by Drake T. Land
J.D. Candidate, 2015, Indiana University Robert H. McKinney School of Law
Indiana International & Comparative Law Review: Executive Articles Development Editor
B.S., 2007, Ball State University; Muncie, Indiana
Editor’s note: Mr. Land’s article was selected from submissions in the Indiana Law Review‘s first writing competition.
Following the introduction of Genetically Modified Organisms (“GMOs”) into the food market in 1994,  consumer groups and multiple legislative bodies have fought to restrict their sale and label GMOs differently than traditionally developed foods. . This push to restrict the sale, or label, of GMOs is born of the fear that GMOs will have unforeseen consequences to human health and/or the environment. . These fears have been shown to be unrealized after twenty years of market availability  and, although restrictions on the sale of GMOs and mandatory labeling is the law in most European countries,  labeling initiatives have not achieved the same success in the United States’ federal and state governments. . The European Union “has probably the strictest GMO regulations in the world though these derive rather from political considerations, rather than being based upon scientific principles.” . Unlike the European Union (“the EU”), the United States Constitution explicitly “promote[s] the progress of science,”  and under this framework the United States has provided more protection to the development and retail of GMOs.
All currently grown crops have been developed through genetic modification. . “By selectively breeding plants and animals with the most desirable traits, our predecessors transformed organisms’ genomes, turning a scraggly grass into plump-kerneled corn, for example.” . Following Mendel’s discovery of the inheritance of genetic traits, farmers and scientists alike have been using selective breeding and hybridization to alter food crops to make them more reliable and marketable. . “Today, there are virtually no food products in supermarkets that have not been improved in some manner by selective breeding.” .
I. BENEFITS OF GMOs
The face of GMO crops in the United States is the Monsanto Company. Of the nearly ninety percent of GMO corn grown in the United States, the majority is produced by Monsanto. . That Monsanto corn is labeled “Roundup Ready,” indicating it is to be used with Monsanto’s proprietary herbicide. . The ability to kill weeds without harming the cash crop is designed to increase crop yields, yet some fear that the increased use of herbicide and pesticides on crops designed for human consumption may lead to health problems in consumers. . The debate between the known benefits and assumed risks associated with “Roundup Ready” crops is an appropriate microcosm of the GMO debate.
A fear commonly associated with “Roundup Ready” GMOs is that the increased use of herbicides will “spur the evolution of herbicide resistance in many weeds.” . However, “herbicide resistance is a problem for farmers regardless of whether they plant GM[O] crops. Some sixty-four weed species are resistant to the herbicide atrazine, for example, and no crops have been genetically modified to withstand it.” . Though the public face of GMOs, “Roundup Ready” plants do not tell the entire tale of GMOs.
Pest resistant GMOs include naturally occurring bacteria to deter pests that damage crops. Common among pest resistant GMOs are Bacillus thuringiensis (“BT”) crops. BT “is a naturally occurring bacterial disease of insects. These bacteria are the active ingredient in some insecticides.” . BT “is commonly used as a pesticide in organic farming,” . and is “considered safe to people and nontarget species, such as wildlife [and pollenating insects].” .
Pest resistant GMOs have been a “clear win for the environment,” said Bruce Tabashnik, entomologist at the University of Arizona. . The use of pest-resistant GMOs, specifically BT crops, has begun to reverse the trend of farmers’ overreliance on pesticides that devastate pests and their natural predators. .
Any discussion of GMO regulation should recognize these benefits, and acknowledge that if some GMO crops are potentially harmful, many others are safe and beneficial. Certainly, there is a difference between “Roundup Ready” crops and Golden Rice, a GMO rice designed to provide nutrients to impoverished areas of the world. . A sweeping regulation on all GMOs ignores this difference.
II. A HISTORY OF REGULATION
Though GMOs have multiple benefits, public concerns still exist that GMOs may have yet unseen side effects, and consumer advocacy groups are pressing state governments to take action. 
The concern over the effects of GMOs on human health is the driving force behind legislative efforts in the United States. After decades of testing and years of consumption by American markets, these fears are still unsubstantiated. “The American Association for the Advancement of Science, the World Health Organization and the exceptionally vigilant European Union agree that GMOs are just as safe as other foods.” . “The U.S. Food and Drug Administration (“the FDA”) has tested all the GMOs on the market to determine whether they are toxic or allergenic. They are not.” . Diana Horvath , PhD in biochemistry and molecular biology, explains,
“The most compelling point, I think, is the fact that so-called GMO crops that have been on the market and consumed and tested for many years. We are approaching [twenty] years now since the products became available. . . . People make claims that GMOs are unsafe or cause health problems, but I don’t know of a single valid result that shows that’s the case. As far as I know there’s no legitimate data showing so much as getting a headache from eating a GMO. If you’re a scientist, GMOs seem very sensible . . . [I]n fact, transgenic crops are among the most well studied and researched foods out there, much more so than many foods that people normally eat. That’s not simply my opinion—that’s the data that is out there.” .
