Compromise and Corn

So I finished my blog post on Vermont’s new labeling bill and thought I’d done a fair job of analyzing it. I was all ready to start debating. Then the Senate went and passed their compromise bill. Before we celebrate congress finally being able to put aside their differences for a moment to actually accomplish something, let’s just recognize that a lot of people don’t like this new bill. I’ll try to touch on the things most people don’t seem to like about it, and where the differences are.

Great GMO Corn Debate

Great GMO Corn Debate

First, let's just get one thing clear.

Insert Dark Act image here

This bill is not titled the DARK Act. It isn’t even titled anything that could be turned into the acronym, D.A.R.K.. That’s a label that anti-GMO legislators and activists have made up to describe at least three bills already that I know of, including the House version of this one and a previous Senate bill that would have made labeling strictly voluntary. It's like the equally fictitious Monsanto Protection Act. No politician would cripple their own bill with such a negatively associated title.  The actual title is,

A BILL To amend the Agricultural Marketing Act of 1946 to require the Secretary of Agriculture to establish a national disclosure standard for bioengineered foods, and for other purposes.

I can understand not repeating that mouthful at every utterance, but I don't see any conceivable way to turn that into the acronym they clearly just made up whole cloth. This kind of dishonesty angers me. It isn’t a stand alone law. It’s an amendment. Regardless, it doesn't have such a goofy moniker. It’s clear that some people want to prejudice us against this bill before we’ve even read it. I won’t use that pejorative. I don’t want it to become fixed in your mind, if it hasn’t already. You may find it better to replace those two words with compromise bill, or amendment, whenever you read them.

Schoolhouse Rock Originally Aired on ABC-TV

Have you had a hard time actually finding the text to this bill? I have. It’s funny that with all the writing about it, and quite a bit of analyzing of it, most of the online critiques don’t link to the actual text of the bill. In fact, they seem to avoid even naming it, or pointing to where it can be found. As a writer, I’ve had it drilled into me to cite my sources, and to provide proper references for anyone else’s work that I quote. I’m sure the journalists covering this bill were taught the same thing. Yet it takes a positive effort to find any among them that do provide a link. It makes me angry, and—I fully admit I may be paranoid here—I can’t help thinking it’s intentional. The writers aren’t providing a link to the text so we can’t read it ourselves. If the analysis they are doing is correct, they should want us to read the text for ourselves. If there is reason for outrage, they should want us to share in that outrage, having verified it for ourselves with our own eyes and brains. The fact that they aren’t linking to the text, or even providing information on where to find it, makes me suspect that they are trying to manipulate me in the same way using the phrase I’ve asked you to replace with compromise amendment is manipulative. I don’t like being manipulated. I dislike television pitch men that sell me stuff that doesn’t work, televangelist healers that beg for money from pensioners, and politicians and activists who use manipulative, emotionally laden words to describe bills. I reserve my strongest disdain for dishonest journalists who do not include proper references in order to bias readers for or against any piece of legislation. That said, I have not only linked the text straight from the Agriculture Committee of the US Senate, but I will paste the appropriate sections in each paragraph as I go through it, line by line.

I am not pretending to be any kind of an expert. I am not a lawyer. This is a plain text reading and my own interpretation of what that means. Here we go.

Lawyers' office at Tombstone Courthouse Museum, Tombstone, AZ -collection of the author

Lawyers' office at Tombstone Courthouse Museum, Tombstone, AZ -collection of the author

Definitions First

Right out of the box, we have the first contentious bone to pick. Neither side of the debate is happy with this definition.

DEFINITIONS. In this subtitle: (1) BIOENGINEERING.—The term ‘bioengineering’, and any similar term, as determined by the Secretary, with respect to a food, refers to a food— (A) that contains genetic material that has been modified through in vitro recombinant deoxyribonucleic acid (DNA) techniques; and (B) for which the modification could not otherwise be obtained through conventional breeding or found in nature.

