Education

You are what you eat...but how do you know what that is?

By Philip L. Bereano, professor of technical communications at the University of Washington

“I personally have no wish to eat anything produced by genetic modification, nor do I knowingly offer this sort of produce to my family or guests. There is increasing evidence that many people feel the same way.” Prince Charles, London Telegraph, June 8, 1998

Genetic engineering is a set of new techniques for altering the basic makeup of plants and animals. Genes from insects, animals, and humans have been added to crop plants; human genes have been added to pigs and cattle. Although genetic engineering techniques are biologically novel, the industry and government are so eager to achieve financial success that they argue that the products of the technologies are pretty much the same (“substantially equivalent”) as normal crops. Despite the gene tinkering, the new products are not being tested extensively to find out how they differ and to be sure that any hazards they present are within acceptable limits. These foods are now appearing in the supermarkets and on our dinner plates, get the industry and government have been vigorously resisting consumer attempts to label these “novel foods” in order to distinguish them from more traditional ones.

The failure of the US government to require that genetically engineered foods (GEFs) be labeled also presents consumers with a number of additional quandaries: issues of free speech and consumers' right-to-know, religious rights for those with dietary restrictions, and cultural rights for people, such as vegetarians, who choose to avoid consuming foods of certain origins. The use of antibiotic resistance genes engineered into the crop plants as “markers” can contribute to the spread of antibiotic-tolerant disease bacteria; this resistance is a major public health problem as documented by a recent study of the National Academy of Sciences. Some genetic recombinations can lead to allergic or auto-immune reactions. The products of some genes which are used as plant pesticides have been implicated in skin diseases in farm and market workers.

The labeling of a product performs an important social function, namely communication between a seller and a would-be buyer. A fully accurate label helps to fulfill the classic economic market model by assuring mutually-informed buyer and seller. The struggle over labeling is occurring because industry knows that consumers do not want to eat GEFs, and that labeled products will likely fail in the marketplace. However, as the British publication The Economist noted, “if Monsanto can not persuade us it certainly has no right to foist its products on us.” Labels would counter “foisting” and are legally justifiable.

The Government’s Rationale
In 1992, the government abdicated any supervision over GEFs. Under the Food and Drug Administration's rules, the agency does not even have access to any industry information about a GEF unless the company decides voluntarily to submit it. Moreover, important information bearing on questions of assessment of risks is often withheld as being proprietary, “confidential business information.” So “safety” cannot be judged in a precautionary way; we must await the inevitable hazardous event.

According to a former FDA official, the genetic processes used in the development of a new food is “NOT considered to be material information because there is no evidence that new biotech foods are different from other foods in ways related to safety.”

James Maryanski, the biotechnology coordinator of the FDA, claims that whether a food a has been genetically engineered is not a “material fact” and the agency would not “require things to be on the label just because a consumer might want to know them.”

Yet a standard law dictionary defines “material” as “important,” “going to the merits,” “relevant.” Since labeling is a form of speech from growers and processors to purchasers, it is reasonable, therefore, to interpret “material” as comprising whatever issues a substantial portion of the consuming public defines as “important.” And all the polls show that whether food is genetically engineered falls into such a category.

Last May, several religious leaders and citizen groups sued the FDA to change its position and to require that GEFs be labeled.

Process Labels
Some government officials have said that labeling should be only about the food product itself, not the process by which it is manufactured. Yet, the US has many process food labels: kosher, dolphin-free, Made in America, union-made, free-range (as applied to chickens, for example), irradiated, and a number of “green” terms such as “organic.” For many of these products, the scientific difference between an item which can carry the label and that which cannot is negligible or non-existent. Kosher pastrami is chemically identical to non-kosher meat. Dolphin-free tuna and tuna caught by methods which result in killing of dolphins are the same, as are many products which are "made in America" when compared to those made abroad, or those made by unionized labor as opposed to the production of workers who are not organized.

These labeling rules recognize that consumers are interested in the processes by which their purchases are made and have a legal right to such knowledge. In none of these labeling situations has the argument been made that if the products are substantially equivalent no label differentiation is permissible. It is constitutionally permissible for government rules to intrude slightly on the commercial speech of producers in order to expand the First Amendment rights of consumers to know what is of significant interest to them.

"Substantial Equivalence”
In order to provide an apparently rational basis for its refusal to exercise regulatory oversight in this regard, the US Government has adopted the industry’s position that the genetically engineered foods are “substantially equivalent” to their natural counterparts. The FDA ignores the contradictory practice of the corporations in going to another government agency, the Patent Office, where they argue that a GEF is novel and different (in order to justify receiving monopoly protection). “Substantial equivalence” is used as a basis for both eliminating regulatory assessment and failing to require labels on GEFs. However, the concept of substantial equivalence is subjective and imprecise.

