
    “CONTAINS SYNTHETIC FERTILISER/PESTICIDE TREATED ORGANISMS” (for Kim)
    “CONTAINS RAINFOREST-CUT PLANTATION ORGANISMS” (for me)
    “ANIMAL PROTIEN FED MEAT PRODUCT” (I dont want no mad cow)
    “CONTAINS ORGANISMS GROWN BY EXPLOITED WORKERS”
    “NOT HALAL”

    Where should we stop?

    Unlike phenylalanine and nuts, there are no known adverse human health effects from GM crops (if you know of any, please tell) and therefore no mandatory label is warrented.

  8. #8 Moe Dubreuil
    April 30, 2010

    If GMO food turns out to be unhealthy, the evidence can only be derived from those that eat it.

    To say that a consumer is not entitled to know what goes into their bodies is to side with arrogance against caution. To say that biology can more intelligently evolve guided by economic incentives is to close one’s eyes to the ethic of corporations.

    “Better living through chemistry”, turned out to kill an enormous amount of wildlife. I would like to choose whether or not to be a guinea pig.

  9. #9 Hinemoana
    April 29, 2010

    @ Kim #37

    In New Zealand we don’t have any transgenic apples. Every season, on average, our apple orchards are sprayed 14-18 times, 80% of which is primarily to control Apple Scab (65% ONLY for scab control). GM labelling wouldn’t help you there.

    I am currently working on identifying effector genes in Venturia inaequalis (which causes apple scab) so that the best resistance genes can be selected for in breeding programmes. In several decades we will have bred apple varieties more resistant to scab and we will be able to cut out at least 65% of the pesticides that we spray on them. If we genetically modify the same target resistance genes into apple we could cut that time in half, if not more. Think of all that reduction in fungicide use. But you wouldn’t like that it’s “genetically modified in a lab”; because that obviously means that more pesticides are used.

    And for your information, we export our apples to Europe, which has a zero tolerance to pesticide residue on apples. If they detect even a hint of pesticide residue on our apples they send the entire shipment away. For this reason there’s a no-spray period before harvest so that the pesticides have time to degrade, and all apples go through a wash process. The only reason to wash our apples after picking them up at the supermarket is to get other peoples grubby finger marks off them.

  10. #10 Ewan R
    April 28, 2010

    Kim – unless your produce says “organic” you can guarantee it has been exposed to pesticides of some form, it’s part and parcel of how modern agriculture works. To that end (if I were concerned) I’d rather eat the GMOs exposed to roundup (massive amounts? Really? Over the top emotional hyperbolae much?) than those exposed to other, more toxic, herbicides

  11. I don’t care about the subtle, technical issues; I want to know if the corn and soy products I am feeding to my children are genetically modified in a lab, as vs. selective breeding, or not. Why? Simple curiosity? No, it’s a desire to avoid the pesticides that go along with the genetically modified seeds. I don’t have an issue with eating the modified plants themselves, I have issues with the pesticides they are designed to withstand. (Although I have other concerns about the GMO products, but that’s off topic for this comment.) I buy organic produce as much as possible because I don’t want those chemicals in my body, or in my children. GMO products, by very definition, have been treated with massive amounts of Round Up. I also don’t care if Monsanto says Round Up is perfectly fine for human consumption; I don’t want it. I, as a consumer, have rights too, and one right is to know what I am spending my hard earned money on. These big companies running rough shod over the public, lying and hiding any information that might affect their bottom line, have to be pulled up short. They are getting “too big for their britches”, to borrow one of my grandmother’s sayings. It is very, very clear that they only care about money and people don’t matter, except when they are opening their wallets.

  12. #12 Prometheus
    November 17, 2009

    It was seed, a wholly owned subsidiary.

    Don’t get me wrong Ewan, like I said, Monsanto is just the Boogeyman du jour.

    I think it is insane to see European GMO protesters wandering around with anti-Monsanto anti-Round-Up-Ready signs digesting a fat dose of Syngenta atrazine with their morning baguette.

