John Block: Bird Flu

By John R. Block

There is no industry more volatile or more uncertain than agriculture. The drought came and Texas and Oklahoma ranchers had to sell their cattle – not enough feed. Beef prices shot up. We still don’t have enough beef. The pork industry was hit with a swine disease. Thousands of baby pigs died. That resulted in a pork shortage and those prices shot up.

Now, we have bird flu. Who would have predicted? The H5N2 virus has killed 47 million chickens. We should be producing enough eggs to meet domestic demand and be able to export more than 30 million eggs per month. Not now. Iowa has been hurt the most – losing 30 million birds. That’s half the laying hens in the state.

The price of eggs has doubled. Egg processors making cakes, cookies, Krispy Kreme donuts, etc. are crying for eggs. For the first time in 10 years, we have authorized imports. Seven European countries have been approved to import shell eggs. Government officials say it will take as long as 2 years to get our production of eggs back to where it was before the virus.

This is not the first time we have been hit with a bird flu virus. When I was Secretary of Agriculture in the early 80s, we had our last bad bout with bird flu. That was a disaster then. But this time is much worse.

The Department of Agriculture oversees these problems. Farmers are compensated for the birds that die or are destroyed. According to Secretary Vilsack, the cost could exceed a half billion dollars. We are losing a lot of birds, including egg-laying hens, broilers, and turkeys. It will take a lot of money and time to rebuild the business.

Stopping the spread of the virus will not be so easy. Canadian geese in the state of Michigan have tested positive. They fly everywhere. In the meantime, the industry is looking for a vaccine to protect against the virus. None approved as of yet.

There is no industry more essential to mankind than food production. There is no industry more uncertain. And yet, our farmers and ranchers persist and get the job done. Did you know that this spring world food prices fell to their lowest level since 2009?

John Block was Secretary of the U.S. Department of Agriculture from 1981-1985, where he played a key role in the development of the 1985 Farm Bill.

John Block: GMOs Under Assault

By John R. Block

We can’t seem to silence or satisfy the loud scream of opposition to GE crops. The reason probably is that up until now we have ignored them. It’s time to stand up and set the record straight.

GE food is safe and even beneficial according to 88% of scientists. We have conducted more than 1,000 studies. We have been eating GE food for more than 20 years – no one has gotten sick.

The fact is that for thousands of years, farmers have been improving crops through selective breeding. That process alters genes. We have found that in the laboratory we can do it faster.

Never mind the facts, the critics are beating the drums. Three states have passed labeling laws. Vermont is in the lead as they begin to implement their law. It sounds simple. Just label the food if it has GMO products in the food.

It’s not that simple. Vermont has a long list of exemptions. Animal products are exempt – beef, pork, chicken, dairy. But keep in mind the animals were fed GMO corn and soybean meal.

Trying to get out ahead of everyone, Chipotle recently announced that it has gone GMO free. But it’s not really free. The soft drinks are made with GMO corn sweetener. The burritos have GMO corn-fed beef, pork, chicken, and GMO sour cream.

The U.S. Congress is considering as many as 30 bills to deal with the GMO debate. You may wonder where all of this noise is coming from. Yes, there are individuals that sincerely are concerned about GMO safety. However, the organic companies (some of them are huge) are helping to push the false argument about risk. If they succeed, they can sell more product and make more money.

This debate is not over. You will soon read about the next step in plant technology – gene editing. Gene editing is a more precise way to alter plant traits.

The leading critics of GMOs are totally inconsistent. First, they support the science on global warming, but ignore the science on GMOs. Next, they pretend to care about the poor, but genetic engineering helps the poor by keeping the cost of food down. The world will not produce enough food without new technology. Finally, if they want to reduce the use of chemicals and energy, GE also does that.

Stay tuned.

John Block was Secretary of the U.S. Department of Agriculture from 1981-1985, where he played a key role in the development of the 1985 Farm Bill.

Clearing Up Confusion: The Net Quantity of Contents Declaration on Food Labels

By Robert A. Hahn

The FDA’s food labeling regulations include some traps for the unwary.  A few of those traps have to do with the net quantity of contents declaration.

