To label or not...: Navigating current laws & initiatives on GMO labeling

Often times, the line between useful, accurate scientific information and marketing is blurred when it comes to food labels, making them confusing for consumers. GMOs are no exception to this.

Jennifer Carter-Johnson

The question: what's in a product label?

The answer: a lot.

Product labels may include “just” images, “just” words or some combination of images and words. But whatever their content, labels have power. They’re designed to catch the attention of consumers and to serve as a visual symbol of their brand. This is done both explicitly, through stated corporate and regulatory guidelines, and implicitly, through consumer perceptions and expectations. Often times, the line between useful, accurate scientific information and marketing is blurred when it comes to labels, making them confusing for consumers. GMOs, or genetically modified organisms, are no exception to this.

“We have a lot of labels on our food, and how many of us actually read them, or understand them? Whereas you see a little figure stamped on it, you know that means something, right?” said Jennifer Carter-Johnson, an associate professor of law at Michigan State University (MSU). “We’re brand-aware in the U.S. There are so many warnings on everything and so many pieces of nutritional labeling and all of this. We read the things that are important to us, but we’re very brand aware.”

Branding includes trademarks. One trademarked image becoming more prevalent is the orange and black butterfly of the Non-GMO Project. The butterfly’s presence on a product label indicates that the product has been verified to meet the nonprofit’s standards for what it means to be “non-GMO.”

According to its website, the Non-GMO Project is a “mission-driven, nonprofit organization dedicated to building and protecting a non-GMO food supply.” They work to build this supply by requiring standards for third-party verification that must be met in order for a product to earn their seal. The organization’s verification process takes three to six months, on average. Verification requirements include that product ingredients be tested by one of several third-party testing companies, which charge for their services.

“[Their seal is] a certification mark. It’s a type of trademark, a very specialized type of trademark,” said Jeff Carter-Johnson, adjunct professor in the MSU College of Law (and Jennifer Carter-Johnson’s husband). “They are basically a third-party group that certifies that some product meets their standards in order to put that mark on the label. In a lot of ways, it does exactly what we want out of this. It provides a lot of information from a very small footprint on a label. A consumer can look at that and they know that this product has met those standards.”

In order for a product to display the Non-GMO Project verification label, a participating manufacturer, company or organization must have the product ingredients tested by a third-party testing company and must demonstrate “continuous improvement” with the “goal of completely eliminating any GMO-risk inputs from the production chain.” Participants must “meet or continually be below” the project’s established Action Thresholds for High-Risk Inputs.

  • Seed and other propagation materials: 0.25 percent
  • Inputs to human food, ingredients, supplements, personal care products and other products that are either ingested or applied directly to skin, and pet food: 0.9 percent
  • Livestock feed and supplements, including those used for animal- derived inputs to human food products: 5 percent
  • Inputs to packaging, cleaning products, textiles and other products that are not ingested or applied directly to skin: 1.5 percent

“Your average consumer probably looks at that and goes ‘non-GMO means nothing genetically modified is in there.’ Whereas in actuality, it doesn’t, but that information is out there for them if they wanted to see it, and the certification mark does supply that information,” said Jeff Carter-Johnson.

The labeling section of The Non-GMO Project Standard notes that “labeling claims must be accurate and truthful, and must not mislead the consumer about the GMO content of the product.” That can get a little murky, though, given that products that wouldn’t be genetically modified in the first place can be verified through The Non-GMO Project.

“As to whether this is working [to provide consumer information,] it’s a little unclear when they are marking things like water and salt,” said Jeff Carter-Johnson. “These are products that simply can’t be genetically modified as there are no genetics to them.”

Jennifer Carter-Johnson raised similar concerns.

“Companies are now going so far as to use this GMO food product label as essentially being just a marketing buzzword,” she said. “It’s not really telling the consumers anything. If anything, it’s making the consumers fear everything that doesn’t have this label on it, and it’s forcing people to pay in order to get certified to get this label, even if you’re selling bottled water, which doesn’t even have DNA in it. To my mind, that’s a bit of an ethical issue.”

