Why spurning food biotech has become a liability

C O M M E N TA R Y
Why spurning food biotech has become
a liability
Henry I Miller, Gregory Conko & Drew L Kershe
In the late 1990s, a singular phenomenon swept
the world. One after another, food and beverage companies capitulated to strident xenogenophobic voices that called for eradication
of gene-spliced ingredients from their product lines. In the United States, fast food giant
McDonald’s (Chicago) banned transgenic
ingredients from its menu, food manufacturer
Heinz (Pittsburgh) and Gerber (Fremont, MI,
USA) dropped them from their baby food lines,
and Frito-Lay (Atlanta) told its growers to stop
planting corn containing Bacillus thuringiensis (Bt) toxin or risk exclusion from its snacks.
Elsewhere, brewers Kirin (Shinkawa, Japan)
and Carlsberg (Valby, Denmark) eliminated
gene-spliced ingredients from their beers.
These actions were rationalized variously as
“protecting stakeholder interests,” “ensuring
human safety” and “safeguarding the environment.” Ironically (and also surprisingly in these
litigious times), in their eagerness to avoid biotech and the mainstream media’s “if it bleeds, it
leads” coverage of the outlandish accusations
and speculations of anti-biotech activists, these
companies have exposed themselves to richly
deserved legal jeopardy.
Henry I. Miller is a fellow at the Hoover
Institution, Stanford University, Stanford,
California 94305-6010, USA. Gregory Conko
is at the Competitive Enterprise Institute, 1001
Connecticut Avenue NW, Washington, DC
20036, USA. Barron has named their book,
The Frankenfood Myth: How Protest and
Politics Threaten the Biotech Revolution, one
of the 25 Best Books of 2004. Drew L. Kershen is
at the University of Oklahoma College of Law,
Norman, Oklahoma 73019-5081, USA.
e-mail: [email protected]
©LWA-Dann Tardif/CORBIS
By expunging gene-spliced ingredients from their products, some major food companies may be making foods that
are less safe and wholesome for consumers—and that expose them to litigation.
What’s on the menu? Consumers could react litigiously if baby food giants like Gerber or Heinz continue
to prioritize the perceived risks of gene-spliced foods over the clear and present dangers of food
allergies and mycotoxins.
Toxic food
Every year, scores of packaged food products
are recalled from the US market because of
the presence of (all-natural) contaminants like
insect parts, toxic molds, bacteria and viruses.
Because farming takes place out of doors and
in dirt, such contamination is a fact of life. Over
the centuries, the main culprits in mass food
poisoning have often been mycotoxins, such as
ergotamine from ergot (Claviceps purpurea) or
fumonisin from Fusarium spp., resulting from
the fungal contamination of unprocessed
crops. This process is exacerbated when insects
attack food crops, opening wounds in the plant
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cuticle and epidermis that provide an opportunity for pathogen invasion. Once the molds get
a foothold, poor storage conditions also promote their post-harvest growth on grain.
Fumonisin and some other mycotoxins are
highly toxic, causing fatal diseases in livestock
that eat infected corn and esophageal cancer
in humans. Fumonisin also interferes with the
cellular uptake of folic acid, a vitamin that is
known to reduce the risk of neural tube defects
in developing fetuses. Because fumonisin prevents the folic acid from being absorbed by
cells, the toxin can, in effect, induce functional
folic acid deficiency—and thereby cause neural
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C O M M E N TA R Y
tube defects such as spina bifida—even when
the diet contains what otherwise would be sufficient amounts of folic acid.
Regulatory agencies, such as the US Food
and Drug Administration and UK Food Safety
Agency are acutely aware of the danger of mycotoxins. They have established recommended
maximum fumonisin levels in food and feed
products made from corn. Although highly
processed cornstarch and corn oil are unlikely
to be contaminated with fumonisin, unprocessed corn or lightly processed corn (e.g., corn
meal) can have fumonisin levels that exceed recommended levels. In 2003, the UK Food Safety
Agency tested six organic corn meal products
and 20 conventional corn meal products for
fumonisin contamination. All six organic corn
meals had elevated levels—from nine to forty
times greater than the recommended levels
for human health—and they were voluntarily
withdrawn from grocery stores.
