The Volokh Conspiracy

Grist reports on a class-action suit that is being filed against ConAgra for allegedly deceptive marketing of its various vegetable oils.  The core of the complaint seems to be that some ConAgra products, such as Wesson corn oil, are labeled as “100% natural” even though they contain oil from genetically modified corn. If something comes from a GMO (genetically modified organism), they complainants allege, it cannot be “natural.”  It’s an interesting argument, particularly as the federal government has not issued guidelines as to how companies may use the word “natural” in their marketing.

It’s somewhat ironic that the plaintiffs in this litigation have elected to go after corn oil, however.  If the charge is that it is misleading to call something “natural” if it cannot occur naturally in nature, then no corn products would qualify, ever.  This is because corn itself does not “occur naturally” in nature.  Rather, it is the product of human cross-breeding and hybridization, albeit hybridization that occurred thousands of years ago.  Indeed, nearly all crop varieties, so-called “GMOs” or otherwise, are human-modified strains that would not occur naturally in nature.  Corn is simply a more extreme example in that it is farther removed from its natural cousins than other crops.

I don’t know whether the history of corn and other crops will affect the outcome of this suit.  Even if it’s hard to argue (as a scientific matter) that “GMO corn” is less natural than “non-GMO corn,” other types of oil are also part of the suit and words like “natural” have common colloquial meanings quite apart from the scientific reality.  But whatever the legal outcome, the suit illustrates how the conventional use of terms like “natural” to modern crops has little relationship to how those crops were actually developed.

Does a decline in crop diversity threaten future food production? A report in the August 2011 National Geographic suggests so. The article, “Food Ark,” reports that the “extinction” of food varieties could be a real problem.

Food varieties extinction is happening all over the world—and it’s happening fast. In the United States an estimated 90 percent of our historic fruit and vegetable varieties have vanished. Of the 7,000 apple varieties that were grown in the 1800s, fewer than a hundred remain. . . . .

Why is this a problem? Because if disease or future climate change decimates one of the handful of plants and animals we’ve come to depend on to feed our growing planet, we might desperately need one of those varieties we’ve let go extinct.

But it’s actually not at all clear that available food varieties are dwindling at such a dramatic rate. As I’ve noted before here and here, the research of Paul Heald and Susannah Chapman suggests that available crop varieties are actually increasing. In the case of apples, for example, Heald and Chapman show that the number of varieties available to apple farmers today is nearly four times greater than in 1900.

Particularly misleading is this graphic, which purports to show “our dwindling food variety.” Based upon a 1983 study by the Rural Advancement Foundation International, it compares commercial seed house offerings from 1903 and varieties maintained in the National Seed Storage Laboratory eighty years later, finding a shocking 93 percent decline in available varieties. But this is not an apples-to-apples comparison. Had the study instead compared commercial seed offerings in 1903 with those available from contemporary seed catalogs it would have found no appreciable decline. In fact, that is the point of this Heald and Chapman study, which found contemporary seed catalogs offer just as many crop varieties as the RAFI study found in 1903.  Some varieties available in 1900 are no longer around, to be sure, and available varieties of some crops have declined while others have climbed, but the overall variety has not “dwindled” as National Geographic suggests.

What about the future? As the National Geographic author explains, it took centuries of careful selective breeding for farmers and breeders to develop crops and livestock breeds suited to various climates and regions. True enough. But the article gives little consideration to how modern biotechnology techniques have accelerated and honed this process. Developing new breeds and strains occurs with greater speed and precision than ever before. Modern biotechnology is no panacea, but combined with the actual trends in the availability of various crop varieties, it provides much reason for optimism, rather than gloom.

Just before the holiday weekend, the Food & Drug Administration issued a new draft guidance on when dietary supplement makers must file “New Dietary Ingredient” notifications and what such notifications must require. This has the supplement industry up in arms, as they fear the guidance could effectively eliminate most dietary supplements that have come on the market since 1994. The industry may be over-reacting. On the other hand, the FDA has gone after supplements before — and had its hand slapped back by the courts. I’ll be curious to see what comes of this.

