Prop. 37 on GMO-Labeling: The Referendum, The Propaganda, Its Backers & Their Lies

Proposition 37 march in San Francisco, October 6, 2012.

Unless you’ve been living under a rock, or outside of the USA, you can’t ignore by now that the hottest campaign leading up to the November ballot is actually taking place in California. Yep, forget about the swing states. It’s safe to say that no presidential election will have as much impact on this country’s food system than the referendum that’s currently brewing in California.

If Proposition 37 (The California Right to Know Genetically Engineered Food Act) passes on November 6, all raw or processed food sold through retail in California, that is genetically engineered or contains at least 0.5 percent of GMO (genetically modified organisms), will have to be labeled as such starting July 1, 2014. Exemptions include food sold for immediate consumption, alcohol, and meat or milk from GMO-fed animals.

It is expected that GMO labeling would spread nationwide since many vendors wouldn’t want to go through the trouble of issuing two kinds of labels (California v. the rest of the country). Furthermore, if GMO labels are met with consumers’ disaffection and a consequent drop in sales, food producers and processors may be incentivized to redesign their products and source non-GMO ingredients. In turn, this trend would impact the kind of crops favored by farmers. In short, GMO, which make up over 90 percent of corn and soy crops in the US today, may lose some of their grip on the American agricultural land (bear in mind that most of GE crops today are used for animal feed and biofuel, so the impact would be real although not dramatic).

Pamm Larry

Pamm Larry, the self-described “grandmother from Chico” who jump-started the initiative last year, successfully rallied a coalition of consumer groups behind the Label GMOs campaign (, including the Organic Consumers Association and Food & Water Watch. Businesses offered their support early on, including long-time practitioners of healthy food such as Nature’s Path and Lundberg Family Farms. A few celebrity activists in the alternative health and non-GMO arenas, such as Jeffrey Smith and Dr. Mercola jumped on the bandwagon. Through a decentralized structure of local chapters staffed with volunteers, the 560,000 required signatures (and some) were gathered on time for the California Right to Know Initiative to qualify last June for the November ballot. This week, several Hollywood celebrities endorsed Prop 37 in this video:

About 9 Americans out of 10 are in favor of labeling GMO-containing foods, according to a 2010 poll conducted by Reuters Thompson (see also this poll conducted by MSNBC last year: 96 percent of over 45,000 respondents answered “yes” to the question “Do you believe genetically modified foods should be labeled?”).

In 2007, candidate Obama had spoken in favor of it “because Americans have a right to know what they’re buying.” That was before President Obama appointed Monsanto’s ex-VP of public policy Michael Taylor as the deputy commissioner for foods (read: food safety czar) at the Food & Drug Administration (FDA).

Some 50 countries, including Australia, New Zealand, China, Japan, and the European Union, already have strict GMO labeling requirements.

So what’s with the heated debate? For the sake of making sense of the confusing whirl of opinions, I stepped back and took on the reasonable assumption that truth is never black and white, and that no side has an absolute monopoly on truth and light. Here’s what I’ve come to understand:

Heartthrob Ryan Gosling takes a stand.

In case you still doubt that this local initiative can have a significant impact on the food industry as we know it in America, consider this: the anti-Prop 37 campaign has received over $34.5 million, or 8.5 times more than the paltry $4.1 million collected by the backers of Prop 37 (see most recent numbers here). Its donors list reads like a Who’s Who of the biotech and food industry: Monsanto, Dupont, BASF, Dow, Bayer, Pepsico, Nestle, Coca-Cola, Conagra, Syngenta, General Mills, Del Monte, etc. They have won the endorsement of most daily newspapers in California. Their arguments are the regular fare of the corporate bottom-line agenda posing as a defense of small farmers, mom-and-pop businesses and consumers: Prop 37 will bankrupt the former, and slap huge price hikes on the latter, they claim. Moreover, GMO labeling will scare off innocent bystanders, thereby enrolling them in the anti-GMO ploy to hold back The Science that we depend on to prevent mass starvation by 2050. Now, you tell me, who’s brandishing the scare tactics?!

