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December 21, 2005


Ears of Plenty; Rogue Gallery; GM Scare Stories; Wake Up, Smell the Manure; State Anti-GM Food laws


Today in AgBioView from http://www.agbioworld.org - Dec. 21, 2005

* The Story of Wheat: Ears of Plenty (A Must Read Story) *
* GM Watch's Rogue Gallery
* GM Scare Stories
* Kellogg and the New Healthy Soybean Oil
* Organic Lobby Blamed for GM Delay
* Wake Up, Smell the Manure
* US Report Lauds GM Gains
* Ghana Ready to Implement Biosafety Framework
* First International Plant Breeding Symposium
* UK: Expert Targets Teenagers to Teach Science (and this is Bad?)
* Risk-Assessment Cartoon Triptych
* DHMO Detection for Your Palm
* Federal Preemption and State Anti-GM Food laws

The Story of Wheat: Ears of Plenty

- The Economist, Dec. 20, 2005. Full story at http://www.economist.com/science/displaystory.cfm?story_id=5323362

In 10,000 years, the earth's population has doubled ten times, from less than 10m to more than six billion now and ten million soon. Most of the calories that made that increase possible have come from three plants: maize, rice and wheat. The oldest, most widespread and until recently biggest of the three crops is wheat (see chart). To a first approximation wheat is the staple food of mankind, and its history is that of humanity.
Yet today, wheat is losing its crown. The tonnage (though not the acreage) of maize harvested in the world began consistently to exceed that of wheat for the first time in 1998; rice followed suit in 1999.

Genetic modification, which has transformed maize, rice and soyabeans, has largely passed wheat by--to such an extent that it is in danger of becoming an "orphan crop". The Atkins diet and a fashion for gluten allergies have made wheat seem less wholesome. And with population growth rates falling sharply while yields continue to rise, even the acreage devoted to wheat may now begin to decline for the first time since the stone age.

It is time to pay tribute to this strange little grass that has done so much for the human race. Strange is the word, for wheat is a genetic monster. A typical wheat variety is hexaploid--it has six copies of each gene, where most creatures have two. Its 21 chromosomes contain a massive 16 billion base pairs of DNA, 40 times as much as rice, six times as much as maize and five times as much as people. It is derived from three wild ancestral species in two separate mergers. The first took place in the Levant 10,000 years ago, the second near the Caspian Sea 2,000 years later. The result was a plant with extra-large seeds incapable of dispersal in the wild, dependent entirely on people to sow them.

On farms, Haber nitrogen ran into much the same revulsion as had greeted the seed drill. For many farmers, the goodness of manure could not be reduced to a white powder. Fertiliser must in some sense be alive. Haber nitrogen was not used as fertiliser in large quantities until the middle of the 20th century, and for a good reason. If you put extra nitrogen on wheat, the crop grew taller and thicker than usual, fell over in the wind and rotted. On General Douglas MacArthur's team in Japan at the end of the second world war a wheat expert named Cecil Salmon collected 16 varieties of wheat including one called "Norin 10", which grew just two feet tall, instead of the usual four. Salmon sent it back to a scientist named Orville Vogel in Oregon in 1949. Vogel began crossing Norin 10 with other wheats to make new short-strawed varieties.

In 1952 news of Vogel's wheat filtered down to a remote research station in Mexico, where a man named Norman Borlaug was breeding fungus-resistant wheat for a project funded by the Rockefeller Foundation. Borlaug took some Norin, and Norin-Brevor hybrid, seeds to Mexico and began to grow new crosses. Within a few short years he had produced wheat that yielded three times as much as before. By 1963 95% of Mexico's wheat was Borlaug's variety, and the country's wheat harvest was six times what it had been when Borlaug set foot in the country.

In 1961 Borlaug was invited to visit India by M. S. Swaminathan, adviser to the Indian minister of agriculture. India was on the brink of mass famine. Huge shipments of food aid from America were all that stood between its swelling population and a terrible fate. One or two people were starting to say the unsayable. After an epiphany in a taxi in a crowded Delhi street, the environmentalist Paul Ehrlich wrote a best-seller arguing that the world had "too many people". Not only could America not save India; it should not save India. Mass starvation was inevitable, and not just for India, but for the world.

