Stan Benda, is adjunct faculty at Osgoode Hall Law School. He is Senior Counsel at Justice Canada acting for Agriculture Canada’s Intellectual Property Office and Multilateral Science Relations Office (International Treaty on Plant Genetic Resources, Convention on Biological Diversity, Cartagena). He recently completed his Ph.D. on the Labelling of GM Foods.
According to a Globe and Mail article, “The availability [of abortion drugs] should be based on science-not politics, religious beliefs, or moral judgments.” Substitute Genetically Modified (GM) foods for abortion drugs and now politics, religious beliefs, and moral judgments seem legitimate. This reversal seems perverse. It is not if one appreciates the two ways of looking at risk in the context of novel technologies. Those two approaches also beget respectively emblematic labelling schemes, namely the “right to know” (RTK) and the “need to know” (NTK).
Risk analysis involves the trinity of assessment, management and communication. Grant Isaac holds that genetic modification bifurcated risk analysis into the science and social rationality schools. The schools’ constituents are mutually exclusive (e.g., product v process), as are their philosophical premises (progress v precaution) and scope (inherent risk v transcendental risks). Compounding the antithetical and hegemonic nature of the risk analysis schools are their underpinning cultural biases (simply put, one’s subjective point of view concerning risk).
According to Mary Douglas and Aaron Wildavsky, people aggregate into one of three key cultural bias groupings: hierarchist, individualist, or egalitarian. Those groupings determine not only an individual’s risk perspective but colour how individuals view novel technologies and nature itself. For instance individualists subscribe to equal opportunity, minimal rules and the view that nature is a cornucopia and tolerant. Egalitarians seek equal outcome, regulatory redistribution and hold that nature is fragile. Hierarchists’ and individualists’ attitudes are consonant with the science school, egalitarians with the social school. Thus blended, the social school legitimizes perceived risk attitudes premised on normative (value) positions concerning the process, while the science school legitimizes actual risk attitudes premised on empirical evidence concerning the product. This presents a huge torque in the law.
Egalitarians eschew risk and seek certainty through prophylactic regulation executed under the social rationality matrix, in particular the precautionary principle. RTK seeks to protect consumers from all the perceived uncertainties of GM; RTK also respects values concerning resistance to agri-business or globalization. This makes RTK seem self-evident, even incontestable, as a foundation for GM labelling laws.
By contrast, science rationality operates with the empirical, which is impressed with uncertainty-unknowns / unknowables. Risk is inherent because science can never prove a negative — the product does no harm / not harmful— science can only say there is no evidence of harm. There is always risk. Refusing to take risks freezes existing risk situations, while taking action introduces new risk scenarios.
To the theoretically dispassionate outsider the two schools seem irreconcilable, with science rationality seemingly flawed, and social rationality seemingly honourable. The NTK criteria seems vaguely conspiratorial, disdainful, and certainly antithetical to the RTK.
What does that empirical evidence indicate? In the context of conventional plant breeding the methods include mutagenesis, cell-fusion and embryo rescue. These processes add, subtract, alter, rearrange chromosomes or overcome sexual reproduction barriers. Modern breeding methods include GM or more specifically rDNA. For instance, virtually all grains are mutagenic. Thousands of mutagenic foods —vegetables / fruits / grains —- have been sold for decades. Even sexual (pollination) breeding is not necessarily benign. There breeding is based on agronomic phenotype —what the plant exhibits —and the genetic drag composed of hundreds and thousands of unknown genes is ignored. Potatoes and celery have proven dangerous reservoirs of harmful genes. The products of conventional breeding methods rarely undergo safety vetting as too is the case with natural mutants (e.g. nectarine). By contrast, rDNA food crops that have one to four identified and characterized genes undergo compulsory safety / risk assessment before release into the environment and market.
Secondly, to the consumer organic is a construct concerning health promoting, pesticide free, hormone free, family farms. However, organic has split into “industrial organic” / “suburban organic” and “beyond organic” with multi-nationals in North America, Australia and China supplying a food product prejoratively labelled “yuppy chow”. There is no proof that organic promotes health. Indeed the Canadian organic organization website is careful to disabuse this notion. Organic agriculture does not use synthetic pesticides, but it can use organic pesticides, and the food product is allowed to have synthetic pesticide residues. EU has re-evaluated the safety of pesticides, and while certain conventional pesticides are at risk of being delisted, certain organic pesticides also failed the reassessment.
