Since the advent of agriculture, human beings have constantly sought to improve the crops they grow by taking advantage of genetic modification. Initially, humans selected certain seeds that had favorable genetic characteristics for farming, such as being resistant to pests or being drought resistant. Later, humans would come to understand the biological concepts of heritability of genetic traits and the possibilities of cross-breeding plant species to create genetic hybrids. This allowed humans to take the positive genetic traits from one crop and combine it with the positive genetic traits of another crop. Through seed selection and hybridization, over time humans have been able to drastically increase agricultural productivity by genetically modifying existing crops. However, up until recently, the genetic modification of crops was ultimately reliant on the naturally occurring genetic variations that result from seed selection and cross breeding.
In the 1970’s, biochemists developed a technique that involved cutting pieces of DNA from existing organisms and attaching the DNA to other organisms. For the first time, humans did not need to rely on natural breeding and hybridization to genetically modify existing organisms; we had the tools to do it ourselves. However, the legal part to this story is just as important. As humans were uncovering the possibilities of genetic engineering, there was a question of ownership. Going back to 1853, the United States Supreme Court had held that a natural phenomenon that is open and discoverable to all people is not patentable. For example, things such as the characteristics of bacteria or the properties of a naturally occurring seed were not patentable because they were the result of natural processes and not human invention. By extension, the seeds that resulted from hybridization were also held to be not patentable and, as a result, no single person could own the rights to such a seed. Humans were simply playing matchmaker, but nature was still the engineer and when nature is the engineer the product could not be patented. This greatly limited the extent to which one could profit from a naturally hybridized seed. The advent of genetic engineering changed this equation. Now, humans were the engineers and we were no longer relying on natural breeding processes. In 1980, the United States Supreme Court held in Diamond v. Chakrabarty that a genetically modified organism (GMO) is a patentable subject matter. This created a legal distinction between natural hybrid seeds and GMOs. Natural hybrid seeds could not be patented because they were the result of natural phenomena while GMO seeds could be patented because they are the result of human invention. Once the Supreme Court established the rule that GMOs could be patented, corporations looking to make a profit took notice. In 1983, Monsanto scientists began to genetically modify plants. By 1988, Monsanto had developed a genetically modified soybean that made it tolerant to glyphosate, an herbicide discovered by Monsanto in 1970 and marketed under the trade name “Roundup.” This GMO made the widespread application of herbicides directly to crops possible for the first time. Since 1998, several other genetically modified seeds have been introduced, including seeds that are resistant to insects. The increase in prevalence of GMO seeds is staggering. In 1997, genetically modified soybeans made 17% of U.S. soybean acreage. Today, genetically engineered soybeans make up 94% of U.S. soybean acreage. Likewise, genetically engineered corn accounts for 92% of U.S. corn acreage and genetically engineered cotton accounts for 93% of U.S. cotton acreage. While genetic engineering has generally been limited to a limited number of ubiquitous crops such as those described above, there have been pushes to expand the practice to other foods. In 2015, the FDA approved genetically modified salmon for human consumption and in doing so became the first government agency in the world to approve of the sale of a genetically engineered food animal. The genetically engineered salmon, which was developed by AquaBounty, grows twice as fast as a normal salmon and was engineered by combining the DNA of the Atlantic salmon, the Pacific Chinook salmon, and the deep water ocean eelpout. The FDA was sued earlier this year by nearly a dozen fishing and environmental groups in an action seeking to block the approval.
A genetically engineered salmon compared with a natural Atlantic salmon of the same age. The natural Atlantic salmon is in the foreground.
The positives of genetically engineered seeds are fairly obvious. For the farmer, having seeds that are resistant to herbicides and resistant to insects allows farmers increase their yields and decrease their costs while also limiting their direct exposure to toxic pesticides. For the public, the world’s farmers are able to feed an increasing global population. The negatives of genetically engineered seeds are often less obvious. Many concerns have been raised regarding whether consuming GMOs is potentially harmful to the individual consuming them and whether it impacts fertility or future offspring. There are also concerns that GMOs are less nutritious than natural foods. In addition to the GMOs themselves, there is a whole host of concerns regarding herbicide resistant GMOs. As mentioned above, one of the most ubiquitous uses of genetic engineering is to make crops more resistant to herbicides. This enables farmers to directly spray larger amounts of herbicides directly onto crops. As such, one of the main concerns regarding GMOs is the corresponding increase in herbicide usage and its impact both on human and environmental health.
