How Not to Label Biotech Foods

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In November, Californians will vote on Proposition 37, a ballot initiative to impose a mandatory labeling requirement on all foods produced with or from genetically modified organisms (GMOs). For reasons I discuss in this New Atlantis article, this requirement is unnecessary, unwise and potentially unconstitutional.

The effort has been endorsed by numerous progressive organizations and the California Democratic Party. Of note, those who usually police the misuse or politicization of science have been strangely quiet about the misleading and inaccurate scientific claims made by Prop. 37 proponents. Although the proposition warns of “adverse health consequences” from genetic engineering of foods, there is not a single documented case of adverse health consequences due to the use of GMOs. Yet about traditional crop-breeding techniques, we can say no such thing. It’s no wonder that the National Academy of Sciences has issued numerous reports concluding that the use of modern genetic modification techniques, in themselves, have no bearing on the relative safety of a food product. What was done to a specific GMO matters more than whether specific modification techniques were used.

It is even misleading to single out crops and other organisms modified by modern genetic modification techniques as “genetically engineered." Many common crops are “genetically engineered” in that they are the result of direct human modification. Corn, for example, does not exist naturally. It was “engineered” by humans, albeit using less precise breeding methods centuries ago.

The organizers of the effort claim consumers have a “right to know” whether their foods contain GMOs. But nothing stops consumers from obtaining such information. Organic producers and others who wish to cater to those who dislike GMOs are free to label their products accordingly (and, in my view, should be able to do so without some of the excessive disclaimers urged by the FDA). Absent evidence of a potential health risk, there is no reason for the government to mandate GMO labels. Such labels are not necessary to protect consumers against misleading claims, and a proclaimed “right to know” does not constitute a substantial governmental interest.

Some consumers may want to know whether products contain GMOs, just as others may wish to know whether a product was made with union labor, a company’s executives donated to particular political candidates, or its products were blessed by shaman priestesses. Yet it must take more to justify compelling speech in the form of product labels. Were it otherwise, there is no end to what could be the subject of mandatory labeling requirements, and there would be no meaningful constitutional protection of compelled commercial speech.

Most existing labeling requirements can be justified on the grounds that they protect uninformed consumers from potential adverse impacts. Ingredient labels, for example, protect those with allergies or specific dietary needs. GMO labels, on the other hand, do no such thing. Rather they stigmatize products, suggesting there is something significant, or even potentially wrong, with a product that was produced in this way, even if there is no scientific basis for making such a claim. Some consumers may have moral or other objections to GMO products, and that is their right. Such consumers are free to seek out producers who will make products in accord with their preferences. But GMO opponents should not have the right to force others to modify product labels, at their own expense, just to satisfy one group’s set of subjective value preferences.

Does this mean there will be no GMO labels? Not at all. There is no requirement that producers identify whether products are “organic” or “kosher,” and yet such labels proliferate. Where such information is likely to influence consumer behavior, producers have ample incentives to provide the information consumers want. That is, those producers whose products are GMO-free have every incentive to disclose, and perhaps even advertise, this fact. Such disclosure is sufficient to let those consumers who oppose GMOs shop accordingly without imposing the cost of such preferences on others.

Cross-posted from The Volokh Conspiracy.

Jonathan Adler is Professor of Law and Director of the Center for Business Law & Regulation at the Case Western Reserve University School of Law. He is a prolific scholar, publishing on such topics as regulatory takings, water marketing, fisheries management, and the judicial limits of federal environmental regulation.He is the author, editor...
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