Nevermind that the anticipated impact on costs is denounced by Joanna M. Shepherd-Bailey of the Emory University School of Law in her economic assessment of Prop. 37. Her analysis shows “little or no change in consumer food prices as a result of these relabeling. She asserts that “the relabeling expenses resulting from the Right To Know Act represent a trivial expense for food sellers, and expects a “negligible increase in administrative costs resulting from the new regulations to be adopted by the California Department of Public Health.”

If all the scary predictions are too confusing for you, the name-calling and reputation-smearing strategy wielded by the anti-Prop 37 campaign will surely have you see the light. While expunging “the grandmother from Chico” from the narrative, it solely and repeatedly credits two allegedly greedy individuals for Prop 37: James Wheaton, the Oakland lawyer (“ambulance chasing attorney“) who helped pen it, and Dr. Mercola, the Illinois-based alternative health guru (“snake oil salesman“) whose $1.1 million campaign contribution clearly betrays the dubious motivation (“Why else would someone from Chicago invest $1,100,000 (and counting) to create a law in California?” asks Science 2.0 blog founder Hank Cambell. Er, let’s see… because he supports the values and principles that his career rests on, and understands the national impact of Prop 37? Alex Bogusky, successful adman and a Boulder, CO resident is most obviously another one of these suspicious characters–why else would he fork out $100,000 to support the Prop 37 campaign?)

Now, that’s creative propaganda. Hilarious too. You’d swear Dr. Mercola and James Wheaton have Monsanto & Co. shaking in their boots! And maybe they do.


More seriously, however, there are three-year anti-Prop 37 arguments that are worth considering closely.

One, the wording of the text is such that lawsuits to prevent natural, non-GMO foods from being labeled “natural” could be expensively fought and won in court. Here is the contentious text:

In addition to any disclosure required by Section 110809, if a food meets any of the definitions in subdivision (c) or (d) of Section 110808, and is not otherwise exempted from labeling under Section 110809.2, the food may not in California, on its label, accompanying signage in a retail establishment, or in any advertising or promotional materials, state or imply that the food is “natural,” “naturally made,” “naturally grown,” “all natural,” or any words of similar import that would have any tendency to mislead any consumer.

Here are the definitions in subdivision (c) and (d) of Section 110808:

c) Genetically engineered. (1) “Genetically engineered” means any food that is produced from an organism or organisms in which the genetic material has been changed through the application of:

(A) In vitro nucleic acid techniques, including recombinant deoxyribonucleic acid (DNA) techniques and the direct injection of nucleic acid into cells or organelles, or

(B) Fusion of cells, including protoplast fusion, or hybridization techniques that overcome natural physiological, reproductive, or recombination barriers, where the donor cells/protoplasts do not fall within the same taxonomic family, in a way that does not occur by natural multiplication or natural recombination.

(2) For purposes of this subdivision:

(A) “Organism” means any biological entity capable of replication, reproduction, or transferring genetic material.

(B) “In vitro nucleic acid techniques” include, but are not limited to, recombinant DNA or RNA techniques that use vector systems and techniques involving the direct introduction into the organisms of hereditary materials prepared outside the organisms such as micro-injection, macro-injection, chemoporation, electroporation, micro-encapsulation, and liposome fusion.

(d) Processed food. “Processed food” means any food other than a raw agricultural commodity, and includes any food produced from a raw agricultural commodity that has been subject to processing such as canning, smoking, pressing, cooking, freezing, dehydration, fermentation, or milling.

