The old school cafeteria lament about "mystery meat" has taken on a new meaning in the age of bio-engineered food, and that mystery is about to deepen with the debut of genetically engineered (GE) salmon and the FDA's refusal to take a clear stand on genetically modified food labeling.
When you go to the grocery store, you usually can't tell traditional products from those whose ingredients have gotten a boost from scientists. That's because labeling for GE foods isn't required. But the potential approval of AquaBounty salmon has re-opened the public labeling debate and led many consumers to demand labeling for so-called "Frankenfoods." AquaBounty, a fast-growing salmon with genes from Chinook salmon and the eel-like ocean pout, is under review by the FDA to become the first GE animal approved for human consumption.
It's a fair assumption that, if approved, GE salmon and other GE animal products that follow will be treated the same as food that contains genetically modified plant products. In other words, the lack of labeling will continue. But why won't GE salmon be labeled? Do consumers have a right to know? The answer isn't so easy.
Although some commentators say the federal government simply opposes mandatory labeling, that view doesn't consider federal authority and its limits. The FDA does not have unbridled power to require food producers to label products. Under federal law, the FDA may require specific labeling where a label or absence of a label is misleading. For example, if a package says "Atlantic salmon" but does not say it's genetically engineered, the salmon could be considered mislabeled. However, the FDA has determined that it may not require labeling about a product's production method -- such as being genetically engineered -- unless the product is materially different.
This is faulty reasoning that only creates consumers confusion. First, the FDA has been inconsistent in its position that material difference is required for labeling -- the agency requires irradiated foods to be labeled on both process and consumer demand grounds.
Second, federal law states that food is considered "misbranded" if it is "misleading in any particular" and if the labels fails to reveal "material" facts. Yet, the FDA has created a "material difference" standard requiring some kind of physical difference between the GE product and its conventional counterpart in order for mandatory labeling to be required. Under this standard, consumer demand or underlying ethical or environmental justifications for labeling aren't good enough reasons for mandatory labeling without a physical "material difference." That's interpreting the statutory language far too narrowly.
Thus far, while much of the science around GE food remains unknown or confidential, public hearings suggest that testing has not revealed any significant physical differences between GE salmon and conventional salmon. That makes it unlikely the FDA will require GE salmon or other GE animal products to be labeled unless studies indicate otherwise. Of course, the FDA's interpretation of what requires labeling -- its "material difference" standard -- is not the only possible interpretation of the law. The statutory language should consider realities of 21st century food. Misbranding, defined as "misleading in any particular," could include failing to label as GE (or, more narrowly, as having recombinant DNA) because these products have DNA and proteins that have never existed and consumers would not expect in food absent labeling. Given the rapidly changing landscape of food regulation due to new technologies, it is possible the FDA could come up with a new legal view for mandatory labeling. A new interpretation could consider consumer demand or bio-engineering. Another possibility could be new federal legislation mandating such labeling.
For now, it appears unlikely that AquaBounty salmon, if approved, will be labeled as GE, leaving consumers to continue relying on voluntary labeling -- by producers of bio-engineered and conventional food alike. That's a shame because no one likes "mystery meat," and this is one mystery could be solved if the FDA took a broader view of the law and the public's expectation to know where the food on our plates is coming from.
Jason Czarnezki is a Professor of Law in the Environmental Law Center at Vermont Law School. Emily Montgomery received her law degree from Vermont Law School and is pursuing graduate studies in environmental policy at the University of Utah.
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