On Monday of this week, TIME announced its 2016 Person of the Year shortlist. Many of the names were unsurprising: Donald Trump, Hillary Clinton, Simone Biles, and Beyoncé Knowles all seem to make sense. One entry in particular, however, seemed like a bit of an outlier -- the CRISPR Scientists. As outlined in TIME's announcement:
These scientists have developed a groundbreaking new technology that can edit DNA, a technique that has the potential to transform science and the human experience, as it could be used to find and remove mutations responsible for incurable diseases.
I've been following this technology for a little while, so when the announcement was released, I immediately wondered how it would impact everything else happening in the food law arena right now and in the future.
CRISPR, the shorthand reference for "clustered regularly interspaced short palindromic repeats" (pronounced crisper), has been touted as a technology that has the potential to quite literally change the world. Scientists believe it can be used for everything from potentially curing cancer, to saving the lives of children who are allergic to vaccinations, to de-extinction of the wooly mammoth.
CRISPR is actually a naturally occurring process found in bacteria that acts as a kind of immune system for that bacteria. As such, CRISPR hasn't really been "invented." Even so, there is a gigantic patent fight happening right now in the United States Patent and Trademark Office (officially called a "Patent Trial and Appeal Board interference") between several entities who claim patent rights in a specific CRISPR method that is different from the naturally occurring process. On one side is a group affiliated with the Massachusetts Institute of Technology and Harvard College, and on the other side is a group affiliated with the University of California, Berkeley and the University of Vienna. If you're interested in the full interference proceedings, the MIT/Harvard group posts regular updates about, and documents from, the proceeding here.
Though this type of clash between universities is rare, it isn't surprising under the current circumstances. Universities are placing more and more value on this type of research, in part because of the potential for income. This has been true for at least the past forty years. After researchers at Stanford University and the University of California, San Francisco invented recombinant DNA technology in the 1970s, the universities received more than $250 million in licensing fees. When Harvard University scientists created and patented the "oncomouse," a transgenic mouse more susceptible to cancer, it licensed the patent rights exclusively to DuPont. Ethical questions aside (and there are many), having a living animal predisposed to cancer is quite valuable to oncology researchers in public and private laboratories. Though neither Harvard nor DuPont has publicly disclosed how much money has been made from these patents, some have posited that the "patents are some of the most valuable pieces of intellectual property ever created."
Much like these earlier advancements, CRISPR has the same, and likely much greater, potential. A party with patent rights in CRISPR technology will claim a spot in history as the inventor of perhaps the most important invention of the twenty-first century. It will also be able to command millions, or billions, of dollars in licensing fees, because nearly every industry that relies on biotechnology is interested in CRISPR. And none more so than the food and agriculture sector.
With respect to food in particular, CRISPR has incredible potential from a purely scientific standpoint. It has been tested on crops only since 2013, and the research includes everything from developing crops resistant to fungal diseases, to reducing livestock disease, to creating more efficient food production that has less impact on soil and water.
On the other hand, there are real concerns about whether CRISPR foods are safe for human consumption and the environment (though most available research suggests that CRISPR technology is safe). There are fierce opponents and growing skepticism over plants and animals perceived to be "made in a lab." In addition, the organic food movement has grown quickly, and CRISPR sounds anything but organic to most consumers.
Consumers have increasingly stated that they want to know how their food has been made and whether it has been modified in some way. As such, President Obama recently signed into law the National Bioengineered Food Disclosure Standard, which is commonly referred to as the genetically modified organism ("GMO") labeling law. The law requires the Secretary of Agriculture, within two years, to create a national disclosure standard for bioengineered foods. Bioengineered foods are defined as food:
‘(A) that contains genetic material that has been modified through in vitro recombinant deoxyribonucleic acid (DNA) techniques; and
‘(B) for which the modification could not otherwise be obtained through conventional breeding or found in nature.
Many interest holders from both sides are unhappy with the law, but it is seen a forced compromise based on piecemeal legislative actions taken by states like Vermont.
Interestingly, CRISPR technology may not fall within these labeling requirements. The US Department of Agriculture has stated that at least one CRISPR food, a CRISPR-edited mushroom that resists turning brown when exposed to air, is not a genetically modified food because it does not contain any foreign DNA. CRISPR foods, it seems, may be able to sidestep some USDA regulations, including mandatory labeling.
Scientists are already eating CRISPR-edited cabbage that tastes like broccoli in labs, but we are still a few years away from CRISPR foods appearing in grocery stores. Only time will tell if CRISPR revolutionizes our food. TIME, however, may tell us tomorrow if its developers have snagged the TIME 2016 Person of the Year contest.
*For what its worth, I don't think they will win. A little something called the 2016 presidential election probably dictates that one of two people will receive that honor.
Shontavia Johnson serves as the Kern Family Chair in Intellectual Property Law and directs the Intellectual Property Law Center at Drake University Law School. She curates content related to law, policy and pop culture at www.shontavia.com and can be found @ShontaviaJEsq across social media platforms.
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