• Labeling GM Foods: Democracy and Autonomy

    Labeling GM Foods: Democracy and Autonomy

    by Alex G. Leone, JD ’16 

    I. Introduction

    A bipartisan majority of Americans asserts a right to know what it is eating and wants mandatory labeling of genetically modified (“GM”) foods:[1] a simple, on-label statement of whether a food or food ingredient is the product of genetic engineering.[2] A miniscule minority opposes such labeling,[3] and sixty-four countries, including the majority of the developed world, already require it.[4] Yet proposed legislation pending in the Senate would preempt state and local efforts to require labeling of GM foods and would not create a federal labeling requirement.[5] Given that our democracy “rests upon the principles of majority rule and individual rights,”[6] this proposed legislation is puzzling.[7] What could explain it?

    II. A Popular Argument and a Simple Response

    The most popular and most purportedly powerful argument against labeling GM foods[8] takes the following form:

    Premise One: GM foods are generally safe to eat.[9]

    Premise Two: Labeling of GM foods would lead consumers to believe that genetically modified foods are not generally safe to eat.[10]

    Conclusion: Therefore, GM foods should not be labeled.[11]

    Sympathetic to this argument, renowned Harvard Law Professor Cass Sunstein writes that “[a]ny such [labeling] requirement would inevitably lead many consumers to suspect that public officials, including scientists, believe that something is wrong with GM foods.”[12] The Washington Post Editorial Board echoes Professor Sunstein when it writes that labeling requirements “imply[] a strong government safety concern where one does not exist.”[13]

    However, there is a simple structural solution to that possible problem: a voluntary or mandatory disclaimer to the effect that F.D.A. does not believe there is a significant difference between the food safety risks of GM and non-GM foods.[14] If labels on GM foods appeared with that disclaimer, the labels, of course, would not “inevitably lead” consumers to conclude that “public officials . . . believe something is wrong with GM foods.”[15]

    Analogous disclaimers are already required in several food-purchasing contexts; and the GM food labeling scenario would not be relevantly different. For example, F.D.A. requires disclaimers for descriptive claims on dietary supplements, clarifying that the supplements are “not intended to diagnose, treat, cure, or prevent any disease.”[16] Labeling GM foods, furthermore, presents a particularly tight analogue to labeling milk “rBST-free.”[17] F.D.A. requires such a label to include a disclaimer to the effect that “no significant difference has been shown between milk derived from rBST-treated and non-treated cows.”[18] Just as a “no significant difference” disclaimer is sufficient to assuage concerns that an “rBST-free” label could mislead consumers, it would be sufficient to assuage concerns that labeling GM foods could mislead consumers.

    Moreover, it is not necessary that every food labeling requirement reflect the safety of the labeled food products;[19] this fact is so obvious that it often goes unnoticed.[20] F.D.A. requires that orange juice from concentrate, for example, be labeled as such.[21] Yet clearly the “from concentrate” label does not mean, and is not meant to imply, that orange juice from concentrate is unsafe to drink—even in the absence of a disclaimer.[22] F.D.A. also requires that food manufacturers that apply ionizing radiation to their foods label those foods as “treated with [or by] irradiation”[23]—even though F.D.A. believes that “irradiation can make food safer for the consumer” and that it does not compromise nutritional quality.[24] Another example of this principle, of which there is no shortage,[25] is the federal regulatory requirement that imported foods be labeled with their countries of origin:[26] Although olive oil from Italy needs to be labeled as such,[27] the label does not, and is not meant to, make a claim about the safety—or even the nutritional or organoleptic qualities—of the oil.[28]

    Finally, and perhaps most importantly, after F.D.A. recently approved for human consumption genetically engineered salmon,[29] Congress has required F.D.A. to “implement a program to disclose to consumers whether a salmon offered for sale to consumers is a genetically engineered variety.”[30] Indeed, Congress has imposed this requirement despite F.D.A.’s determination that genetically engineered salmon is “as safe to eat as any non-genetically engineered . . . salmon, and also as nutritious.”[31]

    III. Autonomy

    But the argument deployed by Professor Sunstein and the Washington Post Editorial Board fails for a more fundamental reason: Paternalistically,[32] it contends that uncontroversially factual information should be withheld from American adults, even though a majority of those adults express a clear preference for the disclosure of the information.[33] It is for this reason that one of the world’s leading bioethicists has stated: “[T]he opponents of labeling need to end their opposition to letting people know what they want to know about their food.”[34] And in the words of the New York Times Editorial Board, “Consumers deserve to know what they are eating.”[35]

    The disclosure of such information is essential if autonomous adults are to make informed choices about their own lives—generally, a morally valuable circumstance.[36] “[C]ontemporary moral and political philosophy [thus] work from a strong presumption against paternalis[m],”[37] and with good reason. Paternalism “bypasses the agent’s capacity to be self-directing and ignores the agent’s wishes regarding the way she would like to live her own life;”[38] and paternalism “restrict[s] individuals’ liberties and treat[s] them as less than fully capable of making decisions that are in their own best interest.”[39] Thus, paternalism is “generally considered impermissible, barring very exceptional circumstances.”[40] Some experts consider such “very exceptional circumstances” to include withholding of information by a medical provider that would lead to the harm or suffering of her patient,[41] or withholding of information from the populace in public health emergencies[42]—i.e., only “when the possible related consequences are severe enough.”[43] Yet withholding information from autonomous adults in even some of those circumstances is contentious.[44]

    Indeed, the argument that autonomous adults cannot be provided factual information about their food, simply because opponents of labeling claim they “lack [] education” or are too ignorant to understand it, treats adults as less than fully capable of making decisions that are in their own best interest.[45] And if we suppose that consumers can read a “no significant difference” disclaimer, the argument no longer passes even the straight-face test—it is, as leading bioethicist Arthur Caplan suggests, “pathetic.”[46]

    IV. Beyond General Food Safety Per Se

    Even if genetic modification does not itself make the modified plants or animals less safe to eat, there are many reasons why consumers could rationally desire to be aware of whether they are consuming GM foods.[47] Consider, for example, the ecological and biological implications of glyphosate, the most frequently used herbicide in the United States and the main ingredient in Monsanto’s “Roundup,” a chemical compound that genetically modified (or “Roundup Ready”) corn and soy are engineered to resist.[48]

    On one hand, glyphosate has been declared a probable human carcinogen by the World Health Organization’s International Agency for Research on Cancer;[49] has been linked to the proliferation of antibiotic-resistant bacteria, including e. coli and salmonella,[50] and to the destruction of beneficial gut bacteria;[51] and has been associated with a variety of other health problems in both human beings and animals, such as reproductive impairment and neurobehavioral complications.[52] On the other hand, Roundup Ready crops currently comprise the vast majority of the corn and soy planted in the United States;[53] and GM agriculture, consequently, has caused increases in glyphosate use[54]—from 1992 to 2013, glyphosate usage increased from under twenty-five million pounds to over two-hundred and fifty million pounds[55]—and glyphosate residue on GM foods.[56]

    But the presence of glyphosate is not limited to our food; it’s also in our water and air.[57] A recent United States Geological Survey study, for example, found glyphosate in the majority of “rivers, streams, ditches, and wastewater treatment plant outfalls tested” in thirty-eight different states and in seventy percent of rainfall samples.[58] These alarming facts have led researchers to call for further study and government regulation of glyphosate.[59] Unsurprisingly, several countries have banned, or initiated efforts to ban, the dubious chemical;[60] and the United States Environmental Protection Agency expects to release a report on its health risks.[61]

    Glyphosate and other pesticides used in the cultivation of GM crops, moreover, are linked to the proliferation of superweeds,[62] plants that have evolved to resist herbicides, and superbugs,[63] insects that have similarly evolved—as well as to the demise of insects essential to pollination, such a bees and butterflies.[64] The health of pollinator insects is an issue of national concern:[65] President Obama has issued a memorandum “creating a federal strategy to promote the health of honey bees and other pollinators.”[66] And the United States Environmental Protection Agency will soon study the effects of pesticides—including glyphosate in particular—on endangered species.[67] The threats that GM agriculture may pose to ecology and biodiversity, therefore, merit consumer attention.

    Labeling GM foods “is [also] essential for tracking emergence of novel food allergies.”[68] Allergies and other similar concerns have led the Harvard T.H. Chan School of Public Health to warn of “potentially large, and often not well understood, risks from GM technologies”[69] and the State of Vermont to recognize in its legislation “potential ‘unintended’ consequences from G[M] food production to non-G[M] crops and the environment.”[70] The threat of contamination of non-GM crop fields by the genetic material of GM crops is another clear example of such unintended consequences.[71] Accordingly, these facts, especially if considered together, uncontroversially lead to the conclusion that a reasonable consumer could—or perhaps should—wish to know whether his or her food is the product of genetically modified agriculture.