Finally, consider the headline of the controversial section 110809.1:

110809.1. Misbranding of Genetically Engineered Foods as “Natural” [emphasis added)

This seemingly leaves no wiggle room for ambiguity. Legal opinions on the matter differ widely, however. On the other hand, the California Legislative Analyst's Office (LAO), a non-partisan entity of the California Legislature, has opined it's possible the courts would interpret the natural labeling prohibition as pertaining "to some processed foods regardless of whether they are genetically engineered," according to the official title and summary prepared by the California Attorney General. On the other hand, Washington, D.C.-based lawyer Joe Sandler of the law firm Sandler Reiff Young & Lamb, and a legal advisor to the Yes on 37 campaign, declared in a memorandum "there is simply not even a remote possibility that the new law would ever be interpreted or applied to bar the labeling as 'natural' of processed foods that do not have any genetically engineered ingredients." The plain language of Proposition 37 and purpose of the initiative support his conclusion, he wrote.

His view is seemingly shared by Joanna M. Shepherd-Bailey of the Emory University School of Law. "Only a negligible increase in litigation is predicted to result from the Right to Know Act," she writes in her economic assessment of Prop. 37.

For a bit of added context, "Natural" is an unregulated "label" that has been denounced as a marketing ploy used by many food companies to lure consumers into buying food that contain ingredients that are anything but natural. Segments of the market will certainly not mourn its disappearance from the shelves, should food companies shun its use out of fear of a lawsuit. If need be, the natural food and supplements industry will surely come out with a new terminology to grab consumers' attention. And why not launch its very own third-party verified labeling program?

Which segues into a second interesting argument: why push for law-mandated GMO-labeling when voluntary "non-GMO" labeling is available? Two such initiatives already exist indeed, thanks to 1/ the American Non-GMO Project, whose certification program follows the guidelines set by the European regulations, and 2/ the international ProTerra Foundation. Producers, processors and vendors who pride themselves on selling non-GMO food would certainly do well to embark on the third-party-verified certification process that warrants a label that consumers can trust. In fact, the debate spurred by Prop 37 may fuel just such a trend, in and outside of California.

The caveat is twofold, however. One, "non-GMO" labeling is currently unregulated in the US, and may fall prey at any moment to an FDA decision against it (as was threatened in 2001). Two, many consumers won't make the distinction between a certified seal earned through extensive, rigorous, due process, and marketing tricks--if the proven marketing success of "Natural" is any indication. Moreover, although most consumers claim, when asked, to care about GMO and to favor GMO labeling, many will not actively search for non-GMO labels. By contrast, having 70 percent to 80 percent of food sold in supermarkets (according to current estimates) display a GMO label, is an education opportunity that's not lost on Prop 37 backers. In the end, voluntary "non-GMO" labeling, although a boon to food businesses who earn the label, may not yield the same game-changing impact on our current food system.

Thirdly, let's look into the threshold argument. Prop. 37 puts the threshold of GMO-labeling exemptions at 0.5 percent of the weight of the food item. This is below the 0.9 percent threshold established by the stringent European GMO-label regulation. The latter is designed is to account " for adventitious and technically unavoidable presence of GE components in raw materials," as in the contamination of conventional fields by GM crops. Critics of Prop. 37 argue that the 0.5 percent threshold is unrealistic and will force many perfectly healthy foods into the GMO-labeled food bucket. In fact, the EU threshold has been and remains a controversial and debated issue. Many stakeholders argue it is too permissive of GMO contamination, especially when contrasted with the 0.1 percent threshold established for the organic food label by European certification agencies.

Interestingly enough, the 0.5 percent threshold of Prop. 37 may offer an even better guarantee than the USDA "organic" label that your food has minimum GMO content. Although the National Organic Standards Board clearly "prohibits the use of GMO as 'excluded methods' in organic production and handling (...), the NOP regulations do not establish GMO tolerance levels [read: threshold].” (emphasis added)

In other words, the actual level of presence of GMO in your certified organic food is anyone’s guess.

Where does this discussion leave us? Each side, in the end, brings the whole argument back to one crucial bone of contention: science has/hasn’t demonstrated that GMO are safe.