    They might as well be the same multinational the only difference is one 11 billion in revenue pretends to be U.S. and one 11 billion in revenue pretends to be Swiss.

    It is absurd.

    Another strange question: Monsanto has been kicking Syngenta’s butt in the market for the last five days….is it product launches or the Texas and China facilities?

  13. #13 Ewan R
    November 17, 2009

    Prometheus – on haphazard GMO inclusion in euro shipments – are these shipments of seeds produced for planting (ie in Monsanto direct custody) or are these shipments for use in food/feed (ie not in direct Monsanto custody) – if the former then I’d agree that Monsanto has culpability in explaining/fixing the system – if the latter then I’m not sure that the blame can be laid at Monsanto’s feet – I do know that Monsanto makes every effort to ensure proper stewardship of all transgenic traits (one of the reasons behind signing various tech agreements etc) however once the seed is planted it is a tad excessive to expect Monsanto to keep tabs on the end product. (not aware of EU 1800 regs, so assume this comment isnt about that particular comment)

    On Indonesia – I think it has to be kept in mind that in this case Monsanto ‘shopped’ themselves to the authorities after discovering the bribery internally. Based on the standard public perception of Monsanto as underhanded etc etc one would have expected a cover up rather than full disclosure.

  14. #14 Ewan R
    November 17, 2009

    Jamie:-

    Parr lied to farmers telling them that cleaning of traited seeds was not illegal thus as you say enabling farmers to break patent – essentially putting them in a position where they put their own livlihood at risk based on his own manipulation of the truth – in this case I would hope that anyone with a bit of sense would hope that Parr would be the guy who was gone after rather than the farmers who were essentially tricked into breaking the law.

    Schmeisser’s case is even more cut and dry. Admittedly the transgenic material may have arrived on his land through no fault of his own. Monsanto does not dispute this. What is clear however is that Schmeisser discovered this contamination, and rather than either ignoring it, or reporting it, Schmeisser proceeded to destroy a few (I believe it is 3, but that figure may be out) acres of his own crop with roundup thus selecting for roundup ready plants – the seeds of which he then saved seperately from the rest of his saved seed, the subsequent year he planted this roundup ready seed on about 1000 acres of land (again this figure is an approximation based on what I remember from the court records) – this is clearly not an accidental contamination of the land with transgenic pollen or seed, but a clear and deliberate selection for and utilization of roundup ready technology which anyone in agriculture would know is an infringement of patent law (which incidentally is why Schmeisser lost his case repeatedly) – if memory serves other farmers neighboring Schmeisser reported the presence of unwanted transgenics in their fields and Monsanto came in and removed them without taking any kind of legal action.

    Runyon had the case dropped (the article doesnt say anything about a settlement), and according to the Monsanto website the action taken in that instance was to prevent him from purchasing monsanto technology until an agreement can be brokered around claims that he illegally saved soybeans – which shouldn’t really matter to Runyon as he claims not to plant GM anyway.

    I havent encountered the Hixon case before, so cant comment on that at the moment.

  15. #15 Prometheus
    November 17, 2009

    I agree the IP issue is inflated. Monsanto is less aggressive in IP litigation than the license holders of the Happy Birthday song. What confuses me is the haphazard GMO inclusions in EU shipments and disreguard of the EU 1800s labeling regs on one hand when they are trying to get EU approval for GMO lines on the other hand.

    A lot of producers were freaked out by the Indonesia scandal. We get paid a lot for crops by Indonesia and our “partner” Monsanto is getting busted and paying SEC fines for brown bag lobbying…WTF?

    A lot of companies get up to a lot of shenanigans but Monsanto has got to know it has a target on its back and should be weaving.

    Perhaps there is a big wheel somewhere they spin to decide who is the boogeyman in a given decade. It was DuPont, then Dow now Monsanto …in 2010 it will probably be ADM because the Cargills will just give everybody the finger.