    But the list of reasons why Americans may wish to know whether their food has been genetically modified does not end with the concerns described above. For example, food has spiritual dimensions as well. The Vermont General Assembly, in an act requiring the labeling of GM foods, declared labeling essential if individuals are to “conform to religious beliefs and comply with dietary restrictions.”[72] (Notably, the genetically engineered salmon recently approved for consumption by F.D.A. grows more than twice as fast as natural salmon due to hormone-regulating genes spliced into its genome, including one from the ocean pout—an eel-like, bottom-dwelling fish that is not kosher.[73]) Pope Francis, furthermore, has recognized some of the “significant difficulties” presented by GM agriculture.[74] Such difficulties include questions of economic justice, like those arising from GM agriculture’s tendency to cause “productive land [to] concentrate[] in the hands of a few owners” and to engender poverty in regions where GM agriculture leaves laborers with fewer occupational options.[75] Some authors have insightfully argued that the risks of GM crop monoculture are analogous to those that caused the financial crisis—and its resulting preponderance of economic injustice—in the late 2000’s.[76] And, finally, consumers may object to, and wish not to support, what they perceive to be downright deceptive behavior by GM food manufacturers or their lobbyists.[77]

    V. Conclusion

    The cost of labeling GM foods would likely be de minimis.[78] Several States,[79] millions and millions of Americans,[80] over 700 chefs and restaurant owners,[81] and over 400 companies[82]—even Campbell Soup Company, which previously opposed labeling[83]—want to join the majority of the developed world:[84] They want simple, on-package labeling of GM foods.[85] The fundamental principles of adult autonomy and democratic rule militate strongly against some legislators’ moves to contravene the will of most Americans. The Senate, therefore, should reject any proposed piece of legislation that would preempt states’ rights to label GM foods and that would not impose a federal labeling requirement. Senators, after all, should not “substitute their will to that of their constituents.”[86] And on the contrary, the Senate should strongly consider mandatory labeling of GM foods. But in the event that the Senate does not reject the proposed legislation, I would implore President Obama to keep his 2007 campaign promise: “Here’s what I’ll do as president[:] . . . We’ll let folks know whether their food has been genetically modified, because Americans should know what they’re buying.”[87]

    “Genetically modified . . . foods are foods derived from organisms whose genetic material (DNA) has been modified in a way that does not occur naturally, e.g. through the introduction of a gene from a different organism.” Food, Genetically modified, World Health Org., http://www.who.int/topics/food_genetically_modified/en/ [perma.cc/5JY7-QS57]. “[U]nlike traditional selective breeding, genetic engineering vastly expands the range of traits that can be moved into [food crops and animals] and enables breeders to import DNA from virtually anywhere in the biosphere.” Phillip J. Landrigan & Charles Benbrook, GMOs, Herbicides, and Public Health, 373 New Eng. J. Med. 693, 694 (2015), http://www.nejm.org/doi/full/10.1056/NEJMp1505660 [perma.cc/G9CM-EUR7]; see also Mark Spitznagel & Nassim N. Taleb, Another ‘Too Big to Fail’ System in G.M.O.s, N.Y. Times (July 13, 2015), http://www.nytimes.com/2015/07/14/business/dealbook/another-too-big-to-fail-system-in-gmos.html?ref=topics [perma.cc/ZM8K-GCAJ] (“[W]e are told that a modified tomato is not different from a naturally occurring tomato. That is wrong: The statistical mechanism by which a tomato was built by nature is bottom-up, by tinkering in small steps . . . . In nature, errors stay confined and, critically, isolated.”).

    The F.D.A. recently clarified that “[m]ost foods do not contain entire organisms.” Stephanie Strom, F.D.A. Takes Issue With the Term ‘Non-G.M.O.’, N.Y. Times (Nov. 20, 2015), http://www.nytimes.com/2015/11/21/business/fda-takes-issue-with-the-term-non-gmo.html?ref=topics [perma.cc/6QTV-F8KZ]. Accordingly, it would be more accurate to label so-called “genetically modified foods” as foods “containing ingredients that have been genetically engineered” or, for example, foods “containing oil derived from genetically engineered soybeans,” as opposed to “G.M.O.” See id. That clarification is helpful, but this Article proceeds for simplicity’s sake by referring both to entire organisms that can be consumed as food—such as genetically engineered salmon—and to foods or food products containing ingredients derived from such organisms—such as corn chips fried in oil derived from genetically engineered soybeans—as “GM foods.” After all, F.D.A. itself sometimes subordinates linguistic accuracy to other goals. See, e.g., 21 C.F.R. § 101.62(c)(1)(i) (noting that the term “‘zero [trans] fat,’ . . . may be used on the label or in the labeling of food[],” despite the fact that “[t]he food contains [0.4]g trans fatty acid per reference amount customarily consumed [or] per labeled serving . . . .”).

    [2] See, e.g., Chris Morran, Poll: 9-In-10 Americans Support GMO Labeling, The Consumerist (Dec. 2, 2015), http://consumerist.com/2015/12/02/poll-9-in-10-americans-support-gmo-labeling/ [perma.cc/MQ36-TTWT]; Allison Kopicki, Strong Support for Labeling Modified Foods, N.Y. Times (July 27, 2013), http://www.nytimes.com/2013/07/28/science/strong-support-for-labeling-modified-foods.html [perma.cc/M8FT-KT54]; Michelle Yee Hee Lee, Would GMO labeling requirement cost $500 more in groceries per family a year?, Wash. Post (Apr. 6, 2015), http://www.washingtonpost.com/blogs/fact-checker/wp/2015/04/06/would-gmo-labeling-requirement-cost-500-more-in-groceries-per-family-a-year/ [perma.cc/KP96-KQTC] (“Those who want labeling say they want a nonjudgmental, back-of-package wording.”).

    [3] Mary Clare Jalonick, Poll finds most Americans want GMO food labels, PBS Newshour (Jan. 13, 2015, 3:18 PM), http://www.pbs.org/newshour/rundown/poll-finds-americans-support-gmo-food-labeling/ [perma.cc/PXH2-L5LY].

    [4] See Landrigan & Benbrook, supra note 1, at 693 (“[U]nlike regulatory bodies in 64 other countries, the Food and Drug Administration (FDA) does not require labeling of GM foods”). For a list of countries that require labeling, see International Labeling Laws, Ctr. for Food Safety, http://www.centerforfoodsafety.org/issues/976/ge-food-labeling/international-labeling-laws [perma.cc/V7YH-9SHV].

    [5] Safe and Accurate Food Labeling Act of 2015, H.R. 1599, 114th Cong. (2015), https://www.govtrack.us/congress/bills/114/hr1599 [perma.cc/V2NB-YQEZ]; Carey Gillam, Senate committee set to examine GMO labeling law, Reuters (Oct. 21, 2015, 7:15 AM), http://www.reuters.com/article/2015/10/21/us-usa-gmo-labeling-idUSKCN0SF19620151021 [perma.cc/T6AC-FNM5]. Senator Pat Roberts, a Republican from Kansas, is reputed to be currently drafting a functionally equivalent piece of proposed legislation that will be unveiled shortly. See Jenny Hopkinson, Morning Agriculture, Politico (Feb. 16, 2016, 10:00 AM), http://www.politico.com/tipsheets/morning-agriculture/2016/02/scotus-to-consider-taking-up-chesapeake-bay-challenge-how-scotus-vacancy-could-affect-wotus-where-art-thou-roberts-gmo-labeling-bill-212713 [https://perma.cc/Z3LM-RV8A].

    [6] Bureau Int’l Info. Programs, U.S. Dep’t State, Democracy in Brief 4, http://photos.state.gov/libraries/amgov/30145/publications-english/democracy-in-brief.pdf [https://perma.cc/QU7R-XZDL]. Generally, producers and advertisers of GM foods have rights under the First Amendment. But the “constitutionally protected interest in not providing . . . factual information [on a label] is ‘minimal.’” See Milavetz, Gallop & Milavetz, P.A. v. United States, 559 U.S. 229, 249–50 (2010) (quoting Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626, 651 (1985)); Pharm. Care Mgmt. Ass’n v. Rowe, 429 F.3d 294, 316 (1st Cir. 2005) (“The idea that . . . thousands of routine regulations require an extensive First Amendment analysis is mistaken.”). It is partially for that reason that a District Court for the District of Vermont recently refused to strike down a Vermont statute that requires labeling of genetically modified foods. See generally Grocery Mfrs. Ass’n v. Sorrell, 102 F. Supp. 3d 583 (D. Vt. Apr. 27, 2015), appeal docketed, No 15-1504 (2d Cir. Mar. 6, 2015) (argued Oct. 8, 2015). The court reviewed the Grocery Manufacturers Association’s First Amendment challenge to the statute’s GM food labeling requirement under the lowest level of constitutional scrutiny, id. at 632–36, a ruling which is currently on appeal.

    [7] The proposed legislation is even more puzzling in light of the fact that a majority of those polled in Kansas—the state from which Representative Pompeo, who introduced the “Safe and Accurate Food Labeling Act of 2015,” and Senator Roberts hail—reports being “confused and disappointed” by a federal effort to preempt their right to label GM foods. See Monday Poll results: Many show support for GMO labeling, Kan. City Star (July 28, 2015), http://www.kansascity.com/opinion/editorials/article29208574.html [https://perma.cc/F9SW-8YB6].

