Will GMO labeling have its day in court?

It appears as if organizers have gathered enough signatures to put an initiative on the November ballot in California which would require the labeling of genetically engineered foods. Of all the efforts to date to mandate such labeling, this initiative seems most likely to succeed in a state known for its health consciousness and its widespread organic agriculture (which doesn't permit genetically engineered crops).

But passage of the California initiative would almost certainly lead to a court battle as major producers of genetically engineered seeds seek to have the new law invalidated. We know this because the Monsanto Company, the largest purveyor of genetically modified seeds, threatened the state of Vermont with a lawsuit should its legislature pass a genetically modified organism (GMO) labeling bill. Though passed 9 to 1 by Vermont's House Agriculture Committee, the bill is likely to die because the legislature goes out of session shortly, too soon, it seems, for the full House to act. Next door Connecticut is moving a similar bill, the fate of which remains open.

Labeling is an existential issue for the GMO industry. Where labeling exists such as in Europe, there is virtually no demand for genetically modified foods. Consumers do not want them. Why? Because the industry cannot demonstrate any benefits for the consumer. The only benefits--large profits drained from farmers locked into the treadmill of buying new GMO seed every year--accrue to the companies. With no demonstrated benefits and lots of questions surrounding the safety of GMO foods, consumers are choosing to play it safe wherever they can knowingly make choices through labeling. It turns out that GMO labeling would be the equivalent of putting a skull and crossbones on a food package or piece of produce, and the companies know it.

That's why in any lawsuit aimed at striking down a GMO labeling law, the companies will seek to limit their argument to a procedural one, namely, that food labeling is the purview of the federal government. (They may also say such a labeling requirement violates their free speech rights. But I doubt if this will fly since governments, state and federal, already enforce many labeling requirements on food.)

The GMO companies will want to focus on the procedural issue of federal supremacy in food labeling for two reasons. First, those companies have a stranglehold on the U.S. Congress and know that it will never pass any GMO labeling requirements. Second, the companies desperately want to avoid any discussion of the substantive issue of "substantial equivalence," the notion, coined by the U.S. Food and Drug Administration (FDA), that GMO crops are basically the same as conventional crops and therefore do not require any special testing for safety.

This is where it gets interesting because it is precisely here where the anti-GMO advocates find themselves on firmer ground. In any legal challenge to GMO labeling laws, those defending the laws could use a legal process called discovery to unearth documents and question officials and scientists at the various companies. What unreleased feeding studies might the defenders find in company files that would contradict the industry's claims? What failed research might they uncover that would shed light on the dangers of GMOs? In addition, there would be no reason why the defenders couldn't also call independent experts to testify about why GMOs really are different from conventional plants and animals, and therefore warrant a label. Who knows? We might even be treated to juicy testimony from an industry whistleblower about falsified test results. This is just the kind of high-profile discussion the GMO industry wants to avoid.

Here is a preview of what we might expect if such testimony were allowed:

When the question of GMO crops first came up at the FDA, the agency's scientists concluded that GMOs were, in fact, different enough that they should be tested in the way that new drugs are tested before approval. These scientists were overruled by the Clinton administration, and the widespread introduction of GMO ingredients into food began.

Since then, independent research has been hard to come by. The GMO companies fund much of the world's agricultural research and therefore can threaten to withdraw support from an institution whenever research--even that funded from other sources--might threaten the industry. In addition, the companies deny most researchers--read: those who can't be counted on to toe the party line--access to so-called "isogenic lines (conventional and Roundup Ready plant lines that are otherwise genetically identical)." Doing so would allow scientists to test whether the claimed benefits of the genetic alterations are significant or could possibly create drawbacks or dangers.

Despite this there is a growing body of evidence to suggest that, at the very least, GMO crops should undergo extensive safety testing before being released for use. And, there is further evidence that associated practices such as the profligate use of the pesticide glyphosate--known commercially as Monsanto's Ready Roundup used on genetically altered Ready Roundup tolerant plants to make chemical weeding easy--may be changing soil flora so that crops are much more susceptible to "sudden death syndrome," a fungal disease that rots the roots of plants. In addition, the pesticide may not be breaking down in the environment the way its maker says it does. Instead, it appears to linger and build up in the soil. Because glyphosate ties of up nutrients in the soil, it makes crops grown on land saturated with the pesticide less nutritious and more subject to the buildup of toxins.

It is difficult to say who would prevail in a court battle over GMO labeling, one that would almost certainly go to the Supreme Court. Although the current right-wing justices have shown deference to states in most of their opinions, they have also abandon principle whenever sticking to it would inconvenience large corporations--their love of which they announced most prominently in the so-called Citizens United case which has opened the floodgates to unlimited corporate money in politics.

When much of the world is essentially off limits to you because of labeling, when in the very large U.S. market more than 90 percent of the people say they want labeling, when a Google search for the industry's leading company, Monsanto, reveals "evil" as its first suggested additional search term, the only way you can win is to cheat. Buy state legislators, buy Congress, buy the courts (if you can), stack the government with former employees, lie to the public again and again.

The one thing that the GMO industry does not want is a discussion in the clear light of day of what it is doing and what it is suppressing. And, that is what the upcoming battle over the California GMO labeling initiative and, if it passes, the subsequent court case are going to provide.

P.S. One of the things the GMO lobby is going to claim in the California labeling fight is that requiring labels in just one state will drive up food costs. They will argue that this is because of the added costs of two labels for each product containing GMO ingredients and the costs of segregating properly labeled products bound for California from those going to the rest of the country. I have a simple fix for this: Put the California-compliant label on all products containing GMOs regardless of destination!

I'm preparing to be astonished should the food companies follow my suggestion.

Kurt Cobb is the author of the peak-oil-themed thriller, Prelude, and a columnist for the Paris-based science news site Scitizen. His work has also been featured on Energy Bulletin, The Oil Drum, 321energy, Common Dreams, Le Monde Diplomatique, EV World, and many other sites. He maintains a blog called Resource Insights.