Genetically-enhanced wheat

Genetically-enhanced wheat

Cross-posted at WLF’s contributor page

Not even a year after fighting a bruising and costly battle over the California Right to Know Genetically Engineered Food Act” (Proposition 37), proponents and opponents of mandatory biotech food labeling are poised for a rematch in the state of Washington. In February, the Secretary of State’s office certified ballot initiative I-522, The People’s Right to Know Genetically Engineered Food Act, and forwarded it to the legislature.

Under Washington law, the legislature can either enact it into law, reject it or refuse to act on it, or approve an amended initiative. If lawmakers don’t act on, it goes to a public vote in November. If the legislature alters it, then both the altered version and the original version go on the November ballot. The likeliest scenario is no legislative action, which puts I-522 in the voters’ hands.

The similarities between the defeated California initiative and the impending Washington proposal go beyond their titles. The Washington proposal, authored by an advertising executive, embraces the spirit, if not the letter, of many of Prop 37’s provisions. One provision it did not borrow from Prop 37 was that initiative’s prohibition of “Natural” and “All-Natural” on food labels.

Some initial thoughts on I-522:

The “People’s Findings”. This collection of 18 statements contains some seriously misleading proclamations and reveals part of I-522 proponents’ underlying agenda. Section 1, ¶4 states that consumers have a “right to know” whether their foods contain elements impacted by biotechnology, an “imprecise process” which “often causes unintended consequences.”

These statements are questionable at best, misleading and arguably false at worst. Prompted by the death of cows that ate non-biotech hybrid grass last year, one scientist offered an instructive, graphic explanation on his blog as to why the use of rDNA technology, is by its nature, more precise than “traditional” crop breeding. Also, one agricultural researcher, in a lengthy analysis of I-522, explains that all crop breeding techniques can lead to unintended consequences, adding “Traditional breeding programs on crop plants such as potato, celery and kiwi, for example, have resulted in unintended and harmful effects in the past.”

In order to cure the misleading impression I-522 would give to consumers that crops created from biotech processes are more dangerous than other human-driven manipulation techniques, perhaps the mandated label should read as follows:

Contains ingredients grown from technologically altered seeds or produced utilizing a process which changed a crop plant from its natural, original state.

Paragraph 7 states that “no international agreements prohibit” mandated biotech food labeling. Technically, that may be the case, but as Professor Drew Kershen of University of Oklahoma College of Law explained in a 2012 WLF Working Paper assessing Prop 37, state laws mandating biotech labeling may be vulnerable to legal challenges under World Trade Organization (WTO) Agreements on Sanitary and Phytosanitary Measures (SPS) and Technical Barriers to Trade (TBT).

Paragraphs 14-16 read like language from an organic food industry promotional flier. Such cheer-leading statements don’t explain why Washington consumers need mandated biotech labels. They do, however, reveal one underlying motivation behind I-522: prop up the organic food industry. It’s classic, unrefined rent seeking. Non-organic foods will see their costs (and thus product prices) increase by having to either create a Washington-specific food label or reformulate their recipes to include ingredients from more expensive non-biotech crops. Organic producers incur no new compliance costs. And if consumers’ reaction to labels is to stop purchasing labeled products, organics are there waiting to be substitutes (at likely a still higher price).

Once Again, Labeling for Thee, but not for Me. One potent criticism of Prop 37, which a past Legal Pulse post advanced, was how the exceptions to the labeling requirement severely undermined the “right to know” justification and the initiative’s effectiveness.  I-522 suffers from the same flaw. Section 3 ¶3 exempts from labeling among other things, animal-based products where the animal consumed feed from biotech seeds; alcoholic beverages; and food sold in restaurants. Compounding the information gap that these exceptions create, Section 3 ¶2 relates that labels don’t have to specify which ingredients were engineered.

First Amendment Concerns. WLF was one of the few voices involved in the discussion of California’s Prop 37 to raise questions regarding its constitutionality. The imposed label would have constituted compelled speech, a policy which must comport with First Amendment protections. Two noted experts on food labeling and speech offered their thoughts on this question in an October 2012 WLF Legal Opinion Letter. The same compelled speech concerns exist in I-522, and may be amplified by the initiative’s requirement that the GMO label be front-of-package, isolated from the nutrition information.

Private Attorney General Enforcement. Just like Prop 37, I-522 could be enforced by any private citizen without the involvement of state officials. Costs and attorneys’ fees would be awarded for “investigating and prosecuting” a suit, wording which infers that the “citizen” would not necessarily have to succeed in the suit.

Will Precaution Render Labeling Meaningless? Section 3, ¶1(b) permits food producers to label their products as “may be partially produced with genetic engineering.” Is there any doubt that the risks of litigation and public demonization will compel all producers in certain categories of foods where GMO ingredients are ubiquitous to simply put that “maybe” label on their products? If so many products are labeled with this “maybe,” what useful information does that provide to consumers? If I-522 is meant to provide purchasers with more certainty as to what does and does not have GMOs, this likely outcome will render the initiative an abject failure.