    Most Americans may be thankful, on the other hand, that a contrary piece of federal legislation that would “provid[e] consumers with knowledge of how their food is produced” was at least proposed. See Genetically Engineered Food Right-to-Know Act, S. 51, 114th Cong. (2015), https://www.govtrack.us/congress/bills/114/s511 [perma.cc/UWT5-22G7]. Further, after F.D.A. recently approved for human consumption genetically engineered salmon, a disappointed Congress passed a spending bill that requires F.D.A. to “implement a program to disclose to consumers whether a salmon offered for sale to consumers is a genetically engineered variety.” Consolidated Appropriations Act, 2016, Pub. L. 114-113, § 761 (2015), https://www.congress.gov/bill/114th-congress/house-bill/2029/text.

    [8] A fallacious but nonetheless popular argument often deployed against labeling GM foods depends on the assumption that labeling GM foods in the United States would prevent or defund research on different GM foods that could benefit the developing world. The Washington Post Editorial Board, for example, writes that “GM crops . . . can play an important role in alleviating hunger and food stress in the developing world—if researchers in developed countries are allowed to continue advancing the field.” Editorial, We don’t need labels on genetically modified foods, Wash. Post (Mar. 29, 2015), http://www.washingtonpost.com/opinions/we-dont-need-labels-telling-us-our-food-has-been-genetically-modified/2015/03/29/66f97f4a-d4c5-11e4-8fce-3941fc548f1c_story.html [perma.cc/6SHC-68YZ]. And the Scientific American Editorial Board writes that the decision whether to label GM food in the United States is, “[u]ltimately,” a decision about “whether we will continue to develop an immensely beneficial technology.” Editorial, Labels for GMO Foods Are a Bad Idea, Sci. Am. (Aug. 20, 2013), http://www.scientificamerican.com/article/labels-for-gmo-foods-are-a-bad-idea/?page=1 [perma.cc/5638-2PYQ]; see also Tony Dokoupil, Sorry, Gwyneth Paltrow, GMO labels won’t tell you what you want to know, MSNBC (Aug. 5, 2015, 5:56 PM), http://www.msnbc.com/msnbc/more-celebrity-pseudoscience-gmos [perma.cc/UPL3-DEGA] (stating without explanation that by advocating against the preemption of states’ rights to label GM foods, “Gwyneth Paltrow is . . . standing in the way of crop innovations that could fight world hunger and combat nutrient deficiencies”). The assumption is especially unreasonable in light of the fact that the GM foods that would be most useful in the developing world—“Golden Rice” or super-nutritive cassava, for example—are not even on the market in the United States. See Labels for GMO Foods Are a Bad Idea, supra note 8.

    On the other hand, a charitable critic could interpret the argument to presume that research on those beneficial GM foods depends on unwitting subsidy by developed-world consumers, whose purchasing decisions indirectly fund the relevant research. After all, the Scientific American Editorial Board writes that “only with public support and funding will [GM foods that are beneficial in the developing world] make their way to people’s plates.” Id. But, first, the source of “support” and “funding” the argument advocates—unwitting subsidy by American consumers—seems unethical, for it depends on misleading those consumers into purchasing GM foods. Cf. Fraud, Black’s Law Dictionary (10th ed. 2014) (defining fraud as “concealment of a material fact made to induce another to act to his or her detriment” and consumer fraud as “[a]ny intentional . . . deceptive act or practice . . . made by a seller or advertiser of goods or services to induce a person or people in general to buy”). Second, from an economic perspective, such research should not depend on unwitting consumer subsidy; the market should not run on deception. See, e.g., Peter A. Ubel, Free Market Madness: Why Human Nature is at Odds with Economics—and Why it Matters 216 (2008) (noting that food labeling requirements “have made the food market more like a true free market, because they have armed consumers with information that they can use to make [free] purchasing choices”). And, third, the fact that most American consumers would object to funding research on GM foods by unwitting subsidy strongly suggests that the argument has no purchase in the democratic context of this political discussion. Cf. John Stuart Mill, On Liberty 175 (David Bromwich & George Kateb eds., Yale University Press 2003) (1869) (“A state which dwarfs its men . . . even for beneficial purposes—will find that with small men no great thing can really be accomplished.”).

    [9] See, e.g., European Comm’n, A decade of EU-funded GMO research 133 (2010), http://ec.europa.eu/research/biosociety/pdf/a_decade_of_eu-funded_gmo_research.pdf [perma.cc/Y3P5-WWGD]; Cary Funk & Lee Raine, Public and Scientists’ Views on Science and Society, Pew Res. Ctr. (Jan. 29, 2015), http://www.pewinternet.org/2015/01/29/public-and-scientists-views-on-science-and-society/ [perma.cc/8R3A-9LHK]. But see Statement: No scientific consensus on GMO safety, European Network Scientists for Soc. & Envtl. Resp. (Oct. 21, 2013), http://www.ensser.org/increasing-public-information/no-scientific-consensus-on-gmo-safety/ [perma.cc/E3E6-BYAQ]; Richard Dahl, To Label or Not to Label: California Prepares to Vote on Genetically Engineered Foods, Envtl. Health Persps., http://ehp.niehs.nih.gov/120-a358/ [https://perma.cc/G9YD-BCHS] (describing studies that may call the safety of GM foods into question and noting the lack of premarket safety testing of GM foods in the United States).

    [10] See We don’t need labels on genetically modified foods, supra note 8; Labels for GMO Foods Are a Bad Idea, supra note 8; Sunstein, infra note 11. Recent research has casted doubt on this empirical proposition. See Jon C. Reidel, New Study: Consumers Don’t View GMO Labels as Negative ‘Warnings’, U. Vt. (July 27, 2015), http://www.uvm.edu/~uvmpr/?Page=news&storyID=21203&category=uvmhome [https://perma.cc/746D-9L9V].

    [11] See Cass R. Sunstein, Don’t Mandate Labeling for Gene-Altered Foods, Bloomberg Bus. (May 12, 2013, 6:00 PM), http://www.bloomberg.com/news/articles/2013-05-12/don-t-mandate-labeling-for-gene-altered-foods [perma.cc/EA88-U7BL]; We don’t need labels on genetically modified foods, supra note 8 (“[M]andatory labeling would be extremely misleading to consumers.”); Labels for GMO Foods Are a Bad Idea, supra note 8.

    [12] Sunstein, supra note 11.

    [13] We don’t need labels on genetically modified foods, supra note 8.

    [14] Such a disclaimer would reflect the F.D.A.’s general position on the issue. See U.S. Food & Drug Admin., Voluntary Labeling Indicating Whether Foods Have or Have Not Been Derived from Genetically Engineered Plants: Guidance for Industry (2015), http://www.fda.gov/Food/GuidanceRegulation/GuidanceDocumentsRegulatoryInformation/LabelingNutrition/ucm059098.htm [perma.cc/P246-TS8T] (affirming that F.D.A. is “not aware of any information showing that bioengineered foods differ from other foods in any meaningful or uniform way”).

    [15] See Sunstein, supra note 11; We don’t need labels on genetically modified foods, supra note 8 (“[M]andatory labeling would be extremely misleading to consumers.”); Labels for GMO Foods Are a Bad Idea, supra note 8.

    It is probable that at least some people believe that the Government lies to them and that the Government would require the dissemination of information it knows to be false. Perhaps those people would not be convinced by a disclaimer. See generally Cass R. Sunstein & Adrian Vermeule, Conspiracy Theories: Causes and Cures, 17 J. Pol. Phil. 202 (2009).

    [16] See 21 C.F.R. § 101.93(c).

    [17] See Int’l Dairy Foods Ass’n v. Boggs, 622 F.3d 628, 639 (6th Cir. 2010) (“We agree with the Processors that the potential consumer confusion created by the composition claim ‘rbST free’ could be alleviated by accompanying the claim with a disclaimer informing consumers that rbST has yet to be detected in conventional milk.”). “rBST” is an acronym for “recombinant bovine somatotropin,” an artificial growth hormone administered to dairy cows to force them to produce more milk.

    [18] See Interim Guidance on the Voluntary Labeling of Milk and Milk Products From Cows That Have Not Been Treated With Recombinant Bovine Somatotropin, 59 Fed. Reg. 6279, 6280 (Feb. 10, 1994); Dale E. Bauman, Facts about Recombinant Bovine Somatotropin 5, http://ansci.cals.cornell.edu/sites/ansci.cals.cornell.edu/files/shared/documents/Recombinant%20Bovine%20Somatotropin_v3.pdf [perma.cc/6QNC-35AG]. The Court of Appeals for the Sixth Circuit has concluded, on the contrary, that “a compositional difference does exist between milk from untreated cows and conventional milk,” which is produced with rBST. International Dairy Foods, supra note 17, at 636. For further research, see generally Laurie J. Beyranevand, Milking It: Reconsidering the FDA’s Refusal to Require Labeling of Dairy Products Produced from rBST Treated Cows in Light of International Dairy Foods Association v. Boggs (Vt. L. Sch., Sept. 9, 2011), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1925151&download=yes [perma.cc/BS3X-QATC]; Christina Cusimano, Rbst, It Does A Body Good?: Rbst Labeling and the Federal Denial of Consumers’ Right to Know, 48 Santa Clara L. Rev. 1095 (2008).

