Between the headlines heading into a summer weekend, shadows of darkness lengthened. With little fanfare the U.S. Congress voted to pass HR 1599, which was introduced into committee less than six months ago on March 25, 2015, in bipartisan fashion 275-150 with 8 abstentions.
The proposed law, officially known as The Safe and Accurate Food Labeling Act, amends the FDA Federal Food Drug and Cosmetic Act to require developers of genetically modified organisms (GMOs), in this case plants, to submit premarket biotechnology notification. This notification includes the developer’s determination that the “food from, containing, consisting of the GMO (GMO food) is as safe as a comparable non-GMO food.” Only in the event that the FDA determines that there is a material difference between a GMO food and a comparable non-GMO food may the FDA then specifying labeling that informs the consumers of the difference.
The bill’s main sponsor, Rep. Mike Pompeo, R-Kan., stated that there is “overwhelming” scientific evidence regarding the safety of GMO foods. He added that there is no credible evidence that “foods produced with biotechnology pose any risk to our health and safety.” With respect to the purpose of the bill he noted that “ it is not the place of government — government at any level — to arbitrarily step in and mandate that one plant product should be labeled based solely on how it is bred, while another, identical product is free of government warning labels.”[i]
This on the surface, seems a good thing. But the bill has been called the “Deny Americans the Right to Know,” or DARK Act, by opponents. And here is why still waters on the surface may run not only deep, but DARK.
A good place to start is always the beginning. From the text of the original proposal the reason for the existence of such a bill is because “an ever more vocal minority of citizens are creating doubt in the minds of many consumers and policymakers through misinformation regarding the safety and wise use of genetically engineered inputs… This misinformation is influencing policymakers at the local, state, and federal levels and could threaten our farmers’ ability to feed an ever growing population and increase the cost of food for consumers… And so biotechnology activists continue to advocate for these proposals [GMO labeling laws] despite the clear scientific consensus on the issue. State labeling initiatives will produce a state-by-state patchwork of laws that lead to misinformation and confusion for consumers as well as costly disruptions to the food supply chain.”[ii]
Thus, despite the fact that reliable polls show that approximately 90% of Americans favor the labeling of GMOs foods[iii]; Congress has felt it incumbent upon themselves to enact legislation which does precisely the opposite. All because the simple-minded public and some unenlightened policymakers are being bamboozled by all the balderdash and taradiddles of a few kooks with no science on their side.
And according to the rhetoric in high-profile magazines by supporters who wear their MD as a badge of authority (though they no longer see patients and as a radiologist likely never did) and know diddly squat about food; this law will not deny people the right to know what’s in their food. The reason why is because there is no impediment to “stop food manufacturers who avoid ’genetically modified’ ingredients from labeling and marketing their products accordingly.”[iv]
Except this solution is a non sequitur. There are two key reasons why this is so. Rep. Pompeo argues that it is wrong to require the labeling of one plant because of how it is bred versus another plant that is “identical.”
Except these plants are anything but identical.
They are modified at the level of their DNA. Corn that has the DNA of some bacteria inserted into it so it is resistant to the herbicide glyphosate is not identical to corn that does not. While it is true that people have been cross breeding plants that are naturally compatible for thousands of years, there is no scenario in this quadrant of the galaxy where a tomato will breed with the a flounder. Such plants are distinctly different from their naturally occurring brethren at the level of their DNA even though at face value they may look the same. This is not only the opposite of identical, but is actually an argument for the labeling of GMOs products; precisely because there is no easy way to differentiate them by casual inspection.
This proposed legislation is not a law that enforces or protects your right to know what is in your food. The clever pitch in this switch and bait is an onerous, complicated and no doubt expensive certifying process if someone wishes to tell you what is not in your food. This “bill amends the Agricultural Marketing Act of 1946 to require the Agricultural Marketing Service to establish a program to certify non-GMO food.” Listing what your food is made from and declaring what is not in your food are not equivalent propositions. The proposed regulation indeed effectively bars the average consumer from knowing what is in their food.
