LABELING GMO-DERIVED FOOD INGREDIENTS:A RECIPE FOR MISINFORMATION

By John S. Eldred, Keller and Heckman

by the Australia Food Standards Council to require labelingof GMO-derived ingredients on prepackaged foods. Thedetails of how this will work are not yet known. Japanese au-thorities are also under heavy political pressure to impose alabeling requirement. Finally, on the intemationallevel, theCodex Committee on Food Labeling, for its past severalmeetings, has considered whether and to what extent the la-beling of genetically modified ingredients and additivesshould be required.

At the recendy concluded meeting April 27 -30 in Ottawa(fVFRR, Vol. 9, No.1, p. 25), the Committee considered, atStep 3, a revision to the Codex General Standard for the La-beling of Prepackaged Foods via an amendment pertainingto foods obtained through biotechnology. The provision un-der consideration states that when a food or food ingredientobtained through biotechnology is no longer "substantiallyequivalent to the corresponding existing food or food ingre-dients as regards to composition, nutritional value or in-tended use, the characteristics which make it different fromthe referenced food should be clearly identified in the

labeling."

Also before the Codex was an alternative proposal thatwould require all foods that are or contain genetically modi-fied organisms to be labeled. The provision would also re-quire that foods that are produced from GMOs but do notcontain them to be labeled if, natural variations considered,an "adequate analysis" demonstrates that they differ fromequivalent conventional foods.

Prior to the convening of the 27th meeting of the Com-mittee this past April, there was concern that, if the Commit-tee were to reach agreement and advance to the next step themandatory GMO labeling proposal, it would have poten-tially significant implications. In addition to the fact that suchan action would signal international acceptance of the pro-priety of mandatory GMO labeling, and thus lead to itsenactment in a number of other countries, a Codex recom-mendation for mandatory GMO labeling would be poten-tially devastating to any World Trade Organization challengeof a national authority's labeling rule as being invalid underthe WTO "Technical Barriers to Trade" Agreement.3

The issue of whether pre-packaged food must bear a labelstatement disclosing the fact that an ingredient or additivepresent in the food is derived from a genetically modified or-ganism (GMO) continues to occupy substantial portions ofthe time of regulators and policymakers around the globe.

In the European Union, Regulation 1139/98/EC hasnow been in effect for more than six months. The Regula-tion establishes that any foodstuff or food ingredient pro-duced from the genetically modified corn or soybeanspreviously approved for marketing in the EU must be identi-fied in the labeling of the finished foodstuff as "producedfrom genetically modified maize" or "produced from geneti-cally modified soya." An exception is provided for foodstuffsand food ingredients "in which neither protein nor DNA re-sulting from genetic modification is present."

The Regulation further states that a list of products notsubject to the labeling requirement will be drawn up by theEuropean Commission. In light of the Commission's recentresignation, no action on the issuance of this so-called "nega-tive list," or to establish standardized methods for the detec-tion of protein or DNA fragments in finished foods, isexpected to be issued until the end of the year.

However, the Commission has signaled! that it interpretsthe labeling section of the Novel Foods Regulation(258/97/EC) to mean that all foods and food ingredients de-rived from GMOs in the future will require special labeling ifprotein or DNA resulting from the genetic modification is

present.2

There is no question but that the labeling rules currentlyon the books and being developed at the EU Commissionare motivated by politics, rather than science and sound pub-lic policy. In Australia, the Australia New Zealand Food Au-thority (ANZFA) is, against its better judgment, being forced

John S. Eldred is a partner in the law offices of Keller and Heckman,1001 G Street, N W, Washington, DC. 20001, and is a member ofthe WFRR Advisory Board. He may be reached by fax at202-434-4646.

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Commission staff worker paper FCC (99)254.Paradoxically, current Community law only requires labeling offood ingredients cleared under the Novel Food Regulation and the geneti-cally modified soya and maize referred to in Regulation 1139/98/EC to be labeled. Food additives, i.e., those that are the subject of theso-called EU Miscellaneous Additives Directive (95/2/EC) are not yet subject to any labeling requirement (as the Novel Foods Regulationupon which the labeling requirement is premised expressly does not apply to food additives), but the Commission hasprornised action laterthis year to include labeling requirements for additives as well.For brief commentary on whether the current EU labeling regulations might arguably violate the TBT agreement, see Savigny and Samail"GMOs: Consumer Perception as a Legitimate Impediment to Trade?" World Food Regulation Revi~ Vol. 8, No.1, p. 18.

