Arguing the labeling case in the court of public opinion

By Sara Wyant

© Copyright Agri-Pulse Communications, Inc.

WASHINGTON, April 11, 2012 -Organizers of the effort to persuade FDA to mandate biotech food labels don't rely only on legal assertions in their 25-page petition. The campaign that collected more than 1 million signatures in support of the petition was calibrated to win public opinion even if its fails the legal test.

The “Just Label It” coalition commissioned a survey to claim more than 90 percent of consumers support biotech food labels and that “arguments against it have little sway.” The results of the survey by the Mellman Group contrast with an annual International Food Information Council poll that consistently finds about 18 percent of consumers wanting more information on food labels and only 3 percent volunteering that they support labeling of biotech food. The labeling advocates also generated a letter signed by 10 senators and 45 members of the House last month to support their contention. “FDA has a clear opportunity to protect a consumer's right to know, the freedom to choose what we feed our families and the integrity of our free and open markets with this petition,” says the letter to FDA Commissioner Margaret Hamburg.

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FDA's manner of handling the public comments has generated its own controversy, with labeling advocates scrambling to explain why the federal regulatory Web site shows only 671 comments on the petition when they claim to have submitted more than 1 million. Although “some internet buzz” claimed FDA deleted most of the comments, FDA treated each of the few hundred individual comments and each petition with multiple names (one entry showed that it contains 37,254 identical comments) as a single entry. “Just Label It” observes that it is “one way they manage the process when they receive large quantities” of similar comments.

Whereas the petition organizers argue that the numbers matter, history at FDA suggests they may be too optimistic. The petition itself acknowledges that government decisions are not always the result of popularity contests. “FDA received nearly 6,500 comments on its 1992 policy,” the petition states. “An agency analysis of those comments concluded that more than 98 percent of the public commenters opposed the policy. Moreover, about 80 percent of the commenters demanded mandatory labeling of genetically engineered foods, and a significant number questioned the safety and environmental impacts of these novel foods and crops.”

Should FDA break its own precedent and grant the petition, it could face a different set of challenges in court. Increasingly in recent years, lower courts as well as the U.S. Supreme Court have enunciated “commercial speech” rights of corporations. Whether FDA could require a company to label food without a health or safety basis would be a legal test. Of course, FDA could end up in court either way. “If they do say no, they need to think about it because it will go to litigation,” said Andrew Kimbrell, the CFS executive director.


Original story printed in April 11th, 2012 Agri-Pulse Newsletter.

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