Genetically Modified Foods & California’s Proposition 37: What’s All the Fuss About?

Largely lost in the shuffle of the current presidential election campaign and several more heavily-publicized state ballot measures, California’s Secretary of State recently announced that the “California Right to Know Genetically Engineered Food Act” has qualified for the state’s November 2012 election ballot, where it will appear as Proposition 37. (The text of Proposition 37 can be found at pages 110-113 of the preliminary November 2012 California Voter’s Pamphlet; the official title and summary of the measure, in addition to arguments pro and con, here.)

As state initiative measures go, Proposition 37 is both short and simple: if enacted, it would generally require that, beginning in July 2014, any food offered for retail sale in California that has been produced all or in part via genetic engineering contain a “clear and conspicuous” label to that effect.  Any genetically modified food lacking such a label would be considered “misbranded” under California law.  Citizens suits are authorized to seek injunctive relief–but not fines or money damages–to enforce Proposition 37 in face of violations.

That’s pretty much it.

If this sounds vaguely familiar, it should: Proposition 37 is roughly patterned on California’s Safe Drinking Water and Toxic Enforcement Act, better known as Proposition 65.  The latter initiative measure, enacted by California voters in 1986, requires manufacturers and sellers of products containing carcinogens or reproductive toxins to contain a similar, clear and conspicuous label so informing consumers.

The San Francisco Chronicle reports that at least 18 states, including California, have attempted without success to enact such labeling laws for genetically engineered foods in the past.  Proposition 37 represents the first time, however, that the proposal will be decided directly by a state’s voters.  (By contrast, most other industrialized nations already require bio-engineered foods to be labeled.)

The political and economic stakes are substantial.  It’s estimated that between 70-80% of processed foods sold in the United States are made with genetically engineered ingredients.  And a growing percentage of America’s raw foods such as fruits and vegetables are bio-engineered as well.

Deep-pocketed opponents of Proposition 37, including food manufacturers such as PepsiCo and Coca-Cola along with the biotech industry and seed companies, have created a political war chest of over $25 million to defeat the measure.  That’s more than 10 times the funds Proposition 37’s backers–primarily food activists and natural food companies–have raised.

Proposition 37 opponents claim that bio-engineered crops and processed foods are safe, and that the costs of labeling would be substantial and eventually passed on to consumers in the form of higher prices.  But the latter argument seems frivolous, and the former misses the point.  As backers of Proposition 37 point out, the measure doesn’t ban genetically modified foods; it simply alerts consumers and allows those who want to avoid bio-engineered foods to do so.

To be sure, over the past 26 years many manufacturers of consumer products have chosen to comply with Proposition 65 by reformulating their products, rather than having to label them with notices indicating that they could cause cancer or birth defects.  It’s certainly possible that, armed with the ability to pick and choose between genetically modified and natural food products, many California consumers would select the latter.  And that, in turn, could eventually incentivize farmers and food manufacturers to think twice about their growing reliance on bioengineering.

Is that such a bad thing?

In sum, Proposition 37 represents a modest but positive step towards informed consumers and customer choice.  What is the food industry so afraid of?  And why are they intent on spending so much money to prevent Californians from having relevant information allowing them to make informed choices with respect to the foods they consume?

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Reader Comments

18 Replies to “Genetically Modified Foods & California’s Proposition 37: What’s All the Fuss About?”

  1. Why is there no concern that the pro-labeling campaign is expressly based upon rejecting the current scientific consensus that modern genetic modification methods are of no relevance in assessing the safety or environmental risks posed by an organism? The National Academy of Sciences has produced more unequivocal reports on this issue than it has on climate change, yet this initiative would require producers to stigmatize their own projects by adding a label that there is something appreciably different (if not “wrong”) with their products. Arguing that this initiative is simply about “consumer choice” is like arguing that calls for yet more studies of temperature records is just about “sound science.”

    JHA

  2. Why is there no concern that the pro-labeling campaign is expressly based upon rejecting the current scientific consensus that modern genetic modification methods are of no relevance in assessing the safety or environmental risks posed by an organism? The National Academy of Sciences has produced more unequivocal reports on this issue than it has on climate change, yet this initiative would require producers to stigmatize their own projects by adding a label that there is something appreciably different (if not “wrong”) with their products. Arguing that this initiative is simply about “consumer choice” is like arguing that calls for yet more studies of temperature records is just about “sound science.”

    JHA

  3. Hi Jonathan. For me, the interesting question raised by this Proposition and earlier by the Beef Hormones case in the WTO is whether consumers have the right to be informed of things that they consider material even if their concerns might be considered irrational. I haven’t really looked at the science myself, but I’m willing to assume that you’re right at least for purposes of discussion. (I’m actually curious about this, so it would be great if you’d like to email me links to the reports). Anyway, assuming that you are right about the clarity of the science, this would be like the question of whether home buyers have the right to be informed that a murder took place in a house, although that’s obviously not relevant to the quality of the housing. (Similarly, though there seems to be no evidence that using hormones has any effect on the meat, European consumers find it icky. Should that matter?) I guess it believes in how firmly one believes in consumer sovereignty and full-informed transactions.