  16. #16 jamie
    November 17, 2009

    Ewan R. : Cases where Monsanto has taken legal action against farmers include but are not limited to Monsanto v. Moe Parr, Monsanto v. Percy Schmeiser, Monsanto v. Runyon and Monsanto v. Hixon. For Parr and Hixon these men are both seed cleaners (they own equipment that separates seed from crop so it can be replanted next year) Monsanto is suing them for “enabling” other farmers to infringe on their GM soybean crops since they are not doing the planting themselves they are not explicitly breaking any laws around the patent. Schmeiser and Runyon (Runyon settled out of court) were both sued for growing Monsanto round up ready crops (a patented GMO) even though neither of them claimed to have bought or used those gm seeds. Their property is adjacent to other growers who do use the GM seeds and so cross pollination is inevitable.

    see article: http://www.cbsnews.com/stories/2008/04/26/eveningnews/main4048288.shtml

  17. #17 Ewan R
    November 17, 2009

    Prometheus,

    I’m not sure I understand your question/point completely – what exactly would be pre-emptive rather than reactionary in these cases? Also how could they be avoided?

    In terms of being pre-emptive, to a certain extent taking a relatively hard line is being pre-emptive, in that farmers are well aware that patent infringement carries significant risk. In terms of avoidance – I’m again not sure what Monsanto can do specifically to avoid these cases without pretty significant policy changes in terms of what will and will not be put into a seed in terms of GM technology (Karl Haro von Mogel has an excellent post about terminator technology which is worth a look) – not prosecuting would be counterproductive in that a) Monsanto doesnt make a profit (which admittedly is only really a bad thing for Monsanto) and b) Farmers who do pay for the technology are at an inherant disadvantage compared to those who steal the technology and suffer no consequences. (which I think is a good reason for the farming community in general to support enforcement of IP law)

  18. #18 Prometheus
    November 17, 2009

    Ewan R,

    Monsanto, to be honest, always seems to be doing legal and PR damage control instead of preemption. When I read the cases and look at the relief prayed for, they certainly don’t seem to be outrageous but they also seem avoidable.

    I’m not sure why this is the case. Any clues?

  19. #19 Ewan R
    November 17, 2009

    Jamie – can you cite cases where Monsanto has sued farmers who “don’t use their seeds but happen to have the patented genes in their crops due to the random agency of wind and pollination but through no agency/fault of their own.”?

    As far as I am aware the most publicized cases generally fall apart if you do any research into what has occurred (Schmeisser, and whoever the seed cleaning guy from Food Inc was, his name evades me at the moment and I’m too lazy to use google right now…) – the number of cases against farmers in the past decade is pretty low and I’d be surprised to find a case that wasn’t justified – or one that was due to contamination by wind/pollination/seed falling off a truck alone – the Schmeisser case for instance most probably involved accidental contamination of the farm with GMOs but subsequent actions by Schmeisser set him apart from anyone else who may have been accidentally contaminated (if I remember the case right neighbors of Schmeisser had GMOs removed from their land by Monsanto without any legal action whatsoever being taken).

    Lets keep in mind that a successful business model generally does not include litigation against your customers unless it is warranted – which is exactly the model Monsanto follows.