Here are a couple of points to keep in mind when declaring a food product’s net contents:

  • When the net contents declaration is expressed in terms of weight, FDA requires that the declaration include the words “Net weight” or the abbreviation “Net Wt.” However, when the net contents is expressed in fluid measure or numerical count, use of the words “Net” or “Net Contents” is optional.  21 C.F.R. § 101.105(j)(3), (n).  NOTE: In 1993, FDA proposed to remove the requirement to include the words “Net Weight” or “Net Wt,” but the proposed rule was withdrawn in 2004.  See 58 Fed. Reg. 29716, 29724 (May 21, 1993) and 69 Fed. Reg. 68831 (Nov. 26, 2004).  FDA’s current position is that the prefatory language “Net weight” or “Net Wt” is required when the net contents is expressed in terms of weight.  The abbreviation “Net Wt” is frequently presented in all upper case letters, e., “NET WT.”
  • Although FDA regulations continue to provide that a separate statement of the net contents in metric measure is optional (21 C.F.R. § 101.105(p)), the fact is that the net contents declaration, with very limited exceptions for random weight packages and for foods packaged in a retail store, must be expressed in both avoirdupois measure (g., ounce, pound, fluid ounce, pint, quart) and metric measure (e.g., milligram, gram, milliliter, liter). The Fair Packaging and Labeling Act (FPLA) was amended in 1992 to require use of metric measure (15 U.S.C. § 1453(a)(2)), but FDA has never amended its regulations to implement this statutory change.  Nevertheless, the FPLA is the law.
  • FDA requires that the net contents declaration use the largest appropriate unit of measure.  For example, 24 oz should be expressed as “1.5 lb,” “1 ½ lb,” or “1 lb 8 oz,” and 1,100 mL should be expressed as “1.1 L.”  Again, the FPLA was amended to require use of the largest appropriate unit of measure, but FDA has not amended its own regulations to reflect the statutory change.  NOTE: “Dual avoirdupois” declaration (i.e., expressing the net contents in avoirdupois measure using both the largest appropriate unit of measure and ounces or fluid ounces, as, for example, “1.5 lb (24 oz) 680 g”) is permitted as an option to facilitate value comparisons by consumers.

Recapping Round 1 of the Vermont GMO-Labeling Lawsuit

By John G. Dillard

Millions across the globe tuned into this weekend’s Mayweather-Pacquiao bout, which was billed as “the fight of the century.” However, the pay-per-view event was not the only high stakes fight to report on from last week. Far away from the glitz and glamor of Las Vegas, a federal court in Vermont issued a much-anticipated opinion in what will be one of the true fights of the century for the American food industry – whether state governments can mandate GMO labels.

On April 27, 2015, Chief Judge Christina Reiss of the U.S. District Court for the District of Vermont issued an opinion that mostly favored the State of Vermont and the positions of GMO-labeling advocates. In the case, Grocery Manufacturers Association v. Sorrell (No. 5:14-cv-117), the Grocery Manufacturers Association, Snack Food Association, International Dairy Foods Association, and National Association of Manufacturers (the “Plaintiffs”) are challenging Vermont’s Act 120, which requires that certain foods sold at retail stores in Vermont bear mandatory labeling if they contain genetically-engineered ingredients. Act 120 also prohibits manufacturers from advertising or labeling foods that contain genetically-engineered ingredients as “natural” or “all natural.”

Both supporters and opponents of mandatory GMO-labeling have been keeping a close eye on this lawsuit. This is because Act 120, if it survives litigation, will make Vermont the first state in the country to require that certain foods containing ingredients produced with genetic engineering bear mandatory labels. GMA v. Sorrell is the test case for this issue, which will certainly reach the Second Circuit Court of Appeals and, possibly, the Supreme Court.

The Plaintiffs challenged Act 120 from several angles. First, the Plaintiffs asserted that Act 120’s GMO-labeling mandate was unconstitutional under both the First Amendment and the Constitution’s Commerce Clause. The Plaintiffs also argued that the GMO-labeling mandate was preempted by the Federal Food, Drug, and Cosmetic Act (FFDCA), the Nutritional Labeling and Education Act (NLEA), the Federal Meat Inspection Act (FMIA), and the Poultry Products Inspection Act (PPIA). Furthermore, the Plaintiffs asserted that the ban on “natural” labeling is unconstitutional under the Commerce Clause and the First Amendment.

The State of Vermont filed a motion to dismiss the Plaintiffs’ case on August 8, 2014. Subsequently, the Plaintiffs sought a preliminary injunction that would halt implementation of Act 120 while the Court decides whether to issue a permanent injunction invalidating Act 120. Chief Judge Reiss heard oral arguments on both of these motions on January 7, 2015, and issued an 84-page opinion in the case last Monday.