    Interestingly, Monsanto opposed voluntary labeling of milk as “rBST-free,” calling it “misleading,” see Monsanto urges FDA to stop “misleading” rBST-free labeling, Organic & Non-GMO Report (May 2007), http://www.non-gmoreport.com/articles/may07/misleading_rBST-free_labeling.php [perma.cc/EW2G-YXPJ], as it opposes mandatory labeling GM foods on the same basis, see Labeling Food and Ingredients Developed from GM Seed, Monsanto (March 2013), http://www.monsanto.com/newsviews/pages/food-labeling.aspx [https://perma.cc/F7UP-NP6W].

    [19] The Food and Drug Administration arguably lacks authority under the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 301 et seq., to require labels on all GM foods. See U.S. Food & Drug Admin., supra note 14. But see Emily M. Lanza, Cong. Research Serv., R43705, Legal Issues with Federal Labeling of Genetically Engineered Food: In Brief 3 (2015), https://www.fas.org/sgp/crs/misc/R43705.pdf [https://perma.cc/6TMV-NRGY] (“In the past, the FDA has required specific labeling on the basis of it being ‘material’ information if the absence of such information would . . . pose special health or environmental risks.” (internal quotation marks omitted)); Food Labeling; Declaration of Ingredients, 56 Fed. Reg. 28592, 28599 (1991) (finding that the source of a protein—i.e., whether it is from milk—can be “information of material importance for a person who desires to avoid certain foods for religious or cultural reasons” and should for that reason appear on food labels). But even if it is the case that F.D.A. lacks such authority, it is Congress that should heed its constituents, irrespective of the contours of F.D.A.’s current power. See generally supra text accompanying notes 2 & 3; infra text accompanying note 86.

    [20] See Arthur Caplan, GMO Foods Should be Labeled, But Not for Safety: Bioethicist, NBC News (Sept. 8, 2013, 4:06 PM), http://www.nbcnews.com/health/health-news/why-gmo-foods-should-be-labeled-n423451 [perma.cc/X9LA-Z7J2] (“Think about the words that go onto food products now that have nothing to do with safety, or for that matter any proven facts about nutrition . . . .”). Contrast the questionable foundation of a common argument as to why GM foods should not be labeled: “[T]his is not a food safety or a nutritional issue—it’s not like allergens or trans fats—[so] . . . it should[n’t] be mandated on labels that foods are produced with GM crops.” Elaine Watson, CSPI: There are legitimate concerns about GMOs, but not around food safety, and labeling would be misleading, Food Navigator USA (July 3, 2013), http://web.uri.edu/foodsafety/files/CSPI_-There-are-concerns-about-GMOs-but-not-around-food-safety.pdf [perma.cc/3VH2-ZT2R].

    [21] See 21 C.F.R. § 146.145(c).

    [22] See Pat Thomas, Behind the Label: orange juice, Ecologist (July 13, 2009), http://www.theecologist.org/green_green_living/behind_the_label/285643/behind_the_label_orange_juice.html [perma.cc/9GGA-3T2D]; Ali Weinberg, Why Gwyneth Paltrow Is Joining a Congressional Food Fight Over GMO Labeling, ABC News (Aug. 5, 2015, 4:19 PMs), http://abcnews.go.com/Politics/gwyneth-paltrow-joining-congressional-food-fight-gmo-labeling/story?id=32905001 [perma.cc/EHE7-QNCJ] (quoting Gwyneth Paltrow as stating, “Much the way I want to know if my food is farm-raised, or wild, or if my orange juice is fresh or from concentrate[,] I also believe I have the right, and we as Americans all have the right to know what’s in our food.”).

    [23] See 21 C.F.R. § 179.26(c) (emphasis added). F.D.A. even requires that the Radura Symbol, a logo that indicates that the food has been irradiated, “be placed prominently and conspicuously in conjunction with the required statement.” 21 C.F.R. § 179.26(c)(1).

    [24] Food Irradiation: What You Need to Know, U.S. Food & Drug Admin. (Sept. 3, 2015) (emphasis added), http://www.fda.gov/Food/ResourcesForYou/Consumers/ucm261680.htm [perma.cc/N5W8-35YB].

    [25] Consider, for example, the requirement that foods be labeled with their net weights. See 21 C.F.R. § 101.105.

    [26] See 19 C.F.R. § 134.11; cf. American Meat Inst. v. U.S. Dep’t Agric., 760 F.3d 18, 20 (D.C. Cir. 2014) (upholding a U.S.D.A. regulation that mandates disclosure of country-of-origin information about meat products).

    [27] To see an image of a country of origin label on a bottle of extra virgin olive oil purchased at Trader Joe’s, visit Steveo, Trader Joe’s Sicilian Extra Virgin Olive Oil – Food Review, WordPress: Ain’t Found a Good Title Blog (Aug. 13, 2011), https://aintfoundagoodtitleblog.wordpress.com/2011/08/13/trader-joes-sicilian-extra-virgin-olive-oil-food-review/ [https://perma.cc/G4Z9-34UY].

    [28] See supra text accompanying note 26.

    [29] See Andrew Pollack, Genetically Engineered Salmon Approved for Consumption, N.Y. Times (Nov. 19, 2015), http://www.nytimes.com/2015/11/20/business/genetically-engineered-salmon-approved-for-consumption.html [perma.cc/4P3F-Y6VP].

    [30] Consolidated Appropriations Act, 2016, Pub. L. 114-113, § 761 (2015), https://www.congress.gov/bill/114th-congress/house-bill/2029/text; see also Alaska Stat. § 17.20.040(14)(A)–(B) (2005) (requiring genetically modified fish, if it is to be sold without being “misbranded,” to be “conspicuously labeled” or “conspicuously identified”); Tamar Haspel, If the GMO salmon is as good as its maker says, why not label it?, Wash. Post (Nov. 19, 2015), https://www.washingtonpost.com/lifestyle/food/fda-approves-gmo-salmon-a-first-for-the-us-food-supply/2015/11/19/d5d1b60e-8ec3-11e5-acff-673ae92ddd2b_story.html [perma.cc/B3WB-D6FU].

    [31] FDA Has Determined That the AquAdvantage Salmon is as Safe to Eat as Non-GE Salmon, U.S. Food & Drug Admin. (Nov. 19, 2015), http://www.fda.gov/ForConsumers/ConsumerUpdates/ucm472487.htm [perma.cc/MEA7-ZZEE].

    [32] See, e.g., Hearing to Consider the Societal Benefits of Biotechnology Before the Subcomm. on Horticulture, Research, Biotech., and Foreign Agric. of the H. Comm. on Agric., 113th Cong. 43 (2014); Michael McAuliff, Americans Are Too Stupid For GMO Labeling, Congressional Panel Says, Huffington Post (July 10, 2014), http://www.huffingtonpost.com/2014/07/10/gmo-labels-congress_n_5576255.html [perma.cc/X34V-NMNP] (streaming a video of testimony before a congressional panel in which congressmen and those testifying before them discuss the supposed “ignorance” and “lack of education” of American food consumers).

    [33] See supra text accompanying notes 2 & 3.

    [34] See Caplan, supra note 20.

    [35] Editorial, Tell Consumers What They Are Eating, N.Y. Times (Dec. 1, 2015), http://www.nytimes.com/2015/12/01/opinion/tell-consumers-what-they-are-eating.html [perma.cc/M2VC-G45G].

    [36] See generally Immanuel Kant, Groundwork on the Metaphysics of Morals (1785); John Stuart Mill, supra note 8.

    That disclosure is also essential to the vitality of the marketplace of ideas exalted by the First Amendment, see, e.g., Nat’l Elec. Mfrs. Ass’n v. Sorrell, 272 F.3d 104, 114 (2d Cir. 2001), and to the libertarian ideal of a true free market, see, e.g., Ubel, supra note 8, at 216. “[L]ibertarian philosophy is based in large part on the moral value of letting people make informed choices about their lives. And how can people make such choices if companies aren’t willing to give them information about their products?” Id. F.D.A. food labeling requirements, after all, “have made the food market more like a true free market, because they have armed consumers with information that they can use to make [free] purchasing choices.” Id. (footnote omitted). Therefore, “the value of that information”—whether food is the product of genetic engineering—“should be left to consumers to decide.” See Tell Consumers What They Are Eating, supra note 35.

    [37] See Kristin Voigt, Paternalism and Equality, in New Perspectives on Paternalism and Health Care 87, 87 (Thomas Schramme ed., 2015), http://link.springer.com/chapter/10.1007%2F978-3-319-17960-5_6#page-2 [https://perma.cc/45N5-UVBY].

    [38] Autonomy: Normative, Internet Encyclopedia Phil., http://www.iep.utm.edu/aut-norm/ [https://perma.cc/QQR5-2U2U]; see also John Stuart Mill, supra note 8, at 124 (“He who lets the world, or his own portion of it, choose his plan of life for him, has no need of any other faculty than the ape-like one of imitation. He who chooses his plan for himself, employs all his faculties.”).

    [39] See Voigt, supra note 37, at 87.

    [40] Id.

    [41] See A.K. Edwin, Don’t Lie but Don’t Tell the Whole Truth: The Therapeutic Privilege—Is it Ever Justified?, 42 Ghana Med. J. 156, 156 (2008), http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2673833/ [perma.cc/9GNR-JN64] (noting the “therapeutic privilege” exception to the norm that medical information about a patient be disclosed to him).

