Analysis: "No on Prop 37" group plays fast and loose with its GE "facts"

Below under the BIG RED HEADLINES is the text from the No On Prop 37 web site. We are taking the time to qualify these "facts" based on a careful and complete analysis of Proposition 37, related research materials, and 60 years of experience in the industry. Not surprisingly, the "facts" they are using are inflated, conflated and sometimes just plain wrong.

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Read: Opponents of Prop 37 claim natural food would become illegal

There is plenty to discuss and understand about Proposition 37, the California Right to Know Genetic Engineered Food Act. Let's just be honest and transparent when we do so.

When you discuss Proposition 37 in your community, we encourage you to understand the position of the "No On 37" group and be able to correct some of the assumptions the group is using to convince Californians to vote against the measure. Our comments are indented in italics under each section below.

Index to Non on Proposition 37 Statements:

"Conflicts with Science"

"Has Special Interest Exemptions"

"Increases taxpayer costs"

"Authorizes Shakedown Lawsuits"

"Means Higher Food Costs"

External links and references

"PROP 37 CONFLICTS WITH SCIENCE "[Back to Index]

"Biotechnology, also called genetic engineering (GE), has been used for nearly two decades to grow varieties of corn, soybeans and other crops that resist diseases and insects and require fewer pesticides. Thousands of common foods are made with ingredients from biotech crops. Prop 37 bans these perfectly safe foods only in California unless they’re specially re-labeled or remade with higher cost ingredients."

The assumption that genetically engineered foods are "perfectly safe" is merely a wishful PR statement. GE foods are known to be dangerous in many documented cases to humans, animals and the environment. The problem is that the safety of GE foods is not studied or monitored by independent government agencies in the US. By placing its own proponents and advocates in the roles of regulators at the FDA, USDA, NIH, CDC, and USAID, the biotech industry has successfully stifled significant and strident internal dissent that continues to call for more oversight, testing, and caution. The US government has abdicated its responsibility to protect the nation's food supply. Relying on "government approval" of GE foods for reassurance is false comfort for anyone considering the possibility of GE food dangers and consequences.

As for pesticide use, the motivation behind the development of GE crops was and is to increase the sales of patented pesticides -- namely RoundUp glyphosate. Far from seeing a reduction in pesticide use, the US application of pesticides has soared due to the introduction of GE crop systems. Recently, scientists have identified new outbreaks of blight, rust, and other fungal infections related to glyphosate use. These outbreaks have in turn increased the use of old-school aerial fungicides and other pesticides to control the diseases brought on by glyphosate-weakened crops. In addition, millions of acres of American farmland have developed RoundUp resistant super weeds after just 14 years of use. Monsanto has in turn -- generously -- developed new strains of GE crops that can withstand multiple applications of 2-4-D herbicide which will still kill the super weeds -- at least for now. You don't need to be a university scientist to understand what will happen after another 14 years -- weeds across the US will be tolerant of both RoundUp and 2-4-D, necessitating an new generation of herbicide tolerant crop varieties using an even more potent herbicide. Remember that these potent toxic herbicides are sprayed multiple times on the crops that turn into the food you consume, while causing long term reduced fertility in our soils.

GE crop systems and GE foods are not "perfectly safe" in any sense of the phrase.

Read about Monsanto's success at avoiding responsibility for PCB contamination of the food supply.

"PROP 37 IS FULL OF SPECIAL-INTEREST LOOPHOLES AND EXEMPTIONS "[Back to Index]

"Prop. 37 is full of absurd, politically motivated exemptions that make no sense. It requires special labels on soy milk, but exempts cow’s milk. Dairy products, eggs, meat and poultry are all exempt. Fruit juice requires a label, but alcohol made with some of the same GE ingredients is exempt. Food sold in a grocery store requires a label, but the same food sold in a restaurant is exempt. Food imported from China and other foreign countries are exempt if sellers simply claim their products are “GE free”. Unscrupulous foreign companies can game the system."