Most genetic engineering is designed to meet corporate – rather than consumer – needs. Foods are engineered, for instance, to produce “counterfeit freshness.” Consumers believe that the engineered physical characteristics, such as color and texture, indicate freshness, flavor, and nutritional quality. Actually the produce is aging and growing stale, and nutritional value is being depleted. So much for "substantial equivalence."

"The Precautionary Principle"
Consumers International, a global alliance of over two hundred consumer groups, has suggested that “because the effects [of GEFs] are so difficult to predict, it is vital to have internationally agreed and enforceable rules for research protocols, field trials, and post-marketing surveillance.” Over the past decade or so, this approach has become known as the “Precautionary Principle,” and has actually entered into the regulatory processes of the European Union. The principle reflects the oldest common-sense aphorisms such as “look before you leap,” “better safe than sorry,” or “an ounce of prevention is worth a pound of cure.” It rests on the notion that parties who wish to change the existing social order (often making a great deal of money or increasing their power and influence in the process) ought not to be able to slough the costs and risks onto others. The proponents of the technology ought to bear the burden of proof that the new procedure is safe (its risks are socially acceptable) rather than forcing regulators or the general citizenry to prove a lack of safety.

Scholars meeting under the auspices of the Science and Environmental Health Network early in 1998 at Wingspread, Wisconsin urged that

While we realize that human activities may involve hazards, people must proceed more carefully than has been the case in recent history. Corporations, government entities, organizations, communities, scientists and other individuals must adopt a precautionary approach to all human endeavors.

The process of applying the Precautionary Principle must be open, informed and democratic, and must include potentially affected parties. It must also involve an examination of the full range of alternatives, including no action.

For GEFs, labeling performs important functions in carrying out the Precautionary Principle. It places a burden on industry to show that genetic manipulations are socially beneficial and provides a financial incentive for them to do research to reduce uncertainty about the consequences of GEFs. In order to carry out this process, the GEFs must be kept segregated from normally produced foods. If the GEFs are, therefore, more costly, provisions must be taken to ensure that these costs are not shifted onto normal foods (or otherwise hidden).

Look Before You Eat
Democratic notions of free speech include the right to receive information as well as to disseminate it. It is fundamental to capitalist market theory that for transactions to be maximally efficient all parties must have “perfect information.” The realities of modern food production create a tremendous imbalance of knowledge between producer and purchaser. Our society has relied on government intervention to redress this imbalance in order to make supermarket shopping a fairer and more efficient -- as well as safer -- activity. The notion of “consumer right to know” articulates the perspective that in an economic democracy, choice is the fundamental prerogative of the purchaser.

As some biologists have put it,

the category of risk associated with genetically engineered foods is derived from the fact that, although genetic engineers can cut and splice DNA molecules with ... precision in the test tube, when those altered DNA molecules are introduced into a living organism, the full range of effects on the functioning of that organism can not be predicted or known before commercialization. …[T]he introduced DNA may bring about other unintended changes, some of which may be damaging to health.

Consumers' Point of View
Numerous public opinion polls, in the US and abroad over the past decade, have repeatedly shown great skepticism about the genetic alteration of foods; a large proportion of respondents, usually majorities, are reluctant to purchase and consume such products. Regardless of whether they would consume GEFs, consumers feel even more strongly that such foods should be labeled. In a Toronto Star poll reported on June 2, 1998, 98 percent favored labeling. Bioindustry giant Novartis surveyed US consumers and found that 93 percent of them wanted information about genetic engineering of food products.

Alice Waters, originator of the legendary Berkeley restaurant Chez Panisse and recently selected to organize a new restaurant at the Louvre in Paris, has said “The act of eating is very political. You buy from the right people, you support the right network of farmers and suppliers who care about the land and what they put in the food. If we don’t preserve the natural resources, you aren’t going to have a sustainable society.”

However, the US government has been resisting attempts to label genetically engineered food. Despite the supposed environmentalist and consumer sympathies of the Clinton-Gore Administration, the government holds an ideological belief that nothing should impede the profitability of biotech as a mainstay to the future US economy. In addition, the Administration’s hostility to labeling may be coupled to documented political contributions made to it by the interested industries.

Government Regulation and Free Speech
As speech, the Government is constrained by the First Amendment from limiting or regulating the content of labels except for the historic functions of protecting the public health and safety and eliminating fraud or misrepresentation. The American Civil Liberties Union has noted that “a simple distinction between non-commercial and commercial speech does not determine the extent to which the guarantees of the First Amendment apply to advertising and similar communications relating to the sale or other disposition of goods and services.” Recent Supreme Court decisions have warned against attaching "more importance to the distinction between commercial and non-commercial speech than our cases warrant...."

Can the government prohibit certain commercial speech (i.e. such as barring a label “this product does not contain genetically engineered components”)?

In several recent cases, the US Supreme Court has restricted government regulation of commercial speech, in effect allowing more communication. The First Amendment directs us to be especially skeptical of regulations that seek to keep people in the dark for what the government perceives to be their own good. Thus, it would seem difficult to sustain the government if it tried to prohibit labeling foods as “free from genetically engineered products,” as long as the statement were true.