As Dr. Horvath points out, the lack of GMO regulation in the United States grants those who debate this topic the best possible field research. Twenty years of domestic use and consumption has proven that GMOs are no less safe than crops altered through traditional agronomy techniques.
GMO regulation and mandatory labeling has long been the rule within the EU. The labeling requirement is designed to “provide the consumer with the possibility to make an informed choice, although [The European Commission Directorate General for Health and Consumers recognizes] there are some doubts as to whether consumers have the necessary knowledge to make an informed choice.” . Labeling has limited options within the marketplace. . The “growing opposition to GMOs in Europe,” which provided the impetus for mandatory labeling in the EU in 1997, led retailers to consider removing GMOs from shelves. . “By 1999, to avoid labels that might drive customers away, most major European retailers had removed genetically modified ingredients from products bearing their brand. . . . Today it is virtually impossible to find GMOs in European supermarkets.” .
In the United States, the FDA “ensures that novel food products are just as safe as traditional food products.” . “The consultative process requires producers to provide the FDA with documentation showing that the specific GM food product is as safe as the traditional food product.” . This includes disclosure of possible allergens. .
The “framing principles for U.S. regulation [are]:  biotechnology poses no unique risks;  the products of biotechnology should be regulated, not the process;  existing laws should be used to regulate the products of biotechnology.” . The FDA standard of substantial equivalence assumes that, by the time a GMO is market ready, sufficient testing information will be available from research to confirm safety. . If there is need for federal GMO reform, it is to reduce FDA reliance on data supplied by producers, not blanket labeling.
III. LABELING MYTHS AND REALITIES
Though proposed as harmless additions to food labels that would increase consumer knowledge, the desire to label GMOs within the United States is based on fears that the products of bioengineering are different than traditionally modified foods. This fear is communicated to consumers through the label. An assumption is drawn in the mind of the consumer that products labeled as GMOs are inferior and dangerous.
The FDA has acknowledged a legitimate concern that labeling subliminally promotes non-GMO goods as superior and substantially dissimilar from goods containing GMOs. . The European Commission Directorate General for Health and Consumers recognized that labeling in Europe did not promote informed choice among consumers because consumers did not understand the underlying technology. .
Similar information asymmetry is prevalent within the United States due to the virulent anti-GMO marketing of consumer advocacy groups. “Instead of providing people with useful information, mandatory GMO labels would only intensify the misconception that GMOs endanger people’s health.” . “It’s not unusual to hear an assortment of ills ascribed to GM[O] foods, from obesity and cancer to infertility and genetic defects. The claims . . . aren’t supported by scientific research.” .
Another example of the information asymmetry is clear in the American misunderstanding of the science underlying the GMO process. Some labeling proponents claim that labeling GMOs is analogous to labeling any other ingredient or the inclusion of artificial flavors. .
“But genetic engineering is different. It’s not an ingredient—it’s a technique. Genetic modifications can change plants and animals in any number of ways: Corn modified to resist a certain weed killer is not the same as rice that’s been reprogrammed to contain more vitamin A. They’re beneficial—or risky—in completely different ways. Mandatory labels might mislead consumers to lump all GMOs together.’ .
The United States is a member of a minority of developed countries who do not ban or require the labeling of GMOs. . For multiple reasons, many political, countries who could benefit from the high yields, drought and pest tolerance, and added nutritional benefits of GMOs have instead restricted the production of GMO crops. .
“It is a luxury, in a sense, that people in wealthy countries can reject a technology because they do not perceive a need for it, [Robert] Paarlberg argues.” . The debate over GMOs has become a political and economic one that looks very different in rich countries than in poor ones. . Paarlberg explains that although many African countries could benefit from GMO production, GMO production and research is restricted or prohibited in those areas. “[G]overnments—especially in poor countries—must protect their European export markets.” .
The American public misunderstands GMOs; this is the fault of both sides. The pro-GMO camp is guilty of trumpeting potential benefits not yet realized. The anti-GMO camp casts all GMOs into one lot and has turned to fear mongering. Neither side is wholly accurate. Fears of potential health effects are misplaced. Though over half of all processed foods contain at least one genetically modified ingredient, most of all GMOs are never directly consumed by humans. “[Genetically modified] corn and soybean crops go mainly into animal feed, biofuels, and cooking oils.” .
Moreover, both sides have already won. GMOs are permitted to be sold without labels in the United States. However, each individual GMO must be found to be safe before moving to market. . This precision allows each interest group to meet their goal. Those who wish to produce or purchase GMOs may do so. Those who are concerned of health risks associated with new foods can be assured that the FDA monitors the release of GMOs to the public. And those who truly wish to avoid all GMOs can buy food labeled as organic, which are not permitted to contain GMOs.