GMO-Labeling Mandate

The Plaintiffs challenged Act 120’s GMO-labeling mandate under the First Amendment, Commerce Clause, and Supremacy Clause. Here is how the Court addressed these issues:

  • First Amendment. The Plaintiffs alleged that Act 120’s GMO-labeling mandate violated the First Amendment’s protections against unlawfully-compelled speech. The Court held that “strict scrutiny” was not warranted in this case and dismissed the Plaintiffs’ complaint to the extent that it argued strict scrutiny applied. Instead, the Court held that the proper standard is most likely the “reasonable relationship” test. Under this test, also known as the Zauderer test, the Court held that for the purposes of preliminary injunction, the Plaintiffs were not likely to succeed on their First Amendment complaints. The Court reasoned that unless Vermont’s “legislative findings” prove unfounded at the permanent injunction stage of this litigation, the State has demonstrated a reasonable relationship between the state’s interest and the GMO-labeling mandate.
  • Commerce Clause. The Plaintiffs argued that Vermont’s labeling measure violates the Constitution’s Commerce Clause because the state-based labeling measure would create an undue burden on interstate commerce, ultimately resulting in a 50-state patchwork of labeling laws. The Court was not convinced, noting that there were no other states with conflicting labeling laws. The Court dismissed the Plaintiffs’ complaint to the extent that it alleged the GMO-labeling mandate was unconstitutional under the Commerce Clause.
  • Supremacy Clause. The Plaintiffs asserted that the GMO-labeling mandate was preempted by the FFDCA, NLEA, FMIA, and PPIA. The Court was not convinced by the Plaintiffs’ arguments with regards to the FFDCA or the NLEA. However, the Court agreed that the FMIA and PPIA expressly preempted state standards for “[m]arking, labeling, packaging, or ingredient requirements in addition to, or different than, those mandated by federal law.” This means that processed and packaged foods that are subject to USDA inspection, such as canned soups or frozen dinners containing meat or poultry products, cannot be subject to state GMO-labeling mandates. Vermont has already conceded this issue in its final rule, which implements Act 120.

“Natural” Labeling Prohibition

The Plaintiffs also challenged Act 120’s prohibition on advertising and labeling of products containing genetically-engineered ingredients as “natural,” “all natural,” or words of similar import. The Plaintiffs argued that this prohibition violated the First Amendment. The Court sided with the Plaintiffs on the First Amendment argument, reasoning that prohibitions on commercial speech are subject to “intermediate scrutiny” under the Central Hudson test. The Court held that Vermont has failed to demonstrate a “substantial” state interest in prohibiting these labels. The Court also held that the “natural” labeling prohibition violated the Commerce Clause to the extent that it attempted to regulate advertising that occurred outside of Vermont.

Although the Court largely sided with the Plaintiffs on the “natural” labeling prohibition, Chief Judge Reiss did not grant a preliminary injunction on this matter, citing to a lack of proof of “irreparable harm” on the part of the Plaintiffs.

Next Steps

This first round of the litigation is certainly a setback for those in the food industry that oppose state-level GMO-labeling mandates. However, this is only the first round. The Plaintiffs have not announced their next steps. At this point, they may either (1) seek an interlocutory appeal of this decision at the Second Circuit Court of Appeals, or (2) move forward to the permanent injunction stage of this litigation.

In the meantime, support is growing for the proposed Safe and Accurate Food Labeling Act of 2015, which would preempt state GMO-labeling measures and set standards for when GMO labels could and could not be required. However, no votes have been taken on this measure and it is uncertain whether the measure has a chance of being enacted into law.

OFW Law will continue to monitor developments in this case.

Food Defense Plans

By Barbara J. Masters, D.V.M.

One of the goals of the Food Safety and Inspection Service’s Strategic Plan is to “ensure that facilities implement safeguards and systems to protect food from contamination by people who might try to intentionally and maliciously harm consumers.”  The Agency has a FY 2015 target of 90% of all establishments having a functional food defense plan. Since 2006, annual surveys have been conducted to measure progress.  The largest establishments currently exceed the goal (97% have a functional plan) while the very small establishments are not yet at the target.

The Food Safety Modernization Act (FSMA) requires the Food and Drug Administration (FDA) to implement measures to protect the food supply from intentional contamination.  A proposed rule to address hazards resulting from intentional contamination was issued on December 24, 2013.

