When Dr. Scott Gottlieb  was named as head of the U.S. Food and Drug Administration, the pro-science community cheered. Gottlieb had both academic and private sector experience, he had been both doctor and patient, and he had been a Deputy at FDA in the past so he knew where all the bottlenecks remained.

He accomplished a great deal before stepping down earlier this year, but several initiatives remained unfinished. The charismatic doctor  had listened to complaints about the rampant abuse of farmers by those paid to promote package labels like "organic" and "Non-GMO" and even seemed to have USDA on his side -a big win because USDA lets organic trade groups and lobbyists control organic food certifications from inside USDA. Yet since his departure, plans to rein in unethical behavior by companies like Non-GMO Project have stagnated. As the keynote speaker Monday at the Private Label Trade Show, he will have a chance to publicly reiterate for the next commissioner how crucial it is that misleading labels be removed from all food packaging.

Labels on food like nutrition facts panel provide essential information to consumers, such as how much sugar a product contains or what ingredients are included. But other labels instead actively set out to mislead the public. For example, some water brands are labeled “gluten-free” even though no water would ever have wheat in it. Packages of salt that claim to be “non-GMO” ignore the fact that salt has no DNA so couldn’t be genetically modified. 

That is not creating awareness about food, it is cashing a check in return for giving a company the ability to undermine competitors by claiming there is something scary about normal products. These "nocebo" - what the product lacks will make you healthier -  messages are designed to steer consumers who don’t know much about the underlying science to buy products featuring these claims; often for more money. Even if there is no difference, and cheaper water is just as Non-GMO as the company that bought a sticker. They are promoting and then capitalizing on consumer confusion. In turn, manufacturers are increasingly labeling as “non-GMO” foods that have no commercial genetically engineered counterpart like basil, blueberries, or heirloom seeds, because the same FDA and FTC that once wouldn't let a cheese company advertise how much milk it has, lest people think it has as much calcium as fortified milk, will now let nut juice be called milk. And chicken can be labeled without antibiotics despite the fact that no chicken contains antibiotics.

Worse, companies have been allowed to place their marketing claims near official government mandated labels like the nutrition facts panel, suggesting that the United States government sanctions these misleading claims. In the case of non-GMO labels, the opposite is true. FDA has extensively reviewed foods produced using biotechnology over many years. Their findings are that these foods do not differ from other foods “in any meaningful or uniform way, or that, as a class, foods developed by the new techniques [do not] present any different or greater safety concern than foods developed by traditional plant breeding.”

Food companies using deceptive labels are trying to increase their market share and in a free market companies will get away with everything they legally can. In the last 10 years, that became a lot. As FDA Commissioner, Dr. Gottlieb seemed poised to push labels back to common sense. He recognized that some companies, like Non-GMO Project, engage in extortion against conventional food brands, by paying trade groups to attack the few scientists willing to defend food (most academics don't want to defend science lest they look like they are defending corporations) so that every company will have to buy their sticker or suffer market share drops.

Though there are only a few GMO foods - mainly products with vegetable oil and corn syrup - Non-GMO Project has sold its stickers for 50,000 products. They’re explicitly trying to “shrink the marketplace for existing GMO ingredients and prevent new commercial biotechcrops,” as Non-GMO Project executive director Megan Westgate told the Wall Street Journal. In other words, they’re working to mislead consumers so extensively that biotechnology becomes obsolete. But all of the advancements we've made worldwide would disappear as well, which would harm billions. Especially in developing countries.

Private labels are the focus of the trade show at which Dr. Gottlieb is speaking. These are the proprietary brands that many stores carry in order to offer products at a more affordable price than heavier marketed name-brands.  Obviously no one builds a new Raisin Bran factory to sell private label versions, they rent production time from larger companies. They want to be more affordable or they have no advantage so many private labels don't bother buying non-GMO stickers, since the meaningless distinction adds to the cost of the product. But there’s a push by the Non-GMO Project and their allies to woo or bully cost-effective private labels to the dark side of misleading advertising. Non-GMO Project entices and threatens private labelers by saying that “Non-GMO Project Verified products are the fastest dollar growth trend” in stores and then that “75% of consumers want private label products to be non-GMO.”

Yet private label makers considering adopting these seals need to consider that they’re in violation of FDA’s guidelines in four significant ways, as outlined by Georgetown University of Law Center adjunct professor Dean McGrath in the Hill.

     1. FDA guidance states unequivocally that non-GMO claims are false or misleading if they appear on foods that are “incapable of being produced through genetic engineering.” Numerous products carrying the Project’s label fall into this category, including water, kitty litter and salt.

     2. The guidance states that Non-GMO labels cannot appear on foods for which no equivalent GMO products exist or are currently on the market. Again,many butterfly labels appear on just such items, including Tropicana orange juice. 

     3. The FDA is very clear that websites and other promotional materials can be considered a part of labeling if they sell a product or are connected, as the Non-GMO Project is, by a URL on the label.The Project’s website promotes numerous false and misleading claims about genetic modification, including assertions that it is a "new science that creates unstable combinations of plant, animal, bacterial and viral genes that do not occur in nature...," that "there is no scientific consensus on the safety of GMOs...," and that "most developed nations do not consider GMOs to be safe...."

     4. FDA guidance specifically recommends against the phrases“GMO-free” and “non-GMO,” as they imply 100% absence, a claim that is all but impossible to substantiate scientifically, a fact even the Non-GMO Project admits. 

If only FDA would enforce their own rules.

Dr.Gottlieb should pick up with where he left off at FDA and urge private labelers not to succumb to this pressure, even as FDA continues to decide exactly what they’re going to do about the Wild West environment that has been fostered by their continued inaction against misleading labels.