In 1995 the FDA’s Maryanski took the position that “the FDA is not saying that people don’t have a right-to-know how their food is produced. But the food label is not always the most appropriate method for conveying that information.” Is it acceptable for a government bureaucrat to make decisions about what are appropriate methods of information exchange among citizens?

The government and the industry suggest that labels on GEFs might amount to “misrepresentation” by implying that there is a difference between the genetically engineered and non-genetically engineered foods. It is hard, however, to understand how a truthful statement can ever amount to a “misrepresentation.” (And of course, they are different, by definition.)

The first food product bearing a label "No GE Ingredients," a brand of corn chips, made its appearance this summer.

Some states have passed laws creating a civil cause of action against anyone who “disparages” an agricultural product unless the defendant can prove that the statements were based on “reasonable and reliable scientific” evidence. A Harvard analysis suggest that “at stake in the dispute about food safety claims is scientific uncertainty in an uncertain and unpredictable world. Agricultural disparagement statutes are supposed to regulate the exchange of ideas in that gray area between science and the public good. The underlying approach of these statutes is to regulate speech by encouraging certain kinds of exchanges and punishing others. ...” According to the ACLU, "these so-called 'veggie libel' laws raise obvious First Amendment problems and threaten to chill speech on important issues of public concern.” Consumers Union argues that “such laws, we believe, give the food and agriculture industry the power to choke off concerns and criticism about food quality and safety.” Such enactments did not prevail in the suit by Texas cattle ranchers against Oprah Winfrey and her guest Howard Lyman (of the Humane Society) for their on-air conversations about "mad cow disease" possibilities in the US. The lawsuit was widely seen as a test of the First Amendment constitutionality of such state statutes, although the case was actually resolved on much narrower grounds.

Consequences of Regulation
As Prince Charles noted in his essay a few months ago, “we can not put our principles into practice until there is effective segregation and labeling of genetically modified products. Arguments that this is either impossible or irrelevant are simply not credible.” Nonetheless, the biotech industry (and many governments, including our own) make the argument that it is impossible to keep genetically engineered foodstuffs separate from naturally produced ones. However, the same industries actually require rigorous segregation (for example, of seeds) when they are protecting their monopolies on patented food items. Although it indoubtably has related costs, the segregation of kosher food products from non-kosher ones, for example, has been routine in this country for decades. The only difference for GEFs appears to be one of scale, not technique, in monitoring the flow of food stuffs, spot testing, and labeling them appropriately.

The US government has been carefully watching European moves to label all “novel foods.” “Strict adherence to labeling requirements would do damage to our trade,” according to our Department of Agriculture.

In Support of Mandatory Labeling
Can the government mandate commercial speech (e.g., requiring GEFs to bear a label proclaiming their identity)?

The government does require some labeling information which goes beyond health effects on consumers; indeed, not every consumer must want or need mandated label information in order for it to be required by law. And these requirements have never been judged an infringement of the producers' constitutional rights. For example:

• Very few consumers are sensitive to sulfites, although all wine must be labeled.
• The burden is put on tobacco manufacturers to carry the Surgeon General's warning, even though the majority of cigarette smokers will not develop lung cancer and an intended effect of the label is to reinforce the resolve of non-consumers to refrain from smoking.
• The burden of labeling virtually every processed food with its fat analysis (saturated and unsaturated) and caloric values is mandated even though vast numbers of Americans are not overweight nor suffering from heart disease.
• Irradiated foods (other than spices) must carry a specific logo.
• Finally, the source of hydrolyzed proteins in foods must be on a label to accommodate vegetarian cultural practices and certain religious beliefs.

These legal requirements are in place because large number of citizens want such information, and a specific fraction need it. An identifiable fraction of consumers actually need information about genetic modification -- for example, as regards allergenicity -- as the FDA itself has recognized in the Federal Register, and almost all want it. Foods which are comprised, to any but a trace extent, of genetically altered components or products should be required to be labeled. This can be justified in some instances on scientific and health grounds, and for other foods on the social, cultural, religious and political interest consumers may have in the processes by which their food is produced. There is ample precedent. Indeed, such labeling is necessary to prevent fraud and misrepresentation, so that consumers do not mistakenly purchase GEFs when they wish regular foods.

Consumers' right-to-know is an expression of an ethical position which acknowledges individual autonomy; it is also a social approach which helps to rectify the substantial imbalance of power which exists in a modern society where commercial transactions occur between highly integrated and well-to-do corporations, on the one hand, and atomized consumers on the other. American officials, who lately have taken advantage of every opportunity to preach about the virtues of the market place when lecturing citizens in Third World countries or Eastern Europe, should understand that the labeling of GEFs will help the market place function more efficiently. We should be willing to let genetic engineering run the test of the market place; if the industry and government officials believe so strongly in it they will fly their genetic engineering flags proudly in the sunshine rather than seeking to obtain profits and economic advantage in the darkness by stealth.