Safe Food: The Politics of Food Safety (40 page)

The industry tries hard to prove that the public does not really care about disclosure, but independent surveys almost always report substantial support for labeling. Survey results depend on who asks the questions and how they are worded. In May 2001, for example, 62% of respondents said
agree
in response to a question asked this way: Tell me if you agree, disagree, or if you don’t know whether information about genetic modification should be required on food labels.
²
In contrast, here is an industry-sponsored question: “The U.S. Food and Drug Administration (FDA) requires special labeling when a food is produced under certain conditions: when biotechnology’s use introduces an allergen or when it substantially changes the food’s nutritional content, like vitamins or fat, or its composition. Otherwise, special labeling is not required. Would you say you support or oppose this policy of FDA?” Only 27% answered
oppose
.
³

Regardless of survey results, the makers of transgenic foods are convinced that labeling would have a chilling effect on sales. Unlike vitamin-enriched or organic foods, transgenic foods offer no obvious benefit, and the demise of the British tomato paste reinforced industry fears. Nevertheless, in July 1999 federal officials met with scientific, industry, and advocacy groups to reconsider whether genetically modified foods should be labeled. Commentators interpreted this move as a shift in policy toward regulations based less on science and more on the “dreaded social, political, and economic criteria.” Soon after, “a battered Clinton administration” announced hearings for late 1999, suggesting that the FDA might admit its policy failure in this area and develop labeling rules for transgenic foods.
⁴

This FDA action also reflected politics: Congress was getting involved in this area. In November 1999, 21 members of Congress, led by Representative Dennis Kucinich (Dem-OH), introduced legislation to require labeling of genetically modified foods. Their rationale for the Genetically Engineered Food Right to Know Act directly contradicted the position taken by the FDA. The bill assumed that because genetic engineering
does
change foods in significant ways (in regulatory terms, produces a
material
change), “federal agencies have failed to uphold Congressional intent by allowing genetically engineered foods to be marketed, sold and otherwise used without labeling that reveals material facts to the public.”
⁵
If passed, the bill would have required all foods containing genetically modified ingredients to be labeled as indicated in
figure 24
. The label would not apply to drugs; to restaurants, bakeries, or other establishments preparing food for immediate consumption; or to organic crops inadvertently contaminated by nearby transgenic crops. Congressional support, though growing, was insufficient to pass the bill by the end of 2002.

Although the bill’s initial supporters included at least three Republicans, the response was predictable: overwhelming opposition from the food industry and its supporters in the Republican-controlled House of Representatives. Food trade groups objected that the warning was unnecessary, unscientific, confusing to the public, and too big to put on labels. A representative of the National Food Processors Association said that the bill placed “Politics ahead of sound science. . . . [Kucinich] apparently believes that Congress—rather than the FDA, the scientific community or the public—is best equipped to address food biotechnology and consumer concerns. . . . Laws and regulations should be based on the best science available, rather than on political pressure from activists opposed to the use of this technology.”
⁶
In contrast, at least 18 consumer and industry groups announced support of the legislation; these included the American Corn Growers Association and the National Farmers Organization, both of which represented producers hurt by the refusal of European countries to buy their commingled conventional and transgenic crops.

FIGURE 24
. The Genetically Engineered Food Right to Know Act of 1999, introduced by Representative Dennis J. Kucinich (Dem-OH), required this label on packages of foods made from genetically modified ingredients. The bill did not pass.

In preparing for the 1999 hearings, the FDA was forced to deal with societal questions it had ignored in its 1992 policy. Did the policy best serve the public? Was additional information needed? Who should be responsible for communicating such information, and how should it be made available?
⁷
As an invited speaker to the first of the hearings, I thought they might indicate a breakthrough in FDA policy. I had heard FDA officials refer to labeling as the “L-word.” Labeling caused them no end of trouble, much of it brought on by their resistance to dealing with societal considerations. I thought the FDA needed to approve labeling for three reasons: public demand, the threat of Congressional intervention, and the inability of the industry to overcome public distrust without it. The FDA argued that writing labeling rules would be difficult, as agency staff would have to establish thresholds and deal with foods with multiple ingredients. This objection seems spurious, however, as plenty of FDA officials know how to write
Federal Register
notices. Objections that genetic modification is not
material
also seem weak. The FDA already allowed label statements for production processes: made from concentrate, previously frozen, organically grown, kosher, and irradiated, for example.

