Free to Choose (and Market) Clone-Free

Thom Lambert —  31 January 2008

The FDA has determined that milk and meat from some cloned animals (cattle, swine, and goats) is safe to eat. It has therefore lifted a moratorium on such products. But don’t expect to see milk and meat from cloned animals in your local grocery store. Cloning is incredibly expensive, so cloned animals would almost certainly never be slaughtered or used for milking. Instead, they’d be used for breeding. The idea is that we’d use cloning to create exact reproductions of animals with superior qualities, and we’d then breed those cloned specimens to generate superior offspring.

Not surprisingly, lots of folks are aghast over the FDA’s decision. Animal cloning is novel and high-tech, so those who would prefer a back-to-nature approach to food production oppose it on that ground alone. Others invoke the so-called precautionary principle — a “better safe than sorry” stance — and insist that we should avoid the technology in light of its unknown risks. Still others argue that even if cloned animal products are safe to consume, the process of cloning may harm animals, and cloned food should thus be banned on animal welfare grounds.

Fortunately, the FDA rejected all these positions. With respect to the back-to-nature folks, the FDA noted that cloning “falls on a continuum of ARTs [assisted reproductive technologies] that includes artificial insemination, in vitro fertilization, embryo transfer, and embryo splitting. All of these technologies are tools that have allowed farmers to accelerate the propagation of genetically superior animals to provide the public with meat and milk that is safe, wholesome, and of consistent quality.” Thus, the position of the neo-Luddites has already been rejected and would, if accepted, diminish food quality and raise food prices, to the detriment of all–particularly the poor.

With respect to the precautionary principle, the FDA, like most American (but not European) regulatory agencies, has rejected it in favor of some version of cost-benefit balancing. That’s a good move, for it accounts for the fact that foregoing a new technology that could enhance social welfare (e.g., could give us more and better food at lower cost) is itself risky/harmful. A principle forbidding all activities that might cause harm literally forbids everything, for the act of banning an activity, just like the activity itself, might cause some harm. Thus, as Cass Sunstein argues, “The most serious problem with the precautionary principle is that it offers no guidance–not that it is wrong, but that it forbids all courses of action, including inaction.” The FDA therefore wisely chose to forego the precautionary principle and instead compare the likely costs and benefits of permitting cloned food products.

With respect to animal welfare, the FDA acknowledged that cloning enhances some animal risks such as “large offspring syndrome,” but it decided that the magnitude of those risks (which exist to a lesser degree with other assisted reproductive technologies) does not justify banning the procedure. If one is willing to concede that animals may be exploited to feed humans (as all meat-eaters and milk-drinkers must), and if the incidence of cloning-related health problems is small (as it appears to be), then this seems like a sensible decision.

Thus, I’m confident the FDA made the right decision in allowing the sale of milk and meat from cloned animals.

But guess what…not everyone shares my values. Some people have a lower tolerance for risk than I. Many are less price-sensitive (I’m pretty darn cheap at the grocery store!). Others are more concerned about animal welfare. Those people ought to be free to choose clone-free food products — that is, products that are not made from cloned animals or their offspring.

Unfettered markets, of course, can and will accommodate the preferences of people who would prefer — for whatever reason — to avoid cloned animals and their progeny. As long as a substantial number of people would prefer to stay clone-free, enterprising food sellers will respond to their desires by offering food products that include no parts or products of cloned animals or their offspring. That’s one of the many beauties of free markets: they, far better than centralized planners, can accommodate heterogeneous preferences.

But this assumes sellers will be free to market their products as clone-free. Here, they may run into some problems. Business interests that would like to develop cloning technologies and/or to market products from cloned animals and their offspring do not want to lose business to sellers of clone-free products. Those with an interest in cloning technologies may therefore seek to erect regulatory barriers that would make it difficult to market clone-free foods.

They might take a page from the playbook of Monsanto, which pushed for and attained an FDA industry guidance that makes it exceedingly difficult for sellers of non-genetically modified foods to label their products as such. Under the FDA’s guidance, sellers of non-GM foods are forced to label their products as though they were playing the boardgame Taboo. In that game, players provide clues to get their partners to identify a word but, in doing so, are forbidden to say any of the words one would most naturally say in conveying clues. When it comes to labeling non-GM foods, the FDA has made the following terms “taboo”:

Acronyms such as “GM” and “GMO” (according to FDA, saying something is “non-GM” or “non-GMO” is misleading because people don’t understand these acronyms);

The term “genetically modified” (according to FDA, saying that a non-gene-transferred organism is not genetically modified is misleading because nearly all foods have been genetically modified through cross-breeding);

References to “organisms” or “GMOs” (according to FDA, a food label touting the absence of GMOs is misleading because it implies that foods which are not GMO-free contain “organisms”–that is, living things);

Claims to be GMO “free” (according to FDA, a claim that a product is GM “free” implies a complete absence of GM material, and it’s very difficult to ensure that there are no trace amounts of GM material in a food item);

Any implication of superiority (according to FDA, any label that implies that the food product is superior because it lacks GM material misleadingly implies that non-GM is superior).

Who could possibly navigate this minefield, especially with the last “taboo”?! Since the only purpose for indicating that a food has no GM ingredients it to appeal to shoppers who believe, for one reason or another, that non-GM foods are superior, this last taboo effectively prohibits any mention of the absence of bioengineered ingredients unless the label also contains a detailed disclaimer indicating that the absence of GM ingredients is actually irrelevant. No marketer is going to use that sort of label.

Because of this stupid, industry-sponsored rule, the most obvious means of accommodating the preferences of GM-opposing and GM-preferring/neutral consumers — voluntary negative labeling of non-GM products — has never really taken off. It’s no big deal to me personally because I’m more than happy to consume GM products. I do, though, recognize that others don’t think the way I do, and I respect their desire to opt for non-GM products. Similarly, I’m fine with consuming milk and meat from cloned critters and their offspring, especially if it’s cheaper and better. At the same time, I don’t want to force my own preferences on others. If the regulators stay their hand this time and allow markets to respond to consumer preferences, we can end up with a world in which I get my cheap tasty clone meat and my back-to-nature (or more risk-averse, or less price-sensitive, or more animal welfare-respecting) friends are able to buy the foods they want. We all win if we stay free to choose.

[For more on the FDA’s stupid GM-labeling guidance, see Philip G. Peters and Thomas A. Lambert, Regulatory Barriers to Consumer Information about Genetically Modified Foods, in Labeling Genetically Modified Food: The Philosophical and Legal Debate (Paul Weirich, ed.) (Oxford Press 2007).]

Thom Lambert


I am a law professor at the University of Missouri Law School. I teach antitrust law, business organizations, and contracts. My scholarship focuses on regulatory theory, with a particular emphasis on antitrust.

One response to Free to Choose (and Market) Clone-Free


    Good points–and good luck getting served lunch at The Main Squeeze anymore.