Bad Science, Bad Law
The Farm Bill is very contentiously trying to make its way through a divided Congress. Right now is amendment time. Senators Sanders and Boxer introduced some atrocious amendments around genetically engineered food that, thankfully, did not pass. They were justified by bad science, the text as written was over-broad and it would make a bad law.
But bills like this have a tendency to show up repeatedly. This text should never become law.
While I’ve copied the full text here, you can read the original on pages S3907-8 by following the link to text as submitted from here. What is wrong with this text? Too much.
Justified With Poor, Scaremongering Science
The necessity for the legislation to label genetically engineered food is given in this section:
(b) Findings.--Congress finds that--
(1) surveys of the American public consistently show that 90 percent or more
of the people of the United States want genetically engineered or modified
foods to be labeled as such;
(2) a landmark public health study in Canada found that--
(A) 93 percent of pregnant women had detectable toxins from genetically
engineered or modified foods in their blood; and
(B) 80 percent of the babies of those women had detectable toxins in their
umbilical cords;
Polls of non-experts are not a good justification for confusing, scaremongering labeling.
But far worse is the referenced “landmark public health study”. The only study this could refer to is this [Aris and Leblanc](http://www.ncbi.nlm.nih.gov/pubmed/21338670) study. The study ostensibly found Cry proteins — the ones produced by genetically engineering Bt corn to fight off pests such as corn borer — in mothers and umbilical cord blood. It’s been criticized strongly for enough [reasons](http://www.biofortified.org/2011/04/nonsense/) that it should not be used to support legislation. A short summary:
* The authors assume the source of the Bt toxins in blood must be genetically engineered crops, even though Bt toxin, from the spray of the bacteria that was the source for the Bt gene itself, is regularly applied to organic and conventional, non-GE crops.
* The amounts ostensibly measured in blood would require that the mothers eat large amounts of corn and the authors did not even confirm that the mothers ate corn regularly, much less Bt corn.
* The method used to detect Cry proteins the authors used is not sufficient by itself to actually detect them reliably: it was originally intended to be used only on plant material. In other words, the authors were probably measuring noise.
* Worse, even if the results were valid (which they probably are not and they haven’t been replicated), there’s no reason to believe it would be a harmful. Humans have been eating Bt toxins in various forms since at least the 1950s and no adverse affects have been found (there have even been numerous feeding studies for Bt toxins to look for problems).
This study is frequently cited by anti-GM activists as proof that genetic engineering (of the transgenetic variety) is unsafe. But the study is flawed and it doesn’t show what it postulates to show. Even if this study did show that Bt corn was unsafe, it would only show the danger of that particular trait, not every trait. But this doesn’t stop people from using this study to say that all genetic engineering is dangerous to human health.
To see this study used by Senators [Sanders](http://en.wikipedia.org/wiki/Bernie_Sanders) and [Boxer](http://en.wikipedia.org/wiki/Barbara_Boxer) depresses me. I have actually voted for Senator Boxer and considered her a good legislator, not given to being swayed by propaganda. The use of this study as support for legislation is pure propaganda, unrelated to good science.
### Expansive Definition of Genetic Engineering
For better or worse, most people think of “genetic engineering” as referring to those techniques that bring in “foreign” or “cross-species” genes into an organism. A more scientific definition would probably include pretty much all modifications humankind has made to organisms we use — teosinte into corn, wild grasses into varities whose heads don’t shatter, etc. But given the regulatory and cultural environment, limiting it to organisms made with more modern techniques that introduce the gene via, e.g. [Agrobacterium-mediated](http://en.wikipedia.org/wiki/Agrobacterium#Uses_in_biotechnology) methods is probably acceptable. This proposed law, as written, would wildly change that definition. The relevant text:
(A) IN GENERAL.--The term `genetic engineering' means a process that
alters an organism at the molecular or cellular level by means that are not
possible under natural conditions or processes.