ANALYSIS & PERSPECTIVE IS

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The author attended the Codex Committee on Food La-beling meeting, and at that time addressed the Committeewith the following remarks:4

Beginning of text:

The consumer's need for accurate information is of para-mount importance: no one disputes this fact. What we allshould remember, however, is that this need is not a mandatefor selective inclusion of label information by individuals orgroups that may support or oppose a given technology or

ingredient.

There is, rather, an ethical and moral imperative to pro-vide full, accurate and non-misleading information that is ofreal value to consumers. The consumer has no right to mis-leading information and does not wish to be misled. A simplestatement regarding the presence of genetically modifiedcomponents, delivered out of context and without appropri-ate elaboration, fails this test entirely. Inaccurate and mislead-ing information is worse than no information at all. For thisreason this Committee should, indeed must, oppose any fur-ther efforts to mandate, endorse or agree to uninformative,inaccurate and incomplete labeling cloaked in the guise offull disclosure, until such time as it can establish meaningfulcriteria to ensure that consumers receive the whole story, andnot just what one or another interested party would likethem to know.

Without innovation, there would be no polio vaccine, norevolution in electronic information available over theInternet, and, yes, no disease-resistant, higher-yielding cropsto feed the world's hungry through genetic modification.

Today, critical advances in biotechnology hold the promiseof alleviating hunger and malnutrition, so there can be nocompromise when some oppose innovation simply because itis new. In such a case there are only two outcomes, reflectingcompeting philosophies: Either a new product, process, orsubstance is permitted, under the law, after strict scrutiny toensure it is safe and will not adversely affect our environment,or it is not permitted, because, despite proof of safety and lackof environmental harm, according to current scientific stan-dards, there is-as there always is when something new is cre-ated--some slight possibility of unforeseen harm, howeverremote that possibility may be.

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Gates Still Open

If this latter philosophy ultimately prevails, then we haveentered the 14th century-when the prevailing view wasthat all knowledge had been obtained-rather than the 21st.

Fortunately, the anti-innovationist view is not now domi-nant. Those who oppose the development of GMOs-in-stinctively rather than on scientific grounds-have notsucceeded in shutting the gates on new products. High-levelscientific and regulatory bodies in the United States, Japanand Europe, including the EU Scientific Committees forFood and Animal Nutrition, have thoroughly reviewed, forexample, GM soya and corn, and have concluded that theyare indeed safe for human consumption.5

Truth In Labeling

But apart from this, this Committee should reject manda-tory GMO labeling because it is inconsistent with the Com-mittee's-and the world's-established principles ofappropriate food labeling. A mandate to disclose theGMO-derived nature of processed foods is a mandate to re-quire misleading labeling. Such a label statement, particularlyin the current climate, falsely implies the food is less safe than"conventional" foods. Conversely, a label claim of "GMO-free" falsely implies such a food is safer and better thanGMO-containing foods.

This Committee has always placed paramount impor-tance on truth in labeling. Its general labeling standard pro-hibits the use of labeling which is "false, misleading ordeceptive or is likely to create an erroneous impression re-garding its character in any respect." (Codex General Stan-dard for the Labeling of Prepackaged Foods, §3.1.) Amandate to disclose GMO-derived ingredients promotes la-beling that serves to mislead, rather than inform. Let there beno mistake. This debate is not one of ethics, "consumer rightto know," or other high-sounding principles. It is about get-ting GMO foods off the grocer's shelves. Supported by a sus~picious and misinformed public, urged on by sensationalistmedia, many proponents of such labeling wish to achieve aban by using this Committee's labeling recommendations toeffectively enact it.