In a move that seemed precedent breaking, the FDA conducted focus groups to assess consumer opinions about the labeling issue. To the agency’s apparent surprise, practically all of the participants wanted labels to say whether foods were produced through genetic engineering. The FDA report on the focus groups said, “What is striking about participants’
initial discussion of their reasons for wanting biotechnology labeling is the widespread perception that the information they want the label to provide is how the food product was produced, rather than the compositional effect of the process on the food product.”
⁸
It is understandable that the FDA found the results “striking”; the agency had already decided otherwise. While the focus groups were in progress in May 2000, the FDA proposed a plan to require premarket notification for transgenic foods but to make labeling
voluntary
. FDA Commissioner Jane Henney said this plan would “show that all bioengineered foods sold here in the United States today are as safe as their non-bioengineered counterparts” and “will provide the public with continued confidence in the safety of these foods.”
⁹
Six months later, after wading through 35,000 public comments on the matter, her agency issued still-interim rules for voluntary labeling. These led the
New York Times
to begin its account with, “Seeking to calm public anxiety . . .” and to quote Commissioner Henney: “What any product doesn’t need is for there to be suspicion on the behalf of consumers that something is being slipped by them.” Because the revised rules made labeling voluntary and retained restrictions on use of the term
GM-free
, consumer groups called them “purely public relations.”
¹⁰
The FDA’s subsequent warnings to companies to stop using “GM-free” labels or to states seeking to enact GM-label laws, also did not reassure consumer groups that the agency was acting in the public interest.
¹¹

What seems most surprising is how much the industry’s unyielding opposition to labeling damages its own cause. If public trust is the key to successful marketing, biotechnology companies should freely disclose their methods, economic goals, and products. This idea cannot be news to the industry. In 1992, I was not alone in saying, “The labeling issue is really this simple: consumers are more likely to buy the food products of biotechnology if they think the foods are worth the price and if they trust the producer. Trust requires disclosure. . . . All the evidence suggests that consumers will welcome superior products—those that are cheaper, taste better, and have better nutritional value—no matter how they were produced.”
¹²
This advice made sense at the time. Industry leaders ignored it because they chose to blame public resistance on scientific ignorance; if people knew the foods were safe, they would buy them. Labels might suggest that the foods were
not
safe. Later events proved the error of this view. People bought the genetically modified tomatoes because they thought they tasted better or were priced competitively. Public views of biotechnology in the United States then depended on perceived benefits and, as such, were logical, consistent, and predictable.

FIGURE 25
. These foods bear labels designating their GM status. Those on the left are British or Irish products explicitly labeled either as genetically modified or as “GM-free.” The labels of the American products on the right, all purchased in 2000, state that they do not contain genetically modified ingredients. (Photo by Shimon and Tammar Rothstein, 2000.)

An alternative possibility is to decide the risks and benefits of each new food on a case-by-case basis and allow the marketplace to determine success or failure—as it does for other consumer goods. Under this approach, labeling is essential. If the foods are worth buying, labeling should
encourage
purchase (as Calgene thought it might do for the tomato). Whether the industry’s unwillingness to subject transgenic foods to marketplace forces was due to fear of rejection, arrogance, or stupidity may never be known, but this position led to results that were hardly in its best interest: public erosion of confidence, questioning of the value of
any
genetic modification of food, demands that government regulations address the societal—as well as safety—implications of the technology, and a steady increase in the labeling of foods as “GM-free.” By 2000, as shown in
figure 25
, many food products in Great Britain and the United States bore labels indicating whether or not they were genetically modified.

When biotechnology companies patent the processes for creating transgenic foods, they demonstrate that they are motivated more by interests of economic self-protection than by concerns about feeding the
world. Patented transgenic foods cannot be grown without a license and, therefore, require a fee. United States intellectual property laws permit patent owners to exclude anyone else from making, using, or selling protected aspects of transgenic plants for 20 years. The roots of current patent coverage date back to 1930 when the U.S. Patent Office granted limited intellectual property rights to plants propagated through methods that did not involve pollen. In 1970, Congress extended the rights to plants developed through traditional methods of pollination and cross-fertilization. Later, the Supreme Court granted full patent rights to microbes developed through recombinant techniques; the first was patented in 1980. The Patent Office extended full protection to transgenic plants in 1985 and to transgenic animals in 1988.
¹³
Companies viewed these extensions as an incentive to develop new products. By 1995, the Patent Office had issued 112 patents for genetically engineered plants.

Patents elicit public distrust of the food biotechnology industry for the six distinct reasons discussed next: ownership, enforcement, injustice, “biopiracy,” animal rights, and “terminator” technology.

Ownership
. Control of the “discoveries” of genetic engineering creates distrust because of the extraordinary breadth of some of the patents. One, for example, grants exclusive rights to all forms of bioengineered cotton; another covers all uses of reverse genes such as those used to create the Calgene tomato; yet another gives Monsanto exclusive rights to methods using certain antibiotic-resistance markers. Competitors of the companies holding such patents find their scope stunning, “as if the inventor of the assembly line had won property rights to all mass-produced goods,” or “as if Monsanto had just patented the yellow pages as a method for finding a telephone number.”
¹⁴
Such concerns are quite justifiable. For example, just four companies control 65% of the patents owned by the top 30 companies working on transgenic seeds: Pharmacia (which, in 2002, owned Monsanto, Calgene, and other agricultural biotechnology companies), DuPont (Pioneer Hi-Bred), Syngenta (Zeneca, Novartis, and others), and Dow Chemical (Mycogen). Monsanto, for example, alone owns more than 100 patents for the processes used to construct transgenic corn and soybeans.