(B) INCLUSIONS.--The term `genetic engineering' includes--
(i) recombinant DNA and RNA techniques;
(ii) cell fusion;
(iii) microencapsulation;
(iv) macroencapsulation;
(v) gene deletion and doubling;
(vi) introduction of a foreign gene; and
(vii) changing the position of genes.
(C) EXCLUSIONS.--The term `genetic engineering' does not include any
modification to an organism that consists exclusively of--
(i) breeding;
(ii) conjugation;
(iii) fermentation;
(iv) hybridization;
(v) in vitro fertilization; or
(vi) tissue culture.
(2) GENETICALLY ENGINEERED AND GENETICALLY MODIFIED INGREDIENT.--The term
`genetically engineered and genetically modified ingredient' means any
ingredient in any food, beverage, or other edible product that--
(A) is, or is derived from, an organism that is produced through the
intentional use of genetic engineering; or
(B) is, or is derived from, the progeny of intended sexual reproduction,
asexual reproduction, or both of 1 or more organisms described in subparagraph (A).
If this text passed as written, there would likely be endless legal action around this definition. There are numerous problems with it, so I’ll limit myself to two. This definition would re-classify two common plant modification techniques that have been used for a century which are not usually considered “genetic engineering” (at least for regulatory purposes):
* Mutation breeding is a process by which a chemical or other mutagen is applied to an organism to create hopefully useful novel genes that can improve the organism (usually a plant). Mutation breeding is a heavy-handed tool and most changes are not actually useful (usually the cells just don’t survive). It could involve modifications like gene deletion, doubling, changing positions and (depending on how you think about it) introducing foreign genes — certainly this process can introduce genes that did not exist in the plant previously (and might be found in other organisms). Some foods that were produced using this method include a common grapefruit variety and a common short-grain rice.
* A common technique in producing fertile hybrid plants is to induce polyploidy which literally doubles all genes in the offspring of a cross. Without it, many cross-species plant hybrids would be sterile. Triticale as [previously noted](http://localhost:4000/blog/2012/05/31/smells-ctenophores-and-triticale/) is one such hybrid. Perhaps the Senators did not mean to reclassify triticale as genetically engineered, but it certainly reads that way to me.
One side note for the vegetarians: any GMO labeling legislation (including this one) would necessarily result in most strictly vegetarian cheeses being labeled as having genetically engineered ingredients. Most vegetarian cheeses use an enzyme produced by a genetically engineered bacteria. The enzyme itself is identical to the one isolated from the guts of dead calves, but is suitable for vegetarians since no calves are killed. Any state adopting a labeling law under this legislation would require labels on these cheeses, even though the product is basically the same as a cheese that uses animal-derived rennet.
It’s Unnecessary
There’s just no reason to explicitly enshrine a right to know at the federal level for genetically engineered food ingredients. The federal bodies enjoined with food safety, as a matter of policy for a century, do not require labels unless they will improve the ability of consumers to make safe or healthy choices. Nutritional information, allergens and broad ingredients are labeled. Genetically engineered foods as they exist now are nutritionally equivalent to the their conventional ingredients and are tested for unexpected or novel changes (such as unintended allergens). In other words, Bt corn is corn.
This enshrinement at the federal level implies that somehow states could not choose to pass this labeling on their own. California is currently considering a GMO labeling initiative and has previously labeled useless things (an overly broad “may contain carcinogens” law), so this federal law would be redundant. However, since it enshrines an excessively broad definition of genetic engineering, it could do massive harm to the agricultural and food industries while causing unnecessary fear in the public.
Thankfully, this amendment didn’t pass. It was unlikely to pass the House, even if it had made it through the Senate. But Senators Sanders and Boxer should never have introduced it. Even for a GMO labeling law, it is poorly written. It shows deep ignorance (or just a complete lack of care) from the Senators. There may be good reasons to label foods containing genetically engineered ingredients, but this law does not present them or even usefully define them.
