Why mandate labeling?

There’s no shortage of bad arguments for labeling of genetically engineered foods. Consumers don’t have a right to know whatever they might want to know about their food. Nor is “transparency” alone is a strong rationale for mandatory labeling. Of course, there are some pieces of information legally required on food labels. It’s worth asking how these existing label requirements in the United States are justified. What is a good reason to compel labeling?

The US government began regulating food labeling in 1906 with the passage of the Pure Food and Drug Act. This law prohibited the sale of foods labeled in a misleading way and tasked the Bureau of Chemistry, a predecessor to the Food and Drug Administration (FDA), with enforcing this restriction. It did not identify any information as being so important that food producers should always be required to provide it on food labels.

In 1938, Congress passed the Federal Food Drug and Cosmetic Act, which for the first time, required food producers to provide some information on labels. Specifically, it required producers to disclose the ingredients from which a food was made, the weight of food product, the name and address of the manufacturer or party responsible for the food, and the name of the food. It also gave the FDA the authority to require disclosure of information “material with respect to consequences” of consuming the food. The FDA has used this authority, for instance, in requiring labeling for the fat substitute olestra, which some studies suggested could cause abdominal cramping and loose stools.

The Federal Food, Drug and Cosmetic Act also strengthened the Pure Food and Drug Act’s prohibition on inaccurate and misleading food labels, requiring the inclusion on labels of information “material” in light of the seller’s depictions of the product. This meant that a label could be deemed misleading not only for what it said but also for what it didn’t say. The FDA put this provision to use in 1973, when it issued regulations concerning nutritional information. Rather than mandate that all food labels carry nutritional information, the FDA required that a complete nutritional profile be present on any food label which made a health claim. The rationale for this policy was that a health claim would be misleading if it wasn’t accompanied by a comprehensive nutritional profile to allow consumers to assess the healthfulness of a food. Mandatory nutritional profiles for other food labels arrived after the passage of the Nutrition Labeling and Education Act of 1990. In 2004, Congress passed the Food Allergen Labeling and Consumer Protection Act, which required special label language on foods containing eight major allergens.

Much of existing US labeling policy is intended to prevent consumers from being misled, but we don’t have laws in place to protect against all consumer misunderstanding. Some information is not considered important enough (or “material” in the language of the Federal Food, Drug and Cosmetic Act). In particular, the government has usually only required labels for qualities inherent in the final product sold to the consumer, rather than information about how the product was produced. Sometimes this distinction is summarized as “product versus process.”

Since genetic engineering is a process which often isn’t detectable in the final product, this preference for product labeling would seem to suggest that compulsory GMO labeling wouldn’t fit in. Indeed, in 1992 the FDA declined to label genetically engineered foods, explaining in a Statement of Policy, “The agency is not aware of any information showing that foods derived [from genetic engineering] differ from other foods in any meaningful or uniform way.” Eight years later a federal district court rejected a challenge to this policy, noting that “disclosure of the conditions or methods of manufacture has long been deemed unnecessary under the law.”

It would be inaccurate to say, however, that US policy doesn’t mandate any process-based labeling. A labeling requirement which would be harder to justify as providing “product” information is Country of Origin Labeling. The 2002 Farm Bill required that certain meats be labeled with the country in which they were slaughtered. In 2008, the requirement was expanded to include some fruits, vegetables, and nuts. More recently, the requirement has been strengthened to provide more detailed information about meat from animals that were born, raised, and slaughtered in different countries. While these policies are relatively recent and controversial, labeling of imported non-food items actually dates back much further.¹

The example of country of origin labeling suggests that there might be room for mandatory labeling of genetically engineered foods. Perhaps it’s not fair to let food manufacturers withhold process information from consumers. For that matter, why shouldn’t consumer desire be enough to require a label?

That naturally raises the question of what are good reasons not to require a piece of information on food labels. In issuing regulations for nutritional labeling, the FDA put forward one rationale for omission: >[N]ot all information related to maintaining healthy dietary practices can be included on the food label …. Not only would space constraints not allow for this, but the large amount of information would interfere with consumers’ abilities to use the information of the greatest public health significance….

Thus, even information with nutritional significance might be omitted from a label if it would distract consumers from more critical nutritional information. Of course, if people overwhelmingly want to know whether their food is genetically engineered – and I’m not convinced that they do – then it would be condescending and paternalistic to argue for withholding the information in their own interests.

The US Court of Appeals for the Second Circuit court offered another reason to withhold information in International Dairy Foods Association v. Amestoy. In this case, dairy manufacturers challenged a Vermont law which required labeling of dairy products derived from cows which had been treated with recombinant bovine somatotropin (rBST), a synthetic growth hormone. The dairy manufacturers successfully argued that by requiring them to speak against their will, this labeling law violated their right to commercial free speech.