This certification process has been legally empowered to encumber anyone attempting this with an overbearing record-keeping requirement which is of course subject to any government investigation and enforcement. Any occurrence which is deemed a violation is subject to a $10,000 fine; however “each day during which a violation described in subparagraph (A) occurs shall be considered to be a separate violation.” Any violation also carries an automatic five-year ban from producing and labeling any product non-GMO. The government has appropriated $2 million for the creation of such an oversight organization.
The law also expressly states that “labeling or advertising material on, or in conjunction with, such covered product shall not suggest either expressly or by implication that covered products developed without the use of genetic engineering are safer or of higher quality than covered products produced from, containing, or consisting of a genetically engineered plant.”[v] In other words, even if you have a non-GMO certification you could neither claim nor imply that is safer or better than its GMO counterpart. Science be damned.
And speaking of science, despite the assurances of government, the data is far from complete and determined. The vast majority of studies done to demonstrate the safety of GMO products are performed by the corporations that make them. These are also, invariably, short-term experiments.
Genetically modified corn like NK603 GM manufactured by Monsanto is engineered to overexpress the modified version of the Agrobacterium tumefaciens 5-enolpyruvylshikimate-3-phosphate synthase (EPSPS-CP4).[vi] This makes the maize resistant to the effects of the herbicide Roundup, which makes it particularly more profitable and easier to grow when you can kill every living plant within 50 parsecs of it.
Unfortunately, levels of the herbicide are increased in such plants and in us when we eat them. While the supporters like to reassure everyone that organizations with all the impressive acronyms like the World Health Organization (WHO) have not found issue with the safety studies performed by the manufacturers to date; that universal law of science holds true: absence of evidence is not evidence of absence.
The same organizations that supporters point to for validation, like the WHO recently put glyphosate, the active component in the herbicide Roundup, and the worldwide list of probable carcinogens. And there is more evidence accumulating that puts cracks in the veneer of harmlessness under which GMOs are marketed.
As remarkable as it may seem, currently no regulatory agency requires any mandatory chronic animal feeding studies to be performed for GMOs destined for human consumption.[vii] However, recent studies examining this very question has found that the chronic administration of GMOs feed can potentially alter the gut microbiome of livestock. In poultry, this results in birds with significantly higher levels of pathogens like salmonella and shigella. Given how little we know of the gut microbiome but its obvious and increasing importance in health and wellness and the development of disability and disease, perhaps it is time to remove the fox from the guard post of the henhouse.
Nonetheless, in effort to demonstrate safety the agricultural biotechnology industry has conducted several ninety day rat feeding trials primarily utilizing genetically modified soy and maize. The vast majority of the genetically modified plants had been constructed to be resistant to the effects of the herbicide Roundup, or to produce a modified Bacillus thuringiensis (Bt) toxin insecticide, or both. Such studies form the basis of agribusiness claims as to the safety of genetically modified foodstuffs.[viii],[ix]
The original study aimed at documenting the safety of Roundup resistant genetically modified maize demonstrated statistically significant differences in the liver and kidney function between the rats fed the GMO versus the non-GMO.[x],[xi] The Monsanto sponsored authors explain this finding as not “biologically meaningful.”[xii] As in all such cases to date, the governmental regulatory agencies have accepted such explanations at face value.[xiii]
The liver and kidney problems noted at ninety days in the original Monsanto study developed into severe pathologies over the course of two years. The detrimental effects were seen in every treatment group that was exposed to Roundup.
The rats in the treatment group had 2 to 3 times the incidence of tumors. The female rats were particularly given to the development of mammary tumors. There was also a high level of pituitary tumors. These and other findings, suggest a threshold effect causing significant disruption to the endocrine system. There was major disease and dysfunction of the hepatorenal system as well. The treatment groups, unsurprisingly, also experienced increased mortality.
