Is the ‘Non-GMO’ butterfly an endangered species?

You may have noticed the Non-GMO Project’s butterfly label on foods you buy at the grocery store. Created a little over a decade ago by anti-GMO activists, the label is carried today on some 55,000 different products, from food products such as breakfast cereal to non-food products such as salt and cat litter. This misleading labeling has been embraced by some of the biggest food companies in the world.

In many cases, this appears to be a violation of law.

Today, the United States Department of Agriculture (USDA) has the authority for defining and imposing labeling for biologically engineered foods (also known as GMOs — genetically modified organisms). The Food and Drug Administration (FDA), has the authority for policing “false and misleading” absence claims for food products labeling,  i.e. claims that a food product is “fat free” or “gluten free,” or “does not contain” a particular ingredient. FDA’s job is to make sure food marketers don’t abuse absence claims to suggest a non-existent health benefit or spurious distinction with similar foods. Of course, this would seem to be exactly what the Non-GMO Project label is all about: disparaging foods that FDA says do not “differ from other foods in any meaningful or uniform way.”

FDA can be fierce when going after scammers and their spurious “absence claims” and implied safety risks. But when it comes to the growing “Non-GMO” market, FDA has turned a blind eye to the kinds of factual misrepresentations and misleading labeling that have brought the full power and fury of federal law down on other scammers.

This indifference may be changing. Last summer, then-FDA Commissioner Scott Gottleib promised to review organic food labeling. This March, FDA published an updated version of its earlier guidance addressing GMO absence claims. A look at the details of this updated guidance suggests that the days of the Non-GMO Project may be numbered.

First, the guidance states unequivocally that non-GMO claims are false or misleading if they appear on foods that are “incapable of being produced through genetic engineering.” As an example, FDA cites salt, which is an inorganic chemical compound with no genes or DNA that could ever be genetically engineered. A surprising number of Non-GMO Project labeled products fall into this category, including water, kitty litter and, yes, salt.

Second, FDA guidance states that Non-GMO labels cannot appear on foods for which no equivalent GMO products exist. There are for instance, no GMO oranges, so a “GMO free” label on orange juice would not be allowed. There are actually not that many GMO crops on the market — the vast majority of acres are planted to just three crops: corn, soybeans, and cotton. This new restriction eliminates a large segment of the foods and non-foods bearing the Non-GMO Project’s butterfly label.

Third, according to FDA guidance, a Non-GMO label is false or misleading if, “when considered in the context of the entire label or labeling,” it suggests that a food product is safer or more nutritious than comparable foods because it was not genetically engineered. The FDA is very clear that websites and other promotional materials are a part of labeling, especially when connected, as the Non-GMO Project is, by a URL on the label. This means that the Non-GMO Project, which overtly disparages GMOs on its website with terms such as “High Risk” and “contamination,” and proclaims that its mission is ridding the world of GMOs, should violate the new FDA guidelines.

Finally, FDA guidance specifically recommends against using the phrases “GMO-free” and “non-GMO,” as these claims are hard if not impossible to substantiate scientifically, a fact even the Non-GMO Project admits. The USDA has also recognized this fact in its regulations governing what foods must be labelled as genetically engineered. The USDA definition does not include 100 percent absence claims. The Non-GMO Project simply cannot meet the 100 percent absence claim — either scientifically or legally.

So, will the Non-GMO Project butterfly label go the way of the dodo bird?

It depends on whether FDA finally decides that its “absence claims” guidance means what it says and moves to enforce it.

In this respect, there may be hope for consumers. The newly appointed acting FDA Commissioner, Ned Sharpless, is a physician and scientist with genetic engineering experience.   He is particularly well positioned to understand how non-GMO absence claims are misleading and confusing to the consumer, distort the marketplace, and promote bad science. They violate FDA’s own guidance and should be stopped. 

C. Dean McGrath, Jr. is attorney-at-law and founder of the Washington, D.C. firm McGrath & Associates and is an adjunct professor of law at the Georgetown University Law Center. He has a long career in public service, including Deputy Chief of Staff to Vice President Dick Cheney, Deputy Assistant and Deputy Staff Secretary to President George H. W. Bush, and Associate Counsel to President Ronald Reagan. He owns a farm with his brother and sisters in Nebraska.