“The bottom line take away is there is a debate about how GMOs [genetically modified organisms] are used,” said Jonathan Adler, director of the Center for Business Law and Regulation at Case Western Reserve Univ. School of Law, and author of ‘How not to label biotech foods.’ “There are also significant legal issues. Just as the law can affect what you may put on a label, the law also affects what the government can tell you to put on a label.”
Despite the complications, however, Adler said there have been several high-profile ballot initiatives already, most notably in California and Washington, and there are at least 30 states that will consider initiatives in the next few years.
“To date, the Food and Drug Administration [FDA] has resisted calls for mandatory labeling of GMOs,” Adler said. “In the FDA’s view, what matters is the resulting product.”
The failure to disclose how a product is made is not a material fact to the FDA, he said. The use of modern genetic modification techniques is not material to the safety of the product and the techniques do not give products different characteristics.
“If state or federal governments adopt labeling requirements there will be legal challenges,” he said. “It may not be constitutional. Labels are speech and subject to the First Amendment. The body implementing and enforcing the rule would have to assert a substantial interest before requiring labels.
“A consumer’s right to know is the asserted reason for labeling. We can debate if consumers understand what that means. As a federal court noted for the use of rBST [n the production of milk] it is not clear how consumer interest clarifies this issue. A simple consumer desire to know doesn’t seem sufficient to require labeling.”
If requirements are adopted at the state level, Adler said there would be issues with what is known as the commerce clause.
“The commerce clause seeks to prevent the development of regulations that lead to the balkanization of state or regional markets,” Adler said.
Preaching to the ‘food e-vangelists’
Complicating the matter even more is the consumers who are most passionate about the use of bioengineered ingredients are easy to mobilize and very vocal.
“What we are facing is a situation where facts and science don’t matter,” said Linda Eatherton, partner and director of the global food and nutrition practice for Ketchum Public Relations. “What we have is a drama playing out in the way information is shared and media is shared.”
Eatherton called the consumers driving the labeling issue “food e-vangelists,” who make up approximately 11 percent of the population, who are, for the most part, a part of the millennial demographic and have an income that is above average.
“These people are different from your core consumer,” she said. “They are self-appointed agents of change; they are not activists. Their mission is to convert other people to their way of thinking.”
Eatherton described food e-vangelists as being unorganized, but fuel for activists looking for people to be passionate about their causes. She said the differentiation between someone who is passionate and who is an activist is critical, because it means there is an opportunity to reason with the food e-vangelists.
“They are not an unreachable minority,” she said. “They can be approached in a different way and be convinced to form a new point of view.
“Here is how this works. Activists stoke the myth, the food e-vangelist forms an opinion and marketers capitalize on that fear.”
Consumers are being pressured into choosing sides and not making informed decisions, Eatherton said.
“To work with them means establishing an ongoing relationship based on empathy,” she said. “They have to trust you before you start introducing facts and science. If you just respond with facts and science they will tune you out. This is a very tedious and slow process.”
From a regulatory perspective, Adler said that without a health or safety justification, the FDA is wary of getting involved in this issue. The FDA has learned, sometimes from losing court cases, it needs to maintain its focus as a health and safety agency. But despite the FDA’s inaction, Eatherton said the issue will remain a top of mind subject.
“The individuals interested in this issue are a small number, but they are driving perceptions,” she said. “They are driving this issue whether we like it or not.
“Lumping consumers into one bucket is dangerous. They may not be your consumer; they are concerned you are withholding information from them. But what we have learned is facts and science matters to them, but it has to be in the environment of a relationship.”