This is only one example of many reasons to question Rep. Pompeo’s claim that “[p]recisely zero pieces of credible evidence have been presented that foods produced with biotechnology pose any risk to our health and safety.”[xiv]
The government’s track record in making such definitive statements would bankrupt a betting man. When refined white bread was first produced, May (Mary Anne) Yates founded the Bread Reform League in 1880 because of a correlation between people consuming the refined product and the development of disability and disease. She was dismissed because the powers that be were assured that the science was sound and there was no issue. Decades later, it was found that the refined white bread was extraordinarily deficient in compounds that we call today vitamins. It is the reason white bread is a fortified food product today.
Although trans-fats (TFAs) have been known since the end of the nineteenth century, it was not until the 1990s that evidence began to accumulate as to their harmful effects. It took over a decade more before the FDA to then limit the amount and only this year to begin to phase out TFAs over the next several years because of their incredibly detrimental health effects. And the list goes on, suffice to say such governmental assurances should be taken with a grain of salt; precisely because of the questions that surround the governmental recommendations concerning sodium intake.
But the non-GMO designation will be held to a much more rigorous standard. A “food label can only claim that a food is non-GMO if the ingredients are subject to certain supply chain process controls. A food can be labeled as non-GMO even if it is produced with a GMO processing aid or enzyme or derived from animals fed GMO feed or given GMO drugs.”[xv] So even if a small independent producer goes through the rigmarole and expense to obtain a non-GMO label, they may have to compete with GMO containing foods labeled non-GMO.
Yes, you read that correctly. The proposed law allows GMO products to be labeled non-GMO. All of which to say, makes pursuing a non-GMO designation as worthwhile a strategy as planning to retire based on that email from Nigeria.
Resistance is futile because the law “preempts state and local restrictions on GMOs or GMO food and labeling requirements for GMOs, GMO food, non-GMO food, or “natural” food.”[xvi] And the law is swift, if not just; before you could shout, “GMO, GMO, GMO Green Giant,” it is fully in place. Legislation requires that this law be enacted within one year of passage.
The proposed law also contains a section addressing the labeling of natural foods. This is an amendment to section 403 of the Federal Food, Drug, and Cosmetic Act (21 U. S. C. 343) this will include “the terms ‘natural’ ‘100% natural’, ‘naturally grown’, ‘all-natural’, and ‘made with natural ingredients’ and any other terms specified by the Secretary.” Because if you’re not going to use the non-GMO certifying process, you sure as hell aren’t good to be able to differentiate your non-GMO product by any other defining adjective.
The supposed purpose of this law is to “ensure national uniformity regarding labeling of foods derived from genetically engineered plants by preventing a patchwork of conflicting state or local labeling laws which inherently interfere with interstate and foreign commerce.”[xvii] If this is indeed the purpose, it would seem that the United States Congress need only enact a national law which requires the full disclosure of foods that are genetically modified.
Instead, we have the assemblage of a bureaucratic maelstrom that seems more designed to camouflage and ubiquitously disseminate GMOs. Manufacturers need only provide their own declaration that their product is safe and dismiss any troubling inconsistencies as “not biologically meaningful.” Such regulations shift the burden of proof to proving that something is not a GMO. It is like being presumed guilty and having to prove you’re not.
