Wednesday, February 23, 2011

More on GMOs

Forbes makes the legal case against labeling:
Courts have evaluated government’s authority to impose labeling on products under the jurisprudence of commercial speech. A key part of this jurisprudence is to determine what is the state’s interest in restricting or requiring certain speech. In the 1996 U.S. Court of Appeals for the Second Circuit ruling IDFA v. Amestoy, the court held that a Vermont law requiring milk producers to affix a label if the milk came from herds given bovine growth hormone (rBST) violated the First Amendment. The court explained that Vermont’s stated interests in adopting the law – strong consumer interest and the public’s right to know – were not substantial enough to justify “the functional equivalent of a warning about a production method that has no discernible impact on a final product.” Had Vermont advanced a public health or safety purpose for the labeling law, the court would likely have held it to be substantial. But the state could make no such case, as FDA had definitively concluded that rBST “has no appreciable effect on the consumption of milk.”

The situation in Amestoy parallels the GE food labeling matter. If FDA or the Agriculture Department had determined that genetically enhanced foods were different, then such a finding would provide the substantial interest government needs to compel a “warning.” But that is not the case, and the fact that people may be “leery” of GE foods would be, under the reasoning of Amestoy, an insufficient justification for mandatory GE labels. If the government imposed a label to support some inchoate “consumer interest,” there would, as the Amestoy court put it, be “no end to the information that states could require manufacturers to disclose about their product methods.”
And Samuel Fromartz counters McWilliams on the risks of GM drift with lots of links to instances of past GM contamination, but I want to highlight the issues he brings up for organic farmers:
Then there's the organic sector, where buyers are already refusing crop shipments due to GM contamination, certifiers have told me. McWilliams stated this shouldn't be a problem. "The organic industry already allows less than 5 percent of its crops to be contaminated with synthetic pesticide drift," he wrote. This is just flat out wrong.

According to the USDA organic regulations, a product can't be labeled organic if it is found to have a prohibited substance (such as synthetic pesticides) at greater than 5 percent of its EPA tolerance level. What does that mean? Say the EPA allows a pesticide residue at up to 100 parts per million (ppm). If testing detects more than 5 ppm of that pesticide on an organic crop, it can't be sold as organic. That does not mean 5 percent of your organic crop can be contaminated with synthetic pesticides. And if synthetic pesticides are found, even from drift, the farmer has to find ways to mitigate the problem or risk losing certification.

In any case, that point is irrelevant, because genetic engineering is not a "prohibited substance" under organic regulations, where such thresholds apply. It's a "prohibited method." There is no stated threshold for its presence, so it's really not up to the organic farmer to just accept it. If organic seeds test positive for genetic modification, they can't be planted by organic farmers to feed their organic cows. That's just the law.
I'm not a lawyer, but I find the Forbes argument fairly convincing... unless opponents can prove (with well controlled and executed scientific studies) that GMO's present some kind of danger to consumers I don't know that it's the government's place to warn against it.  That people find them "icky" doesn't seem to be enough. Perhaps a food policy reformer lawyer will come forward with a counterargument, but I'm willing to accept this as valid reasoning until informed otherwise.

The second part I find both encouraging and troubling... encouraged since it seems the organic certification protects you completely from GMOs, but troubled that this means any GM drift is a real threat to that business model. I claim no expertise on this issue, so I'd be very interested to see a rebuttal from the pro GMO camp as to how organic farmers can protect their crops.