A role for biotech
The conventional way to combat mycotoxins
is simply to test unprocessed and processed
grains and throw out those found to be contaminated—an approach that is both wasteful
and dubious. But modern technology—specifically, products derived from recombinant
DNA technology (also known as food biotech,
gene-splicing or genetic modification)—offers
a way to prevent the problem. Contrary to the
claims of biotech critics, who single out such
crops as posing the risk of new allergens, toxins
or other nasty substances if introduced into the
food supply (none of which has been proven),
such products would offer the food industry
a proven and practical means of tackling the
fungal contamination at its source.
An excellent example is corn crafted by splicing into commercial corn varieties of a gene (or
genes) encoding natural toxins from the bacterium B. thuringiensis. The Bt gene expresses a
protein that is toxic to corn-boring insects but
is perfectly harmless to birds, fish and mammals, including humans. As the Bt corn fends
off insect pests, it also reduces the levels of the
mold Fusarium, thereby reducing the levels of
fumonisin. Thus, switching to the gene-spliced,
insect-resistant corn for food processing would
lower the levels of fumonisin—as well as the
concentration of insect parts—likely to be
found in the final product. Indeed, researchers at Iowa State University in Ames and the
US Department of Agriculture found that in
Bt corn the level of fumonisin is reduced by
as much as 80% compared to conventional
corn1,2. [AU: OK?]
Thus, on the basis of both theory and
empirical knowledge, there should be potent
incentives—legal, commercial and ethical—to
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use such gene-spliced grains more widely. One
would expect public and private sector advocates of public health to demand that such
improved varieties be cultivated and used for
food—not unlike requirements for drinking
water to be chlorinated and fluoridated. Food
producers who wish to offer the safest and best
products to their customers—to say nothing of
being offered the opportunity to advertise ‘new
and improved!’—should be competing to get
gene-spliced products into the marketplace.
Alas, none of this has come to pass. Activists
have mounted vocal and intractable opposition to food biotech, in spite of demonstrated,
significant benefits, including reduced use of
chemical pesticides, less runoff of chemicals
into waterways, greater use of farming practices that prevent soil erosion, higher profits
for farmers and less fungal contamination.
Inexplicably, government oversight has also
been an obstacle, by subjecting the testing and
commercialization of gene-spliced crops to
unscientific and draconian regulations that
have vastly increased testing and development
costs and limited the use and diffusion of food
biotech.
The result is jeopardy for everyone involved
in food production and consumption: consumers are subjected to avoidable, and often undetected, health risks, and food producers have
placed themselves in legal jeopardy. The first
point is obvious, the latter less so, but it makes
a fascinating story: agricultural processors and
food companies may face at least two kinds of
civil liability for their refusal to purchase and
use fungus-resistant, gene-spliced plant varieties, as well as other superior products.
(Baby) food for thought
In 1999, the Gerber foods company succumbed
to activists’ pressure, announcing that its baby
food products would no longer contain any
gene-spliced ingredients. Indeed, Gerber went
farther and promised it would attempt to shift
to organic ingredients that are grown without
synthetic pesticides or fertilizers. Because corn
starch and corn sweeteners are often used in a
range of foods, this meant wholesale changes
to Gerber’s entire product line.
As noted above, not only is gene-spliced corn
likely to have lower levels of fumonisin than
conventional, but organic is likely to have the
highest levels because it suffers greater insect
predation due to less effective pest controls. If
a mother some day discovers that her ‘Gerber
baby’ has developed liver or esophageal cancer,
or a neural tube defect such as spina bifida, she
might have a valid legal claim against Gerber3.
On the child’s behalf, a plaintiff ’s lawyer can
allege strict products liability based on mycotoxin contamination in the baby food as the
causal agent of the cancer or neural tube
defects. The contamination would be considered a manufacturing defect under products
liability law because the baby food did not meet
its intended product specifications or level
of safety. Gerber could be found liable “even
though all possible care was exercised in the
preparation and marketing of the product,”
simply because the contamination occurred.
The plaintiff ’s lawyer could also allege a
design defect in the baby food, because Gerber
knew of the existence of a less risky design—
namely, the use of gene-spliced varieties that are
less prone to Fusarium and fumonisin contamination—but deliberately chose not to use it.
Instead, Gerber chose to use non-gene-spliced,
organic food ingredients, knowing that the
foreseeable risks of harm posed by them could
have been reduced or avoided by adopting a
reasonable alternative design—that is, by using
gene-spliced Bt corn, which is known to have a
lower risk of mycotoxin contamination.