I don’t think many people have a problem with the first half. For the purpose of this law, that’s a fair enough definition of what is meant by a bioengineered (not genetically modified) foodstuff. As I pointed out in my last article on Vermont’s law, there are lots of ways to modify DNA that doesn’t involve petri dishes. So here they’ve used more precise language appropriately. It could be argued that one can also bioengineer things in ways other than in vitro rDNA techniques, such as by mutagenesis. But that’s a sloppy way to engineer anything, and it’s not really what most of us mean by the term. What’s truly interesting here is that this definition has not ruled out forms of engineering that other legislation has, such as that employed via CRISPR, or the mere suppression of or alteration of a plant’s existing DNA. It’s actually a better definition than definitions that limit the term to plants engineered through gene insertion or deletion. It does mean more things might qualify for labeling though, and that doesn’t necessarily make biotechnology advocates happy. I am not entirely sure how legal experts and regulators will end up interpreting that.

The problem with this definition is really in the second part. How many bioengineered traits could not be obtained through conventional breeding or found in nature?

If your first thought is pest resistance, I refer you to my last blog entry on GMOs. I mentioned greenbug resistant sorghum, and there is also greenbug resistant barley. These are hybrids created the “old fashioned” way. No modern biotechnology necessary.  Nature makes it’s own pesticides not infrequently. That’s where Bt endotoxins came from. Long before scientists figured out how to get corn to express this trait, organic farmers were using bacterial spores sprayed by hand to kill insects. Some plants have obtained the necessary genes to produce Bt endotoxins. Could scientists have used traditional breeding techniques to eventually obtain the same trait in corn, without the use of in vitro techniques? I don’t see why not, since bacteria occur in nature, and bacteria can pass genes to plants. If a natural trait exists, careful plant selection can result in an entire crop with the trait.

What about herbicide resistance? Herbicide resistance occurs naturally in plants. There are always a few that possess traits that make them resistant to whatever chemical you may douse them in. When a specific herbicide is used in an area, the plants that have the genes for the favorable trait survive. Over time, they come to dominate as those without the trait die and they are able to populate more effectively. That’s a primary mechanism of evolution, by the way. Again, the existence of naturally occurring herbicide resistance is what led plant breeders to attempt to create crops with herbicide resistance. Some of the first herbicide resistant crop plants, such as Clearfield, were created with chemical mutagenesis, not genetic engineering. The main difference is time. It just takes a whole lot longer to select for a trait, than to just pick it out and insert it. Another big difference is that natural genetic modification, or mutagenesis, results in lots of accidental or unwanted traits along with the one you are trying for. When smooth pigweed became resistant to triazine, it also produced fewer seeds. That’s good for us, because pigweed is a noxious ugly little weed that invades gardens and farms and outcompetes cotton and corn. But if you’re trying to produce herbicide resistant sweet corn, you want strong stalks and lots of seeds. So it could take even longer to get exactly the traits you want, and not the ones you don’t want. Still, if the question is could you do it that way, the answer is clearly, yes.

It's a flying fillet of fish.

It's a flying fillet of fish.

So what trait could possibly be produced through genetic engineering, and could not be produced through more traditional plant breeding methods, or found in nature? I don’t know of any. And I don’t know how you could demonstrate that anything could not. Maybe you could fix that definition by changing could not to does not, but that would still not exclude most GE foods that have already been approved.


So, What do the new rules apply to?

Pretty much all food for human consumption. Water gets a pass unless you’ve added something to it like vitamins, flavorings, or juice. Broth also weirdly gets a pass, unless it contains something else that needs labeling, like veggies or possibly herbs. I don’t know how broth gets a pass, but it does. Now I’ve saved you a lot of reading. You’re welcome. But you can read it yourself if you want to. Maybe I'm oversimplifying.

c) APPLICATION TO FOODS.—This subtitle shall apply only to a food subject to— (1) the labeling requirements under the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 301 9 et seq.); or (2) the labeling requirements under the Federal Meat Inspection Act (21 U.S.C. 601 et seq.), the Poultry Products Inspection Act (21 U.S.C. 451 13 et seq.), or the Egg Products Inspection Act (21 14 U.S.C. 1031 et seq.) only if— (A) the most predominant ingredient of the food would independently be subject to the labeling requirements under the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 301 et 19 seq.); or (B)(i) the most predominant ingredient of the food is broth, stock, water, or a similar solution; and (ii) the second-most predominant ingredient of the food would independently be subject to the labeling requirements under the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 2 301 et seq.).
Probably safe to label GMO Free

Probably safe to label GMO Free


When does it go into effect?