UPDATE: Of course there are many supplement scams (see, e.g., here).  However the FDA guidance is not particularly focused on misleading marketing and hucksterism within the industry.

Yesterday the Cleveland City Council enacted the first part of the so-called “Healthy Cleveland” plan — a ban on “industrially produced trans fats.” The law takes effect at the beginning of 2013, save for doughnut makers, who have an extra six months to make the switch. The legislation also prohibits smoking in many public places, including parks and recreation areas adjacent to city buildings.

The Hill reports that the Senate’s failure to follow constitutionally prescribed procedures could doom the food safety bill.   The bill includes fee provisions that constitute taxes and the Constitution requires that all tax bills originate in the House of Representatives, and it looks unlikely that House Dems will let the slip pass.  Based on what Walter Olson has written about the bill, this could be a good thing.  (More here.)

The Food and Drug Administration is considering whether to approve genetically modified salmon for human consumption.  Aquabounty Technologies has submitted its “AquAdvantage” salmon, an Atlantic salmon genetically engineered to mature faster than wild salmon, for FDA approval.  Thus far, things look good for Aquabounty, as the FDA’s staff review concluded that AquAdvantage salmon are as safe to eat as other Atlantic salmon.  Further, the staff found “no biologically relevant difference” between the fish.

If the FDA approves AquAdvantage, it is unlikely that the FDA will require that AquAdvantage be labeled as genetically modified.  Indeed, the FDA may lack authority to require such a label.  As the Washington Post reports, if the FDA concludes that AquAdvantage salmon are not materially different than other salmon, there is no basis to mandate disclosure, as failure to label the fish does not mislead the consumer.  Failure to disclose how a product is made — in this case, that an eel gene was inserted in the salmon to make it grow faster — is not misleading to consumers.  Under existing law, so long as the genetically engineered salmon is not materially different than other salmon, the fact that it was genetically engineered is no more relevant than what it was fed, the size of its pen (assuming farm-raised salmon), or how it was killed.  Producers are free to disclose such process characteristics, but the FDA will not mandate it.

Would the FDA’s failure to mandate the labeling of AquAdvantage salmon be a problem?  I think not.  It is one thing to require producers to label their products so that consumers are aware of potentially harmful characteristics.  It is quite another to force a producer to label a product to disclose a non-material fact about the product that some consumers may dislike, such as how it was produced.  The former is disclosure for consumer protection; the latter approaches forced stigmatization.  If, as the FDA apparently believes, the genetically engineered salmon is just as safe, healthful, etc. as other salmon, what basis is there for requiring a label?  If the government mandates a label, it is sending the message that a particular product characteristic is particularly important and should matter to consumers more than others.  It’s a non-so-subtle suggestion that something may be wrong.  Indeed, why else would there be a label?

Mandatory product labels typically provide consumers with information necessary for them to protect themselves from otherwise unknown product characteristics (as well as to identify and contact the producer).  Forcing candy makers to disclose the presence of peanuts protects those with allergies.  Nutritional content labels protect those with particular dietary needs.  Product safety labels can protect those who might be unaware of the danger a specific product may pose, and so on.  In such cases, the failure to label can leave consumers exposed to risks about which they were unaware.  In this case, however, the FDA has concluded there is no such risk, so this traditional labeling rationale is absent.

If consumers really care whether or not their salmon was genetically engineered — and I suspect some do — competing salmon producers have ample incentive to label their products as “natural” or “non-genetically engineered.”  Sellers of wild, non-farm-raised salmon are not shy in promoting this fact about their product.  Organic labeling has proliferated without forcing “conventional” food producers to label their products as such.  Why is this any different?  If the non-use of modern genetic modification techniques is that important to consumers, the information will out, label mandate or not.

That some consumers may want to know about how a product was produced should not, by itself, be sufficient for mandatory labeling.  Consumers may want to know all sorts of things about how products are made, or who made them, but we typically let the market provide such information.  Some consumers care about whether their clothes were made by unionized workers or poor children in developing nations.  Some want to know whether their food is organic, kosher, or produced humanely.  Still others may care whether a company’s executives support particular politicians or specific policies. (Just ask John Mackey.)  In all such cases, so long as there is no material difference in the product that could adversely effect the consumer, we leave the disclosure of such things to the private marketplace.  Why should genetically modified salmon be any different?