The First Amendment offers weaker protection of free speech in the commercial context than in the personal context, but it does provide some protection. Citing the Supreme Court decision in Central Hudson Gas & Electric Corp. v. Public Service Commission, the Second Circuit Court explained that whether the label law constituted permissible regulation of free speech depended on four criteria: “(1) whether the expression concerns lawful activity and is not misleading; (2) whether the government’s interest is substantial; (3) whether the labeling law directly serves the asserted interest; and (4) whether the labeling law is no more extensive than necessary.”

The Court ruled that that Vermont had failed to provide evidence of sufficiently compelling interest to justify government intervention, thus failing the second prong of the test. Specifically, the Court opined, “Although the Court is sympathetic to the Vermont consumers who wish to know which products may derive from rBST-treated herds, their desire is insufficient to permit the State of Vermont to compel the dairy manufacturers to speak against their will. Were consumer interest alone sufficient, there is no end to the information that states could require manufacturers to disclose about their production methods…. Accordingly we hold that consumer curiosity alone is not a strong enough state interest to sustain the compulsion of even an accurate, factual statement…in a commercial context.”

While commercial free speech is likely to play a role if a court weighs in on the constitutionality of a GMO labeling measure, there is some reason to believe that GMO labeling could fare better than rBST labeling did in Amestoy. The reason for this has less to with any difference between the information being labeled than with the grounds on which the state of Vermont defended its labeling law. As Douglas A. Kysar has explained, Vermont did not attempt to offer any rationale for the “consumer curiosity” regarding the use of rBST. Although the FDA had concluded that milk produced with rBST was no different from other milk, some (including Pierre Leval, who wrote a sharp dissent to the majority’s decision in Amestoy) have argued that states should be free to adopt a more precautionary regulatory standard than the federal government. In other words, Vermont might have been able to justify rBST labeling if it had taken the position that rBST presented some risk, even though evidence had not persuaded the FDA that the risk was significant. This approach could potentially open the door to mandatory labeling for many other pieces of information, including whether food products contained genetically engineered ingredients.

Additionally, some proponents of labeling argue that the Second Circuit Court erred in subjecting Vermont’s rBST labeling law to the Central Hudson test. Jessie Smith Nibley argues that a weaker test, established in Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, would have been more appropriate for Vermont’s rBST labeling law. In Zauderer, the Supreme Court found that “disclosure requirements trench much more narrowly on an advertiser’s interests than do flat prohibitions on speech” and reasoned that compelled disclosure of “purely factual and uncontroversial information” need only be “reasonably related to the State’s interest in preventing deception² of consumers.” That is, it dispenses with the requirement that the requirement that a disclosure requirement directly serve the state interest, as well as the requirement that the requirement be “no more extensive than necessary.”

Given the commercial free speech interests at stake does it really make sense that process information should never be considered important enough for compelled disclosure? Kysar makes the case that the distinction between process and product is artificial and that a more nuanced approach is necessary. According to Kysar, this distinction developed “by historical happenstance rather than by deliberate design.” He explains that “the process/product distinction and its related developments function as ready devices for determining when regulations are likely to have drifted beyond the satisfaction of legitimate consumer interest into areas of disguised protectionism, unjustified alarm, or excessive encroachment onto competing interests.” In Kysar’s view, consumer preference for processes “offer an important vehicle through which individuals influence the world, express their views on public issues, and fashion their moral identity in an era of extraordinary interconnectedness, complexity, and dynamism in the market.

My sense is that US labeling policy can be somewhat arbitrary and that mandatory GMO labeling probably falls into a gray area. I think the case for compulsory labeling of genetically engineered ingredients is much weaker than the case for something like nutrition labeling. However, I also don’t think mandatory GMO labeling would be a terrible injustice, nor would I be able to explain why it is less justified than country of origin labeling. I could imagine mandatory GMO labeling happening, but I could also see a court ruling it unconstitutional.

This is the sixth in a seven part series on compulsory labeling of foods containing products of genetic engineering.

The distinction between product and process is not always clear. The FDA has required special labeling for irradiated food products. Interestingly, the FDA justified this policy on the basis that irradiation can change the taste or shelf life of a food. Thus, while the irradiation label only directly communicates information about a process, it may serve to alert the consumer to changes in the product which would otherwise be detectable only after purchase.↩
I’m not sure why the absence of GMO labeling could be considered deceptive, but this depends on what consumers assume of a product by default (in the absence of a label) and what exactly one means by “deception.”↩

Inexact Change

Thoughts on science, politics, and social progress.

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