President, Strategic Communications, LLC

Saturday, October 6, 2012

Prop 37: Fasten Your Seatbelts It Is Going to Get Bumpy

About four weeks from now, voters in California will go to the polls to decide whether some foods, sold in some locations, containing some amount of  genetically modified organisms (GMO) should bear a consumer label if Proposition 37 passes. The Initiative is ahead in the polls, despite the fact that almost every major newspaper in the state has opposed it editorially. Social media activity is hot and heavy.

For those of you old enough to remember back to 1986, Prop 37 is modeled after Proposition 65, which required companies doing business in California to  label their products with a cancer or birth defect warning if they contained certain chemicals listed by the State. So, now every California gasoline pump bears a cancer warning because of the benzene in the gas and every room service menu in the state that lists wine bears a birth defect warning. 

Neither warning has slowed consumption. And, consumers are no safer than before despite huge funds spent by production agriculture and food makers. At one time, the activists wanted Vitamin A listed as causing birth defects until they discovered the amount of Vitamin A contained in every carton of milk sold in the school lunch program would trigger a birth defect warning. Vitamin A was quickly dropped from the state's list.

Prop 37 has been called many things by political junkies and pundits. Some say it is the Lawyers Full Employment Act, since there is a bounty hunter provision in it and affected industries always sue. Others call it a consumers right to know provision, but like much of Mitt Romney's presidential campaign positions we are left scratching our heads about the details.

Prop 65 was passed at a time when the federal food use chemical safety program was out of date. The passage of Prop 65 forced Congress to modernize the science and the law. As a result many chemicals used on foods were pulled from the marketplace. The feds did need a firm kick in the ass.

Prop 65, the Clean Water Act, was artfully crafted. Prop 37, not so much.

There are some parts of Prop 37 that make political sense but defy any rational scientific explanation. For example, it requires labels on soy milk (because it may contain GMOs and is "bad"?) but exempts all other milk, even milk from cows fed GMO feed. Coincidentally, dairy is a huge business in California. Foods sold in traditional supermarkets require labels but the exact same product sold in restaurants or delis are exempt (a small business exemption?).A real, where in the Hell did that provision come from, exempts imported food if it bears a "GMO free" statement. Can you imagine what China would do with a loophole so large you could steer a container vessel through it carrying contaminated product?

Taking advantage of the fact that FDA has been unable or unwilling or both to define natural for decades, Prop 37 solves the problem in a few sentences. Any food that is pasteurized, heated, dried, juiced or processed, by definition, is not natural, even though a food, such as almonds, may not contain GMOs. But, if the almonds are roasted and put in a container for sale, they are no longer "natural." Go figure.

In regard to GMOs, the FDA has had firm policy on this issue for a long time. In short, it reiterates basic law. The food sold must be safe and the labeling must be truthful and not misleading.The National Academy of Sciences, the World Health Organization, the American Academy of Nutrition and Dietetics and the American Medical Association (AMA) all believe GMO foods as safe. In the European Union, where labeling is required, politicians will tell you that the labeling decision had absolutely nothing to do with science and everything to do with green party politics. In sum, in the US, the current law is up-to-date and there is no need for a checkerboard pattern of state by state regulation.

By 2012, genetically engineered varieties will be grown on 88 percent of U.S. field corn acres, 93 percent of soybean acres, and 94 percent of cotton acres. A majority of packaged foods on typical grocery shelves include some ingredients derived from corn, soybean or cotton, so if this Proposition passes, most packaged products would be subject to its requirements.

Let's assume, for the sake of discussion, the food industry rolls over and plays dead and major companies will work to meet the obligations of the new law. There is one unsolvable problem - there is not enough GMO free corn available to meet the needs of all food manufacturers. Prices of the GMO free corn would skyrocket, good for those producers, but bad for poor consumers who would see the price of corn flakes and other foods jump sharply up just at a time when Romney and Ryan propose to slash federal funding for nutrition programs.

Or let's assume a more probable outcome, that the food industry's  prime trade associations go into court and argue Prop 37 violates federal law, namely that the food is safe, as established by FDA and the California labeling, provides false and misleading information,since it implies the product is inferior or dangerous or ought to be avoided when, in fact, the GMO free products are identical nutritionally to their GMO cousins.

What happens next?

One thing is certain, the Proposition will be challenged in court and millions will be spent. 

Next, enormous pressure will be put on FDA to step up and defend its own policy. The only problem is that FDA is in shambles. It is overworked, understaffed and have bigger issues, such as microbiological contamination, where people die, to manage better.  It never has had the backbone to challenge California's desire to set food policy and law for the entire country.

Or, if the GOP maintain control of the House, it would take the GOP leadership in the House a heartbeat to use the biggest piece of lumber they can find to take the FDA Commissioner, the USDA Secretary, the HHS Secretary to the political woodshed and smack them soundly around their heads and shoulders. The GOP caucus could decide to threaten to slash more Agency funds, haul its senior leadership to the Hill day after day, week after week, for an endless series of hearings. In effect, they could tell FDA to pick its poison - to defend its policy or face political retribution. All is fair in divorce and politics.

In sum, this Initiative hangs like a sword over the heads of major crop producers, food manufacturers and biotech seed providers. Consumers face skyrocketing price increases. The Proposition represents a massive regressive tax on the poorest of our nation and rewards the wealthiest.Sound familiar?

As the pilots of all the Fortune 100 food companies' G-4's will say, "Fasten your seat belts, it is about to get a little bumpy."

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