Dairy and meat products are exempt from the requirements of Proposition 37. GE dairy products are an excellent example of how consumer demand for dairy products made from milk not treated with recombinant bovine growth hormone (rBGH and similar) has fundamentally altered the dairy industry. This change did not end the world, add billions in costs, or create new levels of bureaucracy. Dairy farms changed their animal management practices to keep cattle healthy and able to yield increased product without the use of genetically engineering hormone treatments. The sky did not fall. In fact, the non-GE dairy industry is thriving by virtue of this change. Moreover, the slightly higher cost turned out to be well worth it to concerned consumers. Non-GE dairy has been a boon to the industry as consumer demand and revenue increased markedly.

As a practical matter, testing for the presence of GE ingredients in meat, eggs and poultry is not feasible, and non-GE dairy products already proudly and loudly label themselves as such. So, calling out these "special interest exemptions" as evidence of a faulty law displays a lack of understanding of these basic scientific issues. Obviously, soy milk and fruit juice come directly from commodity inputs and accurate testing for GE constituents is readily available.

As for "unscrupulous foreign companies" providing fraudulent non-non-GE product certificates, note that retailers in possession of a certificate cannot be held liable for damages under Proposition 37, but they still have to recall the product and notify consumers of the recall. This is a very expensive risk to take and food retailers simply do not take on risks like this. Retailers already take global food safety precautions; adding the GMO/non-GMO certification step will be fairly simple.

"PROP 37 MEANS MORE BUREAUCRACY AND TAXPAYER COSTS "[Back to Index]

"Prop 37 forces state bureaucrats to administer its complex requirements by monitoring tens of thousands of food labels at tens of thousands of grocery stores, retail outlets, farms and food companies. In fact, it sets no limit on how many millions would be spent on bureaucracy, red tape and lawsuits. It’s a blank check… paid by taxpayers."

As we have seen under the tough Proposition 65 toxic chemical statute, few lawsuits will reach the courts. Independent legal analysts have carefully analyzed the potential state administrative costs of Proposition 37 and concluded it will add very little cost to the existing infrastructure of the California courts - a penny or two per year per citizen at most.

No bureaucracy is contemplated or created by Prop 37. County and State attorneys are not employed to prosecute violators. In the case of citizen actions, the violators must pay the costs of investigations and legal expenses. In fact, Prop 37 uses citizens action as the enforcement mechanism specifically to avoid the creation of a bureaucracy and the use of over-stretched government prosecutors. There simply is no government oversight cost and certainly no "blank check" to pay for it.

"PROP 37 AUTHORIZES SHAKEDOWN LAWSUITS "[Back to Index]

"Prop 37 was written by a trial lawyer to benefit trial lawyers. Its primary sponsor is a trial lawyer whose firm and organization have made more than $3 million suing under the terms of another proposition he helped write. Prop 37 creates a whole new class of “headhunter lawsuits,” allowing lawyers to sue family farmers and grocers without any proof of harm. It subjects farmers, grocers and food companies to huge litigation costs and lawyer payouts."

Proposition 37 requires advance notice of intent to sue and requires a cooling-off period of at least 30 days during which an alleged violator can correct the alleged violation. If the violation is corrected, the court will not allow a lawsuit to proceed and no punitive damages may be awarded. In fact, Prop 37 has removed the monetary incentive to attorneys to file lawsuits in an attempt to extort large cash settlements, since corrective action is sufficient to halt the suit.

Better yet, frivolous lawsuits not supported by scientific proof of GE ingredients may result in legal fees being awarded to the defendant. During the first five years, there is a significant 5% allowance on GE ingredients. The legal fees needed to draft a preliminary complaint and "notice to correct" are modest compared to the cost of preparing for a trial. There may be a number of complaints lodged in July 2014, but the compensation to the attorneys is minimal and must be awarded by the Court under the test of being "reasonable" in relation to the amount of casework required. With no incentive to offer large settlements, farm stands and retailers offering allegedly non-compliant GE products actually maintain the upper hand in most cases.