Gerber might answer this design defect claim
by contending that it was only responding to
consumer demand, but that alone would not
be persuasive. Products liability law subjects
defenses in design defect cases to a risk-utility
balancing in which consumer expectations are
only one of several factors used to determine
whether the product design (e.g., the use of
only non-gene-spliced ingredients) is reasonably safe. A jury might conclude that whatever
consumer demand there may be for nonbiotech
ingredients does not outweigh Gerber’s failure
to use a technology that is known to lower the
health risks to consumers.
Even if Gerber were able to defend itself
from the design defect claim, the company
might still be liable because it failed to provide
adequate instructions or warnings about the
potential risks of non-gene-spliced ingredients.
For example, Gerber could have labeled its
non-gene-spliced baby food with a statement
such as: “This product does not contain genespliced ingredients. Consequently, this product
has a very slight additional risk of mycotoxin
contamination. Mycotoxins can cause serious
diseases, such as liver and esophageal cancer
and birth defects.”
Hypoallergenic foods
Whatever the risk of toxic or carcinogenic
fumonisin levels in nonbiotech corn may be
(probably low in industrialized countries,
where food producers generally are cautious
about such contamination), a more likely scenario is potential legal liability when a food
product causes an allergic reaction4.
Between 6% and 8% of children and between
1% and 2% of adults are allergic to one or
another food ingredient, and an estimated
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C O M M E N TA R Y
150 US citizens die each year from exposure
to food allergens5. Allergies to proteins from
peanuts, soybeans and wheat, for example, are
quite common and can be severe. Although
only about 1% of the population is allergic to
peanuts, some individuals are so highly sensitive that exposure causes anaphylactic shock,
killing dozens of people every year in North
America6.
Protecting those with true food allergies is
a daunting task. Farmers, food shippers and
processors, wholesalers and retailers, and even
restaurants must maintain meticulous records
and labels and ensure against cross-contamination. Still, in a country where about a billion
meals are eaten every day, missteps are inevitable. Dozens of processed food items must be
recalled every year due to accidental contamination or inaccurate labeling.
Fortunately, biotech researchers are well
along in the development of crops in which the
genes encoding allergenic proteins have been
silenced or removed. According to University
of California, Berkeley, biochemist Bob
Buchanan, hypoallergenic varieties of wheat
could be ready for commercialization within a
decade, and nuts soon thereafter (R. Buchanan,
personal communication; ref. 7). Once these
products are commercially available, agricultural processors and food companies that
refuse to use these safer food sources will open
themselves to products-liability, design-defect
lawsuits4.
Property damages and personal injury
Potato farming is a growth industry, primarily
due to the vast consumption of french fries at
fast-food restaurants. However, growing potatoes is not easy because they are preyed upon
by a wide range of voracious and difficult-tocontrol pests, such as the Colorado potato beetle, virus-spreading aphids, nematodes, potato
blight and others.
To combat these pests and diseases, potato
growers use an assortment of fungicides (to
control blight), insecticides (to kill aphids and
the Colorado potato beetle) and fumigants (to
control soil nematodes). Although some of
these chemicals are quite hazardous to farm
workers, forgoing them could jeopardize the
sustainability and profitability of the entire
potato industry. Standard application of synthetic pesticides enhances yields more than
50% over organic potato production, which
prohibits most synthetic inputs.
Consider a specific example. Many growers
use methamidophos, a toxic organophosphate
nerve poison, for aphid control. Although
methamidophos is a US Environmental
Protection Agency–approved pesticide, the
agency is currently reevaluating the use of
organophosphates and could ultimately prohibit or greatly restrict the use of this entire
class of pesticides. As an alternative to these
chemicals, Monsanto (St. Louis) developed
a potato dubbed NewLeaf that contains a Bt
gene to control the Colorado potato beetle.
The ORF-1 (open reading frame 1) and ORF-2
regions from potato leafroll luteovirus (PLRV)
were later added to confer resistance to PLRV
infection spread by the aphids. The resulting
NewLeaf-Plus potato, which received US regulatory approval for food/feed use and environmental release in 1998, is resistant to these two
scourges of potato plants and allows growers
who adopt it to reduce their use of chemical
controls and increase yields.