Despite the rapid increase in prevalence in GMOs in our food supply, there is a great deal of consumer uncertainty as to the safety of food products that contain GMOs. A report from 2000 by a panel of the National Academy of Sciences endorsed the safety of GMOs and opined that inserting genes from one species into another was not inherently dangerous. However, consumers have nonetheless become alarmed. A lab test reported in the May 1999 issue of Nature showed that the use of genetically modified corn could kill Monarch butterfly larvae and the Monarch butterfly quickly came to symbolize the environmental hazards of GMOs. Public concern also prompted a number of food companies, such as McDonalds and Frito-Lay, to announce that they would not purchase any foods produced by genetically engineered seeds. Additionally, the European public and corresponding regulatory response to GMOs has been much more cautious than what has occurred in the United States. Partially in response to the rise of GMOs in the United States, the European Union issued a standard that required the labelling of foods that are comprised at least 1% of a GMO.
Today, consumer uncertainty regarding GMOs persists. There are widely conflicting scientific studies regarding the safety of GMOs. On one hand, consumers understand the benefits of higher agricultural yields that are enabled by GMOs and there are numerous studies that have found that consuming a genetically modified food is no more unsafe than consuming a GMO-free food. On the other hand, GMO critics often point to the lack of independent scientific studies on the long term effects of GMO plants on humans. To further muddy the waters, the World Health Organization recently announced that glyphosate, which is the herbicide that is being sprayed all over many genetically engineered crops, is probably carcinogenic to humans while the United Nation’s Food and Agriculture Organization found that glyphosate is unlikely to pose a carcinogenic risk to humans.
Based on this uncertainty, many consumers in the United States have called for a GMO labelling standard that would mandate that foods that contain GMOs to be labelled as such so that they may be readily identified by consumers that may want to take precautions and avoid GMOs. However, GMO advocates have been resistant to such regulations which they say will only feed into the uninformed fears that people have regarding GMOs. States were the first to jump in and require labelling for foods containing GMOs. As of the summer of 2016, 14 states were considering bills that would required the labelling of GMOs and 3 states had enacted such laws.
One such state with a GMO labelling law was Vermont. Effective July 1, 2016, a food offered for sale in Vermont by a retailer must include a GMO label if it contained genetically engineered materials that account for 0.9% or more of the total weight of the processed food. The GMO label was required to state that the food was “partially produced with genetic engineering, “may be produced with genetic engineering”, or “produced with genetic engineering.” Any such food was also prohibited from being labelled as “natural”, “naturally made”, “naturally grown” or “all natural.” Before the law was effective, it was challenged by several food companies that alleged, among other things, that the Vermont GMO labelling law violated their First Amendment right to free speech. However, the lawsuit became a nullity when President Obama signed the bill that amended the Agricultural Marketing Act to include the National Bioengineered Food Disclosure Standard on July 29, 2016.
Example of a food product with a GMO label as would be required under Vermont law
The law signed by President Obama is the first federal law regarding the labelling of food products containing GMOs. It requires the United Stated Department of Agriculture to develop a national mandatory bioengineered disclosure standard with respect to any bioengineered food and to develop a method of disclosure to be displayed on food packaging within two years. While this may appear to be a victory for GMO critics, they have lambasted the law for two reasons. First, the labelling requirement is rather weak. Unlike the Vermont law, the federal law does not require the packaging of a GMO food product to explicitly state that it contains GMOs. Rather, the federal law requires the packaging to contain an electronic or digital link or a telephone number with language that prompts the consumer to “scan here for more food information” or to “call for more food information.” The obvious concern is that such a disclosure will not adequately inform consumers of the fact that the food product contains GMOs. Secondly, the federal law expressly preempts any existing state law that regulates the labelling of food products containing GMOs and prohibits states from enacting any such laws in the future. Thus, Vermont and the other states that either already have such laws or which were considering such laws are now not permitted to do so.
So here we are. The federal government will develop regulations over the next couple of years, and those regulations will require that some food products that contain GMOs to be labelled as such. However, it’s unclear how much GMOs a food product must contain before it is required to be labelled as such under the to-be-developed federal regulations. Further, the labelling requirements for GMO foods will be very lax. There will be no requirement that that food product explicitly state that it contains GMOs. Lastly, Michigan and other states are now largely prohibited from creating their own GMO labelling programs. Moving forward, it seems that Americans are destined to continue to wallow in uncertainty not only regarding the safety of GMOs, but also in knowing which foods contain GMOs and which do not as the federal law, with its lax labelling requirements, will likely be of little help to most consumers. The best bet for consumers that are skeptical of GMOs is to continue to rely on the non-GMO verification label that is placed on products that have been independently verified by the Non-GMO Project.