20131025 Kesan Paper - American Intellectual Property Law

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New Technologies (GMOs), Administrative Agencies, and Public Interest Groups

Prof. Jay P. Kesan, Ph.D., J.D., University of Illinois at Urbana-Champaign

My talk will focus on the public misunderstanding surrounding new technologies. To accomplish this, I will focus on the introduction of genetically modified organism (“GMO”) technology and the public’s response. First, I will show that GMOs are generally accepted by the scientific community as a safe method of food production. Nevertheless, GMOs are feared and unwanted by certain sectors of the public. I will examine the reasons for those fears.

Secondly, I will explore what the private sector can do to combat those fears. Finally, I will discuss what the public sector can do to allay those fears.

GMOs pose no harm not also found in conventional or organic foods.

1 The FDA and the

National Academies of Science have both come to this conclusion. Pamela Ronald, a UC-Davis plant geneticist, points out: "There is broad scientiļ¬c consensus that genetically engineered crops currently on the market are safe to eat. After 14 years of cultivation and a cumulative total of 2 billion acres planted, no adverse health or environmental effects have resulted from commercialization of genetically engineered crops." 2 GMOs may offer a significant benefit in terms of solving world hunger. Bill Gates, for example, publically encourages world leaders to

1 Jon Entine, No, You Shouldn’t Fear GMO Corn, Slate (Aug. 7, 2013 2:45 PM), http://www.slate.com/articles/health_and_science/science/2013/08/can_gmo_corn_cause_allergies_don_t_belie ve_elle_s_scary_story.html.

2 Pamela Ronald, Genetically Engineered Crops – What, How and Why, Scientific American (Aug. 11, 2011),

available at http://blogs.scientificamerican.com/guest-blog/2011/08/11/genetically-engineered-crops/.

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invest in and accept GMOs as a way to give impoverished populations access to cheap, nutritious foods.

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Nevertheless, a significant sector of the public is afraid of GMOs. These people view

GMOs as unnatural and dangerous.

4 There are many explanations for why certain people are against GMOs despite overwhelming scientific evidence that they are safe. One of those is that people perceive anything involving human manipulation as highly unnatural.

5 Generally, we prefer natural goods over man-made goods. It is an interesting philosophical distinction that merits more analysis. Another issue is the journalism surrounding GMOs. Scientists and scientific journalists have accused popular journalists of hysteria surrounding the issue. A writer for Discover Magazine accuses popular journalists of “credulously recycling urban myths.” 6 Cultural differences account for certain individuals’ fear of or acceptance of GMOs.

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Another explanation for individuals’ willingness to accept GMOs is personal intelligence and sophistication. Several studies have concluded that people who are more likely to accept GMO foods have higher intelligence than those who do not want to eat GMO foods.

8 It is likely that those with the necessary education to understand these complex scientific issues are better

3 Megan Bedard, Bill Gates: Accept GMOs, or Millions Will Starve, Take Part (Jan. 25, 2012), available at http://www.takepart.com/article/2012/01/25/bill-gates-accept-gmos-or-let-millions-starve-0.

4 Talbert, M. et al. Explaining the research, allaying fears, and making rebuttals: Engineering crop disease resistance through biotechnology (UC Davidson, 2004 GMO Seminar), available at http://www.bio.davidson.edu/people/kabernd/seminar/2004/Grp4/GMO%20Term%20Paper.html.doc.

5 Maria Konnikova, The Psychology of Distrusting G.M.O.s, The New Yorker (Aug. 8, 2013), available at http://www.newyorker.com/online/blogs/elements/2013/08/the-psychology-of-distrusting-gmos.html.

6 Keith Kloor, Amid Sensationalist GMO Swamp, Stellar Journalism Rises, Discover Magazine (July 31, 2013),

available at http://blogs.discovermagazine.com/collideascape/2013/07/31/u/#.UlgOBD_B_A4.

7 Cyrus Martin, The Psychology of GMO, 23 Current Biology 356 (2013), available at http://www.sciencedirect.com/science/article/pii/S0960982213002935.

