The Legislature’s Agriculture, Conservation and Forestry Committee takes up three bills this week that address the two most emotional issues of the hyper-emotional debate over genetically engineered food – whether people have the right to know what they’re being fed and how nature can be protected from the laboratory. Inevitably, the committee will be faced with one hard truth – this small state, even when armed with rationality and fighting for the public interest, may not have much of a chance against the giants of the biotechnology industry.

Two bills deal with the food issue. LD 902 would require food products containing GE components – pesticide-resistant canola oil or soy, for example – to be so labeled. LD 1733 sets standards for labeling food as “GE-free” and provides penalties for mislabeling. The third, LD 1266, approaches the issue from the agricultural angle by placing upon the manufacturers of GE seeds and the farmers who use them the responsibility for preventing the contamination of wild or non-GE plants.

The overflow crowd at the recent public hearing on LD 902 illustrated the conflict – the public was adamant in wanting food labels, which already provide an enormous amount of information about ingredient and nutrient content, to include this important information. The food industry was equally adamant that being required to provide this information on labels for one small state would be prohibitively expensive and could lead to bare shelves in Maine supermarkets.

The dubious “bare shelves” argument has been used since the Bottle Bill debate a quarter-century ago. In this case, it not only is of suspect validity but also unnecessary. The food industry has on its side recent Food and Drug Administration regulations and a growing body of case law.

After years in the making, the FDA in January published its proposed revised guidelines for GE food. To the dismay of virtually every public interest group on the planet, the new and “improved” rules, still subject to final adoption, continue the long-established view that GE is a process, not an ingredient, and the FDA does not usually require public disclosure of manufacturing processes. Based on the odd premise that it is harm, not harmlessness, that must be proved in food, the FDA still will not require pre-market testing for human or environmental safety, labeling of GE ingredients will not be required and – this should be of interest to the Ag Committee when it hears LD 1733 this Thursday – substantial restrictions are placed upon the labeling on non-GE foods.

Those restrictions bar the use of such claims as “GE free” or “non GE” on labels because, the FDA says, the assertion that the food contains zero GE components could not be proven even by the most sensitive tests and thus would be an unsupported claim. Further, the FDA will not permit any label statement that implies in any way the superiority of food made without GE components. This is extraordinary caution for an agency that assumes the safety of untested food products.

Whether a state can pass and enforce a food-labeling law that exceeds federal law seems to be uncharted territory, but it is known that the biotech industry counters such boldness with quick and expensive litigation. In 1994, Vermont passed a law requiring the labeling of products produced by dairies that inject their cows with synthetic bovine growth hormone (rGBH). Monsanto, the manufacturer of rGBH, sued and won, largely on interstate commerce issues – the ban amounted to restraint of trade based upon a manufacturing process. When a group of Vermont dairy farmers then tried to market their milk as “rGBH-free,” Monsanto successfully sued them for making an inference that their milk was superior and, because there is no test for milk from rGBH cows, for making a claim that could not be proved. In short, Vermont found it could neither require GE labeling nor permit non-GE labeling. The success of Maine’s small and voluntary “rGBH-free” organic dairy industry seems due to being too small for the industry giants to bother with, but the endorsement of state law could change that.

Contaminated Logic

The environmental contamination issue is even more bizarre. It would seem logical that the manufacturers and users of any product with a clear potential to drastically alter the environment would bear responsibility, and that is precisely what LD 1266 seeks to put into law. Good luck finding logic in the case of Percy Schmeiser.

Mr. Schmeiser, 70, is a farmer in Saskatoon, Saskatchewan. Last week he was ordered by a judge to pay what could amount to $80,000 to a biotechnology company because patented GE canola plants were found growing in his fields, apparently after pollen from the modified plants had blown onto his land from nearby fields. Mr. Schmeiser did not want these plants on his land, he did not plant them, yet he was liable for the royalties.

It is tempting to dismiss this case as Canada’s problem, were it not for the fact that the plaintiff here was, once again, Monsanto and Monsanto has hundreds of such cases pending against American farmers – this was merely the first to get to court.

The case was followed far beyond the Canadian plains. The decision was a major victory for companies that produce genetically modified crops and have been aggressively enforcing agreements that require farmers to pay yearly fees. It was a significant setback for farmers who fear they will be held liable if pollen from neighboring farms blows onto their fields.

It should give pause to Maine lawmakers. A bill that holds the makers and the users of GE seeds responsible for environmental contamination would be an economic disaster if the assessment of damages becomes a legal battle between multi-billion-dollar corporations and small family farms. Similarly, the two labeling bills could expose the state – and its food producers and retailers – to enormous liability.

This is not to say that Maine lawmakers should not join the debate over how the technology that promises enormous benefits to mankind can be subject to appropriate oversight. Credible polls show that more than 90 percent of Americans want GE food labeled and want proper environmental controls – this clearly is an issue Congress can no longer ignore. Maine can help get Congress’ attention, but it must do so in such a way that it doesn’t get trampled by giants.