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Wednesday, October 08, 2014

Too Much Information? GM Food Labeling Mandates

As NPR reported yesterday, voters in Colorado and Oregon will decide next month whether foods with genetically-modified (GM) ingredients should be identified as such with labeling. And why not? More information usually is better, and many people care very much whether they are purchasing GM foods. Moreover, it is common for the government to protect consumers by requiring disclosures of information. Thus, sellers of securities must tell us relevant information about their companies, and sellers of food must tell us relevant information about the nutritional content of their products.

Nevertheless, there often are good reasons to reject state-mandated disclosures of information to consumers. Sometimes, the government requires the provision of inaccurate information, as when states require doctors to tell pregnant women that abortions result in a higher risk of breast cancer or suicide. At other times, the government mandates ideological speech, compelling individuals to promote the state’s viewpoint. Accordingly, the First Amendment should prevent government from requiring the disclosure of false or misleading information or of ideological messages. (For discussion of abortion and compelled speech, see this forthcoming article.)

What about GM labeling?

Is this similar to requiring country-of-origin labeling for meat and produce, a policy upheld by the D.C. Circuit earlier this year? GM labeling likely will mislead more than inform. Many people harbor concerns about genetic modification that are not justified by reality. In particular, as the NPR report indicated, researchers have not found any risks to health from eating GM foods. Indeed, genetic modification can promote better health, as when crops are fortified with essential vitamins or other nutrients. For very good reasons, GM foods run throughout the food supply, whether from traditional forms of breeding or modern laboratory techniques. Thus, the American Association for the Advancement of Science has concluded that GM labeling “can only serve to mislead and falsely alarm consumers.”

[cross-posted at Health Law Profs and orentlicher.tumblr.com]

Posted by David Orentlicher on October 8, 2014 at 12:47 PM in Culture, Current Affairs, First Amendment, Food and Drink, Science | Permalink

Comments

I don't understand why people should not be allowed to decide, via their elected officials, that they would like information that would allow them to make personal decisions on the basis of beliefs that are not necessarily founded upon "scientific evidence", but upon convictions and understandings that may either be unprovable or that may not accord with a scientist's view of reality. The task of the scientific community may be to convince people that those beliefs are "wrong", but to the extent that they fail to do so, why not allow the labeling requirements to stand? It may be bad public policy from a scientific or cost-benefit perspective, but the essence of democracy is that, within certain limits, the demos is allowed to enact "irrational" policies (and note I am speaking of legislative policies, and not delegated law-making to an administrative body, which may in fact face limits on its delegation that require "rationality"). In the case of country-of-origin, that right is limited by international treaties (WTO) which aim to prevent de facto discrimination against foreign products; in the case of states, it is limited by the dormant commerce clause; but assuming that these external legal constraints don't exist, I am perfectly happy to allow a state to require producers to comply with GM-labeling requirements, in the same way that I am happy to allow California to require businesses to post those pointless and ridiculous notices that a given product "may contain substances known to the state of California to cause cancer". The latter is a stupid and pointless policy, but so what? Democracy means that we will get our share of stupid policies. It seems presumptuous to impose on the demos a requirement that their policies conform with the understandings of science and scientists-- which, let us remember, routinely announce that so-and-so will kill you, and then, several years later, announce that, in fact, so-and-so is not so bad after all. The public may, actually, intuitively "get" that science's ability to provide certain answers to public policy questions is limited, and may, sometimes, prefer to act on the basis of conviction rather than on the scientific knowledge of the day.

Posted by: jason yackee | Oct 8, 2014 6:37:56 PM

It is my understanding that it is not totally unreasonable to be concerned about GMOs foods for various reasons especially in certain narrow situations. There is room for debate there. The matter does not seem so clear especially given the practice of European countries etc. that labeling is a bad idea. GMO foods also can be opposed on religious or other non-health grounds. Why shouldn't people have the choice to know if food are GMO for that reason alone? Also, "GMO" can mean a lot of things.

I think the first comment generally correct too though it might go too far. Furthermore, one of the very links in the article notes:

This doesn’t mean that there aren’t REAL concerns about GM crops (and, now, by the way, I am lumping together both endogenous and exogenous). For example, farming techniques have serious consequences on the environment. And, if farmers are not incentivized to practice eco-friendly techniques, such as crop rotation, we may experience severe environmental and health consequences

If so, why isn't labeling for that reason alone useful? The idea seems to be at best it is a mild concern in limited cases but the same applies to various labeling.

Posted by: Joe | Oct 8, 2014 8:35:28 PM

[the penultimate paragraph in my comment should be in italics]

Posted by: Joe | Oct 8, 2014 8:36:39 PM

Thanks for your very thoughtful comments. I think the interests of consumers who really care whether their foods are genetically modified can be satisfied without a labeling mandate. Companies whose foods are not genetically modified can advertise that fact. But if the government requires the labeling, then it effectively says to consumers that it really matters whether foods are genetically modified. And to consumers who are not already worried about genetic modification, that may be highly misleading.

