As enviro health activists seek improved or additional labels on everything from food to baby toys, we’ve witnessed pushback by manufacturers and retailers in state legislatures, as well as at the polls. The recent successful attempts at GMO labeling via state statute in Vermont, Connecticut, and Maine, and the failed ballot initatives in Washington, California, and New Hampshire come to mind. (Note also here the increasing drumbeat for a federal GMO labeling law.) The environmental health law rationale for improved labeling is to give the public information to make informed personal decisions. Often this information involves evolving scientific and public health data about an environmental exposure, where the degree of uncertainty makes legislatures or executive branch agencies hesitant to step in with governmental regulation. So we fall back on a form of caveat emptor, using the law to compel disclosure and then leaving it to individuals to exercise their personal form of the precautionary principle when faced with managing the risk of uncertainty.
But this article points out a new side benefit of labeling laws: vanishing food additives. Basically, some manufacturers are finding it easier to delete the “stuff” mandated by labeling laws that increasingly draws consumer scrutiny – and ire, now expressed facilely at on-line petition sites like Change.org and in blogs. The conclusion: “The risk of damaging publicity has proven serious enough that some manufacturers have reformulated top-selling products to remove components that they say are safe but that are sufficiently mysterious to draw suspicion.” The article cites examples like Gatorade choosing to eliminate brominated vegetable oil used to distribute color in sports drinks and Starbucks and Kraft Foods switching to natural dye sources. Without additional scientific study of these “sufficiently mysterious” additives, which would be required to legislate them out of a product, consumers’ precautionary preferences become corporate risk management practice.
So are consumers and politicians reticent to step into the enviro health regulatory void getting to have their cake and eat it too? By relying on the intended and unintended benefits of labeling laws, we appear to be changing industry norms on food additives without having to make specific law on point. This would appear to be a win-win-win, for industry can invest energy in product development per consumer demand and not in compliance with a new, specific law. Interestingly, we make less environmental health law because of labeling laws.
UPDATE: The 12/31/13 NYT ran a related article, focusing less on labels and more on the role that social media plays in helping individuals change industry practice.