Borlaug refused to be so pessimistic. He arrived in India in March 1963 and began testing three new varieties of Mexican wheat. The yields were four or five times better than Indian varieties. In 1965, after overcoming much bureaucratic opposition, Swaminathan persuaded his government to order 18,000 tonnes of Borlaug's seed. Borlaug loaded 35 trucks in Mexico and sent them north to Los Angeles. The convoy was held up by the Mexican police, stopped at the border by United States officials and then held up by the National Guard when the Watts riots prevented them reaching the port. Then, as the shipment eventually sailed, war broke out between India and Pakistan.

As it happened, the war proved a godsend, because the state grain monopolies lost their power to block the spread of Borlaug's wheat. Eager farmers took it up with astonishing results. By 1974, India wheat production had tripled and India was self-sufficient in food; it has never faced a famine since. In 1970 Norman Borlaug was awarded the Nobel Peace Prize for firing the first shot in what came to be called the "green revolution".

Borlaug had used natural mutants; soon his successors were bringing on mutations artificially. In 1956, a sample of a barley variety called Maythorpe was irradiated at Britain's Atomic Energy Research Establishment . The result was a strain with stiffer, shorter straw but the same early harvest and malting qualities, which would eventually reach the market as "Golden Promise".

Today scientists use thermal neutrons, X-rays, or ethyl methane sulphonate, a harsh carcinogenic chemical--anything that will damage DNA--to generate mutant cereals. Virtually every variety of wheat and barley you see growing in the field was produced by this kind of "mutation breeding". No safety tests are done; nobody protests. The irony is that genetic modification (GM) was invented in 1983 as a gentler, safer, more rational and more predictable alternative to mutation breeding--an organic technology, in fact. Instead of random mutations, scientists could now add the traits they wanted.

In 2004 200m acres of GM crops were grown worldwide with good effects on yield (up), pesticide use (down), biodiversity (up) and cost (down). There has not been a single human health problem. Yet, far from being welcomed as a greener green revolution, genetic modification soon ran into fierce opposition from the environmental movement. Around 1998, a century after Crookes and two centuries after Malthus, green pressure groups began picking up public disquiet about GM and rushed the issue to the top of their agendas, where it quickly brought them the attention and funds they crave.

Wheat, because of its unwieldy hexaploid genome, has largely missed out on the GM revolution, as maize and rice accelerate into world leadership. The first GM wheats have only recently been approved for use, their principal advantage to the farmer being so-called "no till" cultivation--the planting of seed directly into untilled soil saves fuel and topsoil.

Soon after Norman Borlaug went to India in 1963, a remarkable thing began to happen. The world population growth rate, in percentage terms, had been climbing steadily since the second world war (bar a two-year drop in 1959-60 caused by Mao Xedong). But in the mid 1960s it stopped rising. And by 1974 it was falling significantly. The number of people added each year kept on rising for a while, but even that peaked in 1989, and then began falling steadily. Population was still growing, but it was adding a smaller and smaller number each year.

Demographers, who had been watching the exponential rise with alarm, now forecast that the population will peak below ten billion--ten gigapeople--not long after 2050. Such a low forecast would have been unthinkable just two decades ago. Already, in developing countries, the number of children born per woman has fallen from six to three in 50 years. It will have reached replacement-level fertility (where deaths equal births) by 2035.

This is an extraordinary development, unexpected, undeserved--and apparently unnatural. Human beings may be the only creatures that have fewer babies when they are better fed. The fastest-growing populations in the world over the next 50 years will be those of Burkina Faso, Mali, Niger, Somalia, Uganda and Yemen. All except in Yemen are in Africa. All are hungry. All remain untouched by Borlaug's green Revolution: all depend on primarily organic agriculture.

In 10,000 years the population has doubled at least ten times. Yet suddenly the doubling has ceased. It will never double again. The end of humanity's population boom will happen in the lifetimes of people alive today. It is the moment when Malthus was wrong for the last time.

Of course feeding ten billion will not be trivial. It will require at least 35% more calories than the world's farmers grow today, probably much more if a growing proportion of those ten billion are to have meat more than once a month. (It takes ten calories of wheat to produce one calorie of meat.) That will mean either better yields or less rainforest--which is why fertilisers, pesticides and transgenes are the best possible protectors of the planet. The story of wheat is not finished yet.