Both FSIS and FDA have taken substantial measures to assist the food industry in the development of food defense plans.  The FSIS webpage includes a tool that an establishment can download to select the specific elements appropriate for their facility.  FDA maintains an on-line food defense plan builder free to all users.  Once a plan is documented, the establishment must implement the plan.  Steps to implementing a food defense plan include:

  • Testing the plan (e.g., check locked doors, take unannounced walks around the perimeter), and
  • Reviewing and maintaining the plan (review and update as needed).

Food defense plans should be tailored to the facility.  Small establishments do not need to make the plan overly burdensome.  For example, a plant that only employs family members would not need background checks on employees as a critical element.  However, this establishment could document the use of door locks and outdoor lighting at key locations in the facility.

Areas to be considered in a food defense plan are: outside security, inside security, personnel security measures and incident response security measures.

When I go visit any establishment, I am always asked to show my identification.  I am always escorted during the visit, and I see emergency plans posted at every facility.  These are all elements of a food defense program.  If these elements for secure food are already in place, it is logical that they could easily be documented and verified by the establishment.

I encourage those plants that are not currently maintaining a functional food defense plan to review the FSIS and FDA websites.  I challenge them to consider that they very likely already have all the elements in place for a food defense plan – the plan just needs to be documented.  By documenting the plan – the establishment is taking the necessary steps to ensure all team members are aware of the program and are taking steps to consistently implement it.

If by maintaining a functional food defense plan we can contribute to a safer and more secure food supply, then I am certain we are all in favor of meeting this objective.

Food Facility Registration Rules To Be Updated by FDA

by Michael J. O’Flaherty

FDA has published a proposed rule that would amend and update its regulatory requirements governing registration of food facilities.

The Public Health Security and Bioterrorism Preparedness and Response Act of 2002 (the Bioterrorism Act), which essentially directed FDA to take steps to protect the public from a threatened or actual terrorist attack on the U.S. food supply, added section 415 to the Federal Food, Drug, and Cosmetic Act (FD&C Act). Among other actions taken to implement the Bioterrorism Act, pursuant to section 415 the agency established regulations requiring that food facilities register with FDA. These regulations became effective on December 12, 2003.

The FDA Food Safety Modernization Act (FSMA) of 2011 amended section 415 of the FD&C Act to require that facilities engaged in manufacturing, processing, packing, or holding food for consumption in the U.S. submit additional registration information to FDA, including an assurance that FDA will be permitted to inspect the facility at the times and in the manner permitted by the FD&C Act. As amended, section 415 also requires food facilities to renew their registrations every other year, and provides FDA with authority to suspend the registration of a food facility in certain circumstances. FDA has issued a number of guidance documents to assist the industry in complying with the food facility registration requirements. See generally Guidance for FDA Staff: Compliance Policy Guide Sec. 100.250 Food Facility Registration – Human and Animal Food (June 2014); Guidance for Industry: Questions and Answers Regarding Food Facility Registration (Sixth Edition) (rev. Nov. 18, 2014); Guidance for Industry: What You Need to Know About Registration of Food Facilities; Small Entity Compliance Guide (rev. Dec. 17, 2014); and Guidance for Industry: Necessity of the Use of Food Product Categories in Food Facility Registrations and Updates to Food Product Categories (rev. May 18, 2014)..

Under FDA’s present regulations, certain food facilities, including retail food establishments, are exempted from the requirement to register. The proposed rule would amend the regulatory definition of a “retail food establishment” in a way that would expand the number of establishments that are subject to the exemption. A retail food establishment is currently defined as an establishment that sells food products directly to consumers as its primary function. An establishment’s primary function is to sell food directly to consumers if the annual monetary value of sales of food products directly to consumers exceeds the annual monetary value of sales of food products to all other buyers. The proposed rule would clarify that, in determining the primary function of an establishment, the sale of food directly to consumers from an on-farm establishment includes sales by the establishment at such direct sales platforms as roadside stands, farmers’ markets, and Community Supported Agriculture (CSA) programs. Based on currently available data, FDA estimates that there are approximately 71,000 farms that only sell food products directly to consumers in ways that include farmers markets, roadside stands, and CSA programs. [Note: Inasmuch as the amended definition would exempt additional establishments from the requirement to register, these establishments also would not be subject to the requirements of the FSMA preventive controls rulemakings, which apply to facilities that are required to register.] See generally Questions and Answers for Farmers on FSMA Proposed Rule for Food Facility Registration (rev. Apr. 8, 2015).

