Consumer Preferences and Bio-Tech Foods in EU and US Law

Abstract

There is growing consumer unwillingness towards bio-tech foods in both the EU and the US. Consumers have ethical, moral, social, and societal concerns over bio-tech foods; such as GM and cloned foods. They want to know where their food comes from and how it is produced. Such opposition has been demonstrated by the increased reliance on various means to accommodate consumer preferences: direct democracy and institutions listening to the public. In both the EU and the US, citizens' initiatives – the process whereby the public can file a petition to request new legislation – seems to be expanding. In the EU, the European Citizens' Initiative (ECI) entered into force in April 2012. The ECI is a new tool created by the Lisbon Treaty, which gives one million citizens the right to ask the Commission to consider drafting new EU laws. It could lead to greater participatory democracy and consumers being heard. For example, at the end of 2010, two NGOs, Greenpeace and Avaaz, filed a petition signed by over 1 million European citizens calling upon the European Commission to put a moratorium on the introduction of GM crops into Europe. In the US, the Food and Drug Administration (FDA), who regulates bio-tech foods and ensures that they are safe and correctly labelled, can be petitioned to possibly change the law. Under Section 553(e) of the Administrative Procedure Act (APA), the public can provide impetus for rule-making. Citizens have exercised this right in order to require the FDA to assess the GE AquaBounty Salmon as a food additive, rather than a drug, and to request the mandatory labeling of GM and nano-tech foods. This rule-making has some similarities with the ECI, even though in the US a more individual approach is adopted. As such a provision already existed in the US, it might have inspired the EU to establish a similar one. Both processes allow direct democracy and the involvement of the public in the rule-making process, creating a direct dialogue between the government and the public. Second, institutions in the EU and the US have provided momentum to enhance the accommodation of consumer preferences. In the EU, the 2010 GM Crop Cultivation Proposal from the Commission allows Member States to restrict or prohibit GMO cultivation based on health and socio-economic considerations. Such a proposal could provide an opportunity for the public to be heard. In contrast, the US courts have shown willingness to listen to consumer preferences. In the 2010 Boggs case, the Court of Appeals 6th Circuit found that the Ohio ban at the heart of the case – which prohibited dairy processors from making claims about the absence of artificial hormones (growth hormones) in their milk products – breached dairy processors' First Amendment rights to free speech. Thus, consumers have an interest in knowing how their food was produced and manufacturers should be allowed to tell them.