Thoughts on the Regulation of Genetically Engineered Food Products

Last night, Agricultural Law founder, Jim Chen, got my attention with a tweet and a link to the NY Times article that reported on Mark Lynas, the one-time foe of GMO use in agriculture and his startling endorsement of GM technologies.   New Shade of Green: Stark Shift for Onetime Foe of Genetic Engineering in Crops.

Reading the article caused me to reflect on my own thoughts on GM crops. I find that typically, we tend to divide the world into two opposing camps, those for and against genetic engineering. The most reasonable path, however, may be somewhere in between.

Here are my primary concerns about genetic engineering as it is currently regulated in the United States.

• U.S. laws allowing the patenting of life forms may have gone too far. The ownership of the genetic material in seed leads to property rights that spread beyond the original product through plant reproduction to the next generation by planting, volunteer germination, or drift, whether intentional or unintentional. That is a dramatic extension of the rights of the patent holder.  And, when the object of the patent is a food source, that is of particular concern. When the patent holders are multinational corporations in an intensely consolidated industry, it is even more concerning. A similar issue is currently before the Supreme Court, although few expect a significant change in intellectual property law.  See, Supreme Court to Rule on Patents for Self-Replicating Products.

• Our most prevalent agricultural experience with GM crops provided some short terms successes with serious long term repercussions. Round-up Ready (RR) corn and soybeans have promoted more intense farming, less crop rotation, and the overuse and resulting premature loss of one of our best pesticides. Resistant "super weeds" are devastating some crops and causing farmers to use increasingly more toxic pesticides at higher levels. See, e.g.,  Study: US farmers Using More Pesticides on 'Superweeds'.  One can hardly imagine a less sustainable scenario.

• If GM technology is going to be critical to global food security and the development of drought-resistant crops in a planet facing serious climate change, should its development be guided by corporations that are, by their very structure, dedicated to profitability? 

• While the processess we use for genetic engineering are no longer new, the potential uses are each unique. Even if one favors genetic engineering as an important tool in our scientific toolkit, certainly not all modifications are advisable. When we have an intellectual property system that can be used to effectively preclude the objective review of patented GM products, we cannot adequately catch and prevent potential problems. See, Crop Scientists Say Biotechnology Seed Companies are Thwarting Research. 

• As with the introduction of an invasive species, any man-made large-scale alteration of the environment should have a method of containment. The government has failed to place any realistic restrictions on the use of GM products that will drift onto others' property, contaminating both wild and farmed seed sources. Secretary Vilsack attempted, but failed in his attempts to implement a policy of coexistence between GM and non-GM production during the debate on GM alfalfa. 

• Just as ingredients are listed on food products, the use of technology to alter the genetic make- up of the product that is sold should be disclosed to consumers. While the FDA and USDA attempt to argue that the product is "the same."  It is not. It really is different, and that's why it was developed - to be different, and at least in the eyes of the patent holder, better. Consumers are neither too stupid nor too ignorant to make their own choices about the food they eat. The more that they are deceived or told that they don't need to know, the more suspicious they will become.  

So, I submit that the GM debate is not simply one of science, nor is it one of the clear and obvious lines that are sometimes drawn. The failings of our legal system are a major part of the problem.