    Dan

  4. Hi Jonathan. For me, the interesting question raised by this Proposition and earlier by the Beef Hormones case in the WTO is whether consumers have the right to be informed of things that they consider material even if their concerns might be considered irrational. I haven’t really looked at the science myself, but I’m willing to assume that you’re right at least for purposes of discussion. (I’m actually curious about this, so it would be great if you’d like to email me links to the reports). Anyway, assuming that you are right about the clarity of the science, this would be like the question of whether home buyers have the right to be informed that a murder took place in a house, although that’s obviously not relevant to the quality of the housing. (Similarly, though there seems to be no evidence that using hormones has any effect on the meat, European consumers find it icky. Should that matter?) I guess it believes in how firmly one believes in consumer sovereignty and full-informed transactions.

    Dan

  5. Dan —

    I believe in consumer sovereignty, but I’m not sure that translates into consumers getting to demand disclosure at the point of sale. Many consumers care quite strongly about a great many things — the political contributions of corporate executives, whether the workforce is unionized, whether the employer conforms to a particularly moral or religious code — but does that mean the government can force labels about any and all of these things? (If so, I’d suggest there is no meaningful constitutional protection against compelled commercial speech.) If consumers really want this info, producers have every incentive to provide it, as they do with organic and kosher/pareve labeling (which are entirely voluntary).

    On the science, I’ll get you the cites. There are at least three National Academy of Sciences reports, all of which conclude (as have other assessments) that the method of modification has no bearing on health or environmental risks. Further, while there is not a single documented case of someone getting sick as a result of genetic modification of a food product from modern techniques, there are cases of illness from traditional cross-breeding. There is evidence of environmental effects from GMO crops, but no greater than from non-GMOs. The worst invasive plant species are perfectly “natural” in genetic origin. And so on. There’s less genuine scientific debate here than on climate.

    JHA

    1. I’ll look forward to getting the cites on those reports.

      You raise an interesting First Amendment issue. (Of course, it could go well beyond GMOs — for example, could the state require disclosure of rodent or insect debris in food even if the food is actually sterile? The consumer reaction is irrational. Yet you could argue that it is in some sense fraudulent to sell food to people who wouldn’t buy it if they knew the contents. I’m really not sure how the courts would come out on that. I suspect that they would find that this passes the /Central Hudson/ test for regulations of commercial speech, but maybe the D.C. Circuit’s recent holding on cigarette labels would push the other direction. Of course, the state would have the alternative of creating a standardized label and then running a publicity campaign to tell consumers that foods without the labels are probably full of GMOs. (“Unless it has this label, your snack food probably contains mutant corn or other genetically modified organisms.”)

  6. Dan —

    I believe in consumer sovereignty, but I’m not sure that translates into consumers getting to demand disclosure at the point of sale. Many consumers care quite strongly about a great many things — the political contributions of corporate executives, whether the workforce is unionized, whether the employer conforms to a particularly moral or religious code — but does that mean the government can force labels about any and all of these things? (If so, I’d suggest there is no meaningful constitutional protection against compelled commercial speech.) If consumers really want this info, producers have every incentive to provide it, as they do with organic and kosher/pareve labeling (which are entirely voluntary).

    On the science, I’ll get you the cites. There are at least three National Academy of Sciences reports, all of which conclude (as have other assessments) that the method of modification has no bearing on health or environmental risks. Further, while there is not a single documented case of someone getting sick as a result of genetic modification of a food product from modern techniques, there are cases of illness from traditional cross-breeding. There is evidence of environmental effects from GMO crops, but no greater than from non-GMOs. The worst invasive plant species are perfectly “natural” in genetic origin. And so on. There’s less genuine scientific debate here than on climate.

    JHA

    1. I’ll look forward to getting the cites on those reports.

      You raise an interesting First Amendment issue. (Of course, it could go well beyond GMOs — for example, could the state require disclosure of rodent or insect debris in food even if the food is actually sterile? The consumer reaction is irrational. Yet you could argue that it is in some sense fraudulent to sell food to people who wouldn’t buy it if they knew the contents. I’m really not sure how the courts would come out on that. I suspect that they would find that this passes the /Central Hudson/ test for regulations of commercial speech, but maybe the D.C. Circuit’s recent holding on cigarette labels would push the other direction. Of course, the state would have the alternative of creating a standardized label and then running a publicity campaign to tell consumers that foods without the labels are probably full of GMOs. (“Unless it has this label, your snack food probably contains mutant corn or other genetically modified organisms.”)

  7. Under Central Hudson, there must be a substantial state interest. If consumer preferences satisfy that test, then everything does — and any disclosure requirement would be okay. Since I don’t think that’s a possible read of Central Hudson (and there’s no claim that disclosure is necessary to protect consumers against being misled, as in Zauderer), I don’t know how this sort of requirement would meet the current level of scrutiny. (And, FWIW, I have a paper in the works explaining why consumer preferences, generally, cannot justify compelled commercial speech).

  8. Under Central Hudson, there must be a substantial state interest. If consumer preferences satisfy that test, then everything does — and any disclosure requirement would be okay. Since I don’t think that’s a possible read of Central Hudson (and there’s no claim that disclosure is necessary to protect consumers against being misled, as in Zauderer), I don’t know how this sort of requirement would meet the current level of scrutiny. (And, FWIW, I have a paper in the works explaining why consumer preferences, generally, cannot justify compelled commercial speech).

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Richard Frank

Richard Frank is Professor of Environmental Practice and Director of the U. C. Davis School of Law’s California Environmental Law & Policy Center. From 2006-2010, …

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