Dear Michael Pollan: When It Comes to GM Food, the Problem is Regulation, Not Its Absence.

Thom Lambert —  2 October 2011

Before concluding that “there ought to be a law” to remedy an unhappy situation, one should ask whether it’s really a law that’s causing the problem in the first place.  I was reminded of that principle this afternoon when I read some remarks by Michael Pollan, doyen of the “slow food” movement, in today’s New York Times Magazine.    

Responding to the question, “How can you tell if food is genetically engineered?,” Mr. Pollan answered:

You can’t, unless you’re willing to move to Europe or Japan, where the government requires that it be labeled.  Ours doesn’t, so there’s no way to tell.  This is despite the fact that 80 to 90 percent of Americans tell pollsters they want it labeled, and Barack Obama, as a candidate, once promised to make it happen.  But the industry is afraid you won’t buy genetically modified foods if they’re labeled – and they’re probably right.

Mr. Pollan is correct on a couple of matters here.  First, lots of people do want to know if they’re eating genetically modified food.  My own view is that this is silly.  Nearly all food products are, and for generations have been, “genetically modified” via hybridization, selective breeding, etc., and the scientific consensus is that there’s no increased risk when the modification occurs in a laboratory rather than the old-fashioned way.  Nevertheless, many consumers do care about whether their food is genetically modified in the newfangled manner, and who am I (or you, or the government) to tell them that their preferences are invalid.  Second, Mr. Pollan is correct in asserting that Big Ag doesn’t want to label GM food products, lest people refuse to buy them (or reduce the price they’re willing to pay for them).  Indeed, large agribusinesses have lobbied vociferously against mandatory GM labeling rules like those imposed in Europe and Japan.

But Mr. Pollan is wrong to insinuate that regulations mandating GM labeling are necessary if consumers are to know whether food products are genetically modified.  Given that a great many consumers disfavor genetic modification (of the newfangled variety, at least), one would expect entrepreneurs to produce non-GM foods and to tout the pedigree of their products.  By engaging in “voluntary negative” labeling (e.g., “GM Free”), producers could boost demand for their products and provide consumers with useful information about GM status.  Just as mandatory labeling of “Gentile” food isn’t necessary to enable observant Jews to fulfill their preferences for kosher options, the government need not mandate GM labeling in order to protect the interests of GM-phobes.

This assumes, though, that producers of non-GM products, like producers of kosher foods, are free to label their products as such.  Unfortunately for consumers who would prefer to avoid newfangled genetic modification (the old-fashioned type is ubiquitous and unavoidable), current regulations hinder the sort of voluntary negative labeling that could accommodate heterogeneous preferences.  Under an FDA Industry Guidance ostensibly aimed at fraud prevention (and drafted with significant input from Monsanto), sellers of non-GM foods are precluded from:

  1. Using acronyms such as “GM” or “GMO” (according to FDA, saying something is “non-GM” or “non-GMO” is misleading because people don’t understand these acronyms);
  2. Utilizing 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);
  3. Referring 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);
  4. Claiming 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); and
  5. Asserting 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).

In light of this guidance from a captured regulatory agency, sellers of non-GM foods are essentially forced to label their products as though they were playing the board game “Taboo,” in which players provide clues to their partners to identify a word but, in doing so, are forbidden to say any of the words one would most naturally use in conveying clues.  Given the laundry list of terms the FDA has declared to be “taboo,” it should not be surprising that producers of non-GM products have not been able to market their products effectively.  And if you can’t market them, why produce them in the first place?

At the end of the day, then, Mr. Pollan is wrong to place the blame for consumer ignorance of GM-status on governmental inaction.  It is affirmative government regulation – not its absence – that precludes consumers from telling if their food is genetically engineered.

Thom Lambert

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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.

13 responses to Dear Michael Pollan: When It Comes to GM Food, the Problem is Regulation, Not Its Absence.

  1. 

    We cannot depend on government institutions or multinational corporations to “allow us” to be organic – we must take action to make it happen!

  2. 

    This is one of my favorite gardeners and he did a show today you might like: http://www.youtube.com/watch?v=dPX_8_d_V58. His show is GrowingYourGreens.com and this show is particularly good re. GMOs.

  3. 

    “Nearly all food products are, and for generations have been, “genetically modified” via hybridization, selective breeding, etc., and the scientific consensus is that there’s no increased risk when the modification occurs in a laboratory rather than the old-fashioned way.”

    There are a few major differences between “genetically engineered” and “genetically modified”. The first would be done via direct manipulation and slicing and addition and subtraction of DNA. The latter is done indirectly via breeding etc.

    The first major difference is that many things that are otherwise impossible because they are unnatural become possible. For example, you can’t cross a fish and a tomato, but you can genetically engineer a combo fish-tomato. There is inherently more risk involved due to the tremendous increase in possible combinations. The potential reward is also increased.