Despite the cries from modern agribusiness and the food industry that an approach that simply labels something genetically modified when it is genetically modified, is untenable and fiscally prohibitive; the other sixty-four civilized countries around the world seem to have implemented just such a strategy and the sky has not fallen. Even Russia, hardly a model of individual liberties and green environmental practices, has enacted legislation regulating GMOs. Vladimir Putin has signed legislation requiring the mandatory labeling of foods that contain GMOs in order to “protect its citizens from the overconsumption of genetically modified organisms and minimize risks to humans and the environment.”[xviii]
The barbarians are not at our gate, they are in our fields. The invaders will enter not in a monument built for the gods, but hide in the small parcels we collect each day for sustenance. Bullied and beset by a corporate Agamemnon we will bring them into our most personal temples, one bite at a time. Through poor choices and a lack of caution will we be fated like King Priam at the burning of Troy to realize:
“I’ve suffered what no other mortal has,
I’ve kissed the hand of one who killed my children.”[xix]
Appendix A: Purpose and Need Section in Entirety
Purpose and Need
Agricultural biotechnology is one of the important tools available to producers to cope with an increasing world population and increasing production risks in the 21st century. Despite the need for this technology, an ever more vocal minority of citizens are creating doubt in the minds of many consumers and policymakers through misinformation regarding the safety and wise use of genetically engineered inputs.
In Washington and across the country, we are hearing about “GMOs” and the use of biotechnology in food and agricultural production. There is a great deal of misinformation that can be confusing to consumers and policymakers alike.
This misinformation is influencing policymakers at the local, state, and federal levels and could threaten our farmers’ ability to feed an ever growing population and increase the cost of food for consumers. Right now, biotechnology is helping farmers grow more food with less–less water, less land, and less energy.
Over the past several years, political activists in a growing number of states have attempted to pass ballot initiatives and legislative proposals that would require labeling of certain foods that contain genetically engineered (GE) ingredients. In November 2014, voters in Oregon and Colorado defeated mandatory labeling initiatives. In previous years, voters in California and Washington have defeated similar proposals. To date, Vermont is the only state that has passed a unilateral labeling law, which is scheduled to take effect in 2016, although it is currently being challenged in court. Maine and Connecticut each have a labeling law that can be fully enacted if neighboring states pass similar legislation. Anti-biotechnology activists continue to advocate for these proposals despite the clear scientific consensus on the issue.
State labeling initiatives would produce a state-by-state patchwork of laws that lead to misinformation and confusion for consumers as well as costly disruptions to the food supply chain. The exemptions that have been included in every proposal have raised questions about what, exactly, defines “Right-to-Know.” Under Vermont’s labeling law, for example, vegetable soup would be labeled “GE” while vegetable beef soup would not because it contains meat. A proposal pushed by anti-biotechnology activists in California would have required “GE” labels on soymilk but not cow’s milk. In Colorado, chewing gum would have been exempt from “GE” labeling but breath mints would not.
Food supply chain stakeholders are navigating the consequences of mandatory labeling laws. Farmers have to segregate non-GE crops from GE crops and use more water and pesticides. Food manufacturers have to set up separate food processing units and warehouse space–not to mention additional transportation routes for products. All of these additional steps would add up to higher costs for farmers, manufacturers, and consumers. According to a recent study out of Cornell, state labeling laws would lead to a $500 increase in grocery prices for the average family of four.
In a June 17, 2015 letter to Vermont Governor Peter Shumlin, one food industry trade association laid out the high costs associated with compliance of the state’s labeling law which is set to go into effect next July. The letter states that:
In addition to the large costs associated with changing labels, companies will be subject to costly fines due to errors in the supply chain that are no fault of the manufacturer. Under the Vermont law, manufacturers are strictly liable for violations under the law for all instances of a product exhibiting the wrong label on store shelves–regardless of whether the violation was inadvertent; the violation was fault of some other participant in the supply chain; the manufacturers have no legal custody or any control over the product once it leaves their own distribution center; or the violation was a deliberate act by someone who purchased product out of state and placed it on shelves.
The letter continues: Even with the best of intentions, excellent supply chain logistics and herculean efforts, product will be in the wrong place at any given time, resulting in millions upon millions of dollars in potential fines. For example, assume a 90-95% success rate that the properly labeled products are on shelves. This means that 5% to 10% of products will be mislabeled, or have “slipped” through the supply chain (i.e., slippage rate). Vermont’s law imposes a $1,000 daily fine for each item that does not bear the legally designated label. For a company that has 2,500 items that require the Vermont label, that slippage rate of products would translate to a $125,000 to $250,000 daily fine. We estimate that industry wide, there could be over 100,000 items sold in Vermont that would require Vermont-specific labels. That means our industry could be facing fines as much as $10 million per day.