    [42] See generally P. O’Malley et al., Transparency during public health emergencies: from rhetoric to reality, 87 Bull. World Health Org. 614 (2009), http://www.who.int/bulletin/volumes/87/8/08-056689/en/ [perma.cc/LK3P-LQPE].

    [43] Autonomy: Normative, supra note 38.

    [44] See, e.g., Mary S. McCabe et al., When the Family Requests Withholding the Diagnosis: Who Owns the Truth?, 6 J. Oncology Practice 94, 95 (2010) (“It is the patient and not the physician or the family who ultimately owns the right to decide how he or she wants to exercise autonomy with respect to his or her own illness.”), http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2835490/ [perma.cc/X3XP-ZLYX]. See generally Jukka Varelius, The value of autonomy in medical ethics, 9 Med. Health Care. Phil. 377 (2006), http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2780686/ [https://perma.cc/F2YF-JYJ2].

    As then-Judge Cardozo put it: “Every human being of adult years and sound mind has a right to determine what shall be done with his own body . . . .” Schloendorff v. Soc’y of N.Y. Hosp., 211 N.Y. 125, 129 (1914); see also John Stuart Mill, supra note 8, at 81 (“Over himself, over his own body and mind, the individual is sovereign.”)

    [45] See Hearing to Consider the Societal Benefits of Biotechnology, supra note 32; McAuliff, supra note 32; cf. Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 770 (1976) (“There is, of course, an alternative to this highly paternalistic approach. That alternative is to assume that . . . information is not in itself harmful, that people will perceive their own best interests if only they are well enough informed, and that the best means to that end is to open the channels of communication rather than to close them.”).

    [46] See Caplan, supra note 20 (“Seeing the pro-GMO food industry fight labeling on the grounds that GMO food is safe is pathetic.”).

    [47] Cf. Maine v. Taylor, 477 U.S. 131, 148 (1986) (identifying a state’s “legitimate interest in guarding against imperfectly understood environmental risks, despite the possibility that they may ultimately prove to be negligible”).

    [48] See Maggie Delano, Roundup Ready Crops, Mass. Inst. Tech. (2009), http://web.mit.edu/demoscience/Monsanto/about.html [https://perma.cc/Y2GS-GFBN]; Nathanael Johnson, Roundup-ready, aim, spray: How GM crops lead to herbicide addiction, Grist (Oct. 14, 2013) http://grist.org/food/roundup-ready-aim-spray-how-gm-crops-lead-to-herbicide-addiction/ [https://perma.cc/5RC4-Y564]. See generally John Peterson Myers et al., Concerns over use of glyphosate-based herbicides and risks associated with exposures: a consensus statement, 15 Envtl. Health 1 (2016), http://ehjournal.biomedcentral.com/articles/10.1186/s12940-016-0117-0 [https://perma.cc/39LF-CEJA].

    [49] See Int’l Agency for Research on Cancer, World Health Org., IARC Monographs Vol. 112: evaluation of five organophosphate insecticides and herbicides 1 (Mar. 20, 2015), http://www.iarc.fr/en/media-centre/iarcnews/pdf/MonographVolume112.pdf [http://perma.cc/97Z6-JE39]; Kathryn Z. Guyton et al., Carcinogenicity of tetrachlorvinphos, parathion, malathion, diazinon, and glyphosate, 16 Lancet Oncology 490, 490 (May 2015); Carey Gillam, U.S. lawsuits build against Monsanto over alleged Roundup cancer link, Reuters (Oct. 15, 2015, 2:31 PM), http://www.reuters.com/article/2015/10/15/usa-monsanto-lawsuits-idUSL1N12E18J20151015 [https://perma.cc/6NT3-W8WW].

    [50] See Brigitta Kurenbach et al., Sublethal Exposure to Commercial Formulations of the Herbicides Dicamba, 2,4-Dichlorophenoxyacetic Acid, and Glyphosate Cause Changes in Antibiotic Susceptibility in Escherichia coli and Salmonella enterica serovar Typhimurium, mBio, Mar.–Apr. 2015, at 1, http://mbio.asm.org/content/6/2/e00009-15 [https://perma.cc/V72H-2VBQ].

    [51] See Monika Krüger et al., Glyphosate suppresses the antagonistic effect of Enterococcus spp. on Clostridium botulinum, 20 Anaerobe 74, 76 (2013).

    [52] See, e.g., Myers et al., supra note 48, at 3; Vincent F. Garry et al., Birth defects, season of conception, and sex of children born to pesticide applicators living in the Red River Valley of Minnesota, USA, 110 Envtl. Health Persps. 441, 441 (2002), http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1241196/pdf/ehp110s-000441.pdf [https://perma.cc/9T2L-PHG8]; Monika Krüger et al., Detection of Glyphosate Residues in Animals and Humans, J. Envtl. & Analytic Toxicology, 2014, at 1, http://www.omicsonline.org/open-access/detection-of-glyphosate-residues-in-animals-and-humans-2161-0525.1000210.pdf [https://perma.cc/PCD8-8YJN]; U.S. Envl. Prot. Agency, Technical Fact Sheet on: Glyphosate 1, https://www.beyondpesticides.org/assets/media/documents/EPAglyphosate.pdf [https://perma.cc/6398-WHL6]; cf. Elizabeth Grossman, What Do We Really Know About Roundup Weed Killer?, Nat’l Geographic (Apr. 23, 2015), http://news.nationalgeographic.com/2015/04/150422-glyphosate-roundup-herbicide-weeds/ [https://perma.cc/B7CS-MVTC].

    [53] See Genetically engineered (GE) corn varieties by State and United States, 2000-2015, Econ. Res. Serv, U.S. Dep’t Agric., http://www.ers.usda.gov/datafiles/Adoption_of_Genetically_Engineered_Crops_in_the_US/alltables.xls [https://perma.cc/J799-EVLG] (last updated July 7, 2015).

    Some opponents of labeling contend that premising an argument for labels on the fact that problematic pesticides were used in the cultivation of the labeled foods “confuse[s] GM with a particular application for GM, namely herbicide tolerance.” See Expert reaction to ‘GMOs, Herbicides, and Public Health’, Sci. Media Ctr. (Aug. 19, 2015), http://www.sciencemediacentre.org/expert-reaction-to-gmos-herbicides-and-public-health/ [https://perma.cc/A94L-TPBC]. But that “particular application for GM” tightly correlates with cultivation of GM corn and soy generally, for the vast majority of corn and soy is engineered to be herbicide tolerant. See Adoption of genetically engineered crops in the U.S., Econ. Res. Serv, U.S. Dep’t Agric., http://www.ers.usda.gov/data-products/adoption-of-genetically-engineered-crops-in-the-us.aspx [https://perma.cc/CC5Z-T5TG] (last updated July 7, 2015). Moreover, the constitutional standard governing a federal labeling law would not require a perfect match between each end of a label—for example, to alert consumers to glyphosate’s probable hand, and its corresponding ecological significance, in a foods’ production—and the chosen means to that end—a food label. See Williams-Yulee v. Florida Bar, 135 S. Ct. 1656, 1671 (2015) (quoting Burson v. Freeman, 504 U.S. 191, 209 (1992)) (reiterating that even strict scrutiny requires only that a law “be narrowly tailored, not that it be ‘perfectly tailored’”); Grocery Mfrs. Ass’n v. Sorrell, 102 F. Supp. 3d 583, 622 (D. Vt. Apr. 27, 2015), appeal docketed, No 15-1504 (2d Cir. Mar. 6, 2015) (argued Oct. 8, 2015); cf. Nat’l Elec. Mfrs. Ass’n v. Sorrell, 272 F.3d 104, 116 (2d Cir. 2001) (“Innumerable federal and state regulatory programs require the disclosure of product and other commercial information.”); Pharm. Care Mgmt. Ass’n v. Rowe, 429 F.3d 294, 316 (1st Cir. 2005); Nat’l Ass’n of Mfrs. v. Sec. & Exch. Comm’n, 800 F.3d 518, 531 (D.C. Cir. 2015) (Srinivasan, J., dissenting) (“Issuers of securities must make all sorts of disclosures about their products for the benefit of the investing public. No one thinks that garden-variety disclosure obligations of that ilk raise a significant First Amendment problem.”).

    [54] See Food & Water Watch, Superweeds: How Biotech Crops Bolster the Pesticide Industry 4 (2013) http://www.foodandwaterwatch.org/sites/default/files/Superweeds%20Report%20July%202013.pdf [http://perma.cc/TE64-W52W]; Beth Hoffman, GMO Crops Mean More Herbicide, Not Less, Forbes (July 2, 2013), http://www.forbes.com/sites/bethhoffman/2013/07/02/gmo-crops-mean-more-herbicide-not-less/#2715e4857a0b50797ad5a371 [https://perma.cc/3YRE-R8JV].