From today’s Washington Post:

The Food and Drug Administration is planning an unprecedented effort to gradually reduce the salt consumed each day by Americans, saying that less sodium in everything from soup to nuts would prevent thousands of deaths from hypertension and heart disease. The initiative, to be launched this year, would eventually lead to the first legal limits on the amount of salt allowed in food products.

The government intends to work with the food industry and health experts to reduce sodium gradually over a period of years to adjust the American palate to a less salty diet, according to FDA sources, who spoke on condition of anonymity because the initiative had not been formally announced.

Officials have not determined the salt limits. In a complicated undertaking, the FDA would analyze the salt in spaghetti sauces, breads and thousands of other products that make up the $600 billion food and beverage market, sources said. Working with food manufacturers, the government would set limits for salt in these categories, designed to gradually ratchet down sodium consumption. The changes would be calibrated so that consumers barely notice the modification.

The legal limits would be open to public comment, but administration officials do not think they need additional authority from Congress.

I am a late-comer to coffee – I grew up without it, and only began drinking it in the last five or six years.  I started in earnest on sabbatical in Spain, with espresso, but soon realized that I preferred mightily the medium roast, slightly sweet, high altitude volcanic coffees of Guatemala, prepared either in a French press or carefully controlled drip.  I now count as a coffee snob – even though, as I note each time I am in Palo Alto, the true snobs have long since moved on to teas and probably things I have not heard of yet.

As to coffee and health, I have never quite known what to think.  I am easily moved to engage in selection bias, but I do credit coffee with helping me lose weight in the past few years – at bottom, a form of chemical stimulation that is not sugar.  But as to the larger and longer term effects, I haven’t quite known what to think.  So I was intrigued at the WSJ Personal Journal’s Melinda Beck’s useful and entertaining roundup of recent studies on the effects of coffee on health in today’s WSJ.  Bottom line is cautiously favorable to coffee, with some concerns the other direction (I read it this morning out on the stoop in a pair of gym shorts and nothing else, drinking hot coffee in the mid-morning sun and lapping up the rays – but query, dear readers, is the noon sun in DC on Dec 28 sufficiently strong to produce Vitamin D in the skin?  or am I simply freezing in the 30 degree weather?):

To judge by recent headlines, coffee could be the latest health-food craze, right up there with broccoli and whole-wheat bread.

But don’t think you’ll be healthier graduating from a tall to a venti just yet. While there has been a splash of positive news about coffee lately, there may still be grounds for concern.

This month alone, an analysis in the Archives of Internal Medicine found that people who drink three to four cups of java a day are 25% less likely to develop Type 2 diabetes than those who drink fewer than two cups. And a study presented at an American Association for Cancer Research meeting found that men who drink at least six cups a day have a 60% lower risk of developing advanced prostate cancer than those who didn’t drink any.

Earlier studies also linked coffee consumption with a lower risk of getting colon, mouth, throat, esophageal and endometrial cancers. People who drink coffee are also less likely to have cavities, gallstones, cirrhosis of the liver, Parkinson’s disease and Alzheimer’s disease, or to commit suicide, studies have found. Last year, researchers at Harvard University and the University of Madrid assessed data on more than 100,000 people over 20 years and concluded that the more coffee they drank, the less likely they were to die during that period from any cause.

But those studies come on the heels of older ones showing that coffee—particularly the caffeine it contains—raises blood pressure, heart rate and levels of homocysteine, an amino acid in blood that is associated with stroke and heart disease. Pregnant women who drink two or more cups of coffee a day have a higher rate of miscarriages and lower birth-weight babies; caffeine has also been linked to benign breast lumps and bone loss in elderly women. And, as many people can attest, coffee can also aggravate anxiety, irritability, heartburn and sleeplessness, which brings its own set of problems, including a higher risk of obesity. Yet it’s just that invigorating buzz that other people love and think they can’t get through the day without.

Why is there so much confusion about something that’s so ubiquitous? After all, some 54% of American adults drink coffee regularly—an estimated 400 million cups per day...