GM Watch's Rogue Gallery

- Letters from Andy Apel and Rick Roush

Dear 'ngin@gmwatch.org':

I thank you for including me in your list of those who believe truth is more informative than fiction. From long acquaintance I am fully aware that your treatment of facts tends to the whimsical, but it might amuse you to make several corrections to your entry at


For instance, I am no longer the editor of AgBiotech Reporter.

Please continue repeating on your site my impression that it is really stupid to assault police officers, and how I believe it is morally corrupt to starve people. This advice may appear to be common sense, but from what I see of the news, some people need to be reminded.

And please continue repeating on your site the "darkies" quote. The longer that remains there, the more people will search for the full paragraph and go further, to discover the full context and the utter revulsion that grinds my guts when I hear someone like you wants to deny food to a child, just to serve your political ideology.

Kindest regards, Andrew Apel


Dear 'ngin@gmwatch.org':

I am writing to thank you for including me on your list of profiles (http://www.gmwatch.org/profile1.asp?PrId=112). To be included in a group of so many truly great scientists such as Klaus Amman, Charles Arntzen, Roger Beachy, Peter Raven, Bob May, Vivian Moses, Jennifer Thomson, Anthony Trewavas, John Pickett, and Ingo Potrykus is a great honor and one that I intend to list on my CV.

I have one request though. Can you spell my name correctly? Itís Roush, not "Rousch". That will make it much easier for people to find me at your site when they google the web. I suspect that Alan McHughen (not Alan "McHugan") may also ask for the same thing.

However, in the interests of fairness and full disclosure, I must also confess to you and my colleagues that you have given me too much credit. First, I think I retired only from one email list, the anti-GM gentech, on which I spawned at least two free speech debates over whether I should be allowed to stay because I had the temerity to challenge many of the anti-GM myths being spread there.

Second, the journal Science concluded that the funding we received from industry did not constitute a conflict of interest and that "others were able to create the perception that (we) were hiding something". We did not hide anything of course, and the reason this issue came to light is that we told leading anti-GM campaigners in Australia about our funding and gave them pre-publication copies of our research. One of them, Bob Phelps, even used some of our data in a poster to show that pollen moved a few km, in support of his contention that GM could not be contained. I could send you documentation of this if you like.

In making these corrections, I note that several colleagues who are not yet on your list have asked me about how to apply. If there is an application process, I don't want their contributions to be judged as less than my own due to any errors in your records. It just won't be fair.

By the way, don't you just love the way the anti-GM county ordinance campaign in California has come to a grinding halt with the defeat of the Sonoma initiative? I wonder who helped with that?

Thank you very much,

Rick Roush (not "Rousch")


GM Scare Stories

- Western Mail (UK), Dec. 13, 2005 http://icwales.icnetwork.co.uk/

Sir - Please could you explain to me, a professional biologist, why you continue to print 'scare stories' about GM foods and fail to give proportionate space to the vast array of scientific evidence that shows that far from being any way hazardous, the process of using GM plant breeding techniques is, if anything, more likely to be safer than using 'conventional techniques'?

As I have pointed out on previous occasions, it is not possible to buy 'GM' because it is a process not an end product. Please for the sake of your own integrity will you reduce this irrational habit of publishing material that has little or no scientific value and increase the content of the many thousands of examples of where GM-bred varieties of many crops have helped farmers from almost all over the world to produce more consistent yields of valuable crops using reduced agrochemical inputs?

- Jonathon Harrington, Tregoyd, Brecon


Kellogg and the New Healthy Soybean Oil

- Owen McShane, omcshanea.twk.planet.gen.nz, Centre for Resource Management Studies, NZ http://www.RMAStudies.org.nz

See the press release from GE Free New Zealand re the new Soya Oil from Monsanto at http://www.scoop.co.nz/stories/BU0512/S00247.htm

Greens seem to think that linoleic acid is the same as Omega 3.

But they have never let the facts get in the way of a good story.


Organic Lobby Blamed for GM Delay

- Western Morning News (UK), Dec. 14, 2005 http://www.westernmorningnews.co.uk/

To be competitive in a new era of globalisation, UK agriculture must learn lessons from other industries, adopting a new business orientated mindset as well as embracing technical innovation like genetic modification, a leading economist told Devon farmers.