    I’d also be interested to hear what your alternative to patents is – patenting a gene does not confer ownership of that gene other than in particular circumstances – if I remember correctly (again, too lazy to look up my own posts on another blog…) to patent requires a novel, specific use for a given gene or sequence – the patent must include the crops and uses that the gene will have – and patents also have a limited life, 20 years or so I think. The patent also must include exhaustive information about how the gene/technology was utilized so that once the patent does expire it is easily repeatable by anyone with knowledge of that particular field. This is essentially what patent law in general is built around – you get sole ownership of your invention for a limited time in exchange for fully sharing that information with the public to advance knowledge. The alternatives are absolute corporate secrecy (which I’m not sure would work at all in seed production, as it is relatively easy to breed from the transgenics and then integrate it into your own inbred lines for hybrid production) or naively allowing everyone open access to your invention – this may well work fine for publically funded (or charitably funded) research projects, and indeed is commendable in these situations, however it is a completely boneheaded business move when you consider the resources that go into creating a transgenic line for commercial use – estimated at approximately $100M – how do you recoup the $100M if everyone can use the gene once you’ve released it – you’ll simply have your prices undercut (as competitors dont have an up front $100M cost to bear) to the point that you may recoup the money, but not for a painfully long time – and in the meantime where do you get your money for future research for? Monsanto took massive risks in the 90’s by investing heavily in transgenic research – risks which did not pay off until the 2000’s (if I remember the stock graph correctly) – they now have multiple succesful products which are a fruit of this heavy investment – and licence them to other companies so that they do not have a monopolistic control of the market (they could have taken a different path, and only put their traits into their own seeds, which would have effectively killed most of the competition in many crops) – your labelling of products from ‘monsanto’ seeds would also have to cover labelling of pioneer seeds, basf seeds, joe the seed maker seeds etc etc – the ‘monopoly’ is at best one over the genes involved rather than the business of seed sales, and is fully supported by patent law (as it should be).

    Without corporate ‘ownership’ of genes the current transgenics which are actually reducing pesticide and herbicide use and increasing yields globally would not exist. I cant see how they could. Without the investment made these products would not exist. Without the further investment the 2nd and 3rd generation products equally would not exist. We’re talking research to the tune of $2M a day here – this is outside the scope of what is done in the public sector, indeed probably what could be done in the public sector (which is a shame – perhaps rather than attempting to punish Monsanto by withholding your money, or as well as attempting to punish Monsanto, you should write to your local congressman/woman/other politician type people and demand more funding for public Ag research)

  20. #20 Hinemoana
    November 17, 2009

    @Jamie

    Shouldnt you be calling for ‘Monsanto’ labels? There will be growing numbers of humanitarian and other non-multinational GM varieties, which would then be adversly effected by such labelling.

  21. #21 jamie
    November 17, 2009

    I am pro-GMO, because I realize this technology can increase yields, decrease pesticide and fertilizer use and other great things like that and also its seems the risk to human health is small and very manageable. However,…. I still would favor GMO labeling for the following reason:

    For one who doesn’t believe that life should be patentable, the only way one can “vote” with their purchases against companies (Monsanto) who patent and monopolize crop “software” like soybean genes in this country is by knowing which soybean products come from those companies’ seeds.

    GMO as a public sector commodity is great, but when a corporation controls it, the consumer should have a method of communicating their chagrin to that corporation. Monsanto will shrug off my letters, so I prefer to withhold by dollar bills from them. I would like to continue this until they adopt fairer practices with regard to their gene patents and stop suing farmers who don’t use their seeds but happen to have the patented genes in their crops due to the random agency of wind and pollination but through no agency/fault of their own.

  22. #22 acai
    November 16, 2009

    The best average fictional guinea pig is perhaps a little above average as a stand-in for a consumer but if we err, let us err on caution’s side to wit:

  23. #23 Mary
    November 13, 2009

    Perfectly summarized at xkcd: http://xkcd.com/641/

  24. #24 Matty Monkees
    November 13, 2009

    That Rob Hebert guy is pretty damn good-looking! I bet that’s what makes him a great writer!

  25. #25 Rob Hebert
    November 13, 2009

    @Prometheus-
    I actually don’t have anything to add to your post except to clarify for others that Reasonable Man’s assumptions, while reasonable, are not always rational (see, now anyone who didn’t have to go through first-year torts has completely tuned out both of us ;) ).

    Anyway, I agree with your reasoning above. I was imprecise in the first sentence of my post; I didn’t really mean I was going to make an actual legal argument like one you would make in a brief. I should have said something along the lines of “I’ll stick to the legal and economic stuff.” Thanks for the correction.

  26. #26 Prometheus
    November 13, 2009

    #21 Rob Herbert,

    A good post but that is a marketing analysis not a legal one. That’s good though, it means you can still talk to girls who aren’t aspiring lawyers.

