Despite the ever-growing ways that the U.S. Food and Drug Administration regulates what Americans can consume, FDA does not currently regulate genetically modified food. The State of Vermont wants to step in.
This week, Vermont will become the first state to mandate labeling of food products containing ingredients from genetically modified organisms (GMOs). It would require retailers of raw agricultural commodities to clearly and conspicuously label GMO-sourced food with the words “produced with genetic engineering.” (Think ears of corn in your supermarket’s produce section.) Producers of packaged food products must label their products with similar language if any ingredient contained in the product comes from a genetically modified source. (Think of that 56-ingredient protein bar sitting on your desk.)
Why are some people so lathered up about eating ingredients that come from genetically modified crops? “Monsanto” has become a dirty word, with nouveau-hippie parents washing out their kids’ mouths with biodegradable, SLS-free soap when they hear them say it. Unfortunately, much public debate conflates genetic modification, exposure to pesticides, and all sorts of other “unnatural” stuff related to food.
Ironically, genetic modification of seeds aims to make crops more resistant to pests, disease, and drought, thus reducing the need for conventional chemical pesticides and increasing crop yields. A growing world population demands innovation to produce more crops with fewer resources. Billions of people need to eat. Too many GMO opponents seem to picture Dr. Frankenstein when they should be picturing Gregor Mendel or Mother Teresa. (Or, to be fair, Walter De Jong.)
That, however, is only the beginning of what’s foolish about Vermont’s new law . . . .
Vermont Attorney General Bill Sorrell anticipates a legal battle over the constitutionality of the new law. Compelling particular speech by requiring food producers to include GMO status on their products labels could violate the First Amendment. Of course, Sorrell predicts that the law will survive court scrutiny.
Central Hudson Gas & Electric v. Public Service Commission provides the Supreme Court’s standard test for when commercial speech can be properly regulated. The test allows such restrictions if the regulation directly advances a substantial interest asserted by the government and is no more extensive than necessary to serve that interest.
Will Vermont’s new law pass the test? Vermont claims that it wants to protect public health interests by enabling consumers who may want to “avoid potential health risks of food produced from genetic engineering.” The law also cites preventing consumer confusion about labeling food as “natural” when sourced from GMOs, and empowering consumers who might want to avoid certain foods for religious reasons or because of concern about environmental impact.
On their face, these state interests look solid. However, they may only be as strong as their underlying basis. Is there good reason to think that GMO-sourced foods are dangerous to eat? Is there good reason to think that GMO crops hurt the environment? Courts may ultimately find in favor of Vermont, but the legal challenge is no shoo-in.
Even if the law passes constitutional muster, it may be a dumb idea. The burden imposed by the law weighs heavily on food producers, but will ultimately rest on the shoulders of consumers and small food companies.
Under the law, a producer who wishes to sell its product in Vermont has a few options. It may follow a certification procedure documenting that none of its suppliers use genetic modification. Otherwise, the producer must re-source its ingredients, re-label products with the obligatory language about GMO status, or pay fines. So, all food producers selling in Vermont will bear some new burden under this law, not only the ones that will be forced to relabel products with a declaration about genetic modification.
Food producers or retailers of raw products who don’t wish to display the new labels must obtain “from whomever sold the raw agricultural commodity or processed food to that person, a sworn statement that the raw agricultural commodity or processed food has not been knowingly or intentionally produced with genetic engineering and has been segregated from and has not been knowingly or intentionally commingled with food that may have been produced with genetic engineering at any time.” For a company working with many suppliers for the various ingredients in each of its products, or a market selling a variety of produce, this may mean dozens or hundreds of sworn statements. This certification procedure amounts to more paperwork even for producers who are confident that they will be able to comply with the new law without relabeling. This additional work will be especially onerous for smaller companies without the immediate resources to devote to the certification process.
Of course, there’s a stigma attached to labeling as Vermont demands. Sales of these products may drop. More immediate, though, is the cost of switching to new labels. Food manufacturers will certainly pass these costs, even if temporary, onto purchasers of the end product.
Presumably, a lot of Vermonters hope that companies will choose sources for their ingredients and produce that don’t rely on genetic modification in the first place. Companies that use — or don’t know if they use — GMOs have the option of investigating their current sources, searching for non-GMO alternatives, and proceeding with the certification. Undoubtedly, some producers will do exactly that. However, consider that (a) that’s a lot of work, and (b) higher prices for non-GMO ingredients will likely raise the sticker prices that consumers pay for the same products.
The statute imposes a $1,000 per day fine for each product out of compliance with the law. This fine is assessed per product, not per unit of the product available for sale. Considering the small population of Vermont — only about 670,000 people — large manufacturers might decide that payment of the fine is part of the cost of doing business. Would it be cheaper to pay $356,000 per year in fines or to re-label products for sale in Vermont? Would products branded with a potentially stigmatizing “made with GMOs” label sell less than the same products without the new packaging? If so, how much less? Is the Vermont market for a given product even profitable enough that the company should bother to continue selling there? This arithmetic will likely dictate compliance with the law. Surely, though, the calculations will be different for small companies than for massive, multi-national manufacturers. Little guys who want to sell their stuff in Vermont will be less able to absorb the costs, whereas behemoths may find that the math works in their favor, even if they opt for strategic non-compliance.
One way or another, someone will pay for Vermont’s new GMO labeling law. Consumers and small producers of food will likely be the ones who eat the costs. Whether eating those costs is worth not eating genetically modified food remains to be seen.
Tamara Tabo is a summa cum laude graduate of the Thurgood Marshall School of Law at Texas Southern University, where she served as Editor-in-Chief of the school’s law review. After graduation, she clerked on the U.S. Court of Appeals for the Fifth Circuit. She will be working at the Center for Legal Pedagogy at Texas Southern University during the 2013-2014 academic year. She looks forward to a career of teaching and writing about, but never practicing, law. You can reach her at firstname.lastname@example.org