The Secretary of Agriculture is supposed to make the rules and set up the program to manage them within two years. I suppose they could write a rule that required labeling to begin ten years hence, so long as the rule was established within the next two years. But I think the intent is to actually start labeling within two years. 

SEC. 293. ESTABLISHMENT OF NATIONAL BIOENGINEERED FOOD DISCLOSURE STANDARD. (a) ESTABLISHMENT OF MANDATORY STANDARD.— Not later than 2 years after the date of enactment of this subtitle, the Secretary shall— (1) establish a national mandatory bioengineered food disclosure standard with respect to any bioengineered food and any food that may be bioengineered; and (2) establish such requirements and procedures as the Secretary determines necessary to carry out the standard.

I’m not cut out to be a lawmaker. I may be misreading this, but I think I’m with the anti-GMO people here, when they say that this sounds like they’ve created a law that looks like they are doing something, while giving themselves a convenient out from actually doing much. Why does the secretary need two years to create the rules? I’m going to plead ignorance to how these agencies operate, but that doesn’t add up to me

And then we tack on another year for “small food manufacturers”.

F) in the case of small food manufacturers, provide— (i) an implementation date that is not earlier than year after the implementation date for regulations promulgated in accordance with this section

So, what rules have they come up with?

1. All other labeling laws are moot.

Vermont’s law just got superseded. This rule scraps all the other state’s laws about labeling genetically engineered foods too, whether they’ve gone into force, or not. This amendment is pretty clear, they mean everybody.

(b) REGULATIONS.— (1) IN GENERAL.—A food may bear a disclosure that the food is bioengineered only in accordance with regulations promulgated by the Secretary in accordance with this subtitle.


e) STATE FOOD LABELING STANDARDS.—Not withstanding section 295, no State or political subdivision of a State may directly or indirectly establish under any authority or continue in effect as to any food in interstate commerce any requirement relating to the labeling or disclosure of whether a food is bioengineered or was developed or produced using bioengineering for a food that is the subject of the national bioengineered food disclosure standard under this section that is not identical to the mandatory disclosure requirement under that standard.


Subtitle F—
b) FEDERAL PREEMPTION.—No State or a political subdivision of a State may directly or indirectly establish under any authority or continue in effect as to any food or seed in interstate commerce any requirement relating to the labeling of whether a food (including food served in a restaurant or similar establishment) or seed is genetically engineered (which shall include such other similar terms as determined by the Secretary of Agriculture) or was developed or produced using genetic engineering, including any requirement for claims that a food or seed is or contains an ingredient that was developed or produced using genetic engineering.


I can understand Vermont’s legislators being upset that their law might be brushed aside after they put so much work into it. And some companies have already taken steps to try to comply with it. It’s like mom has come along and taken away the television remote and told the kids they will will all watch Discovery when Jr. wanted to watch Barney and Friends, Sis wanted to see Bones, and Brother wanted to catch the game. They won’t like it, no one gets exactly what they wanted. But they’ll settle down and watch the shark show and maybe learn a few things.

Let’s just hope mom doesn’t turn into an evil step mother when she realizes her power. This bill only requires the Secretary consider making the new labeling rules consistent with existing Organic Certification law. I bet if they’ve read it, the organic producers are upset about that wishy-washy language. At least they got a specific mention. The kosher people didn’t even get a wave in passing.

(f) CONSISTENCY WITH CERTAIN LAWS.—The Secretary shall consider establishing consistency between— (1) the national bioengineered food disclosure standard established under this section; and (2) the Organic Foods Production Act of 1990 19 (7 U.S.C. 6501 et seq.) and any rules or regulations implementing that Act.

