A guy walks into a bar with a salmon . . .

Henry Miller Senior Fellow, Pacific Research Institute.
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According to the latest Gallup 2010 Confidence in Institutions poll, the U.S. Congress ranks dead last out of the 16 institutions rated. Only 11% of Americans have “a great deal” or “quite a lot” of confidence in those who populate the institution, down from 17% in 2009 and a percentage point lower than the previous low (2008).

By proposing legislation that would require labels on genetically engineered fish, Rep. Rosa DeLauro (D-Conn.) illustrates perfectly why members of Congress deserve opprobrium, derision . . . and defeat. Her gratuitous bill not only illustrates ignorance of the context of genetically engineered foods in our diets and how the FDA regulates food but also raises constitutional issues.

Except for wild game, wild mushrooms, wild berries and fish and shellfish, virtually all the food in European and American diets is already derived from genetically modified organisms. Yes, virtually all of it, even the stuff at Whole Foods and the local farmers market. Pluots resulted from a man-made cross between plums and apricots. Yogurt, beer, tofu and bread are made with microorganisms that have been painstakingly modified and optimized over many years or, sometimes, centuries. Even today’s “heirloom” tomatoes that predate the pest- and disease-resistant hybrids most often grown commercially have been engineered to be a far cry from their South American forbears — small, hard, toxic fruit closer in appearance to a golf ball than a food. Grains in particular have been intensively engineered over millennia for higher yields, pest- and disease-resistance and various desirable characteristics — yielding durum wheat for pasta, for example, and so-called common wheat for bread. Although wheat varieties cultivated now vary widely in their traits and genetics, all are derived from a common precursor first domesticated in Turkey around 9000 B.C. and subsequently genetically improved by farmers, plant breeders and biologists.

Animals, too, have been genetically engineered, mostly by laborious and imprecise trial-and-error breeding techniques. The dozens of varieties of cattle raised today are all derived from the now-extinct auroch, which was used both for food and as a beast of burden from ancient times until the 17th century. A relatively recent new food animal, the “beefalo,” a cow-bison (buffalo) hybrid, combines the superior hardiness, foraging ability, ease of calving and low-fat meat of the Bison with the fertility, milking ability, and docility of the cow.

Thus, it is not the genetic engineering of food that is new, but only the techniques for accomplishing it that are. And the newest techniques — recombinant DNA technology, or gene-splicing — are far more precise and predictable than their predecessors.

So along comes this North Atlantic salmon which has been engineered to reach maturity in half the time of its cohorts, by means of the introduction of a growth hormone gene from a Chinook salmon that is turned on all year instead of only part-time as in nature.

This poor salmon has been floundering in regulatory limbo for ten years while the FDA dithered over a regulatory policy. Now that it appears that approval for sale and consumption is imminent, anti-biotechnology activists have slithered out from under rocks to oppose it. One of them is Rep. Rosa DeLauro, who heads the subcommittee of the Agriculture Committee that appropriates funds for the FDA. On September 29th, she introduced a bill that would mandate labeling of genetically modified fish.

DeLauro desperately needs to do some research. The Federal Food, Drug and Cosmetics Act requires that food labels be truthful and not misleading, and federal law prohibits label statements that are likely to be misunderstood by consumers even if they are, strictly speaking, accurate. For example, although a “cholesterol-free” label on a certain variety or batch of fresh broccoli is accurate, it could run afoul of the FDA’s rules because it could be interpreted as implying that broccoli usually does contain cholesterol, even though in fact it does not.

Analogously, instead of educating or serving a legitimate consumers’ “right to know” certain information, mandatory labels on food from cloned animals would imply a warning, or at least would be misconstrued by some consumers as a suggestion that food from cloned animals differs in an important way (such as safety or nutrition) although it does not. The FDA’s current approach to labeling, which has been dubbed “need to know,” has been upheld both directly and indirectly by various federal court decisions.

In the early 1990s, a group of Wisconsin consumers sued the FDA, arguing that the agency’s decision not to require the labeling of dairy products from cows treated with a protein called bovine somatotropin, or bST, allowed those products to be labeled in a false and misleading manner. However, because the plaintiffs failed to demonstrate any material difference between milk from treated and untreated cows the federal court ruled that “it would be misbranding to label the product[s] as different, even if consumers misperceived the product[s] as different.”

In the second case, a sort of mirror image of the first, several food industry associations and firms challenged a Vermont statute that required labeling to identify milk from cows treated with bST. The U.S. Second Circuit Court of Appeals ruled that a labeling mandate grounded in consumer perception, rather than in a product’s measurable characteristics, raises serious constitutional concerns. The court held that food labeling cannot be mandated simply because some people would like to have the information, and ruled both the labeling statute and companion regulations unconstitutional because they forced producers to make involuntary statements contrary to their views when there was no material reason to do so.

Because the State of Vermont could not demonstrate that its interest represented anything more than satisfying consumer curiosity, it could not compel milk producers to include that information on product labels. In the words of the decision: “We are aware of no case in which consumer interest alone was sufficient to justify requiring a product’s manufacturers to publish the functional equivalent of a warning about a production method that has no discernable impact on a final product. . . . Absent some indication that this information bears on a reasonable concern for human health or safety or some other sufficiently substantial governmental concern, the manufacturers cannot be compelled to disclose it.”

The overarching issue here is important: There exists no consumers’ “right to know” obscure information about food. “Were consumer interest alone sufficient,” said the court, “there is no end to the information that states could require manufacturers to disclose about their production methods.”

Fish is supposed to be “brain food” — that is, eating lots of it makes you smarter. Rep. DeLauro should consider an all-fish diet.

Henry I. Miller, a physician and molecular biologist, is a fellow at Stanford University’s Hoover Institution. He was the founding director of the Office of Biotechnology at the FDA.