A heated debate continues over whether genetically engineered (GE) foods should be labeled for sale and distribution. Proponents insist that consumers have a “right to know” what is in the foods that are being offered for sale in the marketplace. Opponents of such labeling argue that it provides no useful information, and is actually misleading to most consumers. This debate is being conducted at the ballot box, in State and Federal legislatures, and in the courts. This article provides a summary of the issues involved and an update of the current status.
First, it should be clear that the debate over whether to label genetically engineered foods is not an argument over the safety of such foods or whether they pose risks different than conventionally bred and produced food products. This question has been answered conclusively. A recent meta analysis of more than 1700 scientific studies worldwide addressing the safety of GE foods concluded that “scientific research conducted so far has not detected any significant hazards directly connected to the use of GMOs.” (I recently gave a talk on regulation of genetically engineered plants at the 2016 Biotechnology Industry Organization World Congress of Industrial Technology and I noted that, while I don’t presume to opine on what is the exact number of peer reviewed published studies demonstrating the safety of GE foods is sufficient to lay this issue to rest, I do know that it is far less than the more than 2000 studies that have been conducted so far that have demonstrated the safety of such products.) Moreover, some of the most august scientific bodies in the world have similarly conclusively declared that the GE foods produced to date bear no greater risk than conventionally produced foods. These include the American Association for the Advancement of Science, the American Medical Association, the U.S. National Academy of Sciences, the British Royal Society, and the World Health Organization. Also, regulatory bodies, including the U.S. Food and Drug Administration (FDA), the Environmental Protection Agency, the European Food Safety Authority, and numerous other regulatory agencies around the world strictly scrutinize GE food products before approving them for consumption. Thus, whatever the GE food labeling debate is about, it is not about food safety.
Many proponents of GE food labeling laws often support such requirements on the basis of the consumer’s “right to know.” What they don’t explain, however, is what knowledge is the consumer gaining, and on what basis is it useful? Is there a “right” to irrelevant information? Or, asked a different way, is there a “right” to information that has no relevance to the health and safety of the consuming public? On November 19, 2015, the FDA, in a comprehensive 31-page response, denied a Center for Food Safety petition requesting that FDA impose mandatory labeling of GE food products. In denying the petition, the FDA noted that “[t]he petition does not provide evidence sufficient to show that foods derived from genetically engineered plants, as a class, differ from foods derived from non-GE plant varieties in any meaningful or uniform way, or that as a class, such foods present any different or greater safety concern than foods developed by traditional plant breeding.”
Proponents have also attempted political means to impose mandatory labeling. In 2013 and 2014, state electoral initiatives seeking to impose mandatory labeling requirements in Washington (2013), and Oregon and Colorado (2014) failed by margins of 54.8% to 45.2%, 50.03% to 49.97%, and 65.5% to 34.5%, respectively.
On May 8, 2014, however, Vermont Governor, Richard Shumlin signed into law Act 120, which establishes mandatory labeling requirements for GE food products sold for human consumption. Act 120 requires all covered food to have labeling indicating that it is either “entirely or partially produced with genetic engineering.” Relevant raw agricultural commodities must be labeled as “produced with genetic engineering.” Covered processed foods must be labeled “partially produced with genetic engineering,” “may be produced with genetic engineering,” or “produced with genetic engineering.” The law also prohibits use of the word “natural” or any “words of similar import” on product labels or advertising of covered foods. The requirements are scheduled to go into effect as of July 1, 2016.
On June 12, 2014, the Grocery Manufacturers Association, Snack Food Association, International Dairy Foods Association, and National Association of Manufacturers filed a complaint in the U.S. District Court for the District of Vermont seeking declaratory and injunctive relief. The Plaintiff’s Complaint asserted five counts alleging violations of the First, Fifth and Fourteenth Amendments to the United States Constitution, the Commerce Clause and Supremacy Clause of the United States Constitution, and the doctrine of preemption. The court heard oral argument in the case on January 7, 2015. On April 27, 2015, the court declined to enjoin Act 120’s labeling requirements for GE foods. The court’s decision is based on its rulings that, inter alia, the labeling requirements (1) do not constitute political speech; (2) do not mandate impermissible viewpoint discrimination; (3) do not require the disclosure of “controversial” information; (4) are reasonably related to the State’s interests and, thus, are not unconstitutional. Grocery Manufacturers Association v. Sorrell, 102 F. Supp.3d 583 (D. Vt. 2015). The District Court’s decision has been appealed to the Second Circuit, GMA, et al. v. Sorrell, Case No. 15-1504. The Court of Appeals heard oral argument in this case on October 8, 2015. It remains to be seen if a decision in the case is rendered before Vermont’s July 1 deadline. (Note also that Connecticut and Maine have passed GMO labeling laws that go into effect if certain triggering conditions are satisfied.)
The Congress has also been active on these questions. At issue at the Federal level is whether Congress should pass legislation that would seek to prevent a patchwork of varying state GE food labeling requirements. On July 27, 2015, by a vote of 275-150, the House of Representatives passed the H.R. 1599, the Safe and Accurate Food Labeling Act of 2015. This bill, if enacted would result in a Federal standard for the voluntary labeling of GE foods, and preempt states from imposing separate mandatory labeling requirements. On March 16, S. 2609, a companion bill that similarly would preempt mandatory state labeling requirements in favor of a standard for voluntary labeling, failed a key procedural step in the Senate. While it’s possible that this bill could be brought up again, it’s not at all certain that, given a crowded legislative calendar, if action on the bill will be completed in this Congress.
The most unfortunate aspect of all of this is that GE technology has real and undisputed benefits. A study by Purdue University found that elimination of GE crops in the United States would result in decreased agricultural yields, significant decreases in forest and untilled pasture land, higher greenhouse gas emissions, significant increases in soil erosion, and higher food prices. A study of smallholder farmers in India planting GE cotton shows that among such farm families, calorie consumption and dietary quality has increased, and food insecurity has decreased 15-20%, as a result of increased family incomes. Moreover, the benefits of genetic technologies in improved nutritional content foods, and improved tolerance to environmental stresses that will result from climate change are a key factor in how societies worldwide will feed growing populations in the face of changing agronomic conditions. These are not academic questions, but persuading people of the benefits of genetic technologies in the face of incessant activist campaigns against it will not be easy.
Perhaps one approach is that advocated by Steffan Blancke, of Ghent University:
[F]or now, the best way to turn the tide, and generate a more positive public response to GMOs is to play into people’s intuitions as well. For instance, emphasizing the benefits of current and future GM applications – improved soil structures because herbicide resistant crops require less or no tilling, higher incomes for farmers in less and developing countries, reduced vitamin A deficiency, virus and drought resistance, to name a few – might constitute the most effective approach to changing people’s minds. Given the benefits and promises of GM technology, such change is much needed.
Keith Matthews, Sidley Austin LLP. This article has been prepared for informational purposes only and does not constitute legal advice. This information is not intended to create, and the receipt of it does not constitute, a lawyer-client relationship. Readers should not act upon this without seeking advice from professional advisers. The content therein does not reflect the views of the firm.
 Nicolia, A., et al., An Overview of the Last 10 Years of Genetically Engineered Crop Safety Research, 34 Crit. Rev. Biotechnology 77 (2014).
 Letter from Leslie Kux, Associate Commissioner for Policy, U.S. FDA, to Andrew Kimbrell, Executive Director, Center for Food Safety (Nov. 19, 2015).
 Act 120 broadly exempts from the labeling requirements (1) food derived from animals that are not themselves genetically engineered, e.g., meat and milk; food sold in restaurants; alcoholic beverages; and food processing materials and enzymes.