This May Be the Worst Regulation Ever

The U.S. Department of Agriculture has created what may be the most bewildering, least cost-effective regulation ever. In July 2016, Congress passed a law mandating that all food containing genetic material that has been modified with recombinant DNA or “gene-splicing” techniques bear labels clearly identifying it as “bioengineered.” The statute acknowledged that bioengineered food is neither more nor less safe than other food, but the new rule—the National Bioengineered Food Disclosure Standard, or NBFDS—won’t help consumers understand that. It will only leave them confused.

Under the NBFDS, two identical bottles of corn oil on a supermarket shelf could be labeled differently—one as bioengineered, one not—even though both were derived from the same field and are identical in processing and quality. Both labels would comply with the regulation because the new rule doesn’t require a label “if the food does not contain detectable genetically modified material.” The NBFDS allows manufacturers to make voluntary disclosures on such products, but not that they “may contain” bioengineered ingredients.

The word “detectable” poses its own problems. Technologies will evolve and become ever more sensitive, so that a single molecule of “genetically modified material” would make a food bioengineered. This is an invitation to meritless litigation over what is “detectable.”

Under the 2016 statute, labels are mandatory only if the food must also bear labels administered by FDA or USDA’s Food Safety Inspection Service. Complying with the rule will require such detailed knowledge of the existing universe of food regulations that food lawyers will end up cross-eyed or wealthy—or both. Consider this gem: “Seafood, except Siluriformes (catfishes), and meats such as venison and rabbit are subject to the [Food, Drug and Cosmetic Act] (but not the Federal Meat Inspection Act). Thus, a multi-ingredient food product that contains one of these as the first ingredient would be subject to the NBFDS. A multi-ingredient product that contained one of these as the second most predominant ingredient or lower, could also require disclosure, unless the product is otherwise exempt (for example, due to the predominance of another ingredient such as chicken or beef).”

Read more of this Wall Street Journal article by Henry I. Miller and Drew L. Kershen by clicking here.