Thursday, September 3, 2015

The SAFE Act or the DARK Act? Why is it being opposed?

Remember that time I wrote a letter to Gwyneth Paltrow and Lena Dunham? Well, soon after, Ms Paltrow teamed up with a group of her friends and created a video against the Safe and Accurate Food Labeling Act (aka SAFE act).

The SAFE act or HR 1599 seeks to regulate labeling of GMOs. It recently passed the House and is currently in the Senate (as I was learning about all this, I became keenly aware that I should probably start studying for the US Citizenship exam, which will be in a few years). I've read through the bill, whose text you can find here, and I encourage you all to do the same.

The act does a few very important things at the Federal level:
  • Says that GMOs must be labeled if there is a difference in "functional, nutritional, or compositional characteristics, allergenicity" or other material differences between the GMO and its conventional counterpart. It clarifies that just because something is a GMO, it doesn't automatically make the food/ingredient/crop materially different.
  • States that it is unlawful to sell GMOs or food produced from GMOs that are unregulated (with exemptions, such as for research). 
  • Declares that the Department of Agriculture will keep an online registry of all the non-regulated GMOs and their intended uses, petitions made regarding each GMO, and notifications of findings from the Secretary of Health and Human Resources regarding the GMOs.
  • Creates a "National Genetically Engineered Food Certification Program" and establishes standards for labeling something as non-GMO. Interestingly, the certification is based on the supply chain process (i.e, look upstream from the final product to see if any ingredients derived from GMOs were used, as opposed to looking at the final product to determine if the protein or DNA from the GMO can be identified). It also states that food given to livestock must be GMO-free in order for livestock products to be certified non-GMO. It also provides a list of exemptions. Additionally, it establishes an accreditation program, whereby individuals can become certifying agents. 
  • Establishes guidelines for labeling products as genetically engineered. It expressly states that you can't claim that a product is "better" or "safer" just because it's a GMO.
  • Creates penalties and consequences for those who break the laws outlined in the act.
In a post I wrote for Biofortified, I outlined the difficulty inherent in state-level labeling: that there's no definition for a GMO. I gave examples of how proposed labeling legislation in various states differed: "In Vermont, the labeling bill states that you don’t need to label if the amount of GM material makes up less than 0.9% of the total weight of processed food, but in California‘s proposed (and failed) bill the cutoff was set at 0.5%. Perhaps GMOs have more GMOiness in California so the state can’t handle as much of it. Colorado’s proposed (and failed) bill stated that chewing gum was exempt from labeling. In Colorado, Vermont, and California, alcoholic beverages were exempt, but I could find no such exemption in the bill from Connecticut." This act addresses the issue by creating Federal standards. In that same post, I explained that the absence of a single definition for GMOs will give rise to multiple certification/verification labels, each claiming that their own definition of a GMO is the right one. Using the federal standards established in HR1599, this possibility evaporates because there will be a single Federal certification body. 

You'd think that anti-GMO activists would be jumping up and down and celebrating over this one. But for some reason, they aren't. 

Instead, the legislation has been rebranded as the DARK act (Deny Americans the Right to Know). I checked the "Just Label It" campaign, which Ms Paltrow and colleagues want you to visit, to see why they're opposing it. Here are their reasons and my thoughts below:
  • Preempt states from requiring labeling of GMO food.
    No: the act expressly states that GMO foods must be labeled if they are materially different and puts that power into the hands of federal agencies. How does state level labeling make any sense? Why should it be possible for something to be labeled as a GMO in Colorado but not in Vermont? Wouldn't that just highlight the arbitrary nature of the GMO-label? But I digress...
  • Virtually eliminate FDA’s ability to craft a national GMO labeling system.No: the bill does exactly the opposite. It creates a labeling system and certifying bodies for non-GMOs.
  • Codify the current, broken voluntary labeling system.
    Yes, it fixes the voluntary labeling system. What's wrong with that?
  • Create a GMO “safety” review system based on industry science.
    Yes, and again, what's wrong with that? Car manufacturers use industry science to show that their cars are safe and meet Federal guidelines/standards. The same goes for airplane manufacturers. And crib manufacturers. Even drugs: clinical trials are carried out by the company that makes the drug using "industry science" and then the data is reviewed by the FDA. Why would GMOs be the exception to the norm? If you want GMOs to be tested by government labs, then be prepared for a huge tax increase. I'm not saying this isn't the way to go, but if we decide that government agencies should be responsible for the testing of all consumer products, then we have to be ready to bear the cost/burden.
  • Allow “natural” foods to contain GMO ingredients.
    There's no true definition for "natural". From my perspective, I don't see how an Arctic Apple grown in an orchard under the beautiful BC sky could be anything short than 100% natural. Here's an article on how the "natural" label is a marketing gimick. But I'm sure others would disagree.
According to many experts, making companies label GMOs is a violation of the 1st amendment. The amendment which protects freedom of speech, also makes it unlawful to force speech, and this freedom is extended to commercial speech. The limits of this commercial freedom of speech have been loosely outlined in a Supreme Court Case from 1985: "Commercial speech that is not false or deceptive and does not concern unlawful activities may be restricted only in the service of a substantial governmental interest, and only through means that directly advance that interest." It's on this basis that Vermont's labeling law is being appealed in court. It'll be interesting to see how that court case plays out. You can read more about some interesting commercial first amendment cases here and here

So HR1599 seems to be the best of all worlds: it establishes a clear definition for a GMO, it doesn't violate the first amendment, it forces companies to label GMOs when needed, it creates a federal registry, and creates a new federal label for non-GMO with very stringent/exclusive definitions. I find it interesting that most groups that are denouncing HR1599 embrace the Non-GMO Project's certification, when these two have adopted the same process-based definition for a GMO. The difference between the two is that the former provides a voluntary label for items that don't have GMOs, whereas the latter forces the labeling of everything that has a GMO. In the end, it's the same thing: I can assume that everything that isn't labeled as "Kosher" is non-Kosher, and it's simpler that way rather than forcing everything that is non-Kosher to be labeled as such. So why the backlash? Why the outcry?