Sean Rickard, from the Cranfield School of Management, told the annual open meeting of Devon NFU that trade barriers and farming support payments were being reduced and that governments believed in the benefits of free-trade and liberalisation.

He decried green-lobby arguments about food miles and intensive agriculture, saying import protectionism would deny the poorest nations the chance to develop, and that evidence pointed to larger farms having a better environmental record.

The use of genetic modification would increase, allowing the rest of the world to overtake UK agriculture technologically, he said. It had been held back by organic sector lobbying, which, he claimed, was "the tail wagging the dog," since organic production accounted for only one per cent of the food market - and more cat food was produced than organic food.

But effective differentiation by farmers of that which they produced, working together, investing capital and setting up businesses to add value "downstream" in the food chain was even more necessary than technical efficiency, he stressed.

Leading bovine TB campaigner and dairy farmer, Paul Griffith, from Northlew, near Okehampton, took over from Dartmoor farmer, Layland Branfield, as chairman of the NFU's largest county, and South Devon beef farmer, Richard Haddock, is the new delegate from Devon to the NFU's national council.


Wake Up, Smell the Manure

- Tim Worstall, The Times (UK), Dec.13, 2005 http://www.timesonline.co.uk/

The cost of the food on your table has been falling since Neolithic times. Thanks to the onward march of technology - inventions such as fertiliser, the horse collar or exciting methods of turnip weeding - yields have been increased over the past 10,000 years, so reducing, for example, the price of each extra turnip produced.

This may all come as a surprise to Zac Goldsmith. He wrote on this page yesterday that "farm-gate prices have dramatically fallen and in some instances farmers are paid less than the cost of production". And, of course, the evil supermarkets are to blame.

But supermarkets are just another form of technology. As Paul Krugman, the distinguished economist, pointed out in yesterday's New York Times: "Wal-Mart has been able to reduce prices largely because it has brought genuine technological and organisational innovation to the retail business." Tesco claims about the same share of retail spending in the UK as Wal-Mart does in the US and for very much the same reason: their mastery of logistics thanks to computerisation.

Because of that the 98 per cent of us who are not farmers gain. This is as it should be: ever-greater quantities of ever-cheaper food are what have driven the growth of civilisation over the centuries. Moving from 100 per cent of the people scraping away in the fields to only 2 per cent is what has allowed some of us to become international financiers, editors of ecology magazines or the legatees of billionaires.

Mr Goldsmith also offered this stunning fact about farmers: "Over the past 30 years their incomes have almost halved and last year alone they fell by 7.5 per cent. Consequently, many farmers have gone out of business." This is also as it should be. However crude or unfair it might seem, falling income and prices for their produce is the universe's way of telling farmers that they ought to be doing something else.

There is nothing special about farming: manufacturing output, for instance, has been increasing in recent decades even as the number of manufacturing workers is falling. As productivity improves, we simply need fewer workers, and thus people are freed from one particular type of toil to go and do something else.

Falling prices? Falling incomes? Going out of business? My apologies, but we are simply being told that we still have too many farmers.


US Report Lauds GM Gains

- David McKenzie, Weekly Times (Australia), Dec. 14, 2005 http://theweeklytimes.news.com.au/

American farmers continue to benefit from genetically modified crops, according to a US report released last week. The report, by the National Centre for Food and Agriculture Policy, said US farmers planted about 47 million ha of GM crops last year, up 11 per cent on the previous year.

It said crop production was up by 24 per cent, production costs fell by 13 per cent and pesticide use was down by about 34 per cent or 28 million kg. ''Biotechnology-derived crops continued to provide positive agronomic, economic and environmental impacts in the US in 2004, similar to years before,'' the report said.

The NCFAP is a private research body headed by a board comprising university academics, government agencies and agribusiness giants Cargills and ConAgra. Its report contradicts the gloomy picture painted by US agricultural analyst Dr Charles Benbrook during his recent Australia visit.

Dr Benbrook said initial benefits from GM crop use had been reversed, with US farmers now facing higher herbicide and pesticide costs and growing market access problems.

