By Darin Detwiler and Wendy Hess

Over the last decade, numerous polls, conducted by The New York Times, The Washington Post, Consumer Reports and other sources reveal that well over 90% of those surveyed support the labeling of foods that have been genetically modified. American consumers clearly want to know what is in the food they eat.

In 2014, legislators in the state of Vermont passed a GMO  Labeling  Law (Vermont Act 120) requiring that products containing genetically engineered ingredients be labeled as such. In response, a group of trade associations filed a lawsuit  and motion seeking an injunction in federal court contending that the Vermont law is unconstitutional and imposes burdensome new speech requirements on food manufacturers and retailers by requiring labels for genetically engineered food sold in just that one state.

The U.S. District Court denied the motion, allowing the GMO labeling law to move forward for a July 2016 implementation start date.

Shortly before the law was to take effect, Senators Pat Roberts (R-Kan.) and Debbie Stabenow (D-Mich.) introduced the Roberts-Stabenow Compromise Bill (S. 764) to create a mandatory, national labeling standard for GMO foods (bit.ly/2bAW4RS). The bill also would amend the Agricultural Marketing Act of 1946.

Both houses of Congress passed the bill and, on July 29, 2016, President Obama signed it into law. This represents a duel between state and federal legislation as it preempts Vermont Act 120.

GMO LABELING. The newly minted federal law establishes a national, mandatory system of disclosure for packaged foods that contain GMO ingredients and stipulates:

  1. Three options for labeling GMO foods including:
    • A QR code requiring a smart phone,
    • A symbol to be developed by USDA, or
    • A statement that the food contains genetically modified ingredients.
  2. “Small” companies would be allowed to provide GMO information through 800 numbers and website URLs displayed on labels, and very small food manufacturers would be exempt from the disclosure entirely. Both thresholds are to be defined by the USDA’s Agricultural Marketing Service.

  3. The law allows all organic foods to be labeled “non-GMO” without any testing to see whether they contain any GMO contamination.
  4. Non-organic foods that companies want to label as non-GMO will have to undergo testing and verification by third-party verifiers, like the Non-GMO Project, to ensure that they do not have any significant GMO content.

Unfortunately, with the signing of this bill into law, the debate over GMO labeling is not over. The new federal law refuels at least one fundamental lingering question: if GMOs are safe, why did the food industry fight so hard against labeling?

Opponents of mandatory labeling argue that GMO labeling will confuse, and in many cases, unnecessarily alarm consumers. The driving force behind the resistance to GMO labeling arises from the economic interests to avoid this transparency because if the government requires providing this information, then the expected public concept follows that “there must be something wrong with it.”

Food industry stakeholders with economic incentives driving their actions may be the most powerful of all. Both the Grocery Manufacturers Association and the Food Marketing Institute have more than one economic driver in the GMO labeling debate — not only do they represent major companies in the food industry, they also have a joint technology venture called SmartLabel, which was embraced as one of the GMO labeling options in the Roberts-Stabenow Compromise Bill.

CONSUMER PERSPECTIVE. For consumers, the question is: Does mandatory GMO labeling really satisfy their perceived right to information and free choice? In addition to the various loopholes allowing inconsistent GMO labeling, some claim that the law provides a “digital divide” citing the lack of access to a QR code requiring a smart phone or Internet access to look up the GMO status of specific consumer packaged goods.

Thus, QR codes raise issues of discrimination and equal protection under the law, as more than half of America’s poor and rural populations (including a disproportionate number of minority communities) and a large percentage of the elderly don’t own smart phones. Additionally, according to “Obama’s GMO Embarrassment: Why the New Labeling Bill Just Signed into Law is a Sham” by Andrew Kimbrell, of those that do own smart phones, “many cannot afford monthly payments or live in areas lacking Internet access.”

Ultimately, a law designed to benefit consumers and their right to know information about the food they eat is only as good as that which is received. When the benefits to the food industry as the sender outweigh the benefits to all consumers as receivers, not just those with the privilege of sitting on the better side of the digital divide, then we must rethink the designation of this law as a victory for consumers.

Darin Detwiler is Consultant and Adjunct Professor, Regulatory Affairs of Food and Food Industry, Northeastern University (NU).

Wendy Hess is Regulatory Consultant for the Food Industry; candidate for an MS degree in Regulatory Affairs of Food and Food Industry, NU.