For food facilities that are not exempt from registration, the proposed rule would add new provisions to the current regulations to codify certain requirements of FSMA that were self-implementing and effective upon enactment of FSMA. Those requirements are:

  • Registrations for domestic facilities must contain the email address of the contact person of the facility, and registrations for foreign facilities must contain the email address of the U.S. agent for the facility.
  • Food facilities that are required to register with FDA must renew their registrations every two years, between October 1 and December 31 of each even-numbered year.
  • All food facility registrations must contain an assurance that FDA will be permitted to inspect the facility at the times and in the manner permitted by the FD&C Act.

In addition, the proposed rule would add certain new requirements, including:

  • All food facility registrations would be required to be submitted to FDA electronically; however, this requirement would not take effect before January 4, 2016.
  • Registrations would be required to contain the type of activity conducted at the facility for each food product category.
  • The proposed rule would provide for measures to verify certain information submitted in registrations.
  • The proposed rule would identify additional circumstances under which FDA will cancel registrations (i.e., FDA independently verifies that the facility is not required to register; information about the facility’s address was not updated in a timely manner; the registration was submitted by a person not authorized to submit it).

Public comments on FDA’s proposed rule may be submitted electronically or by regular mail until June 8, 2015.

Regulatory Round-Up Newsletter, Spring 2015

On behalf of the Agriculture practice group at OFW Law, here is a copy of our Spring newsletter.  We hope you find it useful.  To receive this periodic newsletter by e-mail, please contact Carrie Morgan at cmorgan@ofwlaw.com.

Tonight: Global Child Nutrition Foundation Honors USDA Secretary Vilsack

By Peter B. Matz

Secretary Vilsack

Please join the Global Child Nutrition Foundation (GCNF) and its partners in honoring Secretary Vilsack for his remarkable achievements in child nutrition. GCNF’s Annual Gala has become a signature Washington event, bringing together executives from industry as well as high-level officials from both government and NGO’s.  It will take place tonight, from 5:30-7:30 PM, at the Ronald Reagan Building and International Trade Center in Washington, DC.  Details below.

The Gala raises funds for GCNF’s efforts to end child hunger by helping developing countries establish sustainable school feeding programs. At this moment, over 350 million hungry children live in extreme poverty throughout the world. School feeding programs nourish children, provide an incentive for children to go to school, and help lift children, their families and their communities out of poverty.

Global Child Nutrition Foundation’s Annual Gala Reception Honoring

U.S. Department of Agriculture Secretary Tom Vilsack

Thursday, April 16 2015

5:30pm-7:30pm

The Ronald Reagan Building and International Trade Center

1300 Pennsylvania Avenue Northwest, Washington, DC 20004

More information at www.gcnf.org

Secretary Tom Vilsack

Throughout his long and distinguished career in public service, Secretary Vilsack has demonstrated his commitment to the nutritional well-being of children at home and abroad. As Governor of Iowa, Vilsack created the Iowa Food Policy Council to advance local food systems, enhance family farm profitability, and combat hunger and malnutrition.  At USDA, Secretary Vilsack is a key Cabinet leader on global food security and served as one of the primary architects of President Obama’s Feed the Future Initiative launched in 2009. Under his leadership, USDA has contributed to improved global food security by focusing on capacity building to improve markets information, food safety systems, basic and applied research and innovations in agricultural productivity.

In 2013, Secretary Vilsack led U.S. efforts on the Global Open Data for Agriculture and Nutrition, which seeks to support global efforts to make agricultural and nutritionally relevant data available, accessible, and usable for unrestricted use worldwide in order to improve consumer health and expand economic opportunities for farmers. Building on those efforts, in 2014, Secretary Vilsack led the launch of U.S. participation in the Global Alliance for Climate-Smart Agriculture, a global effort to share knowledge and practices to address climate change and its impact on agriculture and chart a new path forward towards greater global food security.

Secretary Vilsack continues to be a strong voice for improving the nutritional quality of domestic child nutrition programs and has focused USDA’s McGovern-Dole School Feeding Program on meeting rigorous nutrition and literacy goals. Child nutrition programs in the United States have become global models of excellence under Secretary Vilsack’s leadership and commitment.

