The University of New Hampshire Law Review
[Excerpt] “In December 2006, the Food and Drug Administration (FDA) announced that it had reviewed all the available evidence and was poised to approve meat and milk from cloned animals and their progeny. I remember telling one of my colleagues, a patent law professor, who should be as comfortable with technology as anyone, about this development, and his response was, “Yuck. I’m not eating it!” To which of course I replied, “Humph. You won’t know the difference.” Meat or milk from a clone or its descendant is virtually identical to meat or milk from a non-clone, said the FDA, as it also announced that it would almost certainly not require food from clones to be labeled.
Consumers often want information about where their food came from or about the processes employed in producing it. The food identity approach to labeling cannot take process into account unless the process affects the identity of the food. When the process does not change the food in any material way, process information on a label might suggest a difference that does not exist. The instinctive “yuck” to the thought of cloned meat highlights the tension between consumer preferences, the government’s science-based, food identity approach, and producers’ efforts to differentiate their products.
Part I of this article identifies three functions that labels perform, outlines the types of information usually required, and introduces the rule that voluntary label information cannot be misleading. Part II focuses on process information and its implications. I argue that there is no truly voluntary labeling when consumers care about a feature; if some products are labeled, then unlabeled products bear a de facto label by implication. Partly because of the de facto mandatory labeling principle, process labeling has the potential to mislead consumers. In Part III, I examine some relevant characteristics of consumers. I argue that not all consumers can be misled by label information. Consumers who have no preferences or who are very knowledgeable about the labeled feature are not misled by process labeling. Finally, using labeling of genetically modified (GM) ingredients as an example, I suggest that mandatory labeling of some process information could enhance consumer sovereignty and welfare.”
Donna M. Byrne, Cloned Meat, Voluntary Food Labeling, and Organic Oreos, 8 Pierce L. Rev. 31 (2009), available at http://scholars.unh.edu/unh_lr/vol8/iss1/4
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