Agrifood Awareness Australia's executive director Paula Fitzgerald said Dr Benbrook's claims ''don't sit well with the facts''. ''Farmers are business people and they wouldn't be growing GM crops if they weren't working for them,'' she said.

Australian farmers had managed herbicide-resistance in crops for many years and would do the same if they had the chance to use GM crops, Ms Fitzgerald said. Recent figures also show a continuing growth in GM crops around the world.

According to the International Service for the Acquisition of Agri-biotech Applications, 81 million ha of GM crops were planted in 17 countries last year, up 19 per cent on 2003. This was the second highest annual growth since GM crops were first planted commercially in 1996, ISAAA said.

About 8.25 million farmers were growing GM crops, 1.25 million up on the year before, it said. Last year, income for GM farmers rose about $8.8 billion, bringing the total gain since 1996 to $36.5 billion.


Ghana Ready to Implement Biosafety Framework

- CropBiotech Net, http://www.isaaa.org/kc

Mr Alex Owusu-Biney, lead person for the implementation of Program for Biosafety Systems (PBS) in Ghana, called for the development of critical capacity to implement a mechanism to handle requests for permits for laboratory work and field releases of genetically modified organisms (GMOs).

Speaking in an interview with the Ghana News Agency, Mr Owusu-Biney said Ghana was ready to implement the biosafety framework and a comprehensive program had been developed to build capacity in the development of the legal framework for biosafety and its implementation. He said Ghana's Biosafety Framework, which included biosafety guidelines, regulations, and a law, would be put before Parliament early next year.

According to him, the Ministry of Environment and Science had been the focal point for promoting safe use of biotechnology and a National Biosafety Framework had been developed to promote government policy on biosafety and ensure a regulatory system to address safety in the field of modern biotechnology. This, he said, would include national obligations in the area of trans-boundary movement under the requirements of the Cartagena Protocol on Biosafety, which Ghana had already ratified in May 2003.

Mr Owusu-Biney, who is also the Coordinator of the National Biosafety Committee, said two case studies on Bt Cassava and Bt Maize were analyzed by the regulators for possible consideration and they were also taken through competitive grant facility for environmental risk assessment research under the Biotechnology and Biodiversity Interface (BBI) of the global PBS. For more information, contact Linda Asante of the Ghana News Agency at lindaagyei13.at.yahoo.co.uk.


First International Plant Breeding Symposium

- Mexico City, Aug. 20-25, 2006 http://www.intlplantbreeding.com

"Growing a more secure future through scientific excellence."
Developments since the re-encounter with Mendelís discoveries have provided profound insights into how genes--acting alone or in concert with other genes and the environment--result in a particular phenotype.

Application of this knowledge has been enhanced through the use of advanced field plot designs, statistical procedures, information technology, field and lab equipment, and, more recently, molecular markers. Genomics promise to move plant breeding into previously unimaginable terrain that could greatly benefit humanity. To assess the state of the science and the art of plant breeding and to examine future prospects, CIMMYT, Iowa State University, Monsanto, and Pioneer Hi-Bred International are organizing the Symposium


GM Expert Targets Teenagers Controversial Academic to Present Flagship Science Lecture for Children

- Rachelle Money, Red Orbit (UK), Dec. 20, 2005 http://www.redorbit.com/

A leading scientist is to use a series of televised educational lectures to promote genetically modified crops to teenagers. Professor Sir John Krebs, the former chairman of the Food Standards Agency, will argue in this year's Royal Institution Christmas Lectures that growing genetically modified crops could help meet the demands of feeding the world's rising population.

The series of lectures, to be broadcast on Channel 5, is recorded live in front of an audience of 11-18-year-olds. Speaking ahead of the lectures, Krebs said: "The real problem is with the three billion extra mouths we will have to feed by 2050, how will we produce enough food? The main thing is water. You need land and energy, but the real limiting factor in producing food for the future is water.
"In order to get round this lack of water we may have to create plants that can survive with salt water. If you could take the genetic make-up of a salt marsh plant and put it in rice, then you could solve the water problem."

The controversial academic, who has been attacked in the past over his proGM stance, said it was important to inform young people because their generation will be making key decisions about the future use of the technology.