In trying to understand why some groups would oppose this law, I stumbled on a letter that Ben & Jerry's had written to the US House of Representatives about HR1599. As you may know, this ice cream company is one in the leaders in GMO labeling and last year they announced that they would be going GMO-free. In the letter, they state "As a Vermont-based company, we are particularly troubled that H.R. 1599 would preempt Vermont’s Act 120, which beginning in July of 2016, will require labeling of food products with GMO ingredients sold in Vermont. As a food company doing business in all 50 states, we’d prefer a national standard for mandatory GMO labeling, but absent that, we support states like Vermont passing legislation that ensures transparency and consumers’ right to know." Their letter continues to outline the minimal cost that GMO labeling would pose by focusing on the fact that changing packaging is done routinely. The letter ignores the cost that would be associated with segregating GMO from non-GMO ingredients in the supply chain.

What I find interesting is that Ben and Jerry's failed to mention that under HR1599, they would not be able to claim that they're GMO-free. Ben and Jerry's website has this extremely convenient definition for GMOs (I've added the emphasis): "...The fresh Vermont milk and cream that our family farmers supply to us is not organic. This means that in the US, it is common practice for the cows' feed to contain GMO ingredients such as corn. Current regulations in most countries with mandatory GMO labeling requirements do not require milk to be labeled as GMO when derived from cows fed GMO feed. This is also consistent with proposed state-level legislation for GMO labeling, specifically dairy from cows fed GMO feed would not be required to be labeled as containing GMO ingredients. This is the current position that Ben & Jerry's are adopting with regard to animal-derived ingredients. Under these regulations, this does not make the dairy genetically modified."

In contrast, the definition of GMO-free in HR1599 states that cows must not be fed GM-grain for their products to be GMO-free: "in the case of a covered product derived from livestock that is marketed in the United States for human consumption, the covered product and the livestock, products consumed by such livestock, and products used in processing the products consumed by such livestock shall be produced without the use of products derived from genetic engineering".

So Ben and Jerry's supports a State law where it can claim that it's products are GMO-free, but rejects a more stringent definition for GMOs at a Federal level and from my perspective it's because it would cost the company a pretty penny to comply with the Federal definition of GMO-free. Pretty convenient, isn't it?

But what about other organizations? Why are they opposing the SAFE Act?

  • The Just Label It campaign is funded by companies that clearly benefit from forced GMO-labeling: the companies that fund the campaign include a long list of organic food companies/manufacturers.
  • The Non-GMO Project's website explains their concern over HR1599 by stating: "The revised bill also includes a mandate for the USDA to create its own non-GMO certification program. While it won’t remove the Non-GMO Project Verified seal from the marketplace, the bill as written would create a competing label that would confuse shoppers and undermine the tremendous progress we’ve made on setting a high standard for GMO avoidance." Not only would  HR1599 make the Non-GMO Project's certification useless, but all the labs that are used by the Non-GMO Project for its certification would have to seek business elsewhere or seek federal contracts. That includes a company named Genetic ID, who is part-owned by Dr John Fagan, who is also on the Board of Directors for GMO Free USA. So of course, GMO Free USA also opposes the DARK Act.
So with all this in mind, I come full circle: the video that Ms Paltrow and her friends made against the SAFE Act. I'll be honest: the video hurt me. It starred Sarah Michelle Gellar, otherwise known as Buffy the Vampire Slayer. Like a stake through my heart, she joined other celebrities and voiced lines from the "Just Label It" campaign about why this comprehensive law supposedly sucks. I'm a Whedonite and you can probably find lines from Buffy episodes scattered throughout this blog. The collectors' box set of Buffy, along with comic books and other paraphernalia can be found in our home. It was probably the first show that the spouse and I watched from end-to-end in the early days of our marriage. In my despair over SMG's betrayal of her awesomeness, I joined a group of talented, brilliant women (who are also moms) who wrote a letter to the celebrities explaining why GMOs are an important agricultural tool that can benefit our society. I urge you to read our letter and, if you agree with its content, you can add your signature to the letter. 


  1. This is an excellent post and I learned a few things.

    Note that Maine has also passed a GMO label law. Ours is contingent on 5 other adjoining states passing similar laws, as it Connecticut's. So at the moment the only one that is truly "on the books" in a state to be enforced is Vermont's, effective July 1, 2016. The request for injunction was struck down, so the case will go to trial and in the meantime manufacturers have to begin planning for the contingency they will lose. One option is to not sell products in Vermont, rather than deal with segregating commodity streams for a very small market (Vermont is ranked 49 of 50 states for population size).

    Since you mention citizenship I'll mention Federalism as the concept that allows states a degree of sovereignty over internal affairs. If Vermont's law only applied to goods that are wholly produced inside state borders, I would find it less objectionable (though the First Amendment still protects those producers). In Gonzalez v. Raich case before the Supreme Court one of the dissenting opinions explains the basic rationale:

    Federalism promotes innovation by allowing for the possibility that "a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country...

    But as with state bans on same-sex marriage, a state's novel social experiment doesn't trump the Bill of Rights. The majority may not oppress the minority using the power of the state. People object that democracy* is being undermined by the courts, but the more important principle of individual liberty is being correctly upheld.

    * For the record none of the state labeling laws has passed a popular vote. Connecticut, Maine and Vermont all went through the state legislatures. Still, those are elected bodies and so concerns about democracy might have merits.

  2. Dear Biochica, FYI:
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