    Since the date line on my State Bar card just says “dinosaurs roamed the earth” let me take a shot.

    Considering GMO labeling from a purely legal perspective involves a predictive standard since it is in the stage of proposal.

    If you want to apply a test you then choose from your legal collection of fictional guinea pigs.

    The best average fictional guinea pig is perhaps a little above average as a stand-in for a consumer but if we err, let us err on caution’s side to wit:

    Reasonable Man I choose you!

    Reasonable man is now sent through an average grocery store where he comes upon a red label, “Grandma’s Old Fashioned Original Flavor Microwavable Butter Bean Soup Contain No Transgenically Manipulated Organisms”.

    His reasonable assumptions are:

    1. Transgenically Manipulated Organisms are bad.

    2. Products that do not contain Transgenically Manipulated Organisms are better.

    3. Since Grandpa’s New Fangled Chipotle Flavored Self Heating Butter Bean Soup is not labeled otherwise, it is chock-full-o Transgenically Manipulated Organisms

    Since those assumptions are unfounded and or potentially patently false our consumer/guinea pig /reasonable man has been mislead by labeling. What’s more is he has been misled in the application of the contents of his wallet.

    The purely legal conclusion is that GMO labeling would constitute a foreseeable form of consumer fraud.

    Now we try to impeach the hypothetical or fool around with it from both positions to assess the resilience of its conclusion.

  27. #27 Rob Hebert
    November 12, 2009

    Joe Frank –
    I’ll let others handle the viral genes argument (as it appears Ewan R already has), and stick to the legal/economic argument, because that’s more my area of expertise.

    One of my reasons for writing the above post was to highlight that it’s not as simple as just leaving it up to the market. Saying that we should just “let consumers choose what they consume” misses the point. Nobody is forcing anyone to eat anything they don’t want to. In fact, the market argument cuts against your suggestion. I’ll try to make this line of reasoning as clear as I can:

    1. Other people’s purchasing trends affect your accessibility to different products more than your own purchases (ie, THEIR aggregate demand generates the supply that YOU have access to).

    2. Those purchasing trends, in turn, are heavily influenced (like, a lot) by labeling and advertising.

    3. By supporting voluntary labeling, you are supporting sellers’ rights to advertise their wares in a particular way. You are supporting a particular regime of advertising law.

    4. If that regime does not discourage dishonest advertising AND misleading advertising, it will produce an inefficient and ineffective market.

    5. Ineffective markets do not serve their consumers.

    This is the reason the FDA promulgated the draft guidance I commented on. Just saying “make it voluntary” or “let consumers choose” does not get rid of the issue, because that answer assumes that consumers will take labeling into account in an informed and rational manner. Evidence is strikingly to the contrary. People are confused and frightened by non-informative labels such as “NO GMO.” Supporting a seller’s privilege to use such a label is supporting misdirection; it is an anti-consumer attitude.

  28. #28 Prometheus
    November 12, 2009

    #19 Ewan R

    Thank you for that post. When this aspect of the discussion started, I had a vision of patchouli scented dredlocked undergraduates standing outside the grocery stores telling old ladies that scientists were injecting the onions with viruses.

    It will probably happen anyway but cheers for trying.

  29. #29 Ewan R
    November 11, 2009

    Joe Frank –

    Again the ‘species x genes’ raises its ugly head – roundup ready as far as I am aware is actually a chimera of a viral promoter (the bit of DNA that gets the rest of the DNA ‘read’) and a bacterial ‘gene’ which codes for a variant of an enzyme which is not inhibited by glyphosate – the enzyme does exactly what the plant version does (possibly faster, or slower, and perhaps working within slightly different constraints of substrate and product concentration) which is feed material into the pathways which form aromatic amino acids.

    Whereas every fruit, vegetable, fungus, and piece of meat you consume is literally littered with thousands of stretches of viral DNA (don’t worry, your DNA is too!)

