Genetically Engineered Fish & State Regulations

By Adam Soliman

Producers of genetically engineered (GE) salmon have been lobbying for permission from the FDA to commercially release transgenic salmon since 2010, and they are getting close to receiving FDA approval, which would allow these fish to enter the US food system.[1] One of the main GE salmon producers, AquAdvantage, modifies Atlantic salmon by injecting genes from Pacific salmon and Arctic eelpout that cause engineered salmon to generate growth hormones all year long, resulting in a fish which grows twice as fast as a wild salmon.[2]

The expected economic benefits from such genetic modifications strongly encourage food companies to mass produce genetically modified seafood. But GE salmon and seafood contaminate wild habitat, threaten marine populations, and have not been fully tested for long-term effects on natural ecosystems and human health. Therefore, regulations on GE seafood should be in place before it is allowed to be sold for human consumption. Opposition for GE seafood is rising, as over 2000 stores of the Trader Joes and Whole Foods chains across the US will not carry any GE seafood.[3]

But the US constitution has been interpreted by the courts as not allowing the federal government to impose mandatory labeling under most circumstances. Consequently, some individual states have been working with the Centre for Food Safety (CFS) to take initiatives toward banning or imposing labeling laws upon genetically engineered seafood. CSF is an organization that is attempting to convince the FDA to reject the proposal for commercial release of GE salmon.[4]

Alaskan Senator Mark Begich proposed a mandatory labeling law for GE fish to be approved, but it did not pass in Congress.[5] Hence, in an effort to promote mandatory labeling of GMOs, CSF is encouraging different states including Maine, Florida, California, Oregon, Maryland, Michigan, Ohio and New York to propose state laws that require proper labeling.[6]

There are substantial constitutional obstacles facing legislation requiring mandatory labeling of genetically engineered seafood. Food manufacturing companies have free speech rights that effectively immunize them from mandated labelling as long as there is no public deception.[7]  The key factors in determining whether governments have a sufficient interest to justify restricting free speech by enforcing labeling laws for GE are first, whether the regulations will directly prevent harm from GMOs, and second, whether less restrictive measures could achieve similar prevention.[8]  For instance,

Several states have applied various types of prohibitions on genetically modified and/or transgenic fish. California prohibits the spawning, incubation and cultivation of transgenic fish.[9] The state also prohibits the import, transport and possession of transgenic seafood species without a permit. Rhode Island prohibits the introduction of non-indigenous aquatic species unless protocols exist to prevent any accidental releases into the state waters.[10] Michigan prohibits possession of GE fish without permits, and has established penalties for violations.[11] Also, Michigan does not allow propagation of transgenic fish in private waters without specific licenses, prohibits acquisition of GE fish from inland waters for scientific studies, and prohibits importation of viable GE fish eggs into the state without proper permits and documentation.[12] These state laws serve to ensure responsible practices and monitor GMOs.      

According to CFS, millions of fish escape from every year from open-water net pens in fish farms around the world. Farmed fish out-compete the wild fish populations, and contaminate marine eco-systems with antibiotics, hormones, pesticides and untreated animal waste, and reduce genetic diversity through inbreeding.[13] Furthermore, GE fish can drastically affect the biodiversity of entire land and marine ecosystems. A study conducted by the Proceedings of National Academy of Sciences note that a release of just 60 GE fish into a wild population of 60,000 fish would cause the wild species to extinct within 40 years.[14] This is due to the Trojan Gene effect that causes genetic alterations to be passed onto wild marine species. Canadian researchers suggest that fertile GE salmon male Atlantic salmon that is used in GE operations to produce the female counterpart of GE salmon, will likely succeed in passing along their genes.  

Latham and Wilson of The BioScience Resource Project speculate that it is highly unlikely that the US FDA’s scientific approval process for GE animals will be rigorous enough to prevent harm; and that GE producers will not design adequate safety assessment processes.[15] Hence, safety and health will not be well protected unless individual states exercise their power to ban and or label genetic engineered seafood species.   

 (Note: this post has been originally published on The Law of Food & Agriculture Blog, University of Arkansas, School of Law uagloballaw.blogspot.com )

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