Mexico can relax. They’ll continue to get their regular shipments of US corn, regardless of its GMO status. Not sure if Mexico will appreciate that or not.

SEC. 294. SAVINGS PROVISIONS. (a) TRADE.—This subtitle shall be applied in a manner consistent with United States obligations under international agreements.



2. Cows and chickens are not GMOs, E-I-E-I-O.

They never were, but some people thought they ought to be labeled as if they were, if they had been fed GE derived feed. This amendment says,

(b) REGULATIONS.— (2) REQUIREMENTS.—A regulation promulgated by the Secretary in carrying out this subtitle shall— (A) prohibit a food derived from an animal to be considered a bioengineered food solely because the animal consumed feed produced from, containing, or consisting of a bioengineered substance; 

The people who believe cows and their milk, chickens and their eggs, pigs, goats, or lambs should be labeled GMOs have never really explained how that is supposed to work. Eating DNA doesn’t alter our own DNA, or we’d all be walking around with beaks, horns, and hooves and putting down roots like our food. DNA is in nearly all food, everything but minerals like salt, or highly processed stuff like sugar. Yet we’ve never before worried about consuming foreign DNA. I guess the thinking is that since the DNA was genetically engineered, it might continue to mutate once inside the animal, and then mutate some more inside the person who eats the animal or drinks its milk, like some new zombie virus. (You'd know I'd get the pop culture reference in here somewhere, didn't you?)

But I said, "I only eat organic certified cheese."   Morgan Jones (Lennie James) - The Walking Dead - Season 5  - Photo Credit: AMC/Facebook

But I said, "I only eat organic certified cheese."

Morgan Jones (Lennie James) - The Walking Dead - Season 5  - Photo Credit: AMC/Facebook

I ordered Free Range, Cage Free zombies.   Rick Grimes (Andrew Lincoln) - The Walking Dead - Season 4 _ Gallery - Photo Credit: Frank Ockenfels 3/AMC

I ordered Free Range, Cage Free zombies.

Rick Grimes (Andrew Lincoln) - The Walking Dead - Season 4 _ Gallery - Photo Credit: Frank Ockenfels 3/AMC

Or maybe they just fear that some unknown harm that has yet to be identified will come to anyone who eats GE plants, and since the animals eat GE plants, they might somehow pass along this unidentified hypothetical harm to the humans who eat the animals in turn. This has never happened in nature, nor in the twenty years we’ve been eating GMOs and feeding them to our cattle. Diseases rarely pass from the animal to humans through meat. And when they do, it’s the actual live virus or bacteria that passes to the human, not the symptoms. You don’t get cancer from eating tumorous meat. You don’t get pneumonia from consuming plurid lungs. I wouldn’t want to eat a tumor or diseased lungs, but that’s not how you get those diseases. If the zombie virus existed, I doubt very much you'd get it by eating zombies. Wait, that's not how that usually works, is it? Never mind that last bit. Even mad cow isn't passed along to humans through consuming contaminated cow's milk. Even eating the meat from the cow is more dangerous to other cows, than to humans. Although, our zombie friends would have to definitely avoid cows with Spongiform Encephalopathy. 

Just a cow munching on some hay

Just a cow munching on some hay

You have to just imagine that an unknown harm is caused by eating GE feed even though it has not been discovered in twenty years, doesn’t show any symptoms over the life of the cow, passes through the human digestive tract, and gets humans sick by some unknown mechanism at some time in the future, even though it’s never happened before. To prevent that, they believe in the precautionary principle. That sounds good, but it’s not just a matter of taking ordinary reasonable precautions against known hazards, like instituting feed bans to prevent mad cow disease. It’s attempting to prevent any unknown hazard, including zombie viruses, often by taking extreme steps as precautions. It reminds me of the story of the girl and the axe in the ceiling. People should read fairy tales more often. There’s no way to predict that this won’t happen, of course. Unexpected new health problems can always arise. There’s no way to predict you won’t get some previously unknown and unsuspected health condition from eating any cow. But we don’t label ordinary cows as potentially dangerous just because we can’t foresee the future.