    [55] See United States Geological Survey, Pesticide National Synthesis Project, Glyphosate, http://water.usgs.gov/nawqa/pnsp/usage/maps/show_map.php?year=2012&map=GLYPHOSATE&hilo=L [https://perma.cc/L8BC-T5HW] (last updated Jan. 5, 2016); cf. Charles M. Benbrook, Impacts of genetically engineered crops on pesticide use in the U.S. — the first sixteen years, 24 Envtl. Sci. Europe 1 (2012), http://www.enveurope.com/content/24/1/24 [https://perma.cc/93R2-4BKE]. But see Tamar Haspel, It’s the chemical Monsanto depends on. How dangerous is it?, Wash. Post (Oct. 4, 2015), https://www.washingtonpost.com/lifestyle/food/its-the-chemical-monsanto-depends-on-how-dangerous-is-it/2015/10/04/2b8f58ee-67a0-11e5-9ef3-fde182507eac_story.html [https://perma.cc/975A-FACA] (noting that glyphosate has displaced use of other herbicides).

    [56] See, e.g., Myers et al., supra note 48, at 3; Thomas Bøhn et al., Compositional differences in soybeans on the market: Glyphosate accumulates in Roundup Ready GM soybeans, 153 J. Food Chemistry 207, 207 (2014); European Food Safety Authority, Modification of the residue definition of glyphosate in genetically modified maize grain and soybeans, and in products of animal origin, EFSA J., July 2009, at 17, http://www.efsa.europa.eu/sites/default/files/scientific_output/files/main_documents/1310.pdf [https://perma.cc/FNE5-KBU9]. Glyphosate can penetrate plant surfaces and enter plant tissue, making it difficult or impossible to wash the chemical from food. See Bob Hartzler et al., Glyphosate, Weeds, & Crops Grp., Understanding Glyphosate To Increase Performance 4, https://www.extension.purdue.edu/extmedia/gwc/gwc-2.pdf [https://perma.cc/3WTW-8ZVD]; Mark Longstroth, Be careful using RoundUp and other glyphosate herbicides, Mich. St. U. Extension (July 8, 2011), http://msue.anr.msu.edu/news/be_careful_using_round_up_and_other_glyphosate_herbicides [https://perma.cc/R2SC-RA8F]; Friends of the Earth Europe, Human Contamination by Glyphosate 3 (2013), https://www.foeeurope.org/sites/default/files/press_releases/foee_4_human_contamination_glyphosate.pdf [https://perma.cc/FRQ8-8VB4] (citing European Food Safety Authority, Opinion on the Modification of the Existing MRL for Lentils, European Food Safety Authority, EFSA J., Oct. 2012, at 2, http://www.efsa.europa.eu/sites/default/files/scientific_output/files/main_documents/2550.pdf [https://perma.cc/JVB8-YTL7]). Glyphosate can also accumulate in foods such as meat and eggs derived from animals that were fed corn or soy treated with glyphosate. See World Health Org., Food & Agric. Org. of the U.N., Pesticide Residues in food – 2005, at 138–44, http://www.fao.org/fileadmin/templates/agphome/documents/Pests_Pesticides/JMPR/JMPR05report.pdf [https://perma.cc/DK5R-KGYE]. After rebuke from the Government Accountability Office, it appears that F.D.A. will begin to test foods—such as GM corn and soy—for glyphosate residue. Carey Gillam, FDA to Start Testing for Glyphosate in Food, Civil Eats (Feb. 17, 2016), http://civileats.com/2016/02/17/fda-to-start-testing-for-glyphosate-in-food/ [https://perma.cc/H9EX-UGYU].

    [57] See Carey Gillam, U.S. researchers find Roundup chemical in water, air, Reuters (Aug. 31, 2011, 4:01 PM), http://www.reuters.com/article/us-glyphosate-pollution-idUSTRE77U61720110831 [https://perma.cc/XH27-MAN5].

    [58] Grossman, supra note 52 (citing William A. Battaglin et al., Glyphosate and Its Degradation Product AMPA Occur Frequently and Widely in U.S. Soils, Surface Water, Groundwater, and Precipitation, 50 J. Am. Water Res. Ass’n 275, 275 (2014)). Glyphosate can also be found in human urine. See Dirk Brändli & Sara Reinacher, Herbicides found in Human Urine,

    2012 Ithaka J. 270, 270–72, (2012), www.ithaka-journal.net/druckversionen/e052012-herbicides-urine.pdf [https://perma.cc/829D-4V37]; Brian D. Curwin et al., Urinary Pesticide Concentrations Among Children, Mothers and Fathers Living in Farm and Non-Farm Households in Iowa, 51 Annals Occupational Hygiene 53, 53–64 (2007), http://annhyg.oxfordjournals.org/content/51/1/53.full [https://perma.cc/SH3F-YZWL]; John F. Acquavella et al., Glyphosate biomonitoring for farmers and their families: results from the Farm Family Exposure Study, 112 Envtl. Health Persps. 321, 321–25 (2004), http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1241861/pdf/ehp0112-000321.pdf [https://perma.cc/EH76-EXKP]. Our bodies, unfortunately, are not “Roundup Ready.” See Marta Kwiatkowska et al., The effect of metabolites and impurities of glyphosate on human erythrocytes (in vitro), 109 Pesticide Biochemistry & Physiology 34, 36–39 (2014). Could the rise of synthetic chemical-based agriculture be connected to the rise of cancer? Cf. Rising Global Cancer Epidemic, Am. Cancer Soc’y (2013), http://www.cancer.org/research/infographicgallery/rising-global-cancer-epidemic [https://perma.cc/DVR2-897H].

    [59] Myers et al., supra note 48, at 10; See EPA’s Risk Assessment is Too Flawed to Proceed: Comments from Environmental Working Group on the EPA’s Proposed Decision to Register EnlistTM Herbicide Containing 2,4-D and Glyphosate, Envtl. Working Grp. (June 4, 2014), http://www.ewg.org/testimony-official-correspondence/epa-s-risk-assessment-too-flawed-proceed [https://perma.cc/A29M-6XF6]; Landrigan & Benbrook, supra note 1, at 694 (clarifying that studies on “low-dose, endocrine-mediated, and epigenetic effects” and “health effects in infants and children” are essential, but absent from the process that approved use of certain herbicides in cultivation of GM crops); see also Robin Mesnage et al., Transcriptome profile analysis reflects rat liver and kidney damage following chronic ultra-low dose Roundup exposure, 14 Envtl. Health 70, 82 (2015), http://www.ehjournal.net/content/14/1/70 [https://perma.cc/8ANR-G3LT] (documenting that glyphosate-based herbicides at an “ultra-low, environmental dose can result in liver and kidney damage with potential significant health implications for animal and human populations”). But see Barbara Lewis, European scientists say weedkiller glyphosate unlikely to cause cancer, Reuters (Nov. 12, 2015), http://www.reuters.com/article/2015/11/13/us-health-eu-monsanto-idUSKCN0T117820151113 [https://perma.cc/6DE8-EZXL].

    [60] See, e.g., John Deike, Brazil Seeks Ban on Monsanto Herbicide Due to Alarming Toxicity Risks, EcoWatch (Mar. 27, 2014), http://ecowatch.com/2014/03/27/brazil-ban-monsanto-herbicide-toxic/ [https://perma.cc/3UEQ-BRNF] (noting efforts or bans in Brazil, El Salvador, and Sri Lanka); Sarah, Dutch Ban Roundup, France and Brazil to Follow, Healthy Home Economist, http://www.thehealthyhomeeconomist.com/roundup-banned-netherlands-france-brazil-likely-soon-follow/ [https://perma.cc/V29P-NUCA]; Grossman, supra note 52 (noting efforts or bans in Canada, Mexico, and the Netherlands).

    [61] Grossman, supra note 52. Many of the same concerns that apply to glyphosate apply to a combination of glyphosate and 2,4-Dichlorophenoxyacetic acid—a Dow chemical cocktail called “Enlist Duo,” which EPA approved last year for use in cultivation of GM corn and soy. Rebecca Trager, EPA under pressure over Enlist Duo herbicide, Chemistry World (June 26, 2015), http://www.rsc.org/chemistryworld/2015/06/epa-under-pressure-over-enlist-duo-herbicide [https://perma.cc/HZ68-ADYH]. But additional concerns abound as well. “2,4-D,” as it’s called, has been declared a possible carcinogen by the World Health Organization, has been linked to many-fold increases in non-Hodgkins lymphoma, and was one of several active ingredients in Agent Orange (though probably not the worst of them). See Shelia H. Zahm & Aaron Blair, Pesticides and non-Hodgkin’s lymphoma, 52 Cancer Res. 5485s, 5485s–88s (1992) http://cancerres.aacrjournals.org/content/52/19_Supplement/5485s.full.pdf [https://perma.cc/XDJ8-7487]; Press Release, Int’l Agency for Research on Cancer, World Health Org., IARC Monographs evaluate DDT, lindane, and 2,4-D (June 23, 2015), http://www.iarc.fr/en/media-centre/pr/2015/pdfs/pr236_E.pdf [https://perma.cc/ZFK7-N6X8]; Registration of Enlist Duo, U.S. Envtl. Prot. Agency, http://www2.epa.gov/ingredients-used-pesticide-products/registration-enlist-duo [http://perma.cc/TB6B-K5YA]. Accordingly, E.P.A. has since attempted to revoke its approval of Enlist Duo. See Karl Plume, CORRECTED-UPDATE 2-EPA asks court to withdraw registration of Dow herbicide, Reuters (Nov. 25, 2015), http://www.reuters.com/article/agriculture-dow-enlist-idUSL3N13K4EC20151125 [https://perma.cc/K9AT-5G5B].