    The second major difference and this is more important is that selective breeding, especially when done in the traditional method of saving seeds on the small scale, does not limit the genetic diversity and strength. Genetic engineering produces a smaller and weaker gene pool (this is Monsanto’s defense to those who complain about it’s genetically engineered DNA escaping into the wild). This is the big mistake that really increases risk. The smaller and weaker gene pool that in the short term in laboratory conditions produces favorable results is not something we should be relying on for the bulk of the world’s food production. We are putting almost all of our eggs into one basket – and even the producer of those eggs admits they are increasingly fragile the more they are engineered.

    Growing an ever larger population on an ever weaker gene pool makes no sense. There’s only one likely outcome – mass global famine when the gene pool of the handful of food stocks fails. That’s the risk you are taking and the one you don’t seem to be aware of. It’s a fatal flaw in the genetic engineering revolution.

  4. 

    I’m in agreement that more regulation will only backfire as it has in the past. Food producers rely on the fact that Americans are ignorant of the dangers and realities of GM foods and still haven’t demanded GM-free foods. GM foods are cheaper… why would a food producer use a more expensive ingredient before an uproar? They won’t.

    You are flat dead wrong that GM foods are safe. The particular Monsanto GM food has a pesticide spliced into it. Do your research. As Myrajl points out, hybridization of seeds uses real foods within matching plant sources. You are comparing apples to oranges here.

    Whole Foods Markets has taken up the cause and is labeling their non-GM products Non-GMO Project verified. nongmoproject.org. The market goes to work protecting us when regulations fail.

  5. 

    This is certainly not “silly” and hybridization of seeds uses real foods within matching plant sources. The genetic engineering that we need to be concerned with involves transplanting genes from totally unrelated sources.
    No risk from GE foods. Scientists HAVE shown that they are a high risk for many health issues.
    And, there is plenty of evidence which shows that genetically engineered crops do NOT produce more yields.
    MyraSaidIt

    • 

      Could you point to some peer reviewed data on these risks? I did a quick search and didn’t find much.

      I also was not aware that increased yields were the goal of these modification. Several seem to be aimed at increased nutritional value and survivability.

      But I do think folks should be able to make their own decisions for whatever ridiculous reasons they want. So I see nothing wrong with voluntary labeling.

      • 

        http://www.responsibletechnologies.org, one of the most complete sites regarding GM seeds.

        If you don’t know that increased yields were the goal of some of the modifications, you really need to research this topic. (Important to note that it is a failed goal.) Are you aware of the thousands of Indian farmers who committed suicide because of the Terminator seed, the patent to which is co-owned by Monsanto and the USDA? The fact that our USDA, which is supposed to protect the taxpayer’s interests, has a financial stake in a seed co-owned by Monsanto is frankly chilling.

        When we in the health and food freedom movement talk about GM foods, we are usually speaking specifically of the Roundup Ready Monsanto seed. I don’t eat any GM foods unless I’m on the road and there is no other food around. It is poison.

      • 

        It appears that most studies of the Indian Suicides show other factors are the cause and they predate the introduction of GM crops. http://www.ifpri.org/sites/default/files/publications/ifpridp00808.pdf
        http://www.nature.com/nbt/journal/v27/n1/full/nbt0109-9.html
        http://www.macroscan.com/anl/mar08/pdf/Farmers_Suicides.pdf
        ( A Rare instance of my finding useful links via wikipedia)

        And while I had meant that yields were not the exclusive reason for GM development, It seems that yields have been significantly affected http://www.nature.com/nbt/journal/v28/n4/full/nbt0410-319.html

        Thanks you for the Link Sally. Most of the articles do not seem to be based on peer reviewed articles. Those that do have citations are proving hard to track back. Many seen to come from a couple of journals that only published briefly and I have had little luck finding works by the authors in more respected journals. But I have not had that much time to search and look forward to finding out more.

        Thanks again.

      • 

        Thank you for your reply.

        Of your 3 links, two are organizations dependent on outside funding (from whom?) and one is a biotechnology magazine. They wouldn’t work for me as far as refuting the connection between GM seeds and farmer suicides.

        Re. crop yields. Again, you are depending on an article in a biotech magazine, and it’s from 2010 so old in the world of advancing sciences. Keep looking: you will see that not only are yields not higher, food quality is degrading (if it was ever good) and Round-Up Ready seed has spawned a whole need breed of super weed. Fail on all counts.

        You won’t find any peer-reviewed, double-blind studies on the affects of GM foods on humans. Why not? Why are we being used as human test tubes? When there is no obvious reason, it’s gotta be money. Of the many Occupy Wall Street demands, separating corporations from government would be a huge step in the right direction.

        You’ve read 3 articles. I’ve been down this rabbit hole for 7 years. Please keep reading, particularly on the responsibletechnology.org site.

  6. 

    I am stunned to find that Monsanto has more control over food regulation than the activists at the organic food coop.
    Okay, I’m not.
    But what would really stun me is if the activists eventually figured out how regulatory capture works, and stopped demanding more regulations that inevitably work out in favor of the “regulated.” You can see the beginning glimmer of this realization in “Food, Inc.” when they explain how Monsanto can claim infringement by non-customers who never wanted their seeds. It is still presented as irony, a surprise, rather than a quite predictable state of affairs.

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