He said: "I'm going to be very upfront when it comes to talking about GM foods. Some people have real worries about using this as a technology, but then scientists say it's very safe and closely monitored.
"What I am saying is that whether we use GM food or not isn't up to the scientists, but up to the children in the audience."

Krebs, who is currently the principal of Jesus College, Oxford, also plans to discuss the growing issue of childhood obesity, how evolution influences what we eat, and the development of foods that claim to have health-enhancing qualities.

Krebs was a highly controversial figure during his five years as chairman of the independent FSA. The renowned ecologist, who specialises in bird behaviour, drew criticism for endorsing GM foods at the start of his term and later claiming that there was no evidence that organic food was better than conventional food.
He has also accused GM sceptics of being "shrill, often ill- informed and dogma-driven". He retired from the FSA in July this year.

Last night, Krebs's plans to use the prestigious Christmas Lectures to raise the issue of GM technology with young people were attacked by campaigners and politicians. Stuart Hay, head of policy and research at environmental group Friends of the Earth Scotland, said: "It's very dangerous for an intellectual figure like this to be advocating GM technology because there's complex science behind it. Young people especially need to know all the facts."

He added that the group also had concerns about the debate "because of the large multinational companies behind GM foods that stand to make billions out of it".

Mark Ruskell, Green speaker on the environment, said: "Sir John used his position as head of the supposedly independent FSA by rubbishing organic food and pushing GM down the public's throat. It's a shame that a group of teenagers now have to suffer his skewed and misinformed opinion."

A review of the FSA under Krebs by Baroness Dean concluded that the organisation had not fulfilled its criteria for being scientifically impartial when considering both organic and GM goods.

The Royal Institution, one of the pillars of the British scientific research establishment, specialises in the communication of scientific ideas and regards the prime-time televised lectures as some of its most important events of the year. In the past they have been strictly above politics. World famous scientists who have given the lectures include Baroness Susan Greenfield, director of the Royal Institution, George Porter and David Attenborough.

(From Prakash: Brits are going bonkers!)

Risk-Assessment Cartoon Triptych

- Marvin Winter, ACSH, Dec. 5, 2005 (Via Klaus Ammann). See cartoons at

Three toons from Marvin Winter as reminders humans aren't always the most rational risk-calculators -- and for a more serious look at risk, see our report Weighing Benefits and Risks in Pharmaceutical Use: A Consumer's Guide by Steven Marks (or for more levity from Marvin Winter, go here, here, or here, not to mention here, here, and here): links at http://www.acsh.org/factsfears/newsID.665/news_detail.asp


DHMO Detection for Your Palm

- Forwarded by Andy Apel

Concerned about dihydrogen monoxide (DHMO)? If you have a Palm-compatible handheld computer, you can download this sofware and use it to detect this dangerous substance, which is commonly associated with the production of GM crops!

TealDHMO (Beta Version 1.0, April 1, 2004) uses the IR port of your handheld to perform a test for the presence of DHMO (Dihydrogen Monoxide), a chemical which has been found to be harmful when inhaled or subjected to prolonged exposure. -TealPoint Software


However we urge customers, particularly ones who get positive test results to carefully read more about DHMO at www.dhmo.org


Federal Preemption and State Anti-GM Food laws

- Eric Lasker Legal Backgrounder (Washington Legal Foundation) Dec. 2, 2005. Full Brief at http://www.wlf.org/upload/120205LBLasker.pdf

For thousands of years, humans have used selective breeding to attempt to improve the genetic makeup of crops and livestock. With modern biotechnology, those often-crude efforts have given way to targeted genetic modifications that carry the promise of significant advances for public health and welfare and the environment.

As the American Medical Association Counsel on Scientific Affairs explained in December 2000, genetic modification ("GM") technology "has the potential to increase the production of food, improve the efficiency of production and the nutritional quality of food, reduce the environmental impact of traditional agriculture, and with cooperative efforts, provide access to this technology for small-scale farmers."N1 First approved for sale in the U.S. market in the 1990s, up to forty-five percent of major crops grown in the United States are now genetically modified and much of the nation's livestock are now raised with growth hormones or fed GM foods.N2 While there have been a handful of well-publicized events involving cross-pollination or commingling of GM and non-GM seeds, to date, there has not been a single demonstrated instance of a consumer being harmed by a GM crop (or food containing GM crops) or of any 4adverse environmental consequence of GM technology.

