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Will a Federal Compromise on GMO Labeling Trump State Law, Forever?

Opinion

Recent reports of secret meetings among industry reps and the Food and Drug Adminstration over GMO labeling piqued my interest, mostly because this critical aspect was missing: any effort to label GE foods at the federal level could bring the current grassroots movement to a grinding halt by preventing any stronger local laws from ever being enacted. But I am getting ahead of myself.

Last month, Ronnie Cummins, director of the Organic Consumers Association and one of the leaders of the GMO labeling effort, recently published an article about how “representatives of Wal-Mart, General Mills, Pepsi-Frito Lay, Mars, Coca-Cola and others” met with the FDA on January 11 “to lobby for a mandatory federal GMO labeling law.”

The story was then picked up by Tom Laskawy at Grist, who reported that at the meeting, a Walmart representative said the retail giant would no longer oppose GMO labeling and that “other food company executives agreed, saying that the fight had become too expensive, especially given the prospect of more state-level initiatives.”

The story kicked into high-gear when the New York Times’ Stephanie Strom covered it last week, adding a few new details, such as the meeting being attended by “20 major food companies” as well as two GMO labeling advocates: Gary Hirshberg, co-chair of the Just Label It federal campaign, and Charles Benbrook, professor at Washington State University. The Times story gave the impression that the meeting is something to celebrate. After all, if Walmart comes to the table, that’s a big deal.

But missing from both of these accounts is the ominous potential downside of federal GMO labeling: a sneaky legal concept known as preemption. Most advocates don’t find out about it before it’s too late.

Preemption simply means that a higher law trumps a lower law: so federal trumps state, and state trumps local. But in practice, it’s industry’s way of ensuring uniformity and stopping grassroots efforts. How I do know this? From years of experience of seeing it happen in various public health issues. It’s such a huge problem that the Robert Wood Johnson Foundation funded an entire project called “Preemption and Movement Building in Public Health” to educate advocates about how to handle it.

Here is the pattern: a grassroots effort builds over time to enact local or state laws (such as gun control, indoor-smoking laws, or restricting alcohol sales), and industry fights these efforts for years, until they can no longer win. At that point, industry lobbyists turn around and either get their own weak bill passed, or work with advocates to pass a compromise version. In exchange, this law will preempt or prevent any state or city from passing a different or stronger law. Forever.

No industry likes to deal with 50 different state laws, or even a handful of expensive state-level battles. We recently saw this exact scenario play out in the food movement, with menu labeling in chain restaurants. For decades, the restaurant industry successfully fought federal efforts to require calorie counts and other basic nutrition information on menus. Then over the last few years, numerous states and cities started enacting their own laws, much to industry’s dismay. Enter the compromise struck between the leading proponent of  menu labeling, the Center for Science in the Public Interest, and the restaurant industry: federally-required menu labeling for calories only, in exchange for all state and local laws being preempted, past and future. (See this document labeled “compromise endorsements” for the bill’s supporters, which include the Grocery Manufacturers Association, a leader of the No on Prop 37 campaign on GMO labeling in California.)

Now, almost three years after passage, we still don’t have federal menu labeling as the final regulations are stalled at FDA, while certain industry members fight it. We also no longer see states or cities taking up the issue, figuring the feds took care of it. See what I mean about stopping a grassroots movement in its tracks? Public health lawyer Mark Pertschuk noted: “the rapidly growing grassroots movement for meaningful menu labeling may never recover.” He also cites the irony of this 2009 memo from President Obama opposing preemption in all federal rule-making. The memo correctly notes: “Throughout our history, state and local governments have frequently protected health, safety, and the environment more aggressively than has the national government.”

Amen to that. I am not opposed to federal labeling on GMO food. I agree this is where the problem must ultimately be solved. However, any federal standard must set a floor and not a ceiling, and not hand preemption over to industry. The role of the federal government is to set minimum standards, while still allowing states to go further. This, however, is not the end-game that Walmart et al. have in mind.

I asked Dave Murphy, founder of Food Democracy Now! and leader of the grassroots GMO labeling efforts about this issue. He told me it was a huge concern among movement leaders: “Ultimately the conversation represents a seismic shift in where we were four years ago on GMO labeling. But we know that anything coming out of Washington D.C. will be a weaker standard, which would not be good for either farmers or consumers. The goal is to make sure that a federal law doesn’t undermine state efforts.”

As Cummins noted about the meeting: “We should be wary of any compromise deal at the federal level, one that would preempt the passage of meaningful state GMO labeling laws that have real teeth.”

Very wary indeed.

© Food Safety News
  • ElizabethConley

    I don’t like the food labels we have now.  They are far too easily circumvented by food packaging companies as it is.  The labels don’t include critical information about very important nutrients such as vitamin E, and often confuse and mislead. 

    Take a simple product, like cane sugar:

    If a package says, “Made with the goodness of cane sugar,” it is unlikely to be a bag of cane sugar.  This advertisement actually means that some component of cane sugar, such as molasses or some component of molasses, is mixed with the rest of the product. 

    Wouldn’t a consumer who buys a package of Demerera Sugar reasonably believe s/he was buying cane sugar? 