Cows are not GMOs. But there are some exceptional animals that are. Goats can be genetically engineered to produce medicine for humans, for instance. And the AquaAdvantage Salmon is obviously a GMO. So some animals will be labeled under the provisions of this new amendment. If they were produced with modern biotechnology through genetic engineering, they're GMOs. If they were merely fed GMOs, they aren’t. And that’s a good distinction to make. Otherwise, humans would be labeled as GMOs, wouldn’t they?

Family tending their flock, Sharana, Afghanistan

Family tending their flock, Sharana, Afghanistan


3. The secretary can decide just how much zombie DNA you can get away with.

I’m pretty sure this rule only annoys the purists. I’ve heard some people denounce it more for the implication that some foods will not need to be labeled, that they happen to want labeled, than for any fault in the general concept. 

(B) determine the amounts of a bioengineered substance that may be present in food, as appropriate, in order for the food to be a bioengineered food; (C) establish a process for requesting and granting a determination by the Secretary regarding other factors and conditions under which a food is considered a bioengineered food
This much modified DNA please.

This much modified DNA please.

So the Agricultural Secretary can set a minimum level of DNA that needs to be present in order to call a product derived from GMOs, a genetically engineered food. So things like soy lecithin, various cooking oils, essences, abstracts, and sugar, all of which contain little or no DNA, would probably not have to be labeled. But the wording is a tad vague, and it could be interpreted to let the Secretary instead say how much Bt corn can be in a batch of corn, before the whole shipment must be declared GMO. Or they might do both, setting standards both for amount of DNA, and for amount of engineered foodstuffs by volume that can be in an otherwise GMO free food before it has to be re-classed for labeling. I don’t love the term “bioengineered substance” because it’s a bit vague. But I do agree setting reasonable limits is important. R may have been a zombie, but he was still able to find love. Maybe a little zombie DNA is ok. Jokes aside, if the point of the law is to give information they can use when making purchasing decisions, then that information has to have some quantifiable meaning. Labeling food that has not a trace of GE DNA as GMO would only add to consumers’ confusion over what a GMO is. R may have been a zombie, but he was still able to find love.

4. The label isn’t necessarily a label.

Are you ready for the one that’s got everyone upset? Get ready, it’s a doozy.

(D) in accordance with subsection (d), require that the form of a food disclosure under this section be a text, symbol, or electronic or digital link, but excluding Internet website Uniform Resource Locators not embedded in the link, with the disclosure option to be selected by the food manufacturer;

Let’s break that down. First, let's talk about the thing that has so many people upset, the electronic or digital link option. This means companies can, at their discretion, choose to use a barcode, QR code, or similar linking device to provide the GE status information to their consumers. Many people have pointed out that not everyone has a smart phone. That’s true. Mostly very poor people don’t have them, and some elderly, plus a few people like me who can’t be bothered with all the extra doo-dads on their phone. So those people won’t be able to read the QR or barcodes, the activists point out. This law, they claim, is discriminatory against poor people.

Back of box of Q-Bon Calendar, Quotidian Bon-Bon, Watertown, NY

Back of box of Q-Bon Calendar, Quotidian Bon-Bon, Watertown, NY

Walmart consumer price check device in use in most stores -original photo by Walmart from Yelp

Walmart consumer price check device in use in most stores -original photo by Walmart from Yelp

I’ve been poor. I’ve been very, very poor. Technically homeless poor. So poor you walk to the grocery store and spend two hours figuring out how to make $20 last for two weeks worth of groceries for two people and four pets, poor. Making homemade junk to sell on the side of the road poor. Selling your plasma to pay the electric bill, poor. Sewing holes in your socks and fixing the holes in your shoes with old tire rubber, poor. When I was that poor, I did not own a smartphone. When I was that poor, I did not care whether my food contained GMOs, or gluten, or artificial colors and flavors. When I was that poor I bought whatever potatoes and beans were on sale that week. If it was .02 cheaper, I bought it over the national brand. Brands are for people with regular paychecks and cars… and smartphones.