Bonnie Knutson, professor in MSU’s School of Hospitality Business, said, “We buy with our heart and justify it with our head.” Justifying a purchase with your head, however, becomes more difficult when the information you’re using to purchase an item could be viewed as deceptive or confusing.

Neal Fortin, director of the Institute for Food Laws and Regulations at MSU, said GMO labeling as a whole is misleading because it implies a difference to most people that’s not there.

“To label one as a GMO does make a lot of people think that there’s a safety concern that’s not there,” he said. “On the other hand, I’m also in favor of people being able to find out the information, but it’s very tricky to do it in a nonmisleading way.”

Knutson pointed out that information is power for consumers.

“The more information you have, the more you make a decision, and what you see as the right decision for you,” she said.

Labels are in theory designed to provide a service to the consumer, but can often be a form of advertising, and may not be entirely factual – or fulfill consumers’ desire for transparency.

“They’re putting these labels on things that are GMO-free, but they also would never be GMO,” said Jennifer Carter-Johnson. “It’s not like there’s a competing product out there that has GMO in it. The only reason to put a GMO-free label on it is in order to convince somebody that your product is better than another one. In those situations, it’s a marketing issue.”

Seeking clarity

The desire for open, transparent and honest labeling for genetically modified foods is reflected in the National Bioengineered Food Disclosure Standard.

According to the U.S. Department of Agriculture (USDA), the 2016 law charges the USDA Agricultural Marketing Service with “developing a national mandatory system for disclosing the presence of bioengineered material.” The goal of the new program is to “increase consumer confidence and understanding of the foods they buy, and avoid uncertainty for food companies and farmers” by establishing a standard for GMO labeling. The law is an amendment to the Agriculture Marketing Act of 1946.

“If you have genetically modified foods or ingredients in your product, you’re going to have to label,” said Jennifer Carter-Johnson of the 2016 law. She notes that statute exempts very small food manufacturers — whether that be a business or a farm that manufactures food —from the labelling requirements. Right now, the National Bioengineered Food Disclosure Standard proposed rules, released by the USDA in May 2018, define a very small food manufacturer is as “any domestic and foreign food manufacturer with annual receipts of less than $2.5 million,” but the proposed rules asked for input from industry and the public on whether $2.5 million is the correct number to use.

Among the changes in the proposed rules for the National Bioengineered Food Disclosure Standard is a suggestion to label products with GMO ingredients as a “bioengineered food” or containing a “bioengineered food ingredient,” instead of “genetically modified” or “genetically engineered.”

Jennifer Carter-Johnson noted that the reason for the change is because that’s the language used in the National Bioengineered Food Disclosure Standard:

“The National Bioengineered Food Disclosure Standard gave the Secretary of Agriculture the authority to determine other terms that are similar to ‘bioengineering’ – implying that other terms such as ‘genetically modified’ or ‘genetically engineered’ could have been considered equivalent or interchangeable to ‘bioengineered’ in these regulations,” she said. “However, the Secretary declined to include these additional terms in the draft regulations.”

Jeff Carter-Johnson said the term “bioengineered” could complicate the consumer experience when reading labels.

“My concern with the use of the term ‘bioengineered’ without defining its relationship to more commonly used terms such as ‘genetically modified’ is that consumers will face numerous, confusing and seemingly overlapping information on product labels,” he said.

Vermont was the first state to require most products containing genetically engineered ingredients or produced via genetic engineering to be labeled as such, through a 2014 law that took effect in 2016. Cheese – important to Vermont’s economy – was excluded, as was meat from animals that have eaten feed with GMO grains. Vermont’s law was overridden in 2016 when the National Bioengineered Food Disclosure Standard was signed into law.

“That was the state law that spurred the federal government to actually take action and pass the bioengineered food disclosure act, because they had to do this in order to preempt the Vermont law,” said Jeff Carter-Johnson.

Although labeling laws aim to improve transparency for the consumer, “transparent doesn’t always mean that it’s not misleading,” said Fortin.

“People are not computers and they don’t perceive things the way we want them to perceive them,” he said. “We have to take into account human perceptions and how we communicate things, too. It’s not always an easy matter.”

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