Prop 37 on GMO Labeling: Yay or Nay?

Prop 37 on GMO labeling: What are the issues?

On November 6, Californians will vote on Proposition 37. Also known as The California Right to Know Genetically Engineered Food Act of 2012, Prop 37 would require genetically modified (GMO) labeling on food products.

Under the Act, non-processed foods considered to be GMO would be required to bear the words genetically engineered. In the case of processed foods containing a variety of ingredients, some of which may be GMO, the phrase “Partially produced with genetic engineering” or “May be partially produced with genetic engineering” would need to appear on the front or back of the package.

Prop 37 supporters say they are taking a historic stand for consumer rights because consumers will more easily be able to discern between GMO and non-GMO products and thus make more-informed purchasing decisions.

But those who argue against Prop 37 say that the Proposition potentially opens the floodgates to private lawsuits against makers of all manner of raw and processed foods, food supplements, and packaged goods-in short, 60 to 80% of products on store shelves in The Golden State.

Prop 37 Supporters

In a sense, GMO products have existed for millennia.

Today, we define genetic modification as bioengineering desired genes from various species to create an entirely new species that cannot occur in nature or in traditional cross-breeding. Even though ancestral farmers thousands of years ago could not utilize GMO engineering or engage in, say, exposing plants to chemicals or radiation to create beneficial mutations, plant husbandry arguably wasan early version of genetic engineering. Using plant husbandry, farmers applied their knowledge about a plant to select for desirable traits in order to develop improved varieties.

This is, of course, far different from producing a hybrid plant that could never have existed in nature, especially using genes from one species (even an alien species, like fish) to create changes in another species. (In 1991, a company genetically engineered a tomato with a gene from the arctic flounder in order to convey a trait of cold-storage resistance to the tomato.)

While the fish-tomato never made it to the produce aisle, other cross-species have. It is estimated that more than 80% of conventional processed foods in the United States contain GMOs, according to nonprofit group The Non-GMO Project (Bellingham, WA), which runs a third-party non-GMO certification program. The group further explains on its website:

Over 80% of all GMOs grown worldwide are engineered for herbicide tolerance. As a result, use of toxic herbicides like Roundup [Ready] has increased 15 times since GMOs were introduced. GMO crops are also responsible for the emergence of “super weeds” and “super bugs” which can only be killed with even more toxic poisons like 2,4-D (a major ingredient in Agent Orange). GMOs are a direct extension of chemical agriculture, and are developed and sold by the world’s biggest chemical companies. The longer-term impacts of GMOs are unknown, and once released into the environment these novel organisms cannot be recalled.

The Non-GMO Project also says, “Most developed nations do not consider GMOs to be safe,” and that nearly 50 countries worldwide have significant restrictions or outright bans on the production and sale of GMOs.

In light of the concerns cited, The Non-GMO Project says that in polls, a “significant majority” of North Americans indicate a desire to be able to tell which products on the shelf contain GMOs. Another group, research firm The Mellman Group, reports that an estimated 90% of Americans surveyed this past March supported a mandatory GMO labeling requirement.

Prop 37’s campaign page, www.carighttoknow.org, lists 2,187 organizations and professionals-including public health and food safety groups, many natural food manufacturers, food retailers, farmers and co-ops, environmental groups, and more-who support Prop 37.

Prop 37 Opponents

Meanwhile, reported Nutrition Business Journal on September 20, Prop 37 opponents include Monsanto, DuPont, PepsiCo, BASF, Bayer, Nestlé, and Coca-Cola.

In September, dietary supplement association the Council for Responsible Nutrition (CRN; Washington, DC) came out in opposition to the Act. Part of the reason CRN says it objects to Prop 37 is because of the way Prop 37 defines natural. As CRN explained in its public statement:

In an apparent drafting error, Proposition 37 provides that any “processed food” may not on its label, in its advertising, or other promotional materials state or imply that the food is “natural” if it has been subject to “canning, smoking, pressing, cooking, freezing, dehydration, fermentation or milling.” [§110809.1] Although the proponents say they intended this provision to apply only to bio-engineered ingredients, [Prop 37] imposes a potentially much broader restriction on all processed foods. Regardless of the original intention, CRN opposes Prop 37 because it would prohibit many healthful natural products from describing themselves as “natural” and opens them up to frivolous but expensive litigation by attorneys who take an expansive interpretation of the provision.

Concerns over potential litigation is the second reason that CRN and many other opponents say they oppose the Act. Meanwhile, the Natural Products Association (NPA; Washington, DC), which says it supports consumers’ right to know but opposes the Act, stated in a public press release, “Proposition 37 places every supplier, manufacturer, and retailer of food products at risk of unreasonable and frivolous litigation.”

When debating Prop 37 and its trickle-down legal effects, many like to use the example of the last time there was a mandatory labeling initiative in California. That was in 1986, when the Safe Drinking Water and Toxic Enforcement Act-aka Prop 65-passed into law via a direct voter initiative.

Prop 65 mandates various iterations warning that a product may contain “chemicals known to the State of California to cause cancer and/or birth defects or other reproductive harm.” Many have argued that Prop 65 is a well-intended yet disastrously misguided law that has done little to protect consumers. Some say that the labeling law does nothing to truly help consumers, as its labeling requirements make it seem that virtually every product a consumer sees, walks on, sits on, wears, consumes, or somehow comes in contact with is carcinogenic. As this author noted in the July 10, 2012, “The Gormley Files” blog, “It becomes the state government version of a student with bad study habits who yellow-highlights 99% of the text in a chapter as a test preparation, which of course is the same as not highlighting anything.”