Despite my own utter lack of interest, I don't assume all poor people agree. I am not in favor of poor people being forced to buy in ignorance. Maybe they care, and if they do, they should have the same access to information wealthier customers do, whether or not we all agree that information is actually necessary. The thing is, I am unconvinced of the sincerity of the people speaking for those poor folks. Why? Because, for one, I don’t think any of the people making this complaint have read all the way to the bottom of this proposed amendment.


CVS price checker and loyalty card kiosk in use today

CVS price checker and loyalty card kiosk in use today

(c) STUDY OF ELECTRONIC OR DIGITAL LINK DISCLOSURE.— (1) IN GENERAL.—Not later than 1 year after the date of enactment of this subtitle, the Secretary shall conduct a study to identify potential technological challenges that may impact whether consumers would have access to the bioengineering disclosure through electronic or digital disclosure methods. (2) PUBLIC COMMENTS.—In conducting the study under paragraph (1), the Secretary shall solicit and consider comments from the public. (3) FACTORS.—The study conducted under paragraph (1) shall consider whether consumer access to the bioengineering disclosure through electronic or digital disclosure methods under this subtitle would be affected by the following factors: (A) The availability of wireless Internet or cellular networks. (B) The availability of landline telephones in stores. (C) Challenges facing small retailers and rural retailers. (D) The efforts that retailers and other entities have taken to address potential technology and infrastructure challenges. (E) The costs and benefits of installing in retail stores electronic or digital link scanners or other evolving technology that provide bioengineering disclosure information. (4) ADDITIONAL DISCLOSURE OPTIONS.—If the Secretary determines in the study conducted under paragraph (1) that consumers, while shopping, would not have sufficient access to the bioengineering disclosure through electronic or digital disclosure methods, the Secretary, after consultation with food retailers and manufacturers, shall provide additional and comparable options to access the bioengineering disclosure. -emphasis added
One popular brand of in store price check and barcode scan unit used in many stores today

One popular brand of in store price check and barcode scan unit used in many stores today

So the amendment does not assume that everyone owns a smartphone. It allows the use of these type of links, and requires the Secretary to study to learn if they are working or not, and if not, what else can be done to provide the information to customers. There’s an assumption here that stores and manufacturers will provide readers in stores as necessary, like those price checker boxes at large retailers and groceries. And it leaves open the possibility that new technology will come along and provide even better alternatives. I don’t own a smartphone. I likely won’t get one within the next two years. I won’t care if some packages have QR codes on them that I can’t decipher. But that’s me. I guess we’ll have to wait for that study by the Secretary to find out if I’m alone in that.


Not many people have yet commented on the rest of that paragraph. I’m not really sure why. There’s some interesting stuff there.

E) provide alternative reasonable disclosure options for food contained in small or very small packages; (F) in the case of small food manufacturers, provide— … (ii) on-package disclosure options, in addition to those available under subparagraph (D), to be selected by the small food manufacturer, that consist of— (I) a telephone number accompanied by appropriate language to indicate that the phone number provides access to additional information; and (II) an Internet website maintained by the small food manufacturer in a manner consistent with subsection (d), as appropriate; and (G) exclude (i) food served in a restaurant or similar retail food establishment; and (ii) very small food manufacturers.


I am glad they’ve taken into consideration that some small packages just can’t accommodate inch-wide labels. How would you label the gumballs in a gum ball machine? Can you just slap a single label on the jar, or do you need to use edible ink to stamp each individual gumball? I could wish they had actually clarified what “small” or “very small” packages are. If I were a reluctant labeler, I’d probably claim my twenty-pound ham was in a small package compared to the 200 pound whole roasting pig. That would make a can of SPAM a very small package indeed, no? I’m being a bit facetious, but I do see a problem when different packagers start trying to define this on their own.