    As for being a guinea pig – GM products are safety tested extensively, unlike say, any other new variety of fruit, veg, or row crop – any of which could well pose a health risk (or benefit).

    Labelling GMOs also doesnt appear to be a good solution – they pose a negligible risk(ie the exact same risk of any other food on the market). Things which pose a risk are labelled in a mandatory fashion (may contain peanuts, may contain phenylalanine etc) labelling them for no good reason adds an up front cost which is unjustified and leads to the interpretation that if it is labelled it must be unsafe. There are no labelling requirements for the various herbicides, insecticides and fungicides used on food – all of which pose a greater threat healthwise (a threat which is negligible once the food gets to your table) than the current varieties of GM – should this also be a requirement? Where does it end? Should we also label varieties of crops generated by chemical or radioactive mutagenesis? Crops sprayed with manure? Should there be choice over whether your corn was treated with atrazine, whether it received anhydrous ammonia fertilizer of good old UAN? Should we have labels so we know how many pounds of fertilizer per acre were used on the crop we’re buying? Do we need another label to let us know whether our soy had ‘natural’ bacteria do its N fixation, or whether it was innoculated with lab cultured bacteria? All of these make more sense to me than labelling GMOs (mutagenesis b/c you dont know what changed, manure b/c of E.coli and other potential pathogens, atrazine b/c there are risks involved with herbicides albeit low ones, fertilizer choice and application rate because of the environmental implications, bacteria – ok so not such sense here, probablyh the same amount as GMOs) – and I’d argue that none of them make any sense whatsoever to add to a label.

  30. #30 Joe Frank
    November 11, 2009

    Why not let consumers choose what they consume. Round up ready beans which make up the vast majority of US soybeans are engineered with virus genes. The proclamation of substantially equivalent made it unnecessary to test any unforseeable health benefits. I choose not to be Monsanto’s guinnea pig and definitly don’t trust the government to have my safety as a higher priority than their donors bottom line. Label geneticaly modified organisms and let the purchasing public participate in free market.

  31. #31 Mary
    November 11, 2009

    Maybe if we start referring to the modifications as “protein” instead of “gene” (when they _are_ a protein, of course–some aren’t).

    People think good things about protein because they know they need to have it in their diet :)

    I was actually finding that renaming strategy was working for me with anti-vax cranks. They were scared of the big bad adjuvant squalene. But when I told them it is in olive oil and in your liver naturally it didn’t seem so scary. I could see them recalculating as I talked to them.

  32. #32 Hinemoana
    November 11, 2009

    @ James

    What I found helped tone down the ickiness factor with my friends is when I told them exactly what the trans- or syngenes were and what they encoded. I think most people get the icky feeling because they picture whole swathes of the genome being put in. Focusing on what it actually does rather than where its from seems to help.
    Anti-GE scare groups hardly ever say what the transgenes encode; they simply state its origin and then photoshop half a frog into a potato or something. They want the mystery -we have to take it away.

  33. #33 James
    November 11, 2009

    I completely agree with Mary’s point, but I think the specific choice of tomatoes is also a conscious effort by the anti-GMO movement to play to their own strengths. The difference in flavor between tomatoes sold in most groceries stores and a tomato sold as vine-ripened, organic, local, heirloom, etc. etc. is huge. Sure the difference has nothing to do with genetic engineering, only a little to do with conventional breeding, and everything to do with economic incentives and food supply chains, but they’re trying to make the difference about genetic engineering in the public mind.

    Ewan, I think you hit the nail on the head about the ick factor. In the short term, I make sure to point out that no one ever ate strawberries with a fish gene. But as you say, we really do need to educate the public about individual genes aren’t somehow carrying the innate essence of the species they were originally found in. Anyone have ideas on how we do it?

    (sorry for the long comment)

  34. #34 Ewan R
    November 11, 2009

    I think the ‘creepiness’ of genes from X going into organism Y is something that scientists (and their PR folk), and educators need to work on.