2015 Dietary Guidelines Advisory Committee Report Mixes Science and Policy

By Robert A. Hahn

The 2015 Dietary Guidelines Advisory Committee (DGAC) submitted its report to the Secretaries of Agriculture and Health and Human Services last month and disbanded.  It is now up to the USDA and HHS to take the DGAC’s conclusions and recommendations and issue a revised edition of the Dietary Guidelines for Americans.  Interested persons may submit comments on the DGAC report until May 8, 2015.

Some aspects of the DGAC report have been controversial.

  • More than any previous committee, the 2015 DGAC wades heavily into the policy arena. Its report includes a number of controversial policy prescriptions such as the following:
    • FDA should revise the Nutrition Facts label to include a mandatory declaration for Added Sugars, in both grams and teaspoons per serving, as well as a % Daily Value based on a DV of no more than 10% of total calories (e., 50 g);
    • FDA should create a standardized front-of-pack (FOP) nutrition label that would appear on all food products and that would provide clear guidance regarding a food’s healthfulness;
    • FDA should establish mandatory national standards for the sodium content of foods;
    • Federal nutrition assistance programs, including Food Stamps (the Supplemental Nutrition Assistance Program), should be aligned with the Dietary Guidelines; and
    • Governments should use economic and tax policies to encourage the production and consumption of healthy foods and reduce consumption of unhealthy foods (g., by taxing sugar-sweetened beverages, snack foods, and desserts; by restricting marketing of certain foods to children and teens).

We expect USDA and HHS to take these policy recommendations under advisement, but not include them in the Dietary Guidelines.

  • For the first time, the DGAC report includes a chapter devoted mainly to the issue of sustainability. While the committee offers a justification for addressing environmental sustainability in a document about nutrition, some have questioned whether environmental issues are within its mandate.
  • While acknowledging that virtually all foods can be part of a healthy dietary pattern, the DGAC strongly favors a diet higher in vegetables, fruits, whole grains, low and non-fat dairy products, seafood, legumes, and nuts and lower in red and processed meats, sugar-sweetened foods and beverages, and refined grains.  There is a concern that some of the complexities of previous nutritional recommendations may be lost in this emphasis on a healthy dietary pattern.  For example, the emphasis on whole grains might lead some consumers to neglect enriched refined grains, which also play a significant nutritional role.  The emphasis on reducing consumption of red and processed meats may cause some consumers to overlook lean meat as a good source of heme iron, even though the report notes that iron is a nutrient of concern for adolescent girls and premenopausal women.

While these controversial aspects of the DGAC report have received the most attention, there are some other interesting findings and recommendations in the report worth noting:

  • While continuing to recommend reductions in intake of sodium and saturated fat, the 2015 DGAC backs away from the sharper reductions recommended by the 2010 committee. Whereas the 2010 DGAC recommended no more than 1,500 mg/day of sodium, the 2015 DGAC recommends no more than 2,300 mg/day.  Whereas the 2010 DGAC called for gradually reducing saturated fat to <7% of total calories, the 2015 DGAC only recommends reducing saturated fat to <10% of total calories.
  • The report deflates some of the recent concerns expressed by FDA and members of Congress about caffeine. The DGAC concludes that U.S. caffeine intake does not exceed what is currently considered to be a safe level in any group.
  • The DGAC concludes that there is limited and inconsistent evidence that calorie labeling on menus and menu boards affects food selection or consumption.
  • For commonly consumed fish species (g., cod, trout, salmon), the DGAC found that farm-raised seafood contains as much or more of the omega-3 fatty acids EPA and DHA as the same species caught in the wild.

The 2015 Dietary Guidelines is expected to be released in the fall.

The Vilsapp: Secretary Vilsack’s High Tech Solution to Labeling

By Marshall L. Matz, as published in Agri-Pulse

The March edition of the National Geographic Magazine, in its cover story entitled “The War on Science,” notes that “there’s no evidence that GMO’s are harmful to human health.” A recent Pew poll found that 90% of all scientists believe GMO’s are safe but only 37% of the public agrees. In short, the public is skeptical and is seeking more information about foods made with genetic engineering. We live in an era of transparency, open data and the world-wide web. It is difficult to deny consumers the right to know what is in their food. And given the safety of genetic engineering, there is no reason to block that information.

