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The ‘DARK’ Side Loses Another One, With House Passage of State Labeling Preemption Bill


On Thursday, July 23, the “DARK” side took a hit. By a vote of 275 to 150, the House of Representatives passed H.R. 1599, the Safe and Accurate Food Labeling Act (introduced by Rep. Mike Pompeo), aimed at preempting state-level mandates for discriminatory, skull and crossbones labels on foods derived from crops improved through biotechnology, or “GMOs.”

Opponents of the bill, legions whipped into fearful frenzy by pro-labeling forces, mounted a full scale assault in an attempt to derail the bill, dubbing it the “DARK” (“Denying Americans the Right to Know”) Act, casting it falsely as a revived “Monsanto Protection Act,” and claiming it was aimed at denying consumers access to information. Those, and their other arguments, are both wrong and unpersuasive, which is why their efforts have increasingly failed to bear fruit. With House passage of the bill, the consistent thread of bipartisan support for agricultural biotechnology and science-based innovation we’ve seen in Congress since the end of World War II continues unbroken.

The bill represents real progress. Those who have tried to use fear and deception to advance a dogmatic world view, built on deceit and self-deception, contradicted by data and experience have suffered a massive defeat. Again. Members of Congress rejected their clamor (rumors suggest calls urging “No” votes outnumbered support by 300 to 1) and voted to reject the niggling (and expensive) harassment campaign, largely underwritten by the organic lobby, and chose instead to support modern agriculture.

Despite the importance of the bill, there are some areas where it can be improved. First, the bill uses the term “genetically engineered plant” throughout, without defining it, based on the apparent presumption that the term defines a real category that is useful for identifying hazard or managing risk. But the United States explicitly rejected this thinking in the Coordinated Framework for Regulation of Biotechnology in 1986, after years of deliberation, because such a process-based approach fails to define a category with any value for identifying hazard or managing risk. Unlike Europe, the United States prudently elected to treat “regulated articles” on the basis of characteristics that might indicate a risk in need of management. This bill sets all that aside, apparently without realizing it. This would be a giant step backward and away from basing regulations in science, which has been the signal strength of the U.S. approach, underlying all the global success we have seen with crops improved through biotechnology. This is neither a good nor a necessary move.

The stated intent of the bill as marked up is to uphold the existing, voluntary Food and Drug Administration (FDA) consultation process that has been in place and worked very well for more than two decades (zero cases of illness, not a single death). But Section 461(a)(1) makes it unlawful to commercialize a crop variety improved through biotechnology unless the Secretary of Health and Human Services (HHS) certifies no objections to the outcome of the FDA voluntary consultation process. The responsible individual seeking final (mandatory) U.S. Department of Agriculture (USDA) clearance prior to commercialization must submit this certification to USDA as part of the approval package. It would take a skilled, energetic, and acrobatic advocate to maintain that this is anything but a change in the FDA process from voluntary to mandatory.

This is not an advisable change. The FDA process is not broken. In two decades there have been zero failures and zero negative outcomes (which does beg the question, what are the comparable numbers for organic food?). This “fix” would break the FDA consultation process by mandating review for a scientifically indefensible class, “GMOs,” never before recognized in U.S. law. It would, for the first time, align the United States squarely with the European Union, whose disastrous policies have driven their ag biotech industry to our shores. This is not a good idea, and it is irrelevant to the purpose of the bill, which is to end the labeling efforts at the state level. This bill, as it stands, would create a new opportunity for political interference with a regulatory process that is already under political attack despite its unbroken record of remarkable success. That would create far bigger problems than it seeks to solve.

Title I, Section 113 is titled “Preemption.” It provides that “no State or political subdivision of a State may directly or indirectly establish under any authority or continue in effect as to any food in interstate commerce any requirement with respect to genetically engineered plants for use or application in food that is not identical to the requirement of section 461 of the Plant Protection Act….” With the intent to preempt state-mandated GMO labels, it would seem more logical to invoke the governing federal authority, which is the Federal Food, Drug, and Cosmetic Act. It looks more than anything like an open invitation to litigation because questions about its meaning have already been raised.