But, yes, lawyers surely helped write Proposition 37. Not to split hairs, but shouldn't trained attorneys be involved in drafting legislation?

"PROP 37 MEANS HIGHER FOOD COSTS "[Back to Index]

"Prop 37 forces farmers and food companies to implement costly new labeling, packaging, distribution, recordkeeping and other bureaucratic operations that will cost billions of dollars to implement. Or, companies will be forced to switch to higher-priced, non-GE ingredients, like organics, in order to sell food in California. Economic studies show this would increase food costs for the average family by hundreds of dollars per year – a hidden food tax that would especially hurt seniors and low-income families who can least afford it."

There is an 18 month period prior to any implementation of Proposition 37. Since no company will have more than a few months’ worth of packaging on hand, no company will have to destroy existing packaging stock between now and July 2014. In fact, food labels and marketing materials are updated constantly to reflect changes recipes ingredients, consumer preferences, and competitive pressures. Adding "made with genetic engineering" will cause no added cost to labeling or marketing. A farm stand merely has to place a hand written notice near its GE products – hardly a burdensome expense. In any case, no company is forced to use organics or not use GE ingredients. Prop 37 merely asks that the presence of GE ingredients be noted on the label.

Companies that use the term "natural" to describe products that contain GE ingredients may need to partly re-brand the product by changing marketing copy. Again, updating sales and marketing materials is an ongoing process and cost of doing business, and thus will not in and of itself add any significant cost to food.

Companies that depend heavily on the "natural" designation to communicate brand value to customers may indeed face the prospect of upgrading recipes by sourcing compliant ingredients or doing significant rebranding of their products. Not surprisingly, this is the situation many of the large food conglomerates feel they will fall into, which is likely why they feel it is less expensive to defeat the measure than to comply with it.

However, this is the essence of democracy in California: if a majority of the citizens agree that "natural" cannot include GE ingredients, then the conglomerates will simply have to comply. Note that if the majority of citizens want non-GE products then the conglomerates may actually be happily surprised by sales increases when they are forced into transparency in marketing and labeling. One should not assume that these large companies will not come out on top of the market if they comply with the demands of Proposition 37. One might actually anticipate that cleaning up these national brands would give them a significant market advantage that may startle non-GMO activists from the natural foods industry.

Not convinced? Take a look at how consumer perception of Kellogg's Kashi cereal changed from 'zero' to 'hero' when the brand announced a timeline to remove all GE ingredients from its products.

In any case, what rebranding costs there is to the large companies can be accommodated by them. First, there is a built in return on their investment in phasing out GE ingredients. Second, they may see that their customers respond well to non-GE products, including "natural" labels. Make no mistake: if Proposition 37 passes, competition for natural and organic consumer dollars will increase greatly and the conglomerates will have the upper hand.

It may be true that Proposition 37 will create a temporary scarcity for some non-GE ingredients. As demand increases, non-GE ingredients may become more expensive for everyone. In response, we may temporarily increase our imports of non-GE ingredients beginning in 2013. The good news is that the global futures market for non-GE commodities will price this future demand into contracts and prompt farmers to increase production of conventional and organic crops.

As an example of how this dynamic works, the increased demand for soy and corn related to ethanol production has shifted millions of acres to these crops in just the last two years. Beginning in 2013 harvests, Proposition 37 will be a boon to specialty crop farms, many of which are family owned, as they see greater demand for their products. American, European, and overseas farmers are keen to grow commodity crops that will sell and that will sell at the best price. A large scale shift to non-GE ingredients for the California market will have profound positive results for family farms and other agricultural interests who provide non-GE ingredients.

Learn more at our Genetic Engineering Resource Page

Use these links to explore the language, intent, and potential consequences of Proposition 37, the California Right to Know Genetic Engineering Act.