This past July, the House of Representatives passed a controversial bill that’s been dubbed the “Deny Americans the Right to Know Act” (or “DARK Act”), which is intended to block the labeling of genetically engineered (GE) foods at both the state and federal level.   

Now that Congress has returned from its August recess, it appears that major agribusiness and chemical giants are once again trying to deny Americans our right to know what we are eating and feeding our families. This fall the Senate is poised to consider the issue of GE food labeling – will they follow in the House’s footsteps or standup for consumer freedoms and the historic rights of states?

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One of the major falsehoods trumpeted by the opponents of labeling during the House fight was the assertion that states do not have the right to require that GE foods be labeled. At face value, anyone would understand that if this notion were true then federal legislation to preempt state labeling laws would not be necessary. However, what we have here is a more calculated attempt to divine away the historic role of states in this union.  

The states have long held the power to mandate food and beverage labeling, and more fundamentally to protect people’s health and safety.  For over a century, the Supreme Court has confirmed that regulation of health and safety has “traditionally fallen within the province of state regulation,” and state-mandated food and beverage labeling falls squarely in that state power.  Indeed, states have long exercised their power to protect people against fraud and deception in the sale of food products, as well as a host of other consumer products (toys, clothes, electronics, etc.).  

Currently, various state laws require labeling of food expiration dates (“sell-by” and “use-by” dates), the homogenization of dairy products, the grading of cheese and butter, and amount of bottle deposits for certain types of beverage containers.  Many of these food labeling laws protect consumer health and safety, while some enable consumers to make informed choices.  States also require product labels for non-food consumer products that are intended to inform the consumer.  For example, New York has a law mandating labeling of clothes made with “real fur” or “faux fur.”  

Requiring the disclosure of foods produced through genetic engineering serves these same two purposes: protection of public health and safety and prevention of consumer deception or confusion. As such, GE food labeling exists directly within the states’ traditional plenary powers to regulate for health and safety and to inform consumers. Given the history of state food and other consumer product labeling, the DARK Act goal of removing states’ power to require labeling of GE foods is actually a radical departure from history.   

But the DARK Act would go even further by also moving to preempt the ability of the U.S. Food and Drug Administration (FDA) to ever require the labeling of GE foods in the future. FDA currently requires the labeling of over 3,000 ingredients, additives and processes, including juice from concentrate and farm-raised fish. Blocking FDA’s power in lieu of a voluntary certification program is not only unwise but would be equally precedent-setting.  

If the Senate decides to take action on this issue, it would be wise to look at the passage of the Nutrition Labeling and Education Act of 1990, which established the Nutrition Facts panel and uniform national ingredient labeling. At that time states had been introducing or passing differing state ingredient labeling laws and the obvious solution by Congress was to establish a uniform set of mandatory labeling requirements for food ingredients nationally. The NLEA preempted states from creating conflicting standards for ingredient labeling while preserving the ability of states to compel disclosures outside of the ingredient panel.  

While the current suite of state GE labeling laws are nearly uniform in their definitions by design, the responsible course of action for Congress to take would be to mirror the NLEA and create a national, mandatory labeling standard for GE foods. This would be a win-win for everyone in the food system, consumer and producer alike. 

Kimbrell is senior attorney with the national nonprofit public interest group Center for Food Safety.