8 Andrej Sorgo et al., The influence of intelligence and emotions on the acceptability of genetically modified orgasms, 15 ELECTRONIC JOURNAL OF BIOTECHNOLOGY (2012), available at http://www.scielo.cl/scielo.php?script=sci_arttext&pid=S0717-34582012000100001.

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able to navigate the minefield of sensational journalism surrounding GMOs. Socioeconomic differences also play a role in individual acceptance of GMO foods.

9 Finally, special interest groups like The Non-GMO Project are involved in spreading misinformation, ranging from the nonscientific to the pseudo-scientific, regarding the dangers of growing and ingesting GMOs.

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Private sectors, like Monsanto itself, can take a variety of steps towards public acceptance of genetically modified organisms. One of those options is to continue scientific testing of those foods. More testing would allay some public fears. However, significant testing has already been done. More testing would be a serious financial burden on these companies.

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Public sectors can also contribute to the public acceptance of GMOs. One of the issues at the forefront of the GMO controversy is whether or not to legally mandate the labeling of

GMO foods. Certain consumer groups are calling for this measure, but public sectors may make the problem worse by caving to these demands. The American Association for the

Advancement of Science (the world’s largest general scientific society) is against labeling laws, arguing that legally mandating GMO labels could mislead and falsely alarm consumers, causing more harm than good.

12 While labeling laws have generally failed at the federal level, unable

9 GA Baker, Food Safety and Fear: An Exploratory Analysis, presented at the IAMA Annual Meeting in Cancun (June

2003), available at http://citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.15.2075&rep=rep1&type=pdf.

11 David H. Freedman, The Truth about Genetically Modified Food, Scientific American (Aug. 26, 2013), available at http://www.scientificamerican.com/article.cfm?id=the-truth-about-genetically-modified-food.

12 AAAS Board of Directors: Legally Mandating GM Food Labels Could “Mislead and Falsely Alarm Consumers” (Oct.

25, 2012), available at http://www.aaas.org/news/releases/2012/1025gm_statement.shtml.

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so far to make it past the House Committee, 13 states are now deciding for themselves.

Washington, for example, is mulling over an initiative that will require GMOs to be labeled. The

Washington State Academy of Sciences reported that the consequences of such an action would include increased food costs. They do not recommend labeling, as no significant health effects from GMOs have ever been documented.

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Some analysts suggest that public interest groups use education as a way to change public perception of GMOs. One way to do that is through the use of social media. Generally speaking, the overwhelming majority of public interest groups see social media as essential to contemporary advocacy work, in part because of its democratizing function.

15 Petitions available on websites like Change.org can capture the public’s attention and educate them about the issues at stake. One successful example highlighted in The New York Times involved

“golden rice”, a GMO designed to cheaply and efficiently provide nutrition to impoverished communities.

16 Administrative agencies like the FDA should also consider differentiating GMO foods based on the beneficial characteristics desired by customers, like nutritional value.

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13 H.R. 1699: Genetically Engineered Food Right to Know Act (introduced Apr. 24, 2013), http://www.govtrack.us/congress/bills/113/hr1699#overview.

14 Brad Shannon, Wash. Academy of Sciences Report on GMO Labeling Says I-522 Would Raise Food Costs, The

Olympian (Oct. 9, 2013), available at http://www.theolympian.com/2013/10/09/2767100/wash-academy-ofscience-report.html.

15 Johnathan A. Obar et al., Advocacy 2.0: An Analysis of How Advocacy Groups in the United States Perceive and

Use Social Media as Tools for Facilitating Civic Engagement and Collective Action (Nov. 8, 2011), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1956352.

16 Amy Harmon, Golden Rice: Lifesaver?, T HE N EW Y ORK T IMES (Aug. 24, 2013), available at http://www.nytimes.com/2013/08/25/sunday-review/golden-rice-lifesaver.html?pagewanted=1&_r=1&hp.

17 Gregory A. Baker and Thomas A. Burnham, Consumer Response to Genetically Modified Foods: Market Segment

Analysis and Implications for Producers and Policy Makers, 26 JOURNAL OF AGRICULTURAL AND RESOURCE

ECONOMICS 387 (Dec. 2001), available at http://www.jstor.org/discover/10.2307/40987116?uid=3739656&uid=2&uid=4&uid=3739256&sid=211027234640

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