Title II mandates that USDA become a “Genetic Engineering Certification” agency and set up labeling mechanisms for both GM and non-GM materials based on the USDA’s Organic Marketing Program. But the market has already provided numerous mechanisms through which consumers who want to avoid foods containing biotech-improved ingredients can do so. This provision is superfluous and would create a brand new bureaucratic machine that would cost a great deal and deliver nothing of value that we do not already have.

Title III is also problematic. It mandates that FDA define and regulate the use of the term “natural” on food labels. FDA has already addressed this with virtuous brevity. This section of the bill would mandate nothing more than endless muddling, equivocation, and no doubt legislation, while doing nothing to improve food safety or quality.

In short, despite good intentions, H.R. 1599 as passed by the House is an inedible sausage. Nothing more was needed than something simple, direct, and to the point:

In accordance with Article 1, Section 8, Clause 3 of the Constitution, this Act reaffirms that authority over the content and format of mandatory food labels in these United States is the responsibility and sole province of the Food and Drug Administration; States are hereby and forever permanently preempted from meddling in this arena.

It is not clear that even that much is needed, as FDA already has all the authority and responsibility it needs over food labels. But at least that short paragraph would create no new problems. If the Senate takes up the issue, we can only hope they will be inclined to keep it simple.

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About the author

L. Val Giddings is a senior fellow at ITIF with three decades of experience in science and regulatory policy relating to biotechnology innovations in agriculture and biomedicine. He is also president and CEO of PrometheusAB, Inc., providing consulting services on biotechnology issues to governments, multilateral organizations, and industry clients. Before founding PrometheusAB, he served eight years as vice president for food and agriculture at the Biotechnology Industry Organization and a decade as a regulatory official with the U.S. Department of Agriculture. Giddings received his Ph.D. in genetics and evolutionary biology from the University of Hawaii in 1980.
  • Sundance98

    *Smoke and mirrors work every time. If we confuse the folks enough, they will just give up….is that the concept? Just want to know a couple of things: What country does our produce and agricultural products come from? Nice to know that stuff for people that have dietary issues. Are these products GMO derived? Yes or No? Is any product labeled “Organic” guaranteed to be truly “Organic”? Stuff like that. Domestically produce should be labeled as well. If the Europeans don’t want our GMO Wheat, Corn, Soy or Rice….why do we want it? How long does Soy Lecithin extend the shelf life of any product?

  • RobertWager

    Europe buys almost 40 million tonnes of GE crops from the US each year. They definitely want it.

  • Kevin Folta

    And they buy tons more from Argentina and Brazil. Plus they grow plenty of it in Spain, and Romania was a soy/potato exporter before they joined the EU– became importer, and insecticide use blew up big time. European researchers come work here with me because of the crazy rules concerning transgenic research plants. Scientists there think the whole issue is insane.

  • Sundance98

    *Actually, the Brazilians just had China just turn down buying 50% of their GMO crops that they were going to buy. The Europeans are using the GMO imports for cattle and pig feed. They are also getting blowback big time and Obama has had to put together the TPP to end run around the issue, when the TAP comes up in October. The TPP puts those countries feet to the fire to buy our GMO Corn, Wheat and Soy which is going into the tank on the commodity markets, otherwise they we won’t let them steal our manufacturing and R & D jobs….and take out of this country in exchange. We invite you to watch the TAP negotiations Trans Atlantic Partnership at the end of this year or the start of next and see what Germany, France and the rest of the European Community are willing to take in US Grain imports. Our bet it will be TT (very little!).

  • Sundance98

    *These are “trade offs”…..what do you have? Oh, GMO’s and what do we have? Good German Beer, French Wines, Italian Foods, Autos….as Donald Trump says……we have to pay a heavy price to get the good stuff… letting the Europeans sub-contract our Aerospace Systems…….Taking a few pounds of worthless cattle feed probably pencils out for the European Union. This is not their
    first day at the ranch.