 The company DNA Plant Technology developed an experimental, genetically engineered tomato that included a modified gene from a breed of arctic flounder that, it was hoped, would allow the tomatoes to be more resistant to frost and cold storage. This was unsuccessful and the product was never marketed.
[i] (The National Law Review, 2015)
[ii] (House Report 114-208, 2015)
[iii] (The Mellman Group, 2015)
[iv] (Hamblin, 2015)
[v] (House Report 114-208, 2015)
[vi] (Hammond, Dudek, Lemen, & Nemeth, 2004)
[vii] (Seralini, et al., 2014)
[viii] (Domingo & Gine-Bordonaba, 2011)
[ix] (Snell, et al., 2012)
[x] (Hammond, Dudek, Lemen, & Nemeth, 2004)
[xi] (Spiroux de Vendomois, Rouiller, Cellier, & Seralini, 2009)
[xii] (Hammond, Dudek, Lemen, & Nemeth, 2004)
[xiii] (The European Food Safety Authority, 2003)
[xiv] (The National Law Review, 2015)
[xv] (Congressional research service, 2015)
[xvi] (Congressional research service, 2015)
[xvii] (House Report 114-208, 2015)
[xviii] (Sarich, 2015)
[xix] (Homer, Knox, & Fagles, 1998)
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Levy, N. (2014, October 1). The young doctor. Retrieved from Capitalnewyork.com: http://www.capitalnewyork.com/article/media/2014/10/8553422/young-doctor
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Mesnage, R., Defarge, N., Spiroux De Vendomois, J., & Seralini, G. (2014:). Major Pesticides Are More Toxic to Human Cells and Their Declared Active Principles. Biomed Res Int, article ID 179691.
PBS. (n.d.). Genetically Modified Tomatoes. Retrieved from PBS.org: http://www.pbs.org/wnet/dna/pop_genetic_gallery/
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Seralini, G.-E., Clair, E., Mesnage, R., Gress, S., Defarge, N., & Malatesta, M. (2014). Long Term Toxicity of a Roundup Herbicide and a Roundup-toerant Genetically Modified Maize. Environmental Sciences Europe, 26:14.
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Spiroux de Vendomois, J., Rouiller, F., Cellier, D., & Seralini, G. (2009). A Comparison of the Effects of Three GM Corn Varieties of Mammalian Health. Int J Biol Sci, 5:706-726.
The European Food Safety Authority. (2003). Opinion of the Scientific Panel on Genetically Modified Organisms on Request from the Commission Related to the Safety of Food and Food Ingredients Derived from Herbicide-Tolerant Genetically Modified Maize in NK 603 for Which a Request for Placing on the. EFSA J, 9:1-14: Market Was Submitted under Article 4 of the Novel Food Regulation (EC) No.25897 by Monmsanto question number EFSA-Q-2003-002.
The Mellman Group. (2015). Support For Requiring Labels On GMO Foods. Retrieved from Agri-pulse.com: http://www.agri-pulse.com/Uploaded/Mellman-GMO-poll.pdf
The National Law Review. (2015, July 25). The Safe and Accurate Food Labeling Act Restricts State and Local Government from Regulating GMO in Food. Retrieved from The National Law Review=: http://www.natlawreview.com/article/safe-and-accurate-food-labeling-act-...
Williams, G., Kroes, R., & Munro, I. (2000). Safety Evaluation and Risk Assessment of the Herbicide Roundup in Its Active Ingredient, Glyphosate, for Humans. . Regul Toxicol Pharmacol, 31:117-165.