Regarding the concern about farming techniques and the environment, I'm not sure that this concern is peculiar to GM crops. Bad farming techniques cause serious problems with non-GM crops too. Moreover, some GM crops can reduce environmental harm by reducing the need for insecticide (http://www.pbs.org/wgbh/nova/next/nature/fewer-pesticides-farming-with-gmos).

Posted by: David Orentlicher | Oct 8, 2014 9:25:41 PM

David,

You may want to look at a post by Roberta Millstein and my comments at the New APPS blog that sees matters rather differently (e.g., the reduction in pesticide use has often proven to be in the short-term, and not the long-run). http://www.newappsblog.com/2014/10/concerning-events-at-the-journal-science.html#comments

Posted by: Patrick S. O'Donnell | Oct 9, 2014 10:16:48 AM

"But if the government requires the labeling, then it effectively says to consumers that it really matters whether foods are genetically modified."

I am not sure that it is so clear that it doesn't matter at all myself, especially for some people with special needs. If there are "real concerns" or the possibility of it, "it really matters."

I'm not qualified to argue the evidence as to things like environmental impact, but apparently it's in dispute, so partially in favor of a precautionary principle, labeling very well might be appropriate. All companies don't "advertise the fact" -- if so, the labeling would be redundant.

I appreciate Mr. O'Donnell's link. The issue will largely be a factual debate though again I think the other comment as to the people deciding what they wish to include on labels of some merit though then we can debate if it is good policy when it is debated. I'll leave it there and thanks for the reply.

Posted by: Joe | Oct 9, 2014 10:51:09 AM

You cite one study by a pro-GMO shill to say there's nothing to this anti-GMO stuff. Amazing. Imagine if that was one's approach to the law? Well, there's this one case and it says X and that's good enough for me.

Stick to the law. Stay out of GMO debates, which you clearly know nothing about.

This paper has a lot more unbiased information in it than anything you've cited.

http://earthopensource.org/index.php/reports/gmo-myths-and-truths

The SMC describes Prof Ottoline Leyser as Associate Director of the Sainsbury Laboratory, University of Cambridge. They don't mention that the Laboratory is funded by the Gatsby Foundation of Lord Sainsbury, the well known GM enthusiast and biotech entrepreneur, who also set up and funds the GM-related work of the Sainsbury Laboratory at the John Innes Centre.
http://www.powerbase.info/index.php/David_Sainsbury

Posted by: motto | Oct 9, 2014 4:05:34 PM

For those who want more information about GM technology, see reports by the

American Association for the Advancement of Science, http://www.aaas.org/news/statement-aaas-board-directors-labeling-genetically-modified-foods

National Academy of Sciences, http://www.nap.edu/catalog.php?record_id=9889

European Commission, http://ec.europa.eu/research/biosociety/pdf/a_decade_of_eu-funded_gmo_research.pdf

Posted by: David Orentlicher | Oct 13, 2014 10:47:39 AM

Vermont knows what they're doing with GMO food labeling. I was recently eating some Fritos and I noticed the labeling of "contains genetically modified material". No thanks!!!

Posted by: Phil Donagan | Feb 3, 2017 4:42:38 PM

On second thought, I do love me some fritos! So maybe just this once I'll treat myself!

Posted by: Phil Donagan | Feb 3, 2017 4:47:38 PM

Nahhh, forget it! Fritos are awful snacks!

Posted by: Phil Donagan | Feb 3, 2017 4:48:14 PM

Actually, I could go for some right now on my snack wall!

Posted by: Phil Donagan | Feb 3, 2017 4:48:57 PM

I think I'm going crazy... I can't decide what to do...

Posted by: Phil Donagan | Feb 3, 2017 4:49:35 PM

Mmmmm, Fritosssssss

Posted by: Phil Donagan | Feb 3, 2017 4:50:17 PM

I can feel the GMOs inside my stomach...

Posted by: Phil Donagan | Feb 3, 2017 4:52:54 PM

what a poor, poor choice I made...

Posted by: Phil Donagan | Feb 3, 2017 4:55:06 PM

At least i'll sleep well feeling full and not hungry

Posted by: Phil Donagan | Feb 3, 2017 4:55:37 PM

The money saved by using GMO corn for fritos should be donated to people all around the world!

Posted by: Phil Donagan | Feb 3, 2017 4:56:51 PM

By golly, these are great, STILL!

Posted by: Phil Donagan | Feb 3, 2017 4:57:16 PM

I think I may have changed my stance on GMOs for the time being...

Posted by: Phil Donagan | Feb 3, 2017 4:57:41 PM

:(

Posted by: Phil Donagan | Feb 3, 2017 4:57:55 PM

Kid Rock loves fritos I heard

Posted by: Phil Donagan | Feb 3, 2017 4:58:23 PM

Jimmy Kimmel hates them though...

Posted by: Phil Donagan | Feb 3, 2017 4:58:49 PM

GMOs will probably transform us all into mutants!!!

Posted by: Phil Donagan | Feb 3, 2017 4:59:25 PM

wow, I rambled on for quite a bit here, huh?

Posted by: Phil Donagan | Feb 3, 2017 5:00:16 PM

peace out homies!

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