  • GMO Roberts

    I suggest you start with a better education for yourself since currently there isn’t any gmo wheat or rice. Europe is also one of the largest importers of American gmo corn, and it goes to animals which are sold unlabeled.

  • Sundance98

    *Just send us your expert link evidence. We know you have all the answers….which are entirely false. We never listen to one source on most anything. How about the Dept. of Agriculture Export Info…for example… have that NON-GMO Data handy?

  • Sundance98
  • Sundance98

    Welcome to the TPP and TAP Agreements….they will do their best …but as far as Europe being the LARGEST importers of American GMO Corn…….that could be, but then at only 10-20% of their total demand. They too are using it for Cheap Cattle Feed. They do not use it to feed their Chickens or their Pigs or Dairy Cows….however.

  • Sundance98

    And last by not the least….the Japanese have refused to take our California GMO Rice…..called Round-up Rice!

  • GMO Roberts

    Did you actually read the information in your link? It plainly tells you that roundup ready rice was tested for one year and was never brought to market, so it wasn’t real hard for Japan to refuse something that doesn’t exist now is it?

  • GMO Roberts

    A nice little quote from GMO Compass to prove you wrong, again.

    “Europe’s cows, pigs, and chickens are eating GMOs: their feed usually contains ingredients made from genetically modified plants. In addition, animal feed often has additives and enzymes that are produced with genetically modified microorganisms. Although GM animal feed must be labelled, the end products of animal production like milk, eggs, and meat do not require labelling.”

  • Sundance98

    *Bill Gates if your spokesperson in Africa….you know your Monsanto rep for the Dark Continent. Saving people’s lives by feeding them GMO Corn, which has to be repaid every year with new seeds acquired by the Farmers from Monsanto. Meanwhile, the NON-GMO crops and fields continue to shrink. Nothing wrong with folks making money on the backs of the poor and less connected. What you don’t mention is that not all the Europeans are feeding their animals GMO’s. You act like life takes place in a vacuum. The truth is, that in Germany, the bacon still tastes like 1960’s bacon….not the crap we get in this country. The Dairy products, mainly the butter and cheese also are not coming from GMO fed animals. The chickens have always been a mixed bag depending on the country in question. For example: Greece, Spain, Portugal and others refuse to kill their folks with steroid, antibiotic, GMO fed animals. Of course, that is why they are going broke……but they get most of their NON GMO grains to feed their animals. And who brought up labeling for Milk, Eggs and Meat. Right now no one is going to buy anything with all the crap in it except the poor….so people actually ask their grocers, their produce people and their meat manager: “Tell us about this hamburger!”

  • GMO Roberts

    Sorry, but Bill Gates is nothing for me. Really don’t care what he does one way or another. I also never said that all animals in Europe are fed gmos, you are the one that implied none are which is simply false. Just like your bit about dairy not coming from gmos, I’m sure there is plenty that doesn’t, but there is also plenty that does. Why the lies?

  • Sundance98

    *Led Zepplin said it best: “Communication Breakdown”….or .”What we have here is a failure to communicate!”… Strother Martin said in “Cool Hand Luke”. We just like the entire story or “the rest of the story!”….as Paul Harvey said. Let’s just say….”the worm and has turned….” and GMO’s are
    not the pleasant surprise that the Global Community is jumping up and down to get….anymore!

  • GMO Roberts

    Tell that to the millions of hungry people that depend on them.

  • Sundance98

    *Cardboard for the masses…..we get it.

  • GMO Roberts

    Ok good gmos can be packaged in cardboard sounds good.

  • Sundance98

    *Folks can eat the box and the contents and not know the difference…we thought so.

  • GMO Roberts

    We thought so? What you have multiple personalities now? LOL, gmos are the present and the future for helping to solve the world’s food problems.