    It clearly has a big impact on the wider debate, I think it is reasonably clear to most scientists (generalizing here… forgive me!) that a gene is a gene is a gene and as such source of genes from a scientific standpoint is largely irrelevant (other than functionality – for instance picking out proteins which may be better suited due to the biology of the source creature) – as far as I am aware this ‘ickyness’ factor is essentially the sole driving force behind big biotech’s avoidance of any animal sourced proteins (although come to think of it prions etc may play a part here… although one I think that could be navigated relatively easily without excluding all available animal genes – thank agrobacterium that in general most protein diversity exists in bacteria anyway)

  35. #35 tariqata
    November 11, 2009

    Mary, I think you’ve pretty much nailed it: tomatoes and corn are foods that we regularly eat without much processing. Also, I think the stories about tomatoes with fish genes made a big impression on a lot of people and there’s just something that sounds vaguely creepy about that, even to me (and I don’t consider myself anti-GM). It’s certainly the shorthand that’s used to describe GMOs in my experience.

    (I’ve got to disagree about the soybeans though – who doesn’t love edamame?)

  36. #36 Mary
    November 11, 2009

    Corn and tomato graphics: my theory is that those are foods people eat whole and have great warm fuzzy memories for (summer picnics, garden…).

    Nobody cares what a canola looks like, and although I eat soybeans unprocessed I’ll bet 99% of the planet doesn’t…

    Now I want edamame for dinner. I wonder if I have any in the freezer.

  37. #37 Rob Hebert
    November 11, 2009

    Thanks for all your great comments!

    @James (#1):
    Your suggestion is well taken. The reason why I used tomatoes in my example was that the FDA had used tomatoes in theirs. In retrospect, I should have used something a little less loaded. I feel like every time I see a scare ad from anti-GMers, it’s a tomato or an ear of corn. Why is that?

  38. #38 Hinemoana
    November 10, 2009

    @Prometheus

    “They told me that the suspect ingredients came from trees. When I remarked out “So does strychnine.” you would have thought I racked their own personal Jesus.”

    ROFL. I’ve dealt with people like that before. I’m so gonna steal that response for next time! :-)

  39. #39 James
    November 10, 2009

    The simplest way I can think to explain it is a trade off between ship-ability and flavor. Plant breeders can breed for either tomatoes that will handle shipping long distances, or tomatoes that taste delicious, but won’t survive more than a few miles travelling in a shipping crate. In addition the breeding, the same trade off applies to harvesting tomatoes when they’re ripe (better taste) or unripe (better survival during transportation). Matt over at thescientistgardener has a great post about this, but inserting links into my posts seems to get them held for moderation indefinitely.

    Prometheus are we saying the same things here?

    James Sweet, at some point a comment of mine should show up with a link over to slashdot were someone is saying exactly that. These are the same sort of people who think Canola was created using genetic engineering, never mind that double low rapeseed (Canola) was developed two decades before the first genetically engineered crop.

  40. #40 Prometheus
    November 10, 2009

    You got it Michelle B. “Organic” does not mean hand picked by Earl and the kids when they can see and smell it is ripe.

    “Organic” does not preclude the use of a CTM Commander Tomato Harvester Recovery Reel and 2-stage Shaker System applied to a thousand acres on a farm to market “shelf ripe” transit calculation.

    Party Cactus’ story about the quest for halal gummi worms reminded me that people treat these words like they are magic. The vegans at the “natural” food store were giving the kids “natural” “organic” “animal free” candy for Halloween this year.

    I read the ingredients and they were unhappy with me for pointing out that the gelatin had been replaced with two bio-polymers that are also used as industrial adhesives.

    They told me that the suspect ingredients came from trees. When I remarked out “So does strychnine.” you would have thought I racked their own personal Jesus.

  41. #41 Michelle B
    November 10, 2009

    Prometheus, thanks for that bit of knowledge. I actually thought the flavor was bred out! Is that why organic produce sold in supermarkets taste as flavorless as the regular produce? And why in small farmer markets, both organic and regular produce both have way more flavor than the supermarket stuff?

