On July 29, President Barack Obama signed a bill amending the Agricultural Marketing Act of 1946 to require the Secretary of Agriculture to establish a national disclosure standard for bioengineered foods. While the new law establishes the framework for the labeling of food products containing bioengineered or genetically modified organism (GMO) ingredients, the secretary will have the next two years to develop specific rules related to such labeling.
For example, although the law states that companies will be required to disclose the presence of GMO ingredients through text labels, symbols, or digital links, such as scannable QR codes, the secretary is to determine the amounts of such substances that may be present in food before triggering the labeling requirement.
Prior to the law’s enactment, there was no federal requirement that food products containing GMOs be labeled as such. Fueled, in large part, by the public’s misconceptions about the safety of GMOs, several states, including Vermont, passed their own GMO labeling laws. The existence of competing state labeling laws threatened to a create patchwork of legislation that was sure to increase the costs of goods in those states, while decreasing the selection of products available to their residents.
Indeed, it was widely reported in the months leading up to the implementation of Vermont’s GMO labeling law that many manufacturers simply chose to stop selling their products in that state, rather than comply with its new law. Unfortunately, the new federal law does little to allay the many misconceptions over the health and safety of GMOs and, in some ways, perpetuates them by mandating labeling.
It appears, however, that the new federal law will pre-empt all, or significant portions of, state GMO labeling laws, thereby replacing a patchwork of competing and potentially conflicting labeling laws with a single, uniform labeling standard.
Clearly the uniform standard to be created by the new federal law is a far superior alternative to the patchwork of state legislation that developed in its absence. The new federal law, however, is not without its faults.
For example, the mandate that food products containing GMOs be labeled as such will likely increase the cost of goods sold, even if marginally. To be sure, mandatory labeling will now require manufacturers to obtain assurances from their suppliers, in certificates of analyses or otherwise, as to whether the ingredients they are purchasing are genetically modified. Faced with the prospect of penalties and consumer class action litigation if their products are incorrectly labeled, manufacturers would be wise to modify their own internal testing protocols applicable to incoming ingredients to ensure that their suppliers’ representations regarding the presence or absence of GMOs are accurate.
Where possible, manufacturers should also ensure that their suppliers have the financial means to indemnify them for losses arising out of misrepresentations in labeling by, among other things, requiring their procurement of costly insurance policies covering such losses. Furthermore, unlike some state GMO labeling laws, the new federal law does not address so-called “natural” or “all natural” claims, thereby providing manufacturers with no guidance regarding the use of such claims and failing to curb the rash of consumer class action lawsuits challenging them.
The additional costs associated with product labeling, ingredient testing, insurance procurement, and continued consumer class action litigation over “natural” claims will likely increase the price of goods sold to consumers. To be sure, the specter of higher food prices in the name of health and safety is a sensible and worthwhile investment. The overwhelming scientific evidence, however, demonstrates that foods from genetically engineered crops are at least as safe as foods from non-GE crops. Therefore, there appears to be little to no scientific need for the labeling requirements mandated by the new federal law, and there are no tangible benefits derived from the anticipated increases in food prices.
Many have criticized the new federal law’s provision authorizing the use of digital links, such as scannable QR codes, as adversely affecting the less affluent who may not have access to smartphones and the internet, particularly while traversing the aisles of a supermarket. Such criticism, although certainly worthy of discussion, must be considered in conjunction with the new law’s anticipated increases in food prices.
While it is clear that price increases will have the greatest effect on the poor, there is little evidence to suggest that the new labeling law will have any positive effect on the safety of the nation’s food supply. Assuming these anticipated price increases become a reality, the poor will pay a high price for the publics’ “demand to know,” which is based upon misconceived perceptions of the health and safety of GMOs.
The new federal law, however, will alleviate food manufacturers from the burden of complying with a patchwork of state legislation while, at the same time, ensuring that supermarket shelves in all states remain filled and consumers’ desire for more information is satisfied.
Whether this new law is a resounding success or an overwhelming failure remains to be told, as the final rules have not yet been written by the agriculture secretary. Like most things in life, however, success or failure is often not clear cut and depends, in part, upon which side of the supermarket aisle you occupy.
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