    [62] See, e.g., Stephen O. Duke, Perspectives on transgenic, herbicide-resistant crops in the United States almost 20 years after introduction, 71 Pest Mgmt. Sci. 652, 652 (2015); Natasha Gilbert, Case studies: A hard look at GM crops, Nature: News Features (May 1, 2013), http://www.nature.com/news/case-studies-a-hard-look-at-gm-crops-1.12907 [https://perma.cc/GJ46-KXPV]; Econ. Res. Serv., U.S Dep’t of Agric., Genetically Engineered Crops in the United States, Economic Research Report No. 162 (2014), http://www.ers.usda.gov/media/1282246/err162.pdf [https://perma.cc/34UL-AUCY]; Carey Gillam, Pesticide use ramping up as GMO crop technology backfires: study, Reuters (Oct. 1, 2012), http://www.reuters.com/article/2012/10/02/us-usa-study-pesticides-idUSBRE89100X20121002 [https://perma.cc/4X4K-6E66]; Food & Water Watch, supra note 54, at 2. See generally Comm. on the Impact of Biotechnology on Farm-Level Econ. and Sustainability, Impact of Genetically Engineered Crops on Farm Sustainability in the United States, 72–83 (2010), http://www.nap.edu/read/12804/chapter/4#72 [https://perma.cc/ADS9-XMHQ].

    [63] See, e.g., Gillam, supra note 62; Jack Kaskey, ‘Mounting Evidence’ of Bug-Resistant Corn Seen by EPA, Bloomberg Bus. (Sept. 5, 2012), http://www.bloomberg.com/news/articles/2012-09-04/-mounting-evidence-of-bug-resistant-corn-seen-by-epa [https://perma.cc/YEL6-DUGS].

    [64] See Lucila T. Herbert et al., Effects of field-realistic doses of glyphosate on honeybee appetitive behaviour, 217 J. Experimental Biology 3457, 3461 (2014), http://jeb.biologists.org/content/jexbio/early/2014/07/23/jeb.109520.full.pdf [https://perma.cc/W9Y2-LV2F]; John M. Pleasants & Karen S. Oberhauser, Milkweed loss in agricultural fields because of herbicide use: effect on the monarch butterfly population, 6 Insect Conservation & Diversity 135, 142 (2013), http://www.mlmp.org/results/findings/pleasants_and_oberhauser_2012_milkweed_loss_in_ag_fields.pdf [https://perma.cc/K2WW-9HTK]; Letter from Earl Blumenauer et al., U.S. House of Representatives, to Gina McCarthy, Administrator of the Envtl. Prot. Agency (Sept. 30, 2014), http://www.blumenauer.house.gov/images/stories/2014/Pollinator-Letter-to-EPA-9-30.pdf [https://perma.cc/3YHL-PDP9s]; cf. Francisco Sánchez-Bayo, Insights: The trouble with neonicotinoids, 346 Sci. 806, 806–07 (2014); GMO Crops, Neonicotinoids Will Be Weeded out of U.S. Wildlife Refuges, NBC News (Aug. 6, 2014), http://www.nbcnews.com/science/environment/gmo-crops-neonicotinoids-will-be-weeded-out-u-s-wildlife-n174211 [http://perma.cc/4PWS-D93G]; Hannah Hoag, How to Help Stop Industrial Agriculture From Killing the Monarch Butterfly, TakePart (July 31, 2014), http://www.takepart.com/article/2014/07/30/monarch-butterfly-numbers-are-plummeting-and-heres-what-you-can-do-help [https://perma.cc/DJZ4-4E9M]; Christina Sarich, 37 Million Bees Found Dead in Canada After Large GMO Crop Planting, Nat. Soc’y (Nov. 9, 2014), http://naturalsociety.com/37-million-bees-found-dead-canada-large-gmo-crop-planting/#ixzz3XohcLGB2 [https://perma.cc/5DSQ-X9MT].

    [65] See Insects and Pollinators, Nat. Res. Conservation Serv., U.S. Dep’t of Agric., http://www.nrcs.usda.gov/wps/portal/nrcs/main/national/plantsanimals/pollinate/#sthash.ohpzr7Zq.dpuf [https://perma.cc/SSY7-DV35] (“Some scientists estimate that one out of every three bites of food we eat exists because of animal pollinators like bees, butterflies and moths, birds and bats, and beetles and other insects.”).

    [66] Presidential Memorandum, Creating a Federal Strategy to Promote the Health of Honey Bees and Other Pollinators (June 20, 2014), https://www.whitehouse.gov/the-press-office/2014/06/20/presidential-memorandum-creating-federal-strategy-promote-health-honey-b [https://perma.cc/HBX9-AT32].

    [67] See Press Release, U.S. Envtl. Prot. Agency, San Francisco Bay Area Endangered Species Litigation Revised Settlement Agreement – Center for Biological Diversity v. EPA (June 23, 2015), http://www.epa.gov/pesticides/san-francisco-bay-area-endangered-species-litigation-revised-settlement-agreement-center [https://perma.cc/AD9D-9WM7].

    [68] Landrigan & Benbrook, supra note 1, at 695; see also Genetically Modified Foods, Harvard T.H. Chan Sch. of Pub. Health, http://www.chgeharvard.org/topic/genetically-modified-foods [https://perma.cc/6XJ2-3FXU] (“The decrease in glutelin levels in rice [through genetic modification], for example, was associated with an unintended increase in levels of compounds called prolamines, which can affect the nutritional quality of rice and increase its potential to induce an allergic response.”); Genetic Engineering in Agriculture, Union of Concerned Scientists, http://www.ucsusa.org/our-work/food-agriculture/our-failing-food-system/genetic-engineering-agriculture#.VfTOGpfHST0 [https://perma.cc/X2PV-XKQC] (noting that GM crops “may spread undesirable traits to weeds and non-GE crops, produce new allergens and toxins, or harm animals that consume them”); cf. Jonathan A. Bernstein et al., Clinical and laboratory investigation of allergy to genetically modified foods, 111 Envtl. Health Persps. 1114, 1120 (2003), http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1241560/ [https://perma.cc/22KB-C9NJ] (“The experiences with StarLink corn and in occupational cohorts exposed to grain dusts suggest that the development of methods to be used for postmarket consumer and occupational health surveillance may be useful.”); Julie A. Nordlee et al., Identification of a Brazil-Nut Allergen in Transgenic Soybeans, 334 New Eng. J. Med. 688, 688 (1996), http://www.nejm.org/doi/pdf/10.1056/NEJM199603143341103 [https://perma.cc/UC2J-C8G2] (showing that “that an allergen from a food known to be allergenic can be transferred into another food by genetic engineering”); Belinda Martineau, When Food Is Genetically Modified, N.Y. Times (Oct. 20, 2015), http://www.nytimes.com/2015/10/31/opinion/when-food-is-genetically-modified.html?ref=topics [https://perma.cc/RZ88-ETX9] (“[B]ecause each product [of crop genetic engineering] is different — not only in the ways genetic engineers design and expect them to be, but also by potentially containing unique unintended and unexpected changes — the safety of each one must be assessed individually.”).

    Starlink corn is a genetically engineered variety that was approved only for industrial and industrial animal agriculture uses but which contaminated the human food supply by cross-pollination, leading to litigation and food recalls. See Negligence Suit Is Filed Over Altered Corn, N.Y. Times (Dec. 4, 2000), http://www.nytimes.com/2000/12/04/business/04CORN.html [https://perma.cc/TMZ6-MMNQ]; Comm. on the Impact of Biotechnology on Farm-Level Econ. and Sustainability, supra note 62, at 171.

    [69] See Genetically Modified Foods, supra note 68.

    [70] Grocery Mfrs. Ass’n v. Sorrell, 102 F. Supp. 3d 583, 634 (D. Vt. Apr. 27, 2015), appeal docketed, No 15-1504 (2d Cir. Mar. 6, 2015) (argued Oct. 8, 2015).

    [71] See, e.g., Meredith G. Schafer et al., The Establishment of Genetically Engineered Canola Populations in the U.S., PLoS ONE, Oct. 2011, at 3, http://www.plosone.org/article/fetchObject.action?uri=info:doi/10.1371/journal.pone.0025736&representation=PDF [https://perma.cc/ACF5-P2T3]; Stephanie E. Cox, Genetically Modified Organisms: Who Should Pay the Price for Pollen Drift Contamination?, 13 Drake J. Agric. L. 401, 405–09 (2008), http://students.law.drake.edu/aglawjournal/docs/agVol13No2-Cox.pdf [https://perma.cc/8CXH-9Y6W]; Dorothy Du, Rethinking Risks: Should Socioeconomic and Ethical Considerations be Incorporated Into the Regulation of Genetically Modified Crops?, 26 Harv. J.L. & Tech. 376, 381 (2012), http://jolt.law.harvard.edu/articles/pdf/v26/26HarvJLTech375.pdf [https://perma.cc/8CXH-9Y6W] (“Gene flow through pollen drift and the movement of seeds can devastate conventional and organic farmers whose crops may be devalued or rendered unmarketable by the presence of [genetically modified] recombinant DNA.” (citations omitted)); cf. Negligence Suit Is Filed Over Altered Corn, supra note 68.