  42. #42 Prometheus
    November 10, 2009

    #4 James Sweet:

    “People actually make this argument?”

    I have heard it many times.

    I have also heard that the flavor is bred out of them to achieve enormous size and vivid color, which is nonsense.

    The principle trade off in breeding farm to market produce is trading sugar for on-the-vine ripening and ruggedness.

    “flavorlessness” is by-product of the plants not having enough time to transmit enough of one feature to the fruit or veg. before being harvested and ripened in transit.

    Sugar. Too much sugar softens the fruit and vega and makes it subject to rapid spoilage.

    The same idiots who prattle on about too much sugar in everything are complaining because the strawberries and tomatoes provided by the capitalist reptilian agrimafia overlords aren’t sweet enough.

  43. #43 James Sweet
    November 10, 2009

    people who blame nearly flavorless strawberries and tomatoes on genetic engineering (even though in both those cases the produce currently on the shelf is the product of good old selective breeding)

    People actually make this argument??? Don’t they remember that supermarket tomatoes were just as bland and tasteless twenty years ago as they are now? Wow…

  44. #44 Michelle B
    November 10, 2009

    Party Cactus, I really appreciated your excellent comment, it made me think!

  45. #45 Party Cactus
    November 10, 2009

    I always wonder about this labeling thing, how would they feel about mandatory labeling of (non-)Kosher/Halal foods? “Not a Jew/Muslim? Too bad, pay for it anyway.” Can you imagine how well that one would go over? Why should the anti-GMO crowd get special treatment when my Arabic professor, who is a Muslim, has to read through the list of ingredients on a package of gummy worms to check for gelatin? If he wants certified halal, he has to pay for it himself. He’s not out there trying to force everyone else to support his beliefs. I just don’t see how mandatory GMO labeling is any different (except that they admit religious reasons; I’ve never seen a Muslim or Jew claim that haraam or non-kosher foods have mystery toxins in them).

    And as for those mystery toxins, if someone pointed out a specific harmful agent present in all GMO foods that is not present in their non-GMO counterparts, and advocated that foods with that in them be labeled, then heck yeah, I’d want foods with that chemical labeled (or preferably taken off the market). But that’s not what they want. What they really have is an issue with the production, not the product (exactly like how practicing Jews/Muslims have an issue with how meat animals are to be slaughtered), because for all the hot air I’ve never seen anyone able to give a chemical/biological reason reason why all GMOs are supposedly dangerous, which makes it a belief or aesthetic ideal at best, not scientific fact. And that’s not enough for their own and their own tailor made law. Their beliefs don’t deserve a free pass.

  46. #46 Hinemoana
    November 10, 2009

    I am not against voluntary labelling of products that don’t contain any GE varieties, though I of course demand they be accurate. After all, it would inform me which products to avoid, just as I generally avoid the ‘organic’ section of the supermarket. Unfortunately, I live in New Zealand, which is particularly anti-GE. We can’t grow GE crops here and it is a real fear of mine that this will eventually extend to the supermarket shelf. While I’m happy to let the organic fanatics have their little corner of the supermarket, I don’t want them to take away my choice to support biotechnology.

  47. #47 James
    November 10, 2009

    So it boils down to the distinction between curiosity and demonstrable risk. That’s an argument I hadn’t previously heard against labeling.

    I really don’t have a problem with producers choosing to label their products as GMO-free (though I may in turn choose not to purchase those products) but given the lack of evidence for any unhealthy effects of genetically engineered foods currently on the market, the added cost should be born by those with unjustified fears, not the rest of us.

    Awesome post! I hope it’s ok if I make one suggestion?

    It might make sense to switch out your tomato example for say, soybeans or papayas. There’s already so much misinformation floating around from people who blame nearly flavorless strawberries and tomatoes on genetic engineering (even though in both those cases the produce currently on the shelf is the product of good old selective breeding) that someone is sure to see your example as vindication of that bit of misinformation.

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