March 1, 2007 (Vol. 27, No. 5)

Legislators Are California Dreamin’ When They Seek to Enact Such Unwarranted Bills

If it’s true that developments in California are a harbinger of progress elsewhere in the nation, all of America is in big trouble. Apparently subscribing to the philosophy that more regulation invariably makes us safer, legislators are enacting more and more counter-productive, nanny-state “protections”. Not only are many of them asinine, but some also transgress federal law and even the U.S. Constitution.

San Francisco recently became the only jurisdiction in the country to ban the sale, distribution, or manufacture of toys or childcare products if they contain certain ubiquitous, useful, and safe chemicals. (It will probably be overturned because of preemption by state and federal regulations.)

In February, San Francisco became the first city in the country to require employers to give paid sick leave to their workers—full- and part-time, permanent and temporary. They will be able to miss work even when they aren’t sick, but wish to stay home, ostensibly, to help a domestic partner or a family member. Then there is legislation soon to be introduced into the State Assembly that would criminalize the spanking (or slapping or whacking) of children under four.

The coup de grace, however, is a California-Senate bill that would require the labeling of meat and milk obtained from cloned animals, if such products are approved for human consumption.

This last proposal is not only unwise and unwarranted, but is also almost surely unconstitutional. Introduced by Senator Carol Migden (D-San Francisco), it comes several weeks after the U.S. FDA made public a preliminary decision to permit the consumption of food from cloned animals.

The FDA’s decision was based on voluminous—and incontrovertible—scientific data. Scientists have known for years that the clones are indistinguishable genetically, biochemically, and nutritionally from the parent. As one farmer who owns a pair of clones of a prize-winning Holstein cow observed, they are essentially twins of “a cow that was already in production.”

Safety of Cloned Animal Products

Cloning technology of one sort or another is widely applied to a variety of foods that we consume routinely and uncontroversially. As observed in a January 2007 editorial in Nature Biotechnology, “The irony in all this is that food from clones has been a part of our diet for years. Many common fruits (e.g., pears, apples, oranges, and lemons) and several vegetables (e.g., potatoes and truffles) are clones. And most of us have probably ingested meat and dairy products from livestock cloned by natural reproduction (monozygotic siblings), mechanical embryo-splitting, or even nuclear transfer from an embryonic donor cell into an enucleated oocyte. Regulators traditionally paid scant attention to clones as a group—and rightly so.”

What of Senator Migden’s attempt to require labeling of products derived from cloned animals or their offspring? She 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 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.

Court Rulings

In the early 90s, 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, which is sort of a 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.”

Senator Migden is clearly wasting the time of her fellow legislators.

Henry I. Miller, M.D., is a fellow at the Hoover Institution, Stanford University. Phone: (650) 725-0185. E-mail: [email protected].

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