GMOs “offer[ ] an unparalleled safety record and demonstrated commercial success.” . Dr. Marc Van Montagu, co-recipient of the 2013 World Food Prize, states, “[e]very respected scientific organization that has studied GM[O] crops—the American Medical Association, the National Academy of Sciences and the World Health Organization, among others—has found GM[O] crops both safe for humans and positive for the environment.” . Dr. Van Montagu urges that “educated, scientifically literate people . . . avoid being taken in by the myths about genetically modified food.” .
Not every GMO crop has been a success, and perhaps in the future not every GMO will be found as safe as those already introduced. However, to cast all GMOs into one lot for labeling—the successful and the unsuccessful, the risky and the proven, those with a commercial benefit and those with a societal benefit—is overly simplified legislation which would eliminate both choice and tangible benefits for producers, consumers, and society as a whole.
. Tomatoes, GMO COMPASS, http://www.gmo-compass.org/eng/grocery_shopping/fruit_vegetables/15.genetically_modified_tomatoes.html (last visited Feb. 22, 2014). The “FlavrSavr” transgenic tomato was the first commercially available GMO in U.S. markets.
. About GE Food Labeling, CTR. FOR FOOD SAFETY, http://www.centerforfoodsafety.org/issues/976/ge-food-labeling/about-ge-labeling (last visited Feb. 22, 2015).
. Traceability and labeling of GMOs, EUROPA, http://europa.eu/legislation_summaries/food_safety/specific_themes/l21170_en.htm (last visited Feb. 22, 2015). See also Daymond Steer, GMO Labeling Bill in N.H. House, THE CONWAY DAILY SUN(Aug. 8, 2013, 3:48 PM), http://www.conwaydailysun.com/index.php/newsx/local-news/108443-gmo-labeling-bill-in-nh-house.
. Gloria Dawson, Could the World Love Pesticide-Free GMOs?, MODERN FARMER (Aug. 19, 2013), http://modernfarmer.com/2013/08/gmo-seeds-that-fight-disease-without-pesticides.
. International Labeling Laws, CENTER FOR FOOD SAFETY, http://www.centerforfoodsafety.org/issues/976/ge-food-labeling/international-labeling-laws (last visted Feb. 22, 2015).
. Emily Robertson, Finding a Compromise in the Debate over Genetically Modified Food: An Introduction to a Model State Consumer Right-To-Know Act, 9 B.U. J. SCI. & TECH. L. 156, 159 (2003).
. John Davidson, GM plants: Science, Politics and EC Regulations, 178 PLANT SCIENCE 94 (2010), available at http://www.sciencedirect.com/science/article/pii/S0168945209003112.
. U.S. CONST. art. I, § 8
. Dawson, supra note 4.
. Labels for GMO Foods Are a Bad Idea, SCIENTIFIC AM. (Aug. 20, 2013), http://www.scientificamerican.com/article.cfm?id=labels-for-gmo-foods-are-a-bad-idea.
. Gregory N. Mandel, Gaps, Inexperience, Inconsistencies, and Overlaps: Crisis in the Regulation of Genetically Modified Plants and Animals, 45 WM. & MARY L. REV. 2167, 2174 (2004).
. Margie Kelly, Top 7 Genetically Modified Crops, HUFFINGTON POST (Oct. 30, 2015, 5:05 PM), http://www.huffingtonpost.com/margie-kelly/genetically-modified-food_b_2039455.html.
. 65 Health Risks of GM Foods, Section 1: Evidence of Reactions in Animals and Humans, INSTITUTE FOR RESPONSIBLE TECH., http://www.responsibletechnology.org/gmo-dangers/65-health-risks/1notes (last visited Feb. 22, 2015). See also Genetically Engineered Food: The Labeling Debate, CTR. FOR FOOD SAFETY, http://www.centerforfoodsafety.org/files/labeling_fact-sheet_35682.pdf (last visited Feb. 22, 2015) (claiming herbicide use has increased by a total of more than 527 million pounds following the introduction of GMOs). Contra Chief EU scientist backs damning report urging GMO ‘rethink’, EURACTIV (Sept. 26, 2013), http://www.euractiv.com/science-policymaking/chief-eu-scientist-backs-damning-news-530693 (explaining that cultivating a GMO crop with increased herbicide resistance may prove detrimental to the environment if the farmer over-uses that herbicide. “But the same would be true of herbicide resistance introduced by conventional breeding.”).
. Natasha Gilbert, A Hard Look at 3 Myths about Genetically Modified Crops, SCIENTIFIC AM. (May 1, 2013), http://www.scientificamerican.com/article.cfm?id=a-hard-look-at-3-myths-about-genetically-modified-crops.