Thirdly, misconceptions continue with meat and hormones which “taints” perceptions about GM. All animals need hormones to grow or lactate. Strictly speaking no hormone would mean no milk and no meat. So the statement “hormone free” is akin to organic, a hollow construct the consumer fills. One of the ironies is that while the EU resists the importation of beef treated with hormones, EU pork exports are hormone treated.
Fourthly, is the concept of adventitious presence. It has two facets. No food is “pharmaceutically pure”. Animal, insect parts and feces and mechanic shavings are allowed within tolerances. Also allowed are other varieties, so no flour is 100% durum, no organic wheat is 100% organic. Generally 95% is the tolerance. In the EU the tolerance for GM in non-GM foods is 1% for authorized GM.
Fifthly, we must excuse the pun but note that plants are rooted. They cannot outrun danger. So plants use an arsenal of toxins and chemicals to resist fungi , insects, disease and “predators”—especially in the tubers and fruits. Many of these toxins are toxic, even lethal to humans. Many of the chemicals found in plants are carcinogens. Technically after a meal one has many carcinogens coursing through one’s digestive track, but in amounts too tiny to be a problem but in quanta greater (pph) than those prescribed for pesticide residues (ppm /ppb).
Finally, there is the tomato v ketchup problem. To label a tomato as organic or GM is not difficult. To label ketchup GM because of one GM ingredient is problematic -given the costs of tracing, identity preservation, tolerances. There is a price penalty. If one introduces tolerances then non-GM ketchup may have some GM.
There is another point outside of the empirical, but within the realm of rectitude. EU GM labelling regulations require the labelling of foods made with GM even if there is no GM in the food (e.g. cooking oil). However, food products made using GM need not be labelled (e.g. GM enzymes in the productions of beer, wine and cheese). Examples of this sort of legerdemain can be found on this side of the pond with irradiated foods that must be labelled as such, but spices and other products are specifically exempted.
Botany, crop breeding, food production, food distribution and attendant regulation is infused with myth, prejudice, illusion, empty constructs and suspiciously parsed regulations . This is hardly surprising in a highly technological urbanized society often operating on perception and overwhelmed with data. But it adds a whole new complexion to what previously seemed a rhetorical discussion of RTK v NTK.
This brings us back to compulsory process labelling (RTK) or compulsory product risk labelling (NTK). While risk analysis is fiercely polarized by the homogenization of the applicable risk schools and their cultural biases, RTK and NTK are not necessarily antithetical. NTK may be considered a subset of RTK, not an opposite. RTK is infinite in its reach: the physical; the metaphysical; and the transcendental in fact, belief, ethic, and religion. No regulatory regime can effectively address all those issues in a compulsory context; a screening criteria is necessary. Any screening or prioritizing under the social school rubric of RTK would be political and thus, by definition, capricious or arbitrary. A principled way to focus the RTK, is to fix concerns, and then prioritize those risk concerns while recognizing botanical, economic, legal, and sociological realities by determining what can actually harm the consumer. The first priority of labelling is to warn of harm. What does the consumer need to know to avoid harm? If the harm is a physical threat (such as an allergy) or a misrepresentation about the composition or effect of the food, then a label is necessary to alert and warn.
The NTK concept executed through the rules-based science risk analysis merely seeks first to identify something that must be regulated, and then to regulate it. The only piety is truth that indicates actual risk. NTK does not seek prior political justification for the technology (the “what benefit” argument); nothing in this regime directs, suppresses, or stigmatizes a technology or product. The regime seeks sufficient knowledge to assess and manage risk while encouraging innovation.
The right-to-know label may be intoxicating but it can also be impoverishing. The need-to-know label truly protects, by alerting to the immediate risk and by enabling resilience through innovation. NTK enables a principled application of the law.
Perhaps the foregoing misses the grand point: GM may be passé. How should society manage innovative technologies — nanotechnologies, synthetic biology — by dealing with the actual or the perceived?
P.S. For more fun explore: “Locally Produced”.