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legislation to require labeling of genetically modified foods. Their rationale for the Genetically Engineered Food Right to Know Act directly contradicted the position taken by the FDA. The bill assumed that because genetic engineering does change foods in significant ways (in regulatory terms, produces a material change), “federal agencies have failed to uphold Congressional intent by allowing genetically engineered foods to be marketed, sold and otherwise used without labeling that reveals material facts to the public.”5 If passed, the bill would have required all foods containing genetically modified ingredients to be labeled as indicated in figure 24. The label would not apply to drugs; to restaurants, bakeries, or other establishments preparing food for immediate consumption; or to organic crops inadvertently contaminated by nearby transgenic crops. Congressional support, though growing, was insufficient to pass the bill by the end of 2002.

Although the bill’s initial supporters included at least three Republicans, the response was predictable: overwhelming opposition from the food industry and its supporters in the Republican-controlled House of Representatives. Food trade groups objected that the warning was unnecessary, unscientific, confusing to the public, and too big to put on labels. A representative of the National Food Processors Association said that the bill placed “Politics ahead of sound science. . . . [Kucinich] apparently believes that Congress—rather than the FDA, the scientific community or the public—is best equipped to address food biotechnology and consumer concerns. . . . Laws and regulations should be based on the best science available, rather than on political pressure from activists opposed to the use of this technology.”6 In contrast, at least 18 consumer and industry groups announced support of the legislation; these included the American Corn Growers Association and the National Farmers Organization, both of which represented producers hurt by the refusal of European countries to buy their commingled conventional and transgenic crops.

FIGURE 24. The Genetically Engineered Food Right to Know Act of 1999, introduced by Representative Dennis J. Kucinich (Dem-OH), required this label on packages of foods made from genetically modified ingredients. The bill did not pass.

In preparing for the 1999 hearings, the FDA was forced to deal with societal questions it had ignored in its 1992 policy. Did the policy best serve the public? Was additional information needed? Who should be responsible for communicating such information, and how should it be made available?7 As an invited speaker to the first of the hearings, I thought they might indicate a breakthrough in FDA policy. I had heard FDA officials refer to labeling as the “L-word.” Labeling caused them no end of trouble, much of it brought on by their resistance to dealing with societal considerations. I thought the FDA needed to approve labeling for three reasons: public demand, the threat of Congressional intervention, and the inability of the industry to overcome public distrust without it. The FDA argued that writing labeling rules would be difficult, as agency staff would have to establish thresholds and deal with foods with multiple ingredients. This objection seems spurious, however, as plenty of FDA officials know how to write Federal Register notices. Objections that genetic modification is not material also seem weak. The FDA already allowed label statements for production processes: made from concentrate, previously frozen, organically grown, kosher, and irradiated, for example.

In a move that seemed precedent breaking, the FDA conducted focus groups to assess consumer opinions about the labeling issue. To the agency’s apparent surprise, practically all of the participants wanted labels to say whether foods were produced through genetic engineering. The FDA report on the focus groups said, “What is striking about participants’ initial discussion of their reasons for wanting biotechnology labeling is the widespread perception that