. W.S. Cranshaw, Bacillus thuringiensis, COLORADO STATE UNIV. EXTENSION (Aug. 5, 2014), http://www.ext.colostate.edu/pubs/insect/05556.html.
. Jason Pontin, GMOs Are Green, MIT TECH. REV. (Dec. 17, 2013), http://www.technologyreview.com/fromtheeditor/522601/gmos-are-green/.
. Cranshaw, supra note 18.
. Nathanael Johnson, In the insecticide wars, GMOs have so far been a force for good, GRIST (Oct. 8, 2013), http://grist.org/food/in-the-insecticide-wars-gmos-have-so-far-been-a-force-for-good/.
. See generally Golden Rice Project, http://www.goldenrice.org (last visited Feb. 22, 2015). See also Amy Harmon, Golden Rice: Lifesaver?, N.Y. TIMES (Aug. 24, 2013), http://www.nytimes.com/2013/08/25/sunday-review/golden-rice-lifesaver.html?pagewanted=all&_r=0.
. State Labeling Initiatives, CTR. FOR FOOD SAFETY, http://www.centerforfoodsafety.org/issues/976/ge-food-labeling/state-labeling-initiatives (last visited Feb. 22, 2015).
. Labels for GMO Foods Are a Bad Idea, supra note 10.
. Management and Directors, TWO BLADES FOUND., http://2blades.org/about-us.php (last visited Feb. 22, 2015). See also Steve Sexton, How California’s GMO Labeling Law Could Limit Your Food Choices and Hurt the Poor, FREAKONOMICS (June 22, 2012), http://freakonomics.com/2012/06/22/how-california%E2%80%99s-gmo-labeling-law-could-limit-your-food-choices-and-hurt-the-poor.
. Dawson, supra note 4.
. Evaluation of the EU Legislative Framework in the Field of GM Food and Feed, EUROPA (July 12, 2010), available at http://ec.europa.eu/food/food/biotechnology/evaluation/docs/executive_summary_food_feed_en.pdf.
. Labels for GMO Foods Are a Bad Idea, supra note 10.
. Sara J. MacLaughlin, Note, Food For the Twenty-First Century: An analysis of Regulations for Genetically Engineered Food in the United States, Canada, and the European Union, 14 IND. INT’L & COMP. L. REV. 375, 391 (2003).
. Rebecca Bratspies, Genetically Modified Organisms: Philosphy, Science, And Policy: Some Thoughts on the American Approach to Regulating Genetically Modified Organisms, 16 KAN. J.L. & PUB. POL’Y 393, 406 (2007).
. Michelle T. Friedland, You Call that Organic? – The USDA’s Misleading Food Regulations, 13 N.Y.U. ENVTL. L. J. 379, 416 (2005). See also Sally Noxon Vecchiarelli, Comment, Mandatory Labeling of Genetically Engineered Food: Constitutionally, You Do Not Have A Right To Know, 22 SAN JOAQUIN AGRIC. L. REV. 215, 228 (2013).
. Evaluation of the EU Legislative Framework, supra note 29.
. Labels for GMO Foods Are a Bad Idea, supra note 10.
. Swap Frankenfood Hysterics for Accuracy in Food Labeling, BLOOMBERG(Mar. 11, 2013), http://www.bloomberg.com/news/2013-03-11/swap-frankenfood-hysterics-for-accuracy-in-food-labeling.html. See also EURACTIV, supra note 15.
. Martin Kaste, So What Happens If The Movement To Label GMOs Succeeds?, NPR (Oct. 16, 2013), http://www.npr.org/blogs/thesalt/2013/10/16/235525984/so-what-happens-if-the-movement-to-label-gmos-succeeds.
. Id. See also MacLaughlin, supra note 33.
. International Labeling Laws, supra note 5.
. Sen. Lugar, Statement to Center for Strategic and International Studies Global Food Security Task Force, TOM HARKIN IOWA’S SENATOR, http://www.harkin.senate.gov/press/release.cfm?i=301434 (last visited November 12, 2013).
. Amy Mayer, GMO Debate Influence Africa, THE GAZETTE (Nov. 18, 2013), http://thegazette.com/2013/11/18/gmo-debate-influences-africa.
. David Rotman, Why We Will Need Genetically Modified Foods, MIT TECH. REV. (Dec. 17, 2013), http://www.technologyreview.com/featuredstory/522596/why-we-will-need-genetically-modified-foods/.
. MacLaughlin, supra note 33.
. Marc Van Montagu, The Irrational Fear of GM Food, THE WALL ST. J. (Oct. 22, 2013), http://online.wsj.com/news/articles/SB10001424052702303680404579141741399966328.