The question on the table is how to do this in a nationally-uniform, unbiased manner? To allow each of fifty states to have its own labeling scheme would be confusing, very expensive, bad public policy and, in my opinion, unconstitutional. It would be as crazy as having fifty different Dietary Guidelines or fifty different Nutrition Facts panels on the foods we buy.

Secretary VilsackAgriculture Secretary Tom Vilsack has a better idea: a smartphone application that can scan a bar code on the food package and tell the consumer what is in the product. He took his idea to Congress last month. His idea is a very modern and clever solution to address the desire for more information about the foods we consume.

There is only so much room on the food label. So, Secretary Vilsack is suggesting a symbol on the food label that connects to a database that can tell those consumers who want such information whether there is an ingredient in the food produced with genetic engineering. According to a recent edition of the Economist, “about half of the adult population owns a smartphone; by 2020, 80% will. Smartphones have also penetrated every aspect of daily life.” For those without smartphones, there could be in-store computers or scanners.

Dr. Cathy Enright, VP for Agriculture at the Biotechnology Industry Organization (BIO), posted a blog last month that said:

“I also support a right-to-know. In 21st century America, consumers are increasingly asking questions about how their food is grown and made. We all need to be working together to provide that information, in a way that doesn’t misinform consumers. Have you seen USDA Secretary Vilsack’s idea….using a bar code or other code on a food package or sticker?”

Last year, Cardinal Peter Turkson, speaking on behalf of the Vatican, said we must use biotechnology to feed the world’s expanding population, but also supported the idea of transparency to provide information to consumers who desire such information. The Vatican seems to be in agreement with the Secretary and those who believe in both the safety of genetic engineering and the moral imperative of using science to feed the hungry, but also the consumers’ right to know.

Nutrition FactsUSDA and HHS will issue a new edition of the Dietary Guidelines for Americans later this year. The Dietary Guidelines Advisory Committee and the FDA are seeking to put more information on the actual food label. It is time to use technology to expand the physical size of the label.

Every industry seems to be using technology to the maximum possible extent. The food industry should follow suit. There are questions that would still have to be resolved as with any app: who would maintain the data base? What would be the definition of genetic modification and would there be some threshold that triggers the GE designation? What happens with foods that used a GE ingredient where it was then processed out of the product and there is no trace in the final food?

These are all challenging questions that would have to be resolved. But this much is clear, there must be federal preemption of state labeling schemes and a uniform national system established. To date, the labeling campaign has been pushed as an attack on genetic engineering as a part of the larger war on science. Information should be provided, not as a scare tactic and warning, but just as factual information for those who care.

Perhaps there is a better idea than the Vilsack App, but this idea sure deserves serious attention. On March 5th, at the House Agriculture Appropriations Subcommittee hearing to review the FDA budget, Dr. Hamburg reiterated that FDA does not see mandatory labeling as appropriate if there’s not a significant change to the product. If the process changes the nature of the product, then it would have to be labeled. She also said FDA supports individual companies that want to voluntarily label products and plans to issue a guidance to guide them in the near future. Dr. Hamburg should include the Vilsapp as a way of providing consumer information and include it in the guidance that FDA issues.

The Wall Street Journal recently published a guide to some of the terms being used on supermarket egg cartons. They include Organic, Cage-Free, Free-Range, All Natural, Pasture Raised, and Vegetarian Fed and Omega-3. The Vilsapp could help the confused consumer better understand these terms as well.

In short, the Vilsapp is a creative idea that could provide the transparency deemed important by consumers and also preempt the need for state legislation. The need for state preemption is paramount and was emphasized by all of the witnesses at the House Agriculture Hearing on March 24th.

Dr. Nina Fedoroff, the Senior Science Advisor at OFW Law, concluded her testimony with the following: “We will need to produce more crops per drop of water and square meter of land” in order to feed 9 to 10 billion of people. Genetic modification is not a magic bullet but is safe and an important part of the arsenal needed to defeat food insecurity.

A patch quilt of different state labeling schemes would be a barrier to global food security. Transparency and full disclosure is reasonable but it must be done with a national system that is based on sound science and provides objective information.

Mr. Collin Peterson, the Ranking Member, summed it up best: “When it comes to labeling, we need to be able to find a smart way to balance the consumer demand with what we know about the safety of the foods that our farmers produce.” Sounds like a Vilsapp.

Marshall Matz, formerly Counsel to the Senate Select Committee on Nutrition and the Senate Committee on Agriculture, specializes in agriculture and nutrition at OFW Law.