    If the package says “sugar” as the first ingredient in the ingredient list, then this sugar could be from any source, and could be any one of a number of compounds that are classified as sugars. 

    Only if the package lists as its only ingredient “cane sugar” is it actually a package of cane sugar.  At least I hope it is.  It’s hard to be certain.  The food packagers undoubtedly have scams that even I am unaware of.

    It’s exhausting. 

    We’re terribly underserved by the FDA when it comes to food and drug labels and quality control over our food supply.  I know our federal legislators are at least as smart as I am.  Why don’t they work to fix these problems?  Why is it we must fear our Federal Legislators will pass more weak legislation that leaves us unprotected.  I would so like to be able to trust the Federal Government when it comes to food quality and safety, not to mention food labeling. 

  • http://burningbird.net Shelley Powers

    Yes and no on the impact of preemption and federal laws. 

    For instance, large scale puppy breeders must be licensed by the USDA if they sell the puppies wholesale, and most likely via the internet is changes take place. The state cannot preempt this licensing requirement. But the state can add its own licensing, and may impose its own standard of welfare above and beyond what the USDA imposes. 

    On the other, in National Meat Association v. Harris, federal law preempted state law (Californian) when it comes to the disposition of animals that become non-ambulatory while in transport to the slaughter house. 

    http://farmdocdaily.illinois.edu/2012/02/federal_preemption_and_animal_1.html

    Certain animal welfare groups are now trying to get passed a national bill for the welfare of chickens maintained for eggs–not because they’re trying to preempt grassroots efforts (which it would) but because the changes are more likely to happen more quickly, and uniformly, than if we tried to bring about the changes piecemeal. 

    Following is an excellent write up on the tension associated with animal welfare (and food safety) legislation at state and federal levels. 

    As for GMO labeling, I’d be curious to see what would be a weak GMO labeling law. GMO is kind of like: it’s there, it’s not. And frankly, even with bipartisan support I doubt such a law could pass in our current Congress. 

  • http://www.facebook.com/profile.php?id=100001504314323 Michael Flannery

    I agree with CP.  Asking companies to try to comply with 50 different labeling laws is ridiculous. Not only could this require manufacturers to forecast and produce as many as 50 unique SKUs for every one of their products, it would also dramatically increase the logistics costs for getting those products on the shelves.  Many major retailers use centralized warehousing and are able to adjust shipments, based on actual demand in the different states.  If instead, they had to forecast and warehouse separate products for the diffent states and then be on the hook for each of the missed forecasts because they couldn’t ship product to higher-demand regions, you as a consumer would see a major increase in prices and reduced product availability.  If labeling of GM products can be achieved in a consistent way throughout the US, this will bring much more benefit than state-by-state requirements IMHO.

  • http://twitter.com/ocheyette Oren Cheyette

    To everyone who is unhappy about current labels, GMO-related or otherwise, unrelated to actual food safety: demand better labels from the producer and distributor. The FDA’s mission is safety. It’s not concerned with whether the food is kosher or whether the milkmaids were menstruating when they milked the cows (<- joke) even though people who take Leviticus seriously might care about both of those things. If you have a food discipline that requires detailed information like that, find food sources that meet your needs. But don't demand that the rest of us absorb the costs of your labeling regime with its associated tracking and compliance auditing costs.

    There is already a GMO-free certification provider, and organic food must be non-GMO (for some reason). Stick to those and you're all set. But don't be upset that Doritos aren't labeled as "containing GMOs". (In any case, if you're eating Doritos you've got bigger things to worry about than foreign genes in the corn.)

    From the manufacturers' perspective, as CP hints at, it's almost certain that preemption is the quid pro quo for a federal rule. Otherwise they incur both the downside of labeling and the downside of 50 different sets of state laws.

  • ElizabethConley

    Hmm. There are posts missing now.  Picking and choosing?  Interesting.

  • ElizabethConley

    I’m not against GMO plants in theory, but the way GMOs have been rushed to market makes me uncomfortable.  

    I prefer to have as much information as possible about what’s in my food, where it was grown, how it was harvested, packaged and brought to the grocery shelves.  I will spend a bit more money or search the stores more diligently to buy the products I find more trustworthy.  Those producers who offer more information are definitely more trusted by me than those who offer less.  Those I have caught playing word games with me about the actual contents of a package I trust least of all.  That’s scummy behavior, and I’m tired of it.

    I guess I’m grateful to the scummy food producers, because they’ve forced me to look beyond their products to others.  They’ve forced me to try innovative approaches to feeding my family.  In avoiding their misleading product labels I’ve put more variety on our table.  That’s a positive outcome.

    I still object.  I think food labels should be honest, and contain a great deal more information about nutrition and the contents than they currently do.  I hope my legislators are going to start listening to me and other citizens who also want to know more about what’s in their food.

  • Richard Kelly

    Advocates love preemption when the Federal law has standards they like, and hate it other times. By your ‘set a floor not a ceiling’ remark do you mean a weak Federal standard you believe to be ineffective is good enough? No, you want a strong Federal standard. In which case, why allow even stronger State standards? Are you one of those progressive unicorns that actually support States’ rights? I doubt it. How about Federal laws setting ID or immigrant papers requirements? Should States be able to implement their own stricter standards?