I doubt I’m the only out there to be confused by the conflicting conclusions brought forward by reputable scientists with studies to boot on both sides of the debate. I’m not more of a microbiologist than the average consumer and citizen, so who am I to evaluate what The Science has established as fact?

What I know is this: there is a whole lot we don’t know. That’s precisely why the European Union, for instance, decided in 1998 to apply the precautionary principle. This states that “if an action or policy has a suspected risk of causing harm to the public or to the environment, in the absence of scientific consensus that the action or policy is harmful, the burden of proof that it is not harmful falls on those taking the action” (Wikipedia). The consequent moratorium on GM crops is still effectively in place in the EU despite many attempts to overturn it.

A similar conclusion was reached by the International Assessment of Agricultural Knowledge, Science and Technology for Development (IAASTD), a four-year international research program funded by the World Bank and six U.N. Agencies. Its report was endorsed by 59 nations in 2008. It states that “there is a wide range of perspectives on the environmental, human health and economic risks and benefits of modern biotechnology; many of these risks are as yet unknown.”

So much for the “anti-science” accusations brandished by the anti-Prop 37 side against anyone who dares question the safety of GMO.

Much to the pro-GMO camp’s dismay, some of the public instinctively errs on the side of the precautionary principle. It should be only fair that the onus be on those who truly are to reap the financial rewards of GMO to offer the irrefutable proof of what they claim: that GMO are beneficial to mankind.

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3 Responses to Prop. 37 on GMO-Labeling: The Referendum, The Propaganda, Its Backers & Their Lies

  1. jytdog says:

    I just looked at the Joanna M. Shepherd-Bailey paper you linked to. Crazy. So – think about this. Farmers in America sell their crops to local aggregators (elevators) who mix them all up. The elevators in turn sell the crops to companies that turn them into food ingredients — the companies mix crops from many elevators. The ingredients (for example, corn oil) are in turn sold to companies that put them into food (say, poptarts) or use them to cook food (say, potato chips). Another level of mixing. For the labelling law to work, there is going to have to be a dramatic (!) reorganization of the entire food chain. This is not something trivial like slapping a label on a package. For pete’s sake, think for a minute!

    • Laetitia Mailhes says:

      Food companies who can’t prove that their products contain less than 0.5 percent of GMO will simply stick a “Contain GMO” label on their packaging. That’s pretty straightforward. Those who DON’T want the GMO label out of fear that consumers will shun their products altogether (why would they, BTW, if GMO are as harmless as they’re claimed to be?), will have to travel the difficult route of reorganizing their supply chain indeed. And that’s kind of the whole point… A reorganization that would isolate and exclude GMO crops from the food chain altogether–even encouraging farmers to stay clear of GE seeds and, as the case may be, go back to conventional non-GE seeds. Hence the expected nationwide impact of this local, state measure.

  2. jytdog says:

    Hi Sorry I didn’t see that you replied or would have come back sooner. first, thanks for replying. Now..

    1) Thank you for acknowledging that there would be serious re-organization needed. That was my point – this re-organization will cost money – it is not just the cost of changing a mass-produced label.

    2) when you say “(why would they, BTW, if GMO are as harmless as they’re claimed to be?)” I think you know that perception is not the same thing as reality. There is no doubt that a lot of consumers are afraid that food from GMOs is somehow dangerous. That does not mean it actually is. But fear is a big driver of choices people make. Retailers are very attuned to how people choose. And retailers themselves are driven by fear that consumers will turn away or that activists will cause problems for them, if they stock food with GM labels. Again, this does not mean that the food is actually dangerous. You can get from fear to change of behavior without touching the truth about the feared thing. Happens every day.

    3) Wow I am surprised that you say “the whole point” is to “isolate and exclude GMO crops from the food chain altogether–even encouraging farmers to stay clear of GE seeds and, as the case may be, go back to conventional non-GE seeds.” Pro-labelling folks usually just talk about giving consumers a choice. Good to know your real goal! It does make the stakes more clear, you are right.

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