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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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