Ohio Dairy Labeling Advisory Committee
Michael Hansen, Ph.D.
December 19, 2007
Ohio Department of Agriculture, Reynoldsburg, OH
Dear Mr. Chair and Advisory Committee member, thank you for the opportunity to present testimony on milk labeling issues. My name is Michael Hansen and I am a senior scientist at Consumers Union, the nonprofit publisher of Consumer Reports magazine and Consumer Reports Online, with more than seven and a half million subscribers. I have followed/worked on the issue of recombinant bovine growth hormone (rbGH), also known as recombinant bovine somatotropin (rbST), for almost 20 years and have been involved in the decisions/debate about this product in the United States, Canada and at Codex Alimentarius, the United Nation’s food safety organization. RbGH is an animal drug manufactured by Monsanto that is used to increase milk production.
We are very concerned about the recent Pennsylvania Department of Agriculture (PDA) action which would prohibit farmers from telling consumers that they aren’t using artificial hormones on their dairy cows. In late October, PDA informed 16 dairies that they cannot use certain labels on milk as of January 1, 2008, including “Our farmers’ pledge: no artificial growth hormones,” “From cows not treated with the growth hormone rBST,” and “free of artificial growth hormones.” The ban on using these labels will go into effect February 1, 2008.
We strongly urge the Ohio Department of Agriculture (ODA) not to ban such labels for the reasons listed below. Rather, the ODA should continue to allow such truthful labels and only make a few changes to tighten verification requirements.
Consumers have a Right-to-Choose
First, banning these “absence claim” labels interferes with consumers right-to-know about the foods they eat. Many consumers prefer to buy milk produced by cows not treated with artificial hormones, as evidenced by the success of such milk in stores across the country. Many surveys, as you will hear from others, have shown consumers want this information. In June, 2007, the Consumer Reports National Research Center polled over 1,000 people nationwide on various food labeling issues; some 76% of those polled were concerned with “dairy cows given synthetic growth hormones” and 88% agreed that “milk from cows raised without synthetic bovine growth hormone should be allowed to be labeled as such.” 1 Thus, from our survey, it is clear that consumers are concerned about the use of rbGH and would like milk from cows not treated with rbGH to be labeled as such, so that they have a choice. Consumers have a basic right to choose about the characteristics of the food they buy.
“Absence claim” labels not misleading
Second, banning such “absence claim” labels represents a serious infringement on the free speech rights of farmers and dairies who want to inform the public about their agricultural practices. Opponents of such labels say they can be misleading. However, other states and the federal government have said that such “absence claim” labels are not misleading. In December, 2002, Monsanto sent a petition to the Maine Attorney General, G Steven Rowe, asking that he prosecute dairies that use labels such as “Our Farmers Pledge: No Artificial Growth Hormones,” or “no artificial growth hormones” on the basis that such labels are misleading. Consumers Union urged the state of Maine not to grant Monsanto’s petition. I would like to submit a copy of our letter which lays out the reasons why such labels are not misleading and also discusses an unanswered health question (that revolves primarily around increased levels of insulin-like growth factor in the milk) that are associated with use of this product2. In a February, 2003, letter to Monsanto, the Maine Attorney General turned down Monsanto’s request, saying “we find that advertising accurately stating that milk comes from cows not treated with rBST [sic] or artificial growth hormones is neither false nor misleading.” 3
Federal policy has long allowed such “absence claim” labels. In 1994, after the US Food and Drug Administration (FDA) approved use of Monsanto’s recombinant bovine growth hormone (rbGH), the FDA also said that the following label statement, in proper context, is acceptable: “from cows not treated with rbST.”4 Earlier this year, Monsanto asked FDA and the Federal Trade Commission (FTC) to declare these labels to be misleading. On August 21, the FTC wrote to Monsanto, “The FTC staff agrees with FDA that food companies may inform consumers in advertising, as in labeling, that they do not use rBST.”5
In the letter that the FDA sent to Monsanto in late June, 2007, FDA made it clear that the only labels they considered to be misleading were ones that stated that the milk contained no hormones: “FDA issued warning letters when milk labels contained false statements that milk from cows not treated with rBST [sic] contained no hormones. . . . we will issue warning letters when milk labeling regarding rBST [sic] is false or misleading.”6 We agree that labels that say “hormone free” or “no hormones” are misleading because all milk contains hormones. However, Monsanto’s artificial growth hormone (e.g. POSILAC aka rbGH/rbST) is slightly different than the hormone the cow produces herself; and this difference can be detected7. Thus, it is truthful to say that milk coming from cows not treated with rbGH contains “no artificial growth hormones.”
