Will a Federal Compromise on GMO Labeling Trump State Law, Forever?

Recent reports of secret meetings among industry reps and the Food and Drug Adminstration over GMO labeling piqued my interest, mostly because this critical aspect was missing: any effort to label GE foods at the federal level could bring the current grassroots movement to a grinding halt by preventing any stronger local laws from ever being enacted. But I am getting ahead of myself.

Last month, Ronnie Cummins, director of the Organic Consumers Association and one of the leaders of the GMO labeling effort, recently published an article about how “representatives of Wal-Mart, General Mills, Pepsi-Frito Lay, Mars, Coca-Cola and others” met with the FDA on January 11 “to lobby for a mandatory federal GMO labeling law.”

The story was then picked up by Tom Laskawy at Grist, who reported that at the meeting, a Walmart representative said the retail giant would no longer oppose GMO labeling and that “[o]ther food company executives agreed, saying that the fight had become too expensive, especially given the prospect of more state-level initiatives.”

The story kicked into high-gear when the New York Times’ Stephanie Strom covered it last week, adding a few new details, such as the meeting being attended by “20 major food companies” as well as two GMO labeling advocates: Gary Hirshberg, co-chair of the Just Label It federal campaign, and Charles Benbrook, professor at Washington State University. The Times story gave the impression that the meeting is something to celebrate. After all, if Walmart comes to the table, that’s a big deal.

But missing from both of these accounts is the ominous potential downside of federal GMO labeling: a sneaky legal concept known as preemption. Most advocates don’t find out about it before it’s too late.

Preemption simply means that a higher law trumps a lower law: so federal trumps state, and state trumps local. But in practice, it’s industry’s way of ensuring uniformity and stopping grassroots efforts. How I do know this? From years of experience of seeing it happen in various public health issues. It’s such a huge problem that the Robert Wood Johnson Foundation funded an entire project called “Preemption and Movement Building in Public Health” to educate advocates about how to handle it.

Here is the pattern: a grassroots effort builds over time to enact local or state laws (such as gun control, indoor-smoking laws, or restricting alcohol sales), and industry fights these efforts for years, until they can no longer win. At that point, industry lobbyists turn around and either get their own weak bill passed, or work with advocates to pass a compromise version. In exchange, this law will preempt or prevent any state or city from passing a different or stronger law. Forever.

No industry likes to deal with 50 different state laws, or even a handful of expensive state-level battles. We recently saw this exact scenario play out in the food movement, with menu labeling in chain restaurants. For decades, the restaurant industry successfully fought federal efforts to require calorie counts and other basic nutrition information on menus. Then over the last few years, numerous states and cities started enacting their own laws, much to industry’s dismay. Enter the compromise struck between the leading proponent of  menu labeling, the Center for Science in the Public Interest, and the restaurant industry: federally-required menu labeling for calories only, in exchange for all state and local laws being preempted, past and future. (See this document labeled “compromise endorsements” for the bill’s supporters, which include the Grocery Manufacturers Association, a leader of the No on Prop 37 campaign on GMO labeling in California.)

Now, almost three years after passage, we still don’t have federal menu labeling as the final regulations are stalled at FDA, while certain industry members fight it. We also no longer see states or cities taking up the issue, figuring the feds took care of it. See what I mean about stopping a grassroots movement in its tracks? Public health lawyer Mark Pertschuk noted: “the rapidly growing grassroots movement for meaningful menu labeling may never recover.” He also cites the irony of this 2009 memo from President Obama opposing preemption in all federal rule-making. The memo correctly notes: “Throughout our history, state and local governments have frequently protected health, safety, and the environment more aggressively than has the national government.”

Amen to that. I am not opposed to federal labeling on GMO food. I agree this is where the problem must ultimately be solved. However, any federal standard must set a floor and not a ceiling, and not hand preemption over to industry. The role of the federal government is to set minimum standards, while still allowing states to go further. This, however, is not the end-game that Walmart et al. have in mind.

I asked Dave Murphy, founder of Food Democracy Now! and leader of the grassroots GMO labeling efforts about this issue. He told me it was a huge concern among movement leaders: “Ultimately the conversation represents a seismic shift in where we were four years ago on GMO labeling. But we know that anything coming out of Washington D.C. will be a weaker standard, which would not be good for either farmers or consumers. The goal is to make sure that a federal law doesn’t undermine state efforts.”

As Cummins noted about the meeting: “We should be wary of any compromise deal at the federal level, one that would preempt the passage of meaningful state GMO labeling laws that have real teeth.”

Very wary indeed.

30 Responses to “Will a Federal Compromise on GMO Labeling Trump State Law, Forever?”

  1. Sammie says:

    I am wary of ANY meetings that includes the BIG CORPORATIONS and NONE of the “We the people” who WANT the labeling and changes!