Farmers who planted NewLeaf and NewLeafPlus became convinced that they were the most
environmentally sound and economically efficient way to grow potatoes, but after five years
of excellent results it encountered an unexpected snag. Under pressure from anti-biotech organizations, McDonald’s, Burger King
(Miami) and other restaurant chains informed
their potato suppliers that they would no longer accept gene-spliced potato varieties for
their french fries. As a result, potato processors
such as J.R. Simplot (Boise, ID, USA) inserted
a nonbiotech potato clause into their farmerprocessor contracts and informed farmers that
they would no longer buy gene-spliced potatoes. In spite of its substantial environmental,
occupational and economic benefits, NewLeaf
became a sort of contractual poison pill and is
no longer grown commercially.
Now, assume that a farmer who is required
by contractual arrangement to plant nonbiotech potatoes sprays his potato crop with
methamidophos (the organophosphate nerve
poison) and that the pesticide drifts into a
nearby stream and onto nearby farm laborers.
As a result, thousands of fish die in the stream
and the laborers report to hospital emergency
rooms complaining of neurological symptoms.
[AU: Changes OK?]
This hypothetical scenario is, in fact, not at
all far fetched. Fish kills attributed to pesticide
runoff from potato fields are commonplace. In
the potato-growing region of Prince Edward
Island, Canada, for example, a dozen such incidents occurred in one thirteen-month period
alone, between July 1999 and August 2000 (ref.
8). According to the United Nation’s Food and
Agriculture Organization (Rome), “normal”
use of the pesticides parathion and methamidophos is responsible for some 7,500 pesticide
poisoning cases in China each year.
In our hypothetical scenario, the state environmental agency might bring an administrative action for civil damages to recover the cost
of the fish kill, and a plaintiff’s lawyer could file
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a class-action suit on behalf of the farm laborers for personal injury damages.
Who’s legally responsible? Several possible circumstances could enable the farmer’s
defense lawyer to shift culpability for the alleged
damages to the contracting processor and the
fast-food restaurants that are the ultimate
purchasers of the potatoes4. These circumstances include: the farmer’s having planted
Bt potatoes for the previous several years; his
contractual obligation to the potato processor
and its fast-food retail buyers to provide only
nonbiotech varieties; and his demonstrated
preference for planting gene-spliced, Bt potatoes, were it not for the contractual proscription. If these conditions could be proven, the
lawyer defending the farmer could name the
contracting processor and the fast-food restaurants as cross-defendants, claiming either
contribution in tort law or indemnification in
contract law for any damages legally imposed
upon the farmer client.
The farmer’s defense could be that those
companies bear the ultimate responsibility
for the damages because they compelled the
farmer to engage in higher-risk production
practices than he would otherwise have chosen.
The companies chose to impose cultivation of
a non-gene-spliced variety upon the farmer
although they knew that to avoid severe yield
losses, he would need to use organophosphate
pesticides. Thus, the defense could argue that
the farmer should have a legal right to pass any
damages (arising from contractually imposed
production practices) back to the processor
and the fast-food chains.
Food giants—watch out!
Companies that insist upon farmers’ using
production techniques that involve foreseeable
harms to the environment and humans may
be held legally accountable for that decision.
If agricultural processors and food companies
manage to avoid legal liability for their insistence on nonbiotech crops, they will be ‘guilty’
at least of externalizing their environmental
costs onto the farmers, the environment and
society at large.
1. Munkvold, G.P., Hellmich, R.L. & Rice, L.G. Plant Dis.
83, 130–138 (1999).
2. Dowd, P. J. Econ. Entomol. 93, 1669–1679 (2000).
3. Kershen, D.L. Food Drug Law J. 61, 197–236
(2006).
4. Kershen, D.L. Oklahoma Law Rev. 53, 631–652
(2000).
5. Sicherer, S., Munoz-Furlong, A., Wesley Burks, A. &
Sampson, H. J. Allergy Clin. Immunol. 103, 559–562
(1999).
6. Bock, S.A., Munoz-Furlong, A. & Sampson, H.A. J.
Allergy Clin. Immunol. 107, 191–193 (2001).
7. Weise, E. Biotechnology appears to be withering as a
food source. USA Today February 2 (2005), p. 8D.
8. Nickerson, C. Potatoes, pesticides divide island. The
Boston Globe August 30, (2000), p.A1
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