Unfortunately, while it didn’t pass, amendments like this are often offered on many bills in an attempt to get them passed. I’m pleased that Sanders and Boxer first tried the Farm Bill (actually related legislation) but I don’t expect it to be the only attempt. Our civilization has enough problems to solve without exaggerating worries about one particular agricultural tool.
Full Text of Proposed Amendment
The full text as found here:
SA 2256. Mr. SANDERS (for himself and Mrs. BOXER) submitted an amendment intended
to be proposed by him to the bill S. 3240, to reauthorize agricultural programs
through 2017, and for other purposes; which was ordered to lie on the table; as follows:
On page 1009, after line 11, add the following:
SEC. 12207. CONSUMERS RIGHT TO KNOW ABOUT GENETICALLY ENGINEERED FOOD ACT.
(a) Short Title.--This section may be cited as the `Consumers Right to Know
About Genetically Engineered Food Act'.
(b) Findings.--Congress finds that--
(1) surveys of the American public consistently show that 90 percent or more
of the people of the United States want genetically engineered or modified
foods to be labeled as such;
(2) a landmark public health study in Canada found that--
(A) 93 percent of pregnant women had detectable toxins from genetically
engineered or modified foods in their blood; and
(B) 80 percent of the babies of those women had detectable toxins in their
umbilical cords;
(3) the tenth Amendment to the Constitution of the United States clearly
reserves powers in the system of Federalism to the States or to the people; and
(4) States have the authority to require the labeling of foods produced
through genetic engineering or derived from organisms that have been
genetically engineered.
(c) Definitions.--In this section:
(1) GENETIC ENGINEERING.--
(A) IN GENERAL.--The term `genetic engineering' means a process that
alters an organism at the molecular or cellular level by means that are not
possible under natural conditions or processes.
(B) INCLUSIONS.--The term `genetic engineering' includes--
(i) recombinant DNA and RNA techniques;
(ii) cell fusion;
(iii) microencapsulation;
(iv) macroencapsulation;
(v) gene deletion and doubling;
(vi) introduction of a foreign gene; and
(vii) changing the position of genes.
(C) EXCLUSIONS.--The term `genetic engineering' does not include any
modification to an organism that consists exclusively of--
(i) breeding;
(ii) conjugation;
(iii) fermentation;
(iv) hybridization;
(v) in vitro fertilization; or
(vi) tissue culture.
(2) GENETICALLY ENGINEERED AND GENETICALLY MODIFIED INGREDIENT.--The term
`genetically engineered and genetically modified ingredient' means any
ingredient in any food, beverage, or other edible product that--
(A) is, or is derived from, an organism that is produced through the
intentional use of genetic engineering; or
(B) is, or is derived from, the progeny of intended sexual reproduction,
asexual reproduction, or both of 1 or more organisms described in subparagraph (A).
(d) Right to Know.--Notwithstanding any other Federal law (including
regulations), a State may require that any food, beverage, or other edible
product offered for sale in that State have a label on the container or
package of the food, beverage, or other edible product, indicating that the
food, beverage, or other edible product contains a genetically engineered
or genetically modified ingredient.
(e) Regulations.--Not later than 1 year after the date of enactment of this
Act, the Commissioner of Food and Drugs and the Secretary of Agriculture
shall promulgate such regulations as are necessary to carry out this section.
(f) Report.--Not later than 2 years after the date of enactment of this Act,
the Commissioner of Food and Drugs, in consultation with the Secretary of
Agriculture, shall submit a report to Congress detailing the percentage of
food and beverages sold in the United States that contain genetically
engineered or genetically modified ingredients.