And I’m really perplexed why we’ve excluded restaurants. So, Mrs. Fields has to label her cookies when they’re sold in grocery stores, but not when sold in a kiosk in the mall? Oscar Mayer has to label their wieners, but Der Wienershnitzel just serves them up without telling. Lay’s, Doritos, and Santitos will be labeled. Taco Bell or Chile’s nachos, not so much. This makes sense to whom? Wouldn’t one of those QR thingies on the menu, or on the throw away wrappers of most fast food, work just fine to advise customers who care? It’s not that I want more labeling. I don’t! I do wonder though, if this is really so important, if we can afford to exempt such a massive industry.

They should definitely be labeling whatever they put in this stuff. Kentucky Fried Chicken in Roswell, NM  

They should definitely be labeling whatever they put in this stuff. Kentucky Fried Chicken in Roswell, NM  


5. Once it’s approved, the conversation is over

I can’t decide how I feel about this.

(3) SAFETY.—For the purpose of regulations promulgated and food disclosures made pursuant to paragraph (2), a bioengineered food that has successfully completed the pre-market Federal regulatory review process shall not be treated as safer than, or not as safe as, a non-bioengineered counterpart of the food solely because the food is bioengineered or produced or developed with the use of bioengineering.

Well obviously, if it’s been determined to be safe by the appropriate agencies, that doesn’t necessarily mean that it is more safe. And if it was less safe, they either wouldn’t approve it for release, or they’d require additional labeling. So that’s just reiterating the obvious and making it a rule. To me, the question is, if you understand this, why are you requiring labeling at all? It’s not any less safe than any other food. So why is it labeled? Why do people need to know something that makes no difference in their lives? But that’s the very heart of the GMO labeling debate, isn’t it? And we’re talking about the how, not the why.

6. Potential GMOs exist.

I have to put these two paragraphs together to make a point. The first says that a food that doesn’t have to be labeled, may still not qualify as not bioengineered or non-GMO. This is a bit of a head scratcher. Previous paragraphs most certainly seemed to imply that’s exactly what the rules determined. A thing is either a GMO, or it is not. If it is not, it doesn’t have to be labeled. If it is, it does. If a thing is determined not to be bioengineered, then it not bioengineered. How can it be anything else? Maybe it’s in the box with Schroedinger’s cat, neither a GMO nor a non-GMO, a potential GMO. If they start passing laws requiring the labeling of potential GMOs, I’m out. I just can’t deal with potential genes.

c) OTHER.—A food may not be considered to be ‘not bioengineered’, ‘non-GMO’, or any other similar claim describing the absence of bioengineering in the food solely because the food is not required to bear a disclosure that the food is bioengineered under this subtitle.

So you can’t claim that something which has been determined not to be bioengineered, is a non-GMO, but apparently, under this same amendment, you can claim something is non-GMO just because it is organically certified. Not kidding.

SEC. 296. EXCLUSION FROM FEDERAL PREEMPTION.  SEC. 2. ORGANICALLY PRODUCED FOOD. In the case of a food certified under the national organic program established under the Organic Foods Production Act of 1990 (7 U.S.C. 6501 et seq.), the certification shall be considered sufficient to make a claim regarding the absence of bioengineering in the food, such as ‘‘not bioengineered’’, ‘‘non-GMO’’, or another similar claim.

How is this possible? In the USA, the organic certification program is managed by the USDA. They have decided that organic farmers cannot use GE seed or feed. So that means that by default, anything organic, is also not made with genetic engineering. That’s pretty obvious.  Then again, I thought saying something was not genetically engineered was the same as saying it was not bioengineered. Next they'll tell us that just because you don't meet the minimum definition of zombified, does not mean you can claim to be a non-zombie.

What about all those other concerns people have?

Some of the concerns people have expressed aren't over the labeling and GMOs, so much as over unintended consequences and digital privacy.

1. How will people know that those scan code thingies are the way to find out if their food contains GMOs?

Well I don't know if their solution is so hot at that. They seemed to have worked overtime to make the on-package language as nonthreatening as possible. "Scan here for more food information," is pretty vague. But it also let's the producers add information like additional food and ingredient facts, fair trade claims, and disclosures about allergens on the landing page. So it's not great, but it does have an upside.

