For a long time, American consumers had it pretty good. They could read a food label or product advertisement and trust that the information it contained was reasonably truthful.
That’s because ever since their formation over 100 years ago, the Food and Drug Administration (FDA) and the Federal Trade Commission (FTC) were there actively to enforce laws against false and misleading marketing schemes. Over the years, the two agencies earned a reputation for impartial, even aggressive, enforcement of consumer protection regulations. Most Americans rightly believed these “consumer watchdogs” were on their side.
Unfortunately, that is no longer the case. While the laws against phony food claims and misleading statements are still enforced in some areas, the FDA and FTC now treat one segment of the food and agriculture industry as if the laws do not apply.
That’s the $47 billion and growing organic food industry, where misleading health claims about conventional agriculture are almost universal – especially claims against GMOs, or genetically modified organisms, mostly grains.
Take, for example, the seemingly ubiquitous Non-GMO Project butterfly label appearing today on more than 50 thousand products. The Project – much of whose board is drawn from the organic industry – states on its website that its purpose is to help consumers avoid “high risk” products containing GMO “contamination.” To that end the Project provides, for a hefty price, testing and certification – none of which is government verified -- and the right to stick their butterfly on your package.
The law is clear that food claims made on websites come under FDA’s labeling guidelines. It is also clear that the assertions the Project makes on its website should be captured under FTC’s equally strict laws against misleading advertising.
The terms “high risk” and “contamination” are about as misleading as it gets. No matter how one feels about GMOs personally, the scientific consensus is clear: GMOs currently on the market are every bit as safe to eat as foods produced by conventional breeding. Scientific and regulatory bodies around the world agree on this, including the World Health Organization, the European Food Safety Authority, the British Royal Society, the American Medical Association, the National Academy of Sciences, as well as the U.S. EPA, USDA, and the FDA itself, under both Democratic and Republican administrations.
As the FDA stated in 2015: “The (FDA) is not aware of any valid scientific information showing that foods derived from genetically engineered plants… differ from other foods in any meaningful or uniform way.”
No other industry would be allowed to make claims that the FDA had already ruled baseless, especially if they were as transparent as the Non-GMO Project about its real purpose. As its executive director, Megan Westgate, said in the Wall Street Journal, the project’s real goal is to shrink the market for existing GMO ingredients and prevent new commercial biotech crops. In other words, to eliminate the competition.
FDA’s and FTC’s inaction is all the more astounding given that FDA has already written explicit guidance on GMOs: a statement may be misleading “If, when considered in the context of the entire label or labeling… it suggests or implies that a food product or ingredient is safer, more nutritious, or otherwise has different attributes than other comparable foods because the food was not genetically engineered.”
The FDA offers an example: “The labeling of a bag of specific type of frozen vegetables that states that they were ‘not produced through modern biotechnology’ could be misleading if, in addition to this statement, the labeling contains statements or vignettes that suggest or imply that, as a result of not being produced through modern biotechnology, such vegetables are safer, more nutritious, or have different attributes than other foods solely because the food was not produced using modern biotechnology.”
You can maintain any personal opinion you like about GMOs. You can voice it in the newspaper, on TV, in social media, or on any street corner you choose. But you are not allowed to make misleading claims in “commercial speech” -- such as food labeling and product advertising -- especially when you’re disparaging a competitor’s product.
FDA Commissioner Scott Gottlieb promised this week on Twitter - under the heading "organic facts" - that he's going to "put out more detailed information on what different terms mean on food packaging." Unless this constitutes firm FDA action against misleading advertising, it's not enough.
FDA’s and FTC’s inexplicable inertia, to date, in this area essentially gives organic marketers a green light to continue turning consumer ignorance into fear and profit. And with billions of consumer dollars at stake, why wouldn’t they?
But allowing these GMO-disparagement claims to go unchecked is doubly corrosive. It not only deceives consumers, it undermines public confidence in the regulatory agencies charged with protecting human health and safety. FDA, after all, is one of three agencies – the others being USDA and EPA – charged with ensuring the safety of GMOs. Processes and products proven safe after rigorous scientific and public review must be credited with actually being safe – otherwise our health and safety regulations mean nothing.
Why should consumers place their trust in a system that doesn’t even follow the logic of its own scientific findings or respect the clear language of its own guidelines, at least enough to actually enforce them?
It’s time for FDA and FTC to clamp down on these deceptive business practices once and for all.
C. Dean McGrath, Jr. is attorney-at-law and founder of the Washington, D.C. firm McGrath & Associates and is an adjunct professor of law at the Georgetown University Law Center. He has a long career in public service, including Deputy Chief of Staff to Vice President Dick Cheney, Deputy Assistant and Deputy Staff Secretary to President George H. W. Bush, and Associate Counsel to President Ronald Reagan. He owns a farm with his brother and sisters in Nebraska.