One turkey, seven drumsticks: a look at genetically modified food labeling laws in the United States and the European Union.

• Author: Murray, Jessica A.

1. INTRODUCTION

   If you want to know whether the lunch you eat exceeds the suggested daily caloric intake, or if it contains high fructose corn syrup, you simply read the label to find out. (1) If you would like to know if the food you are eating contains a genetically modified organism (GMo), however, you will not find that information on the package. (2) Currently, up to 80% of processed foods contain GMos and with the American diet largely consisting of processed foods, chances are, a majority of what you are eating contains food made in a lab. (3) In 2006, the United States became the world's largest producer of genetically engineered (GE) crops and while proponents argue that GE crops provide important benefits, such as increased crop yields and decreased pesticide usage, opponents claim that there are significant risks such as the transfer of genetically modified proteins to human cells. (4) Despite consumer desire for GMO labeling, and the overwhelming amount of countries that require some type of regulation, the United States' Food and Drug Administration (FDA) decided almost twenty years ago that GMOs do not need to be labeled, reasoning that they were not "materially" different from other foods. (5)

   GE plants have been strongly resisted in Europe, and in response to public fear and desire to abolish the growth and importation of GMOs, the European Union tried to ban the use of GMOs completely. (6) The United States, Argentina, and Canada, however, challenged this ban at the World Trade Organization leaving the European Union to rely on strict processes and labeling regimes in order to control the domestic growth and importation of GMOs. (7) The anti-GMO attitude of the European Union has spread, resulting in sixty-four countries' mandating GMO food labeling laws in place, while the United States lags behind. (8) Currently, in the United States, more than seventy bills have been introduced at the Federal level in over thirty states to either require GMO labeling or prohibit genetically engineered foods. (9) This Note proposes a framework for establishing mandated labeling of GMOs in the United States as a result of comparing current state initiatives in comparison to the E.U. regime. (10)

   Part II provides the history and development of biotechnology, addressing concerns regarding GMOs. (11) Part III discusses the effects of GMOs giving rise to mandatory labeling laws and rationale behind consumers' right to know what is in their food. (12) Part IV will examine the E.U.'s approach to regulating agricultural biotechnology in comparison to current food labeling laws in the United States. (13) Part V will propose a labeling regime for the United States based on that of the European Union, which allows all states to have some form of GMO labeling law in place, through state police powers. (14) Finally, this Note concludes with a discussion of potential issues, namely economic issues that companies may face due to inconsistencies nation-wide and a shift in consumer behavior away from GMOs, that could be the result of the proposed labeling regime led by individual states. (15)

2. HISTORY AND CONTROVERSY OF BIOTECHNOLOGY

   For 10,000 years, farmers have been selecting and breeding desirable characteristics to improve plants and animals that are commonly used in crop and livestock agriculture. (16) Biotechnology has developed in such a way that researchers can take one or more specific genes from any organism and introduce that gene into the genome of another organism. (17) Scientists start by identifying a desired gene, then cutting that gene out of the DNA of an organism, copying the gene, adding other DNA to both ends of the copied gene, and introducing it to the cells of another organism, resulting in the production of new varieties of crops. (18) As described above, the use of biotechnology through recombinant DNA has increased over time, as the first genetically engineered plant varieties were planted in the United States and Canada in 1990 and the first commercial release of such plant varieties was in 1992. (19)

   Over the past two decades, there has been a vast increase in biotechnology and GE crop production which has left U.S. consumers' thinking that the new genes in their food are potentially allergenic or harmful to human cells. (20) The FDA is responsible for regulating the safety of foods, including GMOs, and has determined that as long as the final GMO is "materially" equivalent to its traditional form, it will be approved for human consumption. (21) GE crops, such as corn and potatoes, have been available for several years and currently the FDA is considering allowing Aqua Bounty Farms, a company that has genetically engineered salmon, to sell the first GE animal to the market. (22) Although there are promotional claims that GMOs provide benefits, such as environmental precautions, greater crop yields, and higher nutritional values, these new food varieties nonetheless raise concern to consumers. (23)

