Henry Miller

Gregory Conko

California’s Proposition 37, which would have required labeling of certain “genetically engineered” (GE) foods, was recently voted down 53.1% to 46.9%.

Advocates of labeling claimed that GE foods are somehow “unnatural” and might be unsafe. And what could be wrong with letting consumers know what’s in their food and letting them decide what to buy? Actually, plenty.

For starters, GE foods are not in any way a meaningful “category,” which makes any choice of what to include wholly arbitrary. Nor are they unsafe or any less “natural” than thousands of other common foods. Therefore, as dozens of scientific bodies and federal regulators have said,a mandatory label erroneously implies a meaningful difference where none exists.

Ironically, Prop 37 had so many loopholes and carve-outs that it didn’t even cover all socalled genetically engineered foods. Trying to figure out what would and would not be covered would have been a nightmare—and costly. Producers would not have been able to avoid the higher costs associated with labeling by choosing non-genetically engineered ingredients, because to keep from being sued, they would still have had to prove they could trace the pedigree of every ingredient they use.

Genetic modification has been a mainstay of agriculture and human diets for millennia. Breeders regularly move genes between unrelated species, yielding fruits such as tangelos and pluots and grains such as triticale. On average, we consume dozens of these varieties of fruits, vegetables, and grains every day.

Fortunately, a sustained effort by scientists and physicians—ranging from university-based plant biologists to the American Medical Association—to educate voters about the pitfalls of labeling persuaded a majority to vote against the proposition. Even if it had been approved by the electorate, however, it is unlikely that Prop 37 would have withstood legal challenges.

Federal law trumps state law that conflicts with FDA’s requirements. Last year, 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? FDA determined in 1992 that no special labeling was needed for genetically engineered foods. The agency may require foods—whatever technology was used to make them—to be reviewed by regulators and labeled if they raise questions related to nutrition or safe use. Examples include the presence of substances new to the food supply, allergens presented in an unusual or unexpected way (such as a peanut protein in a tomato), or increased levels of toxins found normally in foods.

The FDA’s risk-based policy, which applies to both genetically engineered and conventionally modified foods, only requires label information that pertains to changes in the food’s composition or safe 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 useful information.

The U.S. Second Circuit Court of Appeals ruled over a decade ago that labeling mandates based solely on an alleged consumers “right to know,” rather than on a product’s measurable characteristics, violate the First Amendment. A Vermont statute enacted in 1994 mandated labels on milk from cows treated with a bioengineered protein. The court found the law unconstitutional because it forced producers to make involuntary statements when there was no material reason to do so. “Were consumer interest alone sufficient,” the court wrote, “there is no end to the information that states could require manufacturers to disclose about their production methods.”

And in the early 1990s, a group of Wisconsin activists sued the FDA, arguing that its policy allowed products to be labeled in a false and misleading manner. However, because the plaintiffs could not demonstrate any material difference between genetically engineered and conventional foods, the federal court agreed with the FDA, concluding that “it would be misbranding to label the product as different, even if consumers misperceived the product as different.”

In short, there exists in law no “right to know.” In order to pass constitutional muster, labeling laws must bear directly on safety, nutrition, or similar concerns. Prop 37 clearly did not, so had it passed, California would have had to expend untold millions of taxpayer dollars and endure years of litigation defending the indefensible.

Legal issues aside, Prop 37 was unwise, unscientific, and anti-consumer, a manifestation of populism run amok.


Henry I. Miller is the Robert Wesson Fellow in Scientific Philosophy and Public Policy at Stanford University’s Hoover Institution ([email protected]).

Gregory Conko is a Senior Fellow at the Competitive Enterprise Institute ([email protected]).