In addition to the labels not being misleading, consumers may have a number of reasons why they want to know whether milk comes from cows that were treated with rbGH. Some consumers may be concerned with the various animal health problems (increases in mastitis [visibly abnormal milk], various reproductive problems, laminitis, injection site reaction, etc.) caused by the drug and may not want the cow to suffer needlessly. Indeed, Canada and the European Union turned down rbGH for approval on the grounds that it was not safe for animals. Others may be concerned about the unanswered human health questions (which primarily revolve around potential for increased milk levels of antibiotic residues and of insulin like growth factor 1, which has been linked to numerous cancers). Codex Alimentarius, the United Nations main food safety body, twice decided that it could not endorse the safety of rbGH for human health. Yet others may want to support small, family farm operations. According to 2007 US Department of Agriculture figures, some 9.1% of small farms—those with less than 100 cows—use POSILAC, while some 42.7% of the large farms—those with more than 500 cows—use it.8 Thus, rbGH is used more than 4.5 times more frequently by large farmers than small farmers. According to government statistics for 2006, of Ohio’s 4,400 dairy farms, 84% (3,700 or 4,400) have 100 or fewer cows. 9
Improve Verification by adding civil penalties and random farm inspection
Opponents of these labels maintain that if there isn’t an easily useable and economical test to verify a label claim, then that label claim should not be allowed. Further, they argue that affidavits are not sufficient to verify a label claim. There is a fundamental flaw to this argument. Numerous important label claims cannot be verified by a test. Perhaps the most widespread, in the food area, is country-of-origin labeling (aka COOL). Federal law—particularly the Tariff Act of 1930 and the Federal Meat Inspection Act—requires most imports, including many food items, to bear labels informing the “ultimate purchaser” of their country of origin10. In 2002, as part of the Farm Bill, legislation was passed that would require meats, fish and seafood, fruits and vegetables and nuts to be labeled as to country of origin. COOL for fish and seafood was implemented in 2004, and COOL for meats, fruits and vegetables and nuts is set to be implemented in September, 2008. No tests can be done to verify COOL, rather COOL is verified by a paper trail/label declaration. Surely, the Ohio Department of Agriculture wouldn’t oppose COOL on the basis that no test exists for verification purposes.
COOL clearly demonstrates that label declarations are sufficient for verification purposes. In addition, affidavits are legally binding documents and carry more weight than simple label declarations. (Affidavits are often gathered from farmers who pledge not to treat their cows with rbGH or POSILAC.) However, in an era with lax enforcement of many food and other laws, and with the recent revelations of illegal use of human growth hormone by baseball players, some more stringent forms of verification may be a good idea.
We would suggest ways that the ODA could improve the verification of label claims such as “no artificial hormones” or “Our Farmers pledge: no artificial hormones used.” ODA could require Monsanto to turn over the names of all POSILAC customers in Ohio, and this information could be used to verify the labels as ODA would know who is using the product.
Alternatively, ODA could put the onus on dairies and dairy farmers. ODA could require all dairies making such claims to require all farmers that supply them with milk to sign affidavits that they do not use POSILAC on their cows. At present, all, or virtually all, such farmers sign these affidavits. ODA could set civil penalties for filing a false affidavit. ODA could also require that dairies that want to make such label claims, have a person on staff that makes one or more unannounced visits each year to each farmer that supplies the dairy to inspect the farm for evidence of POSILAC use. Both the civil penalty for filing a false affidavit, along with required unannounced farm inspections, would dramatically discourage cheating and would serve as a stronger form of verification than simply a signed affidavit and thus give consumers more confidence in accuracy of the label.
In sum, there is considerable consumer demand for rbGH-free dairy products and the market is responding to this consumer demand. We urge the ODA not to follow the lead of the Pennsylvania Department of Agriculture by banning truthful labeling of dairy products. To do so would deny consumers their right-to-know about the foods they consume and would also deny dairy farmers and retailers the right-to-tell their customers truthful information about the foods they sell. ODA can strengthen verification of the label claims about the recombinant bovine growth hormone by setting civil penalties for filing false affidavits and requiring unannounced farm inspections. Otherwise, let the market place work as it should.
1 See pp. 12-14 in: http://greenerchoices.org/pdf/Food%20Labeling%20Poll-final_rev.pdf
2 Letter, dated Feb. 1, 2003, from Michael Hansen to G. Steven Rowe.
3 Letter, dated February 6, 2003, from G Steven Rowe to Joan Bernstein (Monsanto’s lawyer).
4 At: http://www.cfsan.fda.gov/~lrd/fr940210.html
5 Letter from Mary Engle, Associate Director, FTC to Jodie Bernstein and Dana Rosenfeld (Monsanto’s lawyers), dated August 21, 2007
6 Letter, dated June 27, 2007, from Sheldon Bradshaw, Chief Counsel for FDA, to Brian Lowry (Monsanto)
7 Erhard, MH, Kellner, J, Schmidhuber, S, Schams, D and U Lösch. 1994. Identification of antigenic differences of recombinant and pituitary bovine growth hormone using monoclonal antibodies. Journal of Immunoassay, 15(1): 1-19.
8 Pp. 79, 80 in: http://www.aphis.usda.gov/vs/ceah/ncahs/nahms/dairy/dairy07/Dairy2007_Pt1.pdf
9 At: http://www.nass.usda.gov/QuickStats/Create_Federal_All.jsp#top, querying for milk cows by Size Groups: Operations for Ohio
10 At: http://www.ers.usda.gov/Features/farmbill/analysis/cool.htm