   The most common concern among consumers is human health issues, as GMO opponents are circumspect of the possibility that introducing genetic traits into other organisms could be dangerous to consumers with food allergies. (24) Concerns of risks, such as hidden allergens, have led to consumers prominently pushing for labeling foods made with GMO ingredients. (25) Consumers' desiring to know what is in their food has resulted in over sixty countries' requiring some form of labeling when food is made with GMOs and more than twenty states have proposed legislation initiatives to require labeling, paving the way for states to model aspects of the E.U regime and require labeling of GMOs. (26)

3. CONSUMERS' RIGHT TO KNOW: BASIS FOR LABELING LAWS

   1. Health Safety

      The increased risk of hidden allergens is one of the strongest reasons for labeling foods with GMOs, as studies have proven that food allergens are transferrable through genetic engineering. (27) Concerns regarding GE corn rapidly spread in 2013 when an author for the popular magazine ELLE wrote an article about the small change in the proteins of genetically modified corn "provoking a multisystemic disorder marked by the overproduction of a type of white blood cell called eosinophil." (28) After this vastly recognized magazine, that sells over eighty million copies per year, published this article, consumer concern for hidden allergens in GMOs was heightened; however, scientific studies have not confirmed the claims. (29)

      In addition to hidden allergens that are dangerous to human health, there is grave concern about the transfer of antibiotic resistance markers. (30) Antibiotic resistance markers selectively inactivate antibiotics protecting cells; but, increased use of antibiotics in medicine has resulted in a bacterium's ability to resist antibiotics, ultimately making some antibiotics ineffective to fight infection. (31) Antibiotic resistance markers, also known as antibiotic resistance genes, introduced in GMOs, could possibly pass from the genetically modified plant to bacteria-creating antibiotic-resistant organisms that could lead to human infections. (32) Even though there is only slight evidence in this area of study, resistance to antibiotics is so widespread that many of the first generation antibiotics are essentially useless. (33)

      In 2012, the Food and Chemical Toxicology journal published a study that demonstrated that a population of rats that consumed GE food over a period of time was more likely to succumb to tumors and death at a much more aggressive rate than their counterparts in a controlled sample. (34) Although Food and Chemical Toxicology later retracted the study due to an inadequate sample size, the work is illustrative because it revealed that a diet of herbicide-resistant GE plants could cause development of kidney and liver tumors in animals. (35) GE plants are modified in laboratories to make crops and organisms resistant to the chemical herbicide glyphosate often referred to as the brand name Roundup-Ready, which ultimately allows farmers to use the chemical destroying almost all types of weeds, yet leaving their crops unharmed. (36) The study also found that adding glyphosates, like Roundup-Ready, to the animals' drinking water resulted in the development of tumors. (37)

   2. Ethical Argument

      In addition to effects on human health, the use of GMOs disrupts natural organisms by interfering with and extracting genes from one species to introduce desirable traits in another. (38) Crossing species boundaries and ultimately creating hybrid species is considered unnatural, possibly even immoral, by many consumers as it can have an adverse effect on the environment. (39) One area of concern in the development of biotechnology is the ability to produce crops resistant to certain pesticides and herbicides, ultimately resulting in greater repercussions to the surrounding environment. (40) Although these pesticides can protect crops against unwanted species, they can have unintentional effects on other species that are both beneficial and neutral to the crop. (41)

      Along with effects on the environment, the ethical argument is also far-reaching to religious communities, and while considerations of GMOs often include hunger, poverty, ecological risks, and unforeseen consequences, the development of GMOs has also raised religious concerns. (42) For example, within the Jewish religion, biotechnology raises various issues, especially in relation to the Jewish law kilayim, which prohibits mixing species. (43) While the Catholic Church is in a state of uncertainty when interpreting scripture in relation to GMOs, there is emphasis on skepticism relating to humans' producing unnatural lineages, which are presumed to be solely creations of God. (44) The Catholic Church is generally opposed to humans' encroaching upon the roles that are traditionally held as divine, such as creation and genetic modification of life. (45)...