First liquor labeling, now salmon labeling (and next up, cigarette labeling). This is from Jonathan Adler at the Volokh Conspiracy:
The Food and Drug Administration is considering whether to approve genetically modified salmon for human consumption. Aquabounty Technologies has submitted its “AquAdvantage” salmon, an Atlantic salmon genetically engineered to mature faster than wild salmon, for FDA approval. Thus far, things look good for Aquabounty, as the FDA’s staff review concluded that AquAdvantage salmon are as safe to eat as other Atlantic salmon. Further, the staff found “no biologically relevant difference” between the fish.
If the FDA approves AquAdvantage, it is unlikely that the FDA will require that AquAdvantage be labeled as genetically modified. Indeed, the FDA may lack authority to require such a label. As the Washington Post reports, if the FDA concludes that AquAdvantage salmon are not materially different than other salmon, there is no basis to mandate disclosure, as failure to label the fish does not mislead the consumer. Failure to disclose how a product is made — in this case, that an eel gene was inserted in the salmon to make it grow faster — is not misleading to consumers. Under existing law, so long as the genetically engineered salmon is not materially different than other salmon, the fact that it was genetically engineered is no more relevant than what it was fed, the size of its pen (assuming farm-raised salmon), or how it was killed. Producers are free to disclose such process characteristics, but the FDA will not mandate it.
Would the FDA’s failure to mandate the labeling of AquAdvantage salmon be a problem? I think not. It is one thing to require producers to label their products so that consumers are aware of potentially harmful characteristics. It is quite another to force a producer to label a product to disclose a non-material fact about the product that some consumers may dislike, such as how it was produced. The former is disclosure for consumer protection; the latter approaches forced stigmatization. If, as the FDA apparently believes, the genetically engineered salmon is just as safe, healthful, etc. as other salmon, what basis is there for requiring a label? If the government mandates a label, it is sending the message that a particular product characteristic is particularly important and should matter to consumers more than others. It’s a non-so-subtle suggestion that something may be wrong. Indeed, why else would there be a label?
In a nutshell, he thinks labeling for genetic enginerring should be voluntary (by companies), in response to consumer demand, rather than mandated by the government.
He doesn't discuss international trade issues related to genetic engineering, but I found it interesting how the same concepts come up in the domestic debate as we see in trade law. For example, there is a reference to "how a product is made," which brings to mind the "product-process" distinction; and there is the statement that genetically engineered salmon are not "materially different" than other salmon, for which I wanted to substitute the word "like" when I read it.
While Adler's discussion was purely about domestic regulatory concerns, I wonder if there is an IEL component to this specific case. The company in question is called Aquabounty Technologies. According to their web site, they are listed on the London Stock Exchange, they have offices in Canada, and they licensed technology from Canadian universities. Might there be enough of a foreign connection there that a WTO or NAFTA claim of some sort would be possible? On the other side of the argument, their headquarters are in Massachusetts and they are incorporated in Delaware.
Anyway, even if there is no IEL issue in this particular case, it seems quite possible there will be one in the near future on similar cases. As the Washington Post reports in an article about the salmon labeling issue:
The pending decision is being tracked by biotechnology companies that have invested millions of dollars in developing genetically modified animals for food and are waiting for the FDA to act on their approval requests.
Scientists at the University of Guelph in Ontario, Canada, have asked the FDA to approve their "Enviropig," a hog genetically altered to produce environmentally friendly manure. ...
