Last May 24, the New York Times did something extraordinary: On the front page, the paper not only ran a photo of a Massachusettswoman in flagrante delicto committing multiple federal and state felonies and civil torts, but also identified her and the scene of the crime. Neither federal regulators nor police agencies seem to have taken any notice.
First, some background about the subject.
There are widespread misapprehensions about the modern techniques of genetic engineering â€” also known as biotechnology, recombinant DNA technology or genetic modification (GM) â€” which offer plant breeders the tools to make old crop plants do spectacular new things. These technologies increase crop yields and offer a variety of crop-specific benefits, including better nutrients, improved resistance to pests, drought-resistance and other characteristics that allow farmers to grow more with less environmental impact.
The scientific community has long recognized that the "new" techniques â€” now four decades old â€” are essentially an extension, or refinement, of earlier methods for genetic modification, and that gene transfer or modification by molecular techniques does not, per se, confer risk. In fact, because of the greater precision, there is greater confidence about safety. After the cultivation of more than 3 billion acres of genetically engineered crops worldwide in some three dozen countries and the consumption in North America alone of more than three trillion servings of foods that contain ingredients from them, there has not been a single documented case of injury to a person or disruption of an ecosystem.
On the basis of both the science and regulatory precedents, the FDA decided in 1992 that labels need not include the use of the newer genetic engineering techniques to make foods. Federal regulation requires that food labels be truthful and not misleading and prohibits label statements that are likely to be misunderstood by consumers even if they are strictly accurate.
Following long-standing precedents in food regulation, the FDA requires special labeling only when a new food raises questions of safety, nutrition, or proper usage. Instead of educating or serving a legitimate consumers' "need to know" certain information, regulators believe that mandatory labels on genetically engineered food would imply a warning, or at least would likely be misconstrued by consumers as a suggestion that the product differs in some significant way (such as safety or nutrition) although it does not. In the 1992 policy announcement, the FDA said that it would require foods â€“ whatever technology was used to make them â€” to be reviewed by regulators and possibly labeled if they raise questions related to nutrition or safe use. Examples cited in the announcement include the presence of substances new to the food supply, allergens presented in an unusual or unexpected way (such as a peanut protein in wheat) or increased levels of toxins found normally in foods.
This policy has left activists dissatisfied. Last year they launched the "Just Label It" national campaign to agitate for government-mandated labeling of genetically engineered food. In addition, there have been various state-based proposals, the most prominent and notorious of which was California's ballot initiative Proposition 37, which was defeated decisively in last November's election.
Pro-labeling activists argue that consumers have a "right to know" the "genetic status" of their food; just tell people if their corn flakes have been genetically engineered and let them decide what to buy, they say. Their protestations notwithstanding, the activists are not in favor of consumers having choices. They make no bones about mandatory labeling being merely the first step toward the complete elimination of such foods â€“ and their benefits â€” from the marketplace. Their efforts to engender mandatory labeling are destined to fail, however, because federal law trumps state law that conflicts with FDA's requirements â€“ and as noted above, FDA considers "produced with genetic engineering" labels to be misleading.
In 2011 a federal court in Los Angeles ruled that a California requirement to label genetically engineered foods "would impose a requirement that is not identical to federal law" and would therefore be preempted. What does federal law say? The FDA's risk-based policy toward such products applies to both genetically engineered and conventionally modified foods. The information required on the label pertains to changes in the food's composition or use, not the breeding method used. Similar to informing them about whether a fruit or vegetable was hand- or machine-picked, telling them only that a product was "genetically engineered" conveys no material, or useful, information.
Activists are not waiting for government-mandated labeling. Vigilantes are going through the aisles of supermarkets and applying their own warning labels, examples of which may be found at www.labelityourself.org. And following the high-profile, public rejection of California's Proposition 37,activists' are threatening to increase their "guerilla-labeling" efforts.
The New York Times' reportage seemed to view this vigilantism as ranking somewhere between a sophomoric prank and a harmless exercise in civil disobedience, although placing your own "warning" label on a food product for sale constitutes several serious crimes. Federal law prohibits "[t]he alteration, mutilation, destruction, obliteration, or removal of the whole or any part of the labeling of, or the doing of any other act with respect to, a food, drug, device, or cosmetic, if such act is done while such article is held for sale (whether or not the first sale) after shipment in interstate commerce and results in such article being adulterated or misbranded" [Food, Drug and Cosmetic Act, sec. 301(k); 21 United States Code 331(k)].
In plain English, homemade, ad hoc warning labels make the product "misbranded," and they can no longer be sold legally.
Violations of state law include "criminal trespass" â€” an unlawful act causing injury to the person, property or rights of another â€” as well as vandalism and criminal defacement. And because these actions are being promoted and perpetrated by a group, there is a criminal conspiracy as well.
There are also violations of civil law, such as "trespass to chattels" â€“interference with another person's lawful possession of personal property that has a prospective economic value. Finally, the manufacturer of the food could bring an action for "dilution" â€“ weakening of its brand or trademark.
This sort of attack on the rule of law in ways that wreak economic damage is not unlike the terrorist tactics of groups such as the Earth Liberation Front. Federal and state law enforcement authorities should vigorously prosecute the vigilantes, including Cynthia LaPier â€” who was shown on the May 24 front page of the Times placing "Warning, May Contain GMO's (Genetically Modified Organisms)" labels on food products at the Big Y grocery in Great Barrington, Massachusetts. The government's failure to do so undermines the provisions of the Food, Drug and Cosmetic Act; allows activists' illegal activities to misinform consumers; makes safe and wholesome foods unsellable; and sends the message that if you cannot persuade policymakers through the democratic process, the government will look the other way as you commit crimes to achieve your political agenda.
Henry Miller, a physician and molecular biologist, is the Robert Wesson Fellow in Scientific Philosophy and Public Policy at Stanford University's Hoover Institution. He was the founding director of the FDA's Office of Biotechnology. Jeff Stier, J.D., is a senior fellow at the National Center for Public Policy Research.