(d) DISCLOSURE.—In promulgating regulations under this section, the Secretary shall ensure that— (1) on-package language accompanies— (A) the electronic or digital link disclosure, indicating that the electronic or digital link will provide access to an Internet website or other landing page by stating only ‘Scan here for more food information’, or equivalent language that only reflects technological changes; or (B) any telephone number disclosure, indicating that the telephone number will provide access to additional information by stating only ‘Call for more food information.’

2. What if companies try to lose you on their website, rather than just give you the info you clicked for?

I think they cover that pretty well, actually. The GMO/GE statement has to be upfront, on the first page you get to when you scan the code, and not buried in unrelated information. And they can't put any advertising on that landing page either. So you won't have to read what specials Lay's is running this week just to find out if your Sun Chips are made with GE corn.

 (2) the electronic or digital link will provide access to the bioengineering disclosure located, in a consistent and conspicuous manner, on the first product information page that appears for the product on a mobile device, Internet website, or other landing page, which shall exclude marketing and promotional information;

3. Isn't this a convenient way for Monsanto and Coca-cola to steal our personal information and data mine us?

No. It would be, and that's a good point. However, the authors of this amendment thought of that and expressly prohibited it. Your fears of Monsanto UPC bar coding your life can be laid aside for now. 

(3)(A) the electronic or digital link disclosure may not collect, analyze, or sell any personally identifiable information about consumers or the devices of consumers; but (B) if information described in subparagraph (A) must be collected to carry out the purposes of this subtitle, that information shall be deleted immediately and not used for any other purpose;

You may not trust them to actually follow this rule, but at least you know there will be legal recourse if they get caught at it.


4. What if I can't even scan the stupid thing because it's so small, unreadable, or I don't have a smartphone?

Good question. I tried to scan a little code on a ketchup bottle the other day. I've no idea what its purpose was, since they haven't started using them for the GE disclosure yet. I couldn't get it to work. I'm not sure if it was because the code was so small, or because it was sweating in the warm air. The amendment addresses this two ways, with a required telephone number that you can use instead, and by telling them to establish minimum size requirements. 

(4) the electronic or digital link disclosure also includes a telephone number that provides access to the bioengineering disclosure; and (5) the electronic or digital link disclosure is of sufficient size to be easily and effectively scanned or read by a digital device.

5. How are they planning on enforcing this?

From my best read, they aren't. They don't have much of a plan. The plan seems to be, the Secretary can tell you to keep records, and ask to see those records, and if you don't have sufficient records, she can... tell everybody you didn't have sufficient records. Yeah. Seriously. That's the plan. Here, see for yourself.

(g) ENFORCEMENT. (1) PROHIBITED ACT.—It shall be a prohibited act for a person to knowingly fail to make a disclosure as required under this section. (2) RECORDKEEPING.—Each person subject to the mandatory disclosure requirement under this section shall maintain, and make available to the Secretary, on request, such records as the Secretary determines to be customary or reasonable in the food industry, by regulation, to establish compliance with this section. (3) EXAMINATION AND AUDIT. (A) IN GENERAL.—The Secretary may conduct an examination, audit, or similar activity with respect to any records required under paragraph (2). (B) NOTICE AND HEARING.—A person subject to an examination, audit, or similar activity under subparagraph (A) shall be provided notice and opportunity for a hearing on the results of any examination, audit, or similar activity. (C) AUDIT RESULTS.—After the notice and opportunity for a hearing under subparagraph (B), the Secretary shall make public the summary of any examination, audit, or similar activity under subparagraph (A).

This amendment doesn't even give them the right to order the food recalled until it's properly labeled. 

(4) RECALL AUTHORITY.—The Secretary shall have no authority to recall any food subject to this subtitle on the basis of whether the food bears a disclosure that the food is bioengineered.  

So bottom line, I don't know what this amendment will accomplish. It's a compromise, and compromises never offer perfect solutions. Maybe it will serve as a talking point and way to actually educate more consumers about genetically modified plants and animals, and what all they can do for us, as well as potential risks. All in all, I think it's a better law than the Vermont labeling law. It still needs work. We'll have to just wait and see what they do with this thing.