America’s First Labeling Requirement for GMOs

One of the first things 1Ls learn in law school is to control your own bad facts.

If a defendant tells his own unflattering tales, he can temper them with explanation. But if the opposing side raises harmful details and the defendant looks like he was trying to hide something, the facts immediately seem stronger, harsher, and more important. It’s like finding the empty Skittles bag behind your kid’s bed, rather than your kid bringing the empty bag to you and admitting he took it from the candy drawer without asking.

Now it appears that states are forcing food companies to ’fess up. Last month the mouse that roared, aka the tiny state of Vermont, passed America’s first labeling requirement for food containing genetically modified organisms (GMOs). Vermont’s law is the first pebble of an avalanche that could in its practical application force food manufacturers to label GMOs nationwide, not just products destined for Vermont. Because processed food is created all over the country, an unlabeled GMO product meant for, say, New York could slip onto Vermont shelves, exposing the food company to hefty fines and lawsuits.

The law’s practical implications will no doubt be forefront in the grocery industry’s avowed lawsuits to stop the rules from being implemented in 2016. (Vermont Governor Peter Shumlin (D) is advertising a website where labeling supporters can donate to the legal fight.) In the meantime, several states are considering following Vermont’s lead. How did we get into this messy, legal food fight? Inaction by the federal Food and Drug Administration (FDA).

The FDA has declined to require labeling of GMOs because it has decided that no studies have shown them to be different than their non-GMO counerparts. A GMO is produced when the genetic material of one plant is forced into another plant to produce a desired trait like pest resistance or a heartier crop. The goals for the resulting plant, which resembles the initial crop but in actuality has never before appeared in nature, are a better yield and higher profitability. Agribusiness’s creation of GMOs has been so successful that now the majority of American corn, canola, cottonseed, and sugar beets are genetically modified.

In the past couple of decades since the FDA publicly declined to require GMO labeling (while Europe does require it), concerns continue to pile up that GMOs may be linked to the increase in allergies, celiac disease and obesity. With those concerns, a grassroots labeling effort sprung up. General Mills smartly took note when earlier this year the company announced that all boxes of regular Cheerios would be free of GMOs. And now that companies who sell in Vermont are being forced to reveal when their products contain GMOs, rather than controlling their own bad facts, it looks like they were trying to hide damaging information. Expect consumer unwillingness to eat products they have been blithely eating for decades.

Wise food entrepreneurs should be directing their dollars to New England. When the law goes into effect, expect citizens of neighboring New Hampshire, Massachusetts, and New York (which is currently considering its own labeling requirement) to clamor across state lines for better grocery information and for online grocery sales originating from Vermont store shelves to rise exponentially. (Connecticut and Maine have passed laws that require GMO labeling if Vermont’s law goes into effect.) Non-Vermonters can avoid GMOs by simply buying organic.

The Cedar Circle Farm and the Vermont Right to Know Coalition marched to the Vermont State House in Montpelier on May 24, 2013. Photograph courtesy Cedar Circle Farm

Information doesn’t mean much without knowledge, and because of the rightful confusion over GMOs, every package might as well be stamped, “May Be Harmful for You and Your Kids, But Who Knows?” Labels cost money to create and enforce, and we citizens all eventually pay for that information; shouldn’t we have some idea what to do with it? As the Vermont law itself notes in its damning list of Findings on the absence of FDA GMO labeling standards and its effects, about 80% of processed foods contain GMOs. So the practical effect could be that, because companies refused to label GMOs early on and then had bad facts forced to light by its opposition, Americans will end up eat fewer processed foods simply because they contain GMOs. Which is progress, regardless of GMOs’ impact on health and wellness.

Additionally, mandatory GMO labeling is a potential stepping stone for residents of our 7-billion-person planet to begin noticing that high-quality food shouldn’t be a privilege for the elite but available to all. (Which is ironic, because failed grassroots labeling efforts in Washington state and California were led by big-name chefs and celebrities.) Whole Foods, not known for its rock-bottom prices, will require GMO labeling on all products on its shelves by 2018—and the appearance of GMO labeling in high-end markets but not corner bodegas will magnify America’s increasing food divide. Labeling now, rather than a decade from now when suspicions are even higher, may be agribusiness’s only hope of continuing to market GMOs in the US. And big businesses often repeat the argument that GMOs are the planet’s only hope of feeding 9 billion by 2050.

There’s an old saying in the policy world that if you manage to dodge federal regulation, you still have 50 problems on your hands. Congress is currently collecting sponsors for a national label requirement bill, and the food industry should consider accepting that federal solution, rather than address the patchwork of state laws piecemeal with lawsuits and eventual compliance.

This story is part of National Geographic‘s special eight-month Future of Food series.