State Labeling Statutes.

State legislative efforts regarding labeling of GM foods raise clear preemption problems. As noted above, express preemption provisions in the FDCA, FMIA, PPIA, and FIFRA may preclude state law requirements regarding GM food labeling, particularly where they differ from federal law or regulation. FDA has squarely considered whether GM foods should be labeled and repeatedly has determined that such labeling is inappropriate.N13 Moreover, FDA has explained that voluntary labeling of non-GM food by manufactur4ers or grocers is likely to be deemed false and misleading under federal law, because of the implicit adverse representations such labels would make concerning GM foods. FDA's pronouncements have been set forth in a policy statement and a draft guidance, and numerous courts have relied on such interpretive documents in finding a preemptive conflict between federal and state law. See, e.g., Gerace, 755 F.2d at 1002 ("[t]he distinctions between formal rules and interpretive rules or general statements of policy are often vague" and the latter are "entitled to deference"); Kraft Foods North America, 2003 WL 554796, at *5-*6 (relying on federal food inspection handbook in holding state packaging law preempted).

N13In addition to the regulatory materials discussed above, FDA voiced its opposition to GM-food labeling statutes in an October 4, 2002 letter from then-Deputy Commissioner Lester M. Crawford to Oregon Governor Kitzhaber. (The text of Chairman Crawford's letter is available at http://www.bio.org/local/fo odag/Kitzhaber.pdf).

State Laws Regarding Liability of GM Food Producers and Sellers.

To the extent state statutes would impose liability based on the failure to adequately label GM foods, they would be subject to the same preemption arguments as state labeling laws.N14 Preemption of other types of statutory liability provisions will likely turn on the extent to which FDA or other federal regulatory agencies can be shown to have specifically considered the issues in question. Compare Bates v. Dow Agrosciences, LLC, 125 S. Ct. 1788 (2005) (design defect, negligent testing/marketing and warra4nty claims not preempted where EPA had not considered product efficacy claims at issue) with Geier v. American Honda Motor Co., Inc., 529 U.S. 861 (2000) (state law claims against car manufacturers for failure to equip automobile with side air bags impliedly preempted where DOT had specifically rejected regulation requiring same). FDA's repeated conclusion that the use of GM technology does not create special health or environmental risks creates a significant preemption hurdle for states seeking to impose4 special liability rules, particularly rules that would hold GM food producers alone strictly liable. See Alliance for Bio-Integrity v. Shalala, 116 F. Supp. 2d 166 (D.D.C. 2000) ("FDA has determined that foods produced through rDNA techniques do not 'present any different or greater safety concerns than foods developed by traditional plant breeding ... [t]hat determination ... is entitled to deference").N15

N14The possible preemption arguments that might be made regarding claims of cross-pollination or commingling are beyond the scope of this LEGAL BACKGROUNDER.
N15For a discussion of how insurance policies apply to alleged physical damage, economic losses, and personal injury stemming from GM materials, see Marc Mayerson, Insurance Recovery Losses from Contaminated or Genetically Modified Foods, 39 TORT TRIAL & INS. PRAC. J. 837 (2004).

State Moratoria on GM Foods.

While State law moratoria likely will face serious challenges on Commerce Clause grounds, these moratoria would not appear to come within the scope of any of the statutory preemption provisions discussed above. Accordingly, preemption arguments would center on the conflict between the federal policy favoring GM technology and any state law efforts to block this technology. See, e.g., Grocery Manufacturers of America v. Gerace, 581 F. Supp. 658, 668 (S.D.N.Y. 1984) (state law preempted where it conflicts wi4th FDA purpose to encourage development of nutritious foods), aff'd 755 F.2d 993 (2d Cir. 1985).


After careful deliberation, the federal government has squarely rejected arguments that GM foods are unsafe or that labeling of GM foods should be required or is appropriate. States that enact statutes that single out GM products or producers for adverse treatment -- burdening their operations through labels or liability rules or barring their operations altogether -- may find these laws to be unenforceable as contrary to federal law.

Eric Lasker is a partner in the Washington, D.C. law firm, Spriggs & Hollingsworth