    [72] H.R. 112, Gen. Assemb., 2013-2014 Sess. (Vt. 2014), http://www.leg.state.vt.us/docs/2014/Acts/ACT120.pdf [https://perma.cc/Y769-SSAA]; see also Food Labeling: Declaration of Ingredients, 56 Fed. Reg. 28592, 28592, 28597, 28600, 28616 (July 21, 1991) (discussing the importance of food labeling to the practice of religion).

    [73] See Pollack, supra note 29; Kosher Fish List, Chabad.org, http://www.chabad.org/library/article_cdo/aid/82675/jewish/Kosher-Fish-List.htm [https://perma.cc/Q6X4-YHPK]; cf. Leviticus 19:19 (forbidding certain kinds of genetic mixing); Deuteronomy 22:9–11.

    “[Three hundred] environmental, consumer, health and animal welfare organizations, salmon and fishing groups and associations, food companies, chefs and restaurants” have all expressed concerns about the fish’s approval. FDA Approves First Genetically Engineered Animal for Human Consumption Over the Objections of Millions, Ctr. for Food Safety (Nov. 19, 2015), http://www.centerforfoodsafety.org/press-releases/4131/fda-approves-first-genetically-engineered-animal-for-human-consumption-over-the-objections-of-millions [https://perma.cc/YW9S-3SLU]. Given such concerns—ranging from ecological or environmental, to ethical or religious—more than sixty supermarket chains, including some of the largest in the country, are refusing to sell the so-called “Frankenfish” when it does come to market. See Nicole Mormann, Costco Joins a Host of Retailers Refusing to Sell GMO Salmon, TakePart (Nov. 25, 2015), http://www.takepart.com/article/2015/11/25/gmo-salmon-costco [https://perma.cc/B3ZC-NNAL]; Tim Schwab, GMO Salmon Declared Safe to Eat, But Not Grow, in U.S. Here’s Why, Food & Water Watch, (Dec. 4, 2015), http://www.foodandwaterwatch.org/news/gmo-salmon-declared-safe-eat-not-grow-us-here%E2%80%99s-why [https://perma.cc/P4LV-9JTK].

    [74] Pope Francis, Laudato Si’: On Care for Our Common Home 99 (May 24, 2015), http://w2.vatican.va/content/dam/francesco/pdf/encyclicals/documents/papa-francesco_20150524_enciclica-laudato-si_en.pdf [https://perma.cc/LM2C-3UXW].

    [75] Id.

    [76] See Spitznagel & Taleb, supra note 1; cf. Comm. on the Impact of Biotechnology on Farm-Level Econ. and Sustainability, supra note 62, at 169–70 (2010) (“Gene flow of GE traits could jeopardize the economic value of the entire harvest of non-GE-crop farmers by rendering their output unsuitable for high-value markets. They could also have unfavorable effects on the levels of trust that exist between market participants.” (citation omitted)); Roberto A. Ferdman, Bye, bye, bananas, Wash. Post: Wonkblog (Dec. 4, 2015), https://www.washingtonpost.com/news/wonk/wp/2015/12/04/the-worlds-most-popular-banana-could-go-extinct/?tid=sm_fb [https://perma.cc/4MV8-7SA6].

    [77] See, e.g., Carey Gillam, Washington state sues lobbyists over campaign against GMO labeling (Oct. 16, 2015), Reuters, http://www.reuters.com/article/us-usa-gmo-labeling-idUSBRE99F19B20131016; cf. Leviticus 19:11 (“Do not lie.”).

    [78] See Andrew Dyke & Robert Whelan, ECONorthwest, GE Foods Labeling Cost Study Findings 7 (2014), https://consumersunion.org/wp-content/uploads/2014/09/GMO_labeling_cost_findings_Exe_Summ.pdf [https://perma.cc/6HAN-HHNT] (concluding that labeling of GM foods in the United States would cause a median cost of an additional $2.30 per person per year). Everyone “largely agree[s] that simply adding the wording would not drive up consumer costs.” Lee, supra note 2. A different article that estimated a much higher cost increase was flawed because it assumed that “all cost increases [would] be passed along to food consumers, as opposed to being absorbed by . . . companies or supermarkets.” See id. The Washington Post’s Fact Checker blog rated a statement based on the article worthy of “Three Pinocchios.” See id.

    Importantly, the possible substantial price increase predicted by the “Three Pinocchios” article would come, if at all, as a result of food company choice: For many reasons, consumers would prefer non-GM foods, so “[t]o remain competitive, companies would then need to create new products without GMO ingredients.” Id. The argument advanced by food companies that GM foods should not be labeled because food costs would increase is thus hypocritical and misleading. The argument is hypocritical because the cost increase would be a result of those companies’ own choices: first, the rational choice to meet consumer demand—demand that will shift once consumers are empowered by more information about their food; and, second, the questionable choice to pass the costs of meeting that demand onto consumers. See id. The argument is misleading because it assumes that consumers would make different purchasing decisions if they had more information about their food, yet concludes that consumers should not be provided that information: it assumes that the lack of labeling, which the argument defends, misleads consumers. Cf. Fraud, Black’s Law Dictionary (10th ed. 2014) (defining consumer fraud as “[a]ny intentional . . . false pretense . . . made by a seller or advertiser of goods or services to induce a person or people in general to buy”).

    [79] See Lanza, supra note 19, at 4–5; Me. Rev. Stat. tit. 22, § 2591 et seq.; Conn. Gen. Stat. Ann. § 21a-92c.

    Lawmakers in approximately thirty states have proposed legislation that would require labeling of GM foods. See State Labeling Initiatives, Ctr. for Food Safety, http://www.centerforfoodsafety.org/issues/976/ge-food-labeling/state-labeling-initiatives [https://perma.cc/U3DA-KFP5].

    [80] See One Million Strong: Record-Breaking Comments Delivered to FDA to Label GE Foods, Just Label It (Mar. 27, 2012), http://www.justlabelit.org/one-million-strong-record-breaking-comments-delivered-to-fda-to-label-ge-foods/ [https://perma.cc/39D9-ENUE].

    [81] See More than 700 Chefs and Restaurant Owners Push Congress to Label Genetically Modified Foods, AllGov (Dec. 5, 2014), http://www.allgov.com/news/controversies/more-than-700-chefs-and-restaurant-owners-push-congress-to-label-genetically-modified-foods-141205?news=855016 [https://perma.cc/AD7B-XQSG].

    [82] See Labeling Supporters, Just Label It (June 10, 2014), http://www.justlabelit.org/right-to-know-center/labeling-supporters/ [https://perma.cc/5M7L-VZH6]. And don’t forget Neil Young. See Lorraine Chow, Neil Young, Willie Nelson, Dave Matthews, John Mellencamp: Help Us Stop the DARK Act, EcoWatch (Dec. 14, 2015, 10:29 AM), http://ecowatch.com/2015/12/14/stop-dark-act/ [https://perma.cc/Z8B9-8DFP]; Neil Young, The Monsanto Years (Reprise Records, 2015). All four of the famous musicians mentioned in Help Us Stop the DARK Act are board members of Farm Aid. See Chow, supra note 82.

    [83] Stephanie Strom, Campbell Labels Will Disclose G.M.O. Ingredients, N.Y. Times (Jan. 7, 2016), http://www.nytimes.com/2016/01/08/business/campbell-labels-will-disclose-gmo-ingredients.html?_r=0 [https://perma.cc/BHJ8-3SSH].

    [84] See Landrigan & Benbrook, supra note 1; International Labeling Laws, supra note 4.

    [85] See Landrigan & Benbrook, supra note 1; International Labeling Laws, supra note 4. And although they have been advanced as a “compromise” by food industry groups, QR code labels—“Quick Response,” two-dimensional barcodes that are readable by smartphones and when scanned would indicate on a smartphone whether a food is GM—are almost certainly not a satisfactory solution. See Mary E. Kustin, Nothing Smart About “Smart Label”, Envtl. Working Grp.: AgMag Blog (Dec. 2, 2015), http://www.ewg.org/agmag/2015/12/nothing-smart-about-smart-label [https://perma.cc/S8KL-SXD8]. Approximately “88% of American shoppers would prefer to not have to scan a barcode just to find out whether their food contains GMOs” and more than 40% of consumers—especially elderly, low-income, or otherwise disadvantaged consumers—do not even have smartphones. See id.; Morran, supra note 2.

    [86] The Federalist No. 78, at 381 (Lawrence Goldman ed., 2008).

    [87] See Jenny Hopkinson, Pols ask Obama to keep GMO pledge, Politico (Jan. 16, 2014), http://www.politico.com/story/2014/01/barack-obama-gmo-labeling-102266 [https://perma.cc/NYF8-59ZF]. That Politico article appears to misquote President Obama by one word, substituting an “if” for the “whether.” See fooddemocracynow, Obama Promises to Label GMOs, Youtube (Oct. 6, 2011), https://www.youtube.com/watch?v=zqaaB6NE1TI [https://perma.cc/SH8M-AKMD] (streaming a video in which Obama speaks the promise); SunfoodTV, Bill Maher Talks Monsanto, Genetically Modified Food (GMOs) – HD, Youtube (June 28, 2012) https://www.youtube.com/watch?v=csSw3fYnICc [https://perma.cc/M4JE-ZWB9].

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