The Future of GMO Labeling: How a New Federal Labeling Scheme will Alter Public Disclosure

Washington University Law Review, Dec 2017

Genetic modification is a process used for a myriad of purposes, including the cultivation of plant species that ultimately find their way into countless food products across the world.1 As the usage of genetically modified organisms (GMOs) has grown, so has the public debate surrounding their presence in food, and, more specifically, their undisclosed presence in food. Until recently, the United States maintained next to no regulation on the labeling of GMO products.2 After many state legislatures began proposing and passing GMO-labeling laws, Congress passed one of its own.3 This Note will discuss the implications of the federal labeling scheme, and posits that although the scheme may disappoint grassroots anti- GMO interests, the scheme will ultimately have the effect of providing consumers with the “right to know” what is in their food, and will reduce the presence of genetically modified (GM) foods in the marketplace. Part I provides background on GMOs and explains the regulatory role of the FDA. Part II discusses GMO-labeling legislation passed by certain states, a law recently passed by Congress, and the legal challenges faced by lawmakers when passing this type of legislation. Part III argues that the federal regulatory scheme is not a death knell for consumer autonomy, and that it will do little to weaken the fight against GMOs.

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The Future of GMO Labeling: How a New Federal Labeling Scheme will Alter Public Disclosure

The F uture of GMO Labeling : How a New Federal Labeling Scheme will Alter Public Disclosure Washington University Open Scholarship 0 1 2 0 Part of theEnvironmental Law Commons , Food and Drug Law Commons, and theHealth Law 1 Thi s Note is brought to you for free and open access by the Law School at Washington University Open Scholarship. It has been accepted for inclusion in Washington University Law Review by an authorized administrator of Washington University Open Scholarship. For more information , please contact , USA 2 Maria DeGiovanni, Th e Future of GMO Labeling: How a New Federal Labeling Scheme will Alter Public Disclosure, 95 Wash. U. L. Rev. 705 (2017). Available at: https://openscholarship.wustl.edu/law_lawreview/vol95/iss3/4 Maria DeGiovanni Follow this and additional works at: https://openscholarship.wustl.edu/law_lawreview and Policy Commons Recommended Citation - Genetic modification is a process used for a myriad of purposes, including the cultivation of plant species that ultimately find their way into countless food products across the world. 1 As the usage of genetically modified organisms (GMOs) has grown, so has the public debate surrounding their presence in food, and, more specifically, their undisclosed presence in food. Until recently, the United States maintained next to no regulation on the labeling of GMO products.2 After many state legislatures began proposing and passing GMO-labeling laws, Congress passed one of its own.3 This Note will discuss the implications of the federal labeling scheme, and posits that although the scheme may disappoint grassroots antiGMO interests, the scheme will ultimately have the effect of providing consumers with the “right to know” what is in their food, and will reduce the presence of genetically modified (GM) foods in the marketplace. Part I provides background on GMOs and explains the regulatory role of the FDA. Part II discusses GMO-labeling legislation passed by certain states, a law recently passed by Congress, and the legal challenges faced by lawmakers when passing this type of legislation. Part III argues that the federal regulatory scheme is not a death knell for consumer autonomy, and that it will do little to weaken the fight against GMOs. I. BIRTH AND DEVELOPMENT OF GMO TECHNOLOGY Today, the words “genetically modified” tend to evoke divisiveness. Yet, the phenomenon of genetic manipulation existed long before the birth of genetic bioengineering just a few decades ago. Most students learn about Gregor Mendel in high school biology, the Augustinian monk who, in the mid-nineteenth century, conducted experiments by crossbreeding pea plants.4 Mendel’s studies were a systematic imitation of what farmers had done for centuries: combining the genes of different species of plants and animals to cultivate desirable traits.5 This type of genetic modification can 1. 2. 3. 4. LY5H. 5. Id. See discussion infra Part I. See discussion infra Part II. See discussion infra Part II.C. Gregor Mendel: The Father of Modern Genetics, OFF. NIH HIST., https://perma.cc/Q9T2occur naturally or through human intervention and is now unremarkable.6 Many of the plants and animals bred today are the products of such passive or active manipulation. 7 Centuries after Mendel pondered pea plant variations in his monastery garden, two American biochemists introduced recombinant-DNA (rDNA) technology, through which they isolated fragments of a gene from one bacterium and inserted it into another.8 The foreign DNA then replicated naturally, creating an entirely new type of bacterium.9 This discovery came at a pivotal time for a notable player in the genetic engineering game— Monsanto. The company, which at the time was solely in the chemical manufacturing business, was feeling the effects of rising oil prices and public backlash against pesticides. 10 During the seventies, Monsanto stepped tentatively into the field, allocating a small amount of resources to genetic engineering research.11 But a momentous event changed the company’s dallying approach. In 1980, the Supreme Court held that man-made microorganisms are patentable subject matter.12 The decision helped to catalyze a biotechnology boom. Money surged into the industry, even funding companies who had yet to develop patentable organisms.13 Spurred by this breakneck growth, Monsanto devoted more resources to genetic engineering and the development of its own microorganisms.14 By 1990, Monsanto had invested over $800 million in biotech and had developed a number of products using genetic engineering.15 The attitude of industry insiders during this period was one of rapturous optimism and their testimonies conjured utopian prospects: bountiful crop yields untouched by chemicals and grown from soil devoid of fertilizers, which could grow as rapidly as the fabled beanstalk into a pristine atmosphere unmarred by pollution caused by the farm industry.16 All things seemed possible, a canonical idealism perh (...truncated)


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Maria DeGiovanni. The Future of GMO Labeling: How a New Federal Labeling Scheme will Alter Public Disclosure, Washington University Law Review, 2017, Volume 95, Issue 3,