The companion bills introduced in Congress are entitled the “Genetically Engineered Food Right-to-Know Act.” Proponents of bioengineered labeling include consumer and environmental groups as well as organic farming organizations. As such, their arguments include health and environmental concerns and a desire for marketing leverage.
Opponents of these measures, including industry and farm groups, assert that the products of biotechnology approved for use have been found by the Food and Drug Administration to be safe for human use. Environmentally, they have reduced synthetic pesticide use and related individual and environmental exposures, fit well with low- and no-till cultivation and save labor and energy. Economically, they have more than covered higher seed costs through improved returns, reflected in their rapid and widespread acceptance by farmers. Economic analyses of bioengineered foods also have shown that the largest share of their benefits has flowed to consumers in the form of more plentiful, reliable supplies and lower food costs.
Alongside this debate on the costs and benefits of biotechnology, these federal bills raise the question: What should a “right to know” entail, and how should government act to provide consumers the information some crave? We know that society is increasingly asking for more transparency around all kinds of processes, so it is important to determine the best way to meet these demands.
Using the language of “rights” in discussing this desire, however, can be misleading, especially when combined with shorthand references to what is desired (i.e., to know). In introducing S. 809, Ms. Boxer said, “Americans have the right to know what is in the food they eat so they can make the best choices for their families.” The crucial point in interpreting this goal is to find the best way to inform with the least distortion of commerce.
If the goal is to know about contents that will definitely hurt a class of consumers, most would conclude that the right involved is compelling. An example might be allergens whose presence otherwise might not be obvious. A warning in such circumstances makes good sense.
If the question is about contents that may hurt some class of consumers, that interest still is strong enough to override minor concerns, such as the cost or ease of printing readable, informative labels on foodstuffs. An example might be nutrition labels, where some people need to be concerned about non-obvious salt, fat or saturated fat content.
Where the issue is not harm but marketing considerations, the consumer’s interest must be balanced against other considerations. That is the case with bioengineered foods. The issue is not safety or health effects; that issue has been resolved by scientific regulatory review. The issue is how to inform consumers without the government distorting marketplace competition. Mandatory labeling involves excessive governmental intrusion, for at least three reasons.
The first reason goes to the heart of regulatory theory. Regulators use the best available science to resolve questions about the safety of products for the environment or human health. Once those issues are resolved in favor of a product, requiring a content label adds no useful information, undermines the regulator’s credibility and calls into question the regulator’s decision. It invites substituting an uninformed consumer judgment for the informed regulator’s decision, and it creates a counterproductive uncertainty about whether “safe” is “safe enough.”
A second reason for rejecting mandatory labeling is its practical effect: it is a governmental intervention that distorts competition. Where countries have mandated labeling of bioengineered foods, the effect has been as if it were a warning label. Food manufacturers reformulate their products to avoid that implication. As a result, the mandated label tilts the competitive playing field against bioengineered foods and in favor of foods not using the technology. This may well be the outcome some proponents of mandatory labeling — like organic producers — seek. Distorting market competition should not be a regulatory role, and foreclosing the benefits of the technology from consumers and farmers is an excessive cost to pay.
Finally, there are less intrusive ways in which governments may ensure that consumers receive the information they need to make informed choices. One is for governmental authorities to publish more widely and visibly what their evaluations of biotechnology have shown. Another is to enforce rules of fairness and accuracy on the communications of bioengineered-, conventional- and organic-product marketers. This, in fact, is the purpose of Federal Trade Commission requirements that such communications be truthful, accurate, informative and not deceptive. That is the best pathway to greater transparency and informed choice.
In a word, there are readily available ways to inform consumers about their food supplies that are less intrusive, more equitable and more consistent with government’s regulatory purpose than mandatory bioengineered labeling. Hopefully, they will carry the day.