Instead, Prop 65 critics say that the Proposition has served as no more than a “gravy train” for unscrupulous consumers and avaricious attorneys. Since 1986, “Over 16,000 lawsuits and $500 million have been paid out by companies despite the fact that the products covered under Prop 65 have never actually done any harm to anyone; [these products] would be banned outright if they caused actual harm,” wrote Hank Campbell, founder of the website Science 2.0.

According to a review by Anthony T. Caso published by The Federalist Society for Law and Public Policy Studies in March 2012, “The vast majority of those payments have gone to pay the attorney fees of groups filing challenges.”

Campbell of Science 2.0 states that, like Prop 65, “California’s Proposition 37…will be a ‘bumper crop’ for litigation attorneys….What it allows is for lawyers to sue everyone in the food chain, whether there is any harm to anyone or not.” Again, as Caso noted in The Federalist Society, there is no “requirement to establish that the organization has been injured in any way by whatever violation of the law they are claiming. Anybody actually injured by environmental pollution already had the right to bring litigation for damages.”

Justin Prochnow, an attorney with Greenberg Traurig in Denver, observes, “If the plaintiff attorneys get any feeling that they can achieve similar success with litigation over GMO issues, they will certainly jump at the chance. The continued ‘shakedown’ by plaintiff lawyers bringing marginal cases to court-knowing that many companies will settle out as opposed to spending time, money, and energy on litigation-will not stop until there are consequences for such actions. As of now, there are few [such consequences], if any.”

Speaking to Nutritional Outlook as an expert but not officially taking an organizational position on Prop 37, Michael McGuffin, president of the American Herbal Products Association (AHPA; Silver Spring, MD), points out, “[Prop 37] has, as its enforcement mechanism, a right to private enforcement. In other words, private enforcement is an intended consequence, and there is every reason to assume that the entire food industry will need to face that consequence.” Meaning, enforcement by private plaintiff attorneys is written into the proposition; it won’t be something that was not intended or foreseeable.

But many Prop 37 supporters contend that the Act will not cause a flood of litigation. “There are no bounty hunter enforcement provisions in the law, there are no incentives for lawyers to sue, and there is every reason to believe that manufacturers will simply obey the new GMO labeling law as they already do in 49 other countries,” states green business marketing firm Compass Natural Marketing (Boulder, CO).

The company points to a legal analysis written by James Cooper, JD, PhD, of the George Mason University School of Law, who pointed out differences between Prop 65 and Prop 37.

First, Cooper wrote, unlike Prop 65, which covers exposure to over 800 chemicals, Prop 37 “would cover a much narrower slice of the economy” and for that reason “it is likely to generate fewer opportunities for claims to arise.”

Secondly, unlike Prop 65, under which companies often have difficulty knowing for certain the extent to which they are exposing the public to any of the 800 chemicals, Prop 37 “provides specific product composition thresholds: up to ten ingredients that contribute no more than .5% of total weight until 2019, and zero thereafter,” Cooper stated. “Because thresholds are certain and the focus is on product composition rather than public exposure, testing requirements under [Prop 37] are more straightforward and therefore will provide businesses with a greater degree of certainty with respect to compliance.” For those reasons, he concludes:

To the extent that [Prop 37] provides businesses with more certainty with respect to their compliance than Proposition 65, it is likely to stimulate fewer legal actions….This uncertainty is what drives abusive litigation in the Proposition 65 context; confronted with the choice of either risking large damage awards-and even larger attorneys’ fees-on the chance that it can prove exposure levels below an uncertain threshold or settling, the rational business will almost always choose to settle. On the other hand, when parties know to a high degree of certainty that they are in compliance with a legal standard, they are less likely to settle a baseless claim because they know [they] are likely to prevail at trial.

Attorney Jim Turner, chairman of the organization Citizens for Health and partner of Swankin and Turner in Washington, DC, offers an analysis-one that is supported by Joanna Shepherd-Bailey of Emory Law in an economic analysis commissioned by the Alliance for Natural Health, an organization that supports instituting the GMO labeling of Prop 37. According to both Turner and Shepherd-Bailey, Prop 37 would not-as some Prop 37 opponents claim-impose high costs on the state of California as a result of an increase in litigation. According to Shepherd-Bailey’s economic analysis, the cost to the state will be negligible: the annual costs for processing and hearing cases should be less than $50,000.

And while there will be administrative costs to the state as its Department of Health begins to implement certain provisions of the law, says Turner, Shepherd-Bailey’s analysis found that these administrative costs would be less than $1 million-that is, less than one cent for each person living in the state of California-causing the department’s expenditures to increase by no more than 0.03% and total state expenditures to increase by just 0.0008%.

“That one cent is all it will cost for critical health information to be made available to the many consumers who want to know what is in the food they feed their families,” adds Turner.

And, states the Prop 37 campaign, the bottom line is that consumers have a right to know what’s in their food. “We are free to choose what we want to eat and feed our children. The free market is supposed to provide consumers with accurate information about products so we can make informed choices.”

Prop 37: The Verdict?

This article went to press before Prop 37 voting. However, in speculating whether or not the Act would pass, in its September 20 article, Nutrition Business Journal stated, “After interviewing proponents and opponents of the initiative, prevailing wisdom suggests that Prop 37 will pass, but not before an ugly fight against some well-heeled and highly-motivated forces.”

NBJ also stated that, “The level of interest and suspicion over genetically modified ingredients has grown to a more fevered pitch over the past 18 months…”

Which vote will be loudest? We won’t have to wait long to find out.