### Redundant Civil Protections for Farmers
I don’t want to go over in detail the second amendment introduced (see below) related to genetic engineering. At best this law would be redundant and at worst completely unfair. It ostensibly protects farmers from being held liable for accidental violation of patents or similar due to accidental contamination. In reality, farmers are not successfully sued for truly accidental violations of seed patents or contracts. It also enshrines a right to sue if one’s crops are contaminated from genetically engineered organisms. This right already exists and it has little to do with specifically GM traits, but rather with general problems of managing similar crop varieties or close species in adjacent fields. For example, economically relevant contamination can happen with different varieties of conventional canola or neighboring beet family species that are planted too close to each other. There’s no reason to enshrine in federal law specific protections around genetically engineered plants: current statute is sufficient. Far worse is that this proposal seems to allow a farmer to successfully sue the maker of a GE seed even if their seed was misused (e.g. a neighboring farmer planting a GE crop too close).
SA 2257. Mr. SANDERS submitted an amendment intended to be proposed by him to the bill S. 3240, to reauthorize agricultural programs through 2017, and for other purposes; which was ordered to lie on the table; as follows:
On page 1009, after line 11, add the following:
SEC. 12207. AGRICULTURAL PRODUCER PROTECTION ACT.
(a) Short Title.--This section may be cited as the `Farmer Protection Act'.
(b) Definitions.--In this section:
(1) AGRICULTURAL PRODUCERS OF NONGENETICALLY ENGINEERED PRODUCTS.--The term
`agricultural producer of nongenetically engineered products' means any
agricultural producer who produces seeds, crops, plants, or products without
genetically engineered products.
(2) BIOTECH COMPANY.--The term `biotech company' means a person--
(A) engaged in the business of genetically engineering a seed, crop, plant,
product, or organism; or
(B) that owns the patent rights to a genetically engineered product for the
purpose of commercial exploitation of that genetically engineered product.
(3) CONTAMINATION.--The term `contamination' means the unwanted trespass,
whether through pollination or other means, of a genetically engineered
product into the seed, crop, plant, or product of an agricultural producer
who does not use genetically engineered products.
(4) GENETIC ENGINEERING.--
(A) IN GENERAL.--The term `genetic engineering' means a process that
alters an organism at the molecular or cellular level by means that are not
possible under natural conditions or processes.
(B) INCLUSIONS.--The term `genetic engineering' includes--
(i) recombinant DNA and RNA techniques;
(ii) cell fusion;
(iii) microencapsulation;
(iv) macroencapsulation;
(v) gene deletion and doubling;
(vi) introduction of a foreign gene; and
(vii) changing the position of genes.
(C) EXCLUSIONS.--The term `genetic engineering' does not include any
modification to an organism that consists exclusively of--
(i) breeding;
(ii) conjugation;
(iii) fermentation;
(iv) hybridization;
(v) in vitro fertilization; or
(vi) tissue culture.
(5) GENETICALLY ENGINEERED PRODUCT.--The term `genetically engineered
product' means any seed, crop, plan, product, or organism that--
(A) is, or is derived from, an organism that is produced through the
intentional use of genetic engineering; or
(B) is, or is derived from, the progeny of intended sexual reproduction,
asexual reproduction, or both of 1 or more organisms described in subparagraph (A).
(c) Liability of Agricultural Producers of Nongenetically Engineered Products.--
(1) IN GENERAL.--No agricultural producer shall be liable to a biotech
company under any provision of Federal, State, or local law, including for
injury, monetary damages, or patent infringement, resulting from the
contamination of the seeds, crops, products, or plants of the agricultural
producer by a genetically engineered product that is created, produced, or
distributed by the biotech company.
(2) WAIVER.--The liability described in paragraph (1) shall not be waived or
otherwise avoided by contract.
(d) Private Right of Action by Agricultural Producers of Nongenetically
Engineered Products.--Any agricultural producer of nongenetically engineered
products whose seeds, crops, plants, or products are contaminated by a
genetically engineered product may, in a civil action in a court of
competent jurisdiction, bring an action against a biotech company for
monetary damages for injury to the agricultural producer caused by the
genetically engineered product.
(e) Attorney's Fees.--The court may award a reasonable attorney's fee to the
prevailing plaintiff in an action brought under subsection (d).