  2. Scott Smith says:

    We need a separation of corporations and government, rather than church and state, because of the damage the former has wrought, and continues to expand upon, to corrupt and control the world’s food supply. Federal GMO labeling, as Michelle surmises, seems to be an industry end-around attempting to cook the books yet again and leave the consumers and states flagging in the wind.

    • James L Farmer says:

      We need both Scott . Both left unchecked is dangerous to our health and well being . We must not stop our campaigning for GMO labeling just because the government is throwing us a bone , remember it is the government that allowed all this to happen to begin with . Their pockets may take a hit from GMO labeling and so they will do the best they can to protect that money , if we let our states believe that the federal gov is taking care of it , we will get a law that is so full of wholes that it will effectively be no better than if we didn’t have labeling . We must continue pushing and not let up until our demands as American citizens have been met . period .

  3. Concerned in Colorado says:

    Thanks to Michele Simon for this important commentary. And thanks to Scott Smith for his sharp thinking on this most important issue.

    Sorry Washington. You continue to fail those who elected you. Remember “We the People?” No? We thought so.

    Sorry Washington. Suppression of consumer rights is unacceptable. Withholding of information is unacceptable. Withholding of scientific evidence is unacceptable. Proprietary “ingredients” and patents that might damage our health are unacceptable.

    The hard fact is that very few people anywhere in the world truly want GMOs.

    Sorry Washington. There is yet no compelling evidence (or any evidence whatsoever) that GMOs are in any way beneficial, quite the reverse. Domestically, they are merely a tool to create profit for chemical/agricultural companies while destroying competition (i.e. organic farmers, the only real farmers) and destroying our land, soil, and health–the latter of which benefits the health industry and drug companies. Internationally, GMOs not only are a profit enhancing tool but also appear to be new and bizarre type of colonialist weapon.

    Recall that infamous remark of Henry Kissinger’s?

    Well, one of his many infamous remarks…

    • Harry says:

      Why aren’t such state groups joining together to for a law suit against this type of legislation!? The Constitution is clear about the roles of federal government and states. The states have the right to go beyond the minimum of any federal legislation! This country is a federation with power sharing between the states and the federal government. The language in the laws you are referencing are and would be unconstitutional. Take it to court!

  4. Cindy Barg says:

    Another perfect reason to fight for bans on GMOs…look at San Juan Country, Washington…it can be done simply and effectively on a local level, visit my page for more information.

  5. Anita says:

    Being a senior citizen, I have to read every label, and ask plenty of question at the market any way, I often think the doctors are in cahoots with big pharma, to make us die earlier than God intended, I live in an agricultural area, I hear the helicopters that fly over many of the crops, spraying God knows what all over the Salinas Valley, with no warning, so I have to stay inside, or wear a mask if I have to go out side, but what about my dog, he cannot wear a mask, nor should he be expected to.Since this is a valley with mountains on either side, we usually get an ocean breeze around l pm each afternoon, which once the poison has vaporized it drifts ever where. I won’t get started on the many planes that fly this valley leaving chem trails. And to think that we worked so hard to get to this point in life, and we can’t even afford to go to the movies, or buy a dvd, or a cup of coffee. Or even a present for someone special in our life for the holidays. What has gone wrong in CA, is now happening all over America. And I can love my country with out loving any elected official. Thank you Anita Bias

  6. [...] federal labeling law is passed, these locally proposed laws will be void. And what, then, if some community wants heavier restrictions? I wonder exactly what is being [...]

  7. OH says:

    If we dont get to read about the details, yet, then we dont know whether it is a good deal or a bad deal – right?

    Pre-emption can mean basically two different things, it can be part of a good deal or it can be part of a bad deal – right?

    If we dont know any details about the deal, yet, then is there any logical basis to either oppose or support the deal – other than wanting to have local control and local control being a thing which can work both ways.

  8. Kevin Schmidt says:

    Meanwhile, the legitimate organic food industry is taking matters into their own hands. They are beginning to label their products with “No GMOs”.

  9. Connie says:


    So what, if anything, can the “movement” do to avoid this subterfuge manuever?

  10. [...] to Michele Simon (AppetiteforProfit.com), the use of federal regulators ” already in the pockets of Big Agra and biotech ” could [...]

  11. [...] to Michele Simon (AppetiteforProfit.com), the use of federal regulators — already in the pockets of Big Agra and biotech — could be [...]

  12. [...] to Michele Simon (AppetiteforProfit.com), the use of federal regulators — already in the pockets of Big Agra and biotech — could be [...]

  13. [...] to Michele Simon (AppetiteforProfit.com), the use of federal regulators — already in the pockets of Big Agra and biotech — could be [...]

  14. [...] to Michele Simon (AppetiteforProfit.com), the use of federal regulators — already in the pockets of Big Agra and biotech — could be [...]

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  17. [...] lawyer Michele Simon, president of Eat Drink Politics, who supports mandatory GMO labeling and who wrote about GMO preemption earlier this [...]

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