by Amy Standen, Jon Brooks, Lisa Aliferis
KQED Public Radio’s Forum program ran a debate last week on Proposition 37, which requires the labeling of foods containing genetically modified ingredients. It was a spirited discussion, and we thought one exchange, in particular, deserved a bit more digging.
It began with Bob Goldberg, UCLA professor and author of one of the ballot arguments opposed to Prop. 37, calling it a “Trojan horse.”
“Prop. 37 is not a simple labeling proposition. It’s a Trojan Horse, and the reason it’s a Trojan Horse is it has a threshold requirement that the grocery stores are not going to be able to have anything that has more than .5 percent genetically engineered ingredients or derivatives from genetically engineered crops. That threshold goes to zero percent in a few years.”
After looking over Prop 37 in the KQED Proposition Guide, we weren’t so sure that was accurate and decided to investigate.
Let’s break the issue down into two parts.
1) Would Prop. 37 keep foods with GM ingredients out of stores?
Over the weekend, the Sacramento Bee’s “Ad Watch” dinged the No-on-37 camp for saying that Prop 37 “would ban thousands of common food products in California unless they are specially relabeled to meet complex new requirements and restrictions that would only exist in our state.”
The Bee says, “but those foods could still be sold – without the labels – if the manufacturers go organic or use ingredients that are not genetically engineered.”
Yes on 37, naturally, agrees. “Prop 37 is a label, not a ban,” says Stacy Malkan. Grocery stores can sell anything they want with genetically engineered ingredients, it would just have to be labeled.”
So, in short: Prop 37 doesn’t ban products with GE ingredients; it requires labels on them.
2) What about this “.5 % threshold?” How would it affect processed food makers like General Mills, who buy raw ingredients from farmers across the country?
The section of the proposition relating to the threshold is actually a temporary exemption to the labeling requirement. It reads:
The requirements of Section 110809 [the labeling requirement] shall not apply to any of the following…
Until July 1, 2019, any processed food that would be subject to Section 110809 solely because it includes one or more genetically engineered ingredients, provided that: (1) no single such ingredient accounts for more than one-half of one percent of the total weight of such processed food…
So the claim that “grocery stores are not going to be able to have anything that has more than .5 percent genetically engineered ingredients or derivatives from genetically engineered crops” is not something that is stipulated in the text of the initiative.
“The Prop includes a percentage (.5%) until 2019 to give companies time to find alternatives (if they so choose) for GE micro-ingredients that don’t have easy substitutes. But after 2019, they have to label if they are intentionally using GE ingredients,” says Malkan.
We’ve left Bob Goldberg, the Prop 37 opponent, phone and email messages inviting him to respond, and we’ll update this post if and when we hear back from him.
(Update 2:35 p.m.) Kathy Fairbanks, spokesperson for No on Prop 37, says that Bob Goldberg “misspoke” in saying that under the initiative “grocery stores are not going to be able to have anything that has more than .5 percent genetically engineered ingredients or derivatives from genetically engineered crops.”
She amended the statement by saying, “It’s a ban unless the products are repackaged, relabeled, or remade with non-GE ingredients.” (Emphasis ours).
(Update Oct 8) Bob Goldberg has gotten back to us and replies with the following:
You are correct, Prop 37 requires a label. It’s not a ban. However, it’s “guilt by association.” The label implies that foods containing an ingredient derived from a genetically engineered crop MIGHT be a cause for concern. In fact, foods derived from genetically engineered crops are the most thoroughly tested in the 10,000 years of agriculture, and have been been shown to be completely safe for human and animal consumption.
Both Stacy Malkan and Rebecca Specter, from the Center for Food Safety, also note there is no testing requirement under Prop. 37. In other words, manufacturers won’t be required to test their ingredients to make sure that they’re completely GMO-free. Instead, Malkan describes something like an honor system between suppliers and manufacturers.
“If the food manufacturer [has] a sworn statement from their supplier saying the crops are not genetically engineered and are not mixed with genetically engineered crops, then they don’t have to label.
But what about the notion of intentionality? What if the suppliers are wrong? If some tiny trace of GM product makes it into an unlabeled processed food, who’s liable?
This gets to one of the rallying points for the No On 37 camp: That the proposition amounts to a bonanza for lawyers. They envision a cottage industry of lab-coated bounty-hunters who submit every box of crackers to testing in search of unlabeled GMOs.
“Perhaps the main problem with Prop. 37 is that it invites citizen lawsuits as a primary means of enforcing the labeling law,” reads a San Francisco Chronicle editorial.
Strictly speaking, says Malkan, that Chron statement is correct. “Citizen lawsuits are the enforcement mechanism for Prop 37, in order to reduce costs and [the] burden to the state.”
But, she says, it’s hard to imagine an epidemic of “shakedown suits” because there’s no money to be made from them.
“The only result of a court case would be an order to label, and possibly a reimbursement of cost (such as the $3.50 or whatever somebody paid for the product in question).”
(Update Oct 8)
$3.50 or $3.50 x 1,000? The “No” camp responds
A closer look at the text of the Proposition 37 ballot measure suggests monetary penalties for food retailers could climb much higher.
Any citizen who believes that a grocer is “intentionally” avoiding labeling can file suit against the grocer for the “retail price of each package or product alleged to be in violation.”
So, says Kathy Fairbanks, with No On Prop. 37. “[Someone] can make that allegation and then they can sue for damages… So for whatever the price of a box of cereal is, times 5,000-10,000… That’s a lot of money.”
Facing potential damages like that, Fairbanks says, most grocers won’t ever make their case in front of a judge, as “It becomes immediately cheaper to settle out of court.”
For his part, Bob Goldberg points to a plethora of newspaper editorials, like those from the San Francisco Chronicle, the LA Times, and the San Jose Mercury News, which call Proposition 37’s enforcement provisions problematic.
Meanwhile, in other Prop 37 news, the LA Times reported Thursday that the No on 37 campaign temporarily yanked a TV ad this week because it identified an on-screen academic as affiliated with Stanford University, against university policy…
Lawyers for the Proposition 37 campaign complained to Stanford’s general counsel, noting that the Stanford ID on the screen appeared to violate the university’s policy against use of the Stanford name by consultants.
What’s more, Miller is not a Stanford professor but, rather, a research fellow at the Hoover Institution, a conservative think tank housed on the Stanford campus, the letter said.
Stanford agreed. The university, spokeswoman Lisa Lapin said, “doesn’t take any positions on candidates or ballot measures, and we do not allow political filming on campus.” The filmmakers also are removing “the campus from the background of the video,” she said.
The ad was taken down and is being edited to identify Miller as a “fellow at the Hoover Institution, Stanford University,” said No on 37 spokeswoman Kathy Fairbanks. It is expected to go back on the air Thursday. Full article