A decision not to impose mandatory GMO labeling onprepackaged foods will not deprive consumers of the ability

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The views expressed are those of the author and not necessarily those of his firm or its clients.The European Scientific Committee for Food reached just such a conclusion relative to GMO soya and maize products in Opinions dated 13December 1996 and 21 March 1997.

,"...7/99 Worl<! Food Regu.lationReview BNA lSSN 0963.4894 "

Having failed before these bodies, those who oppose theuse ofGMOs have now turned to this Committee to attemptto gain indirecdy what they could not accomplish direcdy.They do this by proposing that this prestigious body recom-mend mandatory labeling that a food contains an ingredientderived from a genetically modified plant. They want such alabel even though the food product is equivalent or even im-proved in safety, nutrition, function, and quality to "tradi-tional" versions of the food.

Why is this proposed? Because the proponents wish tostigmatize those products with a label notice that has the ef-fect of a warning. And stigmatize, such a label will. To citeone example: In the United Kingdom, the popular press has,through a campaign of misinformation, created near-hysteriaby slanderously referring to food products containing GMOderivatives as "Frankenstein Foods." Polling data cited fromthese same news organizations reveal 67 percent of consum-ers would not buy a food product so labeled and fullyone-half believe that such a food poses a danger to health.

Under those circumstances, mandatory GMO labelingwill set off a mad scramble among food processors to sourceingredients that will allow the label requirement to beavoided. Aside from the inefficiencies and expense this willentail, it will have an unknown but potentially serious ad-verse effect on current agricultural practices, and may wellstop in its tracks development of promising new crop strainsthat can potentially benefit farmers and consumers as well.

to learn about the use of GMO-derived ingredients. Re-sponsible manufacturers have and always will address theircustomers' inquiries. Responses to telephone, letter, orInternet inquiries will allow manufacturers to provide truth-ful information in a non-misleading context. Where applica-ble, they can explain how and why their products containGMO derivatives and why they are safe.

The food processing and agricultural industries' mandateis clear: when improved crops are developed from the use ofrecombinant DNA techniques, industry must fully and thor-oughly assess the safety, quality and nutritional profile of theresulting food articles, and prove the equivalence of these ar-ticles, to those governments requiring official review andclearance before marketing and use. Those individuals andorganizations that oppose such clearance should be given anopportunity to participate fully in the process, and to filecomments, arguments and data to the authorities in supportof their views.

innovationists the victory that has so far eluded them whenGMO products have received appropriate governmentclearance. Let this Committee not now depart from its coreprinciple of truthful and non-misleading labels on foodproducts. Let it maintain this principle by rejecting proposalsto require mandatory GMO labeling.

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Fortunately, at the conclusion of the discussion, the Com-mittee could not reach a consensus to advance any proposal,and so both the original and the alternative proposals remainat Step 3. A Working Group has been formed, however, con-sisting of some 28 countries plus a number of consumer andindustry non-governmental observers (NGOs) , to meet andattempt to address the question as to when a food or food in-gredient produced through biotechnology is no longer"equivalent" to the traditional food so as to justify a labelstatement.

So, the batde rages on. A cavalierly adopted labeling re-quirement without an enormous public education campaignhas the potential to doom a promising new technology. Manhas, through hybridization of plants, deliberately transferredgenetic material for centuries. The principal difference be-tween hybridization techniques and the use of modern bio-technology is that, in the latter, genetic material is preciselytransferred with predictable and desirable results. Once sucha plant has been produced and cleared from the standpoint ofsafety for human consumption and with rega,rd to the envi-ronment, a label requirement serves no useful purpose butonly a pernicious one. However, in today's environment, as-sembling scientific proof is only half the batde. Much workremains for the political arena.

It is the regulatory and food safety authorities, both na-tionally and internationally, that provide a forum for both theopponents and proponents of the use ofGMO food ingredi-ents, and who will decide whether they will be allowed. Andthis is properly so. The decisions should be made by expertswith first-hand knowledge of the relevant scientific data, notby supermarket chains' purchasing agents overreacting tohysteria.

With all due respect, these decisions should likewise notbe made by this Committee, which has neither the knowl-edge nor the expertise, nor the jurisdiction, to make them.This Committee should not unwittingly hand the anti-

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