So far this year, 25 state legislatures have proposed mandatory labeling of genetically modified foods. But a look at existing measures around the country reveals widespread discrepancies over which foods should be included or declared exempt—raising concerns that we're heading toward a regulatory train wreck.
State governments are taking the matter into their own hands because the federal government currently has little to say on the issue. The U.S. approach to regulating GMOs is premised on the assumption that regulation should focus on the nature of the products, rather than the process in which they were produced — which is why the Food and Drug Administration states on its website that it "has no basis for concluding that bioengineered foods differ from other foods in any meaningful or uniform way, or that, as a class, foods developed by the new techniques present any different or greater safety concern than foods developed by traditional plant breeding."
Anti-GMO activists disagree, and have pushed for labeling measures under the premise that the public has a right to be informed about the food they are eating. But even activists disagree over what constitutes GMO food. Just take a look at what's happening in Vermont.
This past may, Vermont passed a law requiring that all genetically modified foods sold in the state must be labeled. The legislation, considered the toughest GMO labeling law in the country, goes into effect in 2016. But, for the time being, it includes a mighty big loophole that excludes the labeling of milk and cheese, which is quite a noticeable exemption given that the state is best known for its dairy products.
The big question: Should milk derived from a dairy cow that ate genetically modified feed be labeled a GMO food?
The Vermont Public Interest Research Group (VPIRG), which lobbied for the legislation, supported the exemption. As one Vermont news site reports:
"We wanted to make the law about genetically modified foods," said Falko Schilling, a lobbyist for the Vermont Public Interest Research Group. "Milk itself is not genetically modified."
VPIRG's pro bono legal counsel, the Environmental and Natural Resources Law Clinic at the Vermont Law School, testified that case law also supports the exemption. Andrew Homan cited the failed regulation of the growth hormone rBST as a lesson that any object of labeling regulation must be provably different from the products that don't require labels.
Milk samples from animals that have and have not consumed GMO grains have not been proven compositionally distinct, he said. Therefore, they should be treated the same.
The state attorney general's office has been tasked with producing a report in 2015 to determine whether milk and dairy products should be labeled. Vermont supporters of the law hope to demonstrate that the choice to exempt dairy is based on legitimate science, not pressure from the dairy industry.
"The bill that passed would give milk a temporary pass and would require the state to study if it's a legitimate exemption," said State Rep. Paul Ralston, who voted in favor of the bill. "Vermont is a dairy state. If we said no to GMOs except for the stuff we produce, it would be like Iowa saying they'll label everything except GMO corn."
Rebecca Spector, the West Coast director for the Center for Food Safety, who helped draft the bill, believes that, regardless of what the attorney general finds, the exemption for dairy will likely remain. The report, she days, might merely "provide a recommendation" that such products should be labeled.
But even if Vermont gives milk its seal of approval, other anti-GMO campaigners will find it hard to swallow. For instance, Green America's GMO Inside campaign recently launched a major push for Starbucks to serve only milk sourced from cows that are fed a diet free of GMO feed.
"Starbucks already serves soy milk that is organic and non-GMO; consumers also deserve dairy milk held to the same standard and level of quality," said Green America's GMO Inside Campaign Director Nicole McCann in a prepared statement. "Consumers will put pressure on Starbucks to serve only organic, non-GMO milk."
A similar campaign has been waged against Chobani yogurt. In fact, Whole Foods decided last year to stop selling Chobani — attributing the decision, in part, to the yogurt maker's use of milk from cows whose feed is derived from GMO foods like corn and soy beans.
Whole Foods has further said it will require products sold in its stores to disclose whether they contain such ingredients by 2018. And that's raising concerns among cheese makers. As science and food writer Claire Leschin-Hoar reports:
To make milk into cheese, you have to coagulate the milk, and usually that's done with rennet. Some rennet comes from animal sources, and others start off as a yeast or mold. There are vegetable-based rennets too, but some can provide unpredictable results. That's why many cheese makers turn to rennet known as FPC (fermentation produced chymosin), which is produced through genetic engineering. The Dairy Research Institute estimates that FPC is used in 90 percent of the cheese produced in the U.S.
Cheese makers who use FPC in Vermont are currently exempt from labeling their produce as GMO food. But Whole Foods' new policy will require cheese makers to stop using FPC if they want to earn the coveted non-GMO label. As the Guardian reports:
As the largest specialty cheese retailer in the nation, Whole Foods' decision casts a long shadow across the industry. For producers who want to continue selling their products there, the scramble to source non-GMO ingredients is heating up. The company's standards are still developing, but by 2018, its producers will have to label products made from GMO ingredients – including dairy and meat products derived from livestock fed with genetically engineered crops.
For cheesemakers, whose products often require a year or more of careful aging, that timeline is becoming even more pressing.
"You have to be verified [non-GMO] for 12 months by an independent third party," Kehler explains. "If you're making a cheese that's aged a year, like Cabot clothbound cheddar, you need to start in March 2017, which means we have from now until March 2016 to figure this out."
But even as many anti-GMO activists and Whole Foods set tougher standards by demanding "full disclosure" across the entire food production chain, other labeling practices seem more intent on sowing confusion than providing enlightenment.
For instance, a bag of almonds at Whole Foods certifies that it is a non-GMO product. But that's a somewhat curious statement to make, since there are no biotech almonds in existence.
As Michael Schulson writes in the Daily Beast, a lot of Whole Foods' products now carry labels that say "Non-GMO Project Verified":
The Non-GMO Project... provides a voluntary way for manufacturers to declare themselves GMO free. The Project has verified more than 20,000 products across more than 2,000 brands. Whole Foods has been a leading partner in this effort, requiring all of its providers to be GMO-free or GMO-labeled by 2018, and using the Non-GMO Project to certify Whole Foods' in-house brands. Increasingly, though, the Project's logo is also popping up on more conventional foods—things like Post cereals.
Dig deeper, though, and these tactics start to look somewhat deceptive. …many of the foods that the Project certifies don't have any genetically modified alternatives on the market. There are only a few food plants in the United States that have their genomes tweaked in a lab, rather than by traditional breeding and hybridization, which is how people have genetically engineered plants for millennia.
As a result, the Non-GMO Project seal often implies that a product… is different than other products on the market, even when it's not... "It ends up creating more confusion," said Violet Batcha, the communications manager for Just Label It, which advocates for mandatory, rather than voluntary, labeling.
What's going to happen if states don't share a consensus on what is or isn't a GMO food? How far up the production chain will legislators want to go? And will retailers compel state food producers to change their practices by shifting their standards for GMO labeling? Those are just some of the issues that will have to be worked out. But if the states are truly the laboratories of democracy, then this is one lab experiment that seems on the verge of imploding.