Cross-posted at at WLF contributor site

In our post last week on California’s Proposition 37, Shoddy Drafting or Part of the Plan?: The “Natural” Problem in California’s Biotech Food Labeling Initiative, we stated that, “Part of this ballot initiative would require all raw and processed foods whose production was impacted in any way by biotechnology to be labeled as such.”

As an astute Legal Pulse post reader pointed out to us, that statement gives the drafters of the initiative far more credit than they deserve.  As we’ll explain here, rather than impacting all biotech foods, Proposition 37 exempts quite a significant number of these food products from the labeling requirement. Those exemptions are so broad that they substantially undercut the initiative’s supposed goals and also call into question the motivations of some Prop 37 supporters.

Organic foods. Proposed Prop 37 exempts from labeling food that has been certified as “organic” under federal standards. Pretty obvious exemption, right, since organic = zero contact with genetic engineering? Not necessarily.

“Organic” is not a type of food; the term refers to the process utilized to create/grow/raise it. Federal regulations set extensive process standards that organic food producers must meet, but regulators also acknowledge that those processes are not fool-proof. Federal standards allow for the “inadvertent” inclusion of biotech-derived ingredients. The USDA states that “organic food products do not have a zero tolerance for the presence of GMO material.” Its rules also state that those who certify food as organic “may” test for genetically engineered material, leaving open the possibility that the food is not “100% organic.”

Contrast those federal standards, which leave the door open to biotech-impacted organic products, with Prop 37 which, after July 1, 2019 has a zero tolerance policy for genetic engineering in processed foods that don’t meet any of the prescribed exemptions. Thus, the “USDA Organic” designation relieves organic foods with trace amounts of GMO material from Prop 37 labeling, while competing non-organic foods with miniscule traces must include a label or face legal action.

Is it at all surprising, with this exemption in mind, that four of the top five top donors to the “Yes on Prop 37” effort are organic product producers? Just like those entities who are demonized for making “biotech foods,” organic food makers are corporations, and must (gasp!) make money. They are banking on Prop 37 labels driving consumers toward organic, and the “organic” exemption will help to make that more certain. As a letter cited by Reason’s Ronald Bailey reflects, Prop 37 can help “drive genetically engineered foods off supermarket shelves” and increase organic foods’ meager 4.2% market share.

Food from Animals. Another Prop 37 exemption reads:

Food consisting entirely of, or derived entirely from, an animal that has not itself been genetically engineered, regardless of whether such animal has been fed or injected with any genetically engineered food or any drug that has been produced through means of genetic engineering.”

Under this exemption, a cow can be raised in almost complete compliance with USDA organic standards (we say “almost” because federal regulations don’t allow organic cattle to consume genetically modified feed) but its byproducts can still avoid the Prop 37 label. So milk from an otherwise organic, but biotech corn-fed cow needs no label, while a box of soy beverage likely would. Products made from that milk, such as cheese, yogurt, and butter, as well as the cow’s meat, can be sold without a label.

Alcohol. Various types of grains are required to make alcoholic beverages, many of which may sprout from biotech seeds. Bourbon, for instance, must include 51% corn in order to be called “bourbon.” And with upwards of 88% of America’s corn crop grown from biotech seeds, it’s almost certain that bourbon contains GMO materials. Yet, Prop 37 exempts bourbon, along with vodka, beer, and all other alcoholic products, from “genetically engineered” labels. This certainly relieves Prop 37 proponents from having to battle powerful alcohol makers, distributors, retailers, and consumers.

“Immediate Human Consumption.” Food that is “intended for immediate human consumption” and “served, sold or otherwise provided in any restaurant” is also exempt from Prop 37’s labeling requirement. So a small bag of potato chips (cooked in oil derived from biotech plants) that one might buy to accompany a take-out sandwich must be labeled. But if that bag is dumped out on a plate and served to a seated deli customer, no label is required. A biotech-enhanced papaya (from Hawaii perhaps, whose papaya crop was saved from ringspot infestation by biotechnology) sold at a Los Angeles grocery store must be labeled. But a juice bar down the street using that same papaya for a smoothie need not label the cup it’s sold in.

Considering that people on average eat at least half of their meals outside the home, this exemption substantially undercuts Prop 37 proponents’ claims that they are directly tailoring the law to meet government’s purported interest in informing consumers. And if an underlying Prop 37 goal is “healthier” eating, this exemption undermines that also. As one commentator incisively concluded:

Making home meals sound scary and restaurant meals sound safer hardly sounds like a smart message to be sending to a population with an obesity problem.”