The FDA, The FBI, and Prop 37

What one misleading mailer and one false press release tell us about truth in labeling.

In the final days of the 2012 election, an exchange took place over California Proposition 37, which showed problems for both campaigns for and against the measure. It started with a mailer produced by the No on 37 campaign, which may have stretched the truth, and ended with the Yes on 37 campaign holding a press conference Friday with nonprofit groups that was quickly erased from existence once it was debunked by the mainstream media.

The goal of Proposition 37 is to require labels on foods and food products that were produced using genetic engineering (GE), with some exemptions. Chief among the claims of proponents are that consumers have a “right to know” these details about how their food was produced, and that these foods carry health and environmental risks that go beyond conventionally-produced food. It would also prohibit labeling such foods as “natural,” and due to ambiguities in the wording of the proposition, the same may be true for processed foods that do not contain genetically engineered content. The Yes on 37 campaign is primarily funded by companies that sell competing foods that could gain from altering how these products are labeled.

“How – and how quickly – can we move healthy, organic products from a 4.2% market niche, to the dominant force in American food and farming? The first step is to change our labeling laws.” Said Ronnie Cummins, director of the Organic Consumer’s Association (OCA) and Fund, primary backers of the measure, in an open letter published on Common Dreams.

Photo of No on 37 mailer, Credit: Jill Richardson

The campaign against the measure, funded by biotechnology and food manufacturing companies, has principally argued that the proposition would cost Californian consumers significantly if food companies reformulate their products to avoid the labeling requirements. The group, whose backers could stand to lose market share of products currently branded as “natural,” or not required to label for GE content, has also estimated that just the requirements of the labeling changes could cost California consumers hundreds of millions per year, and that there could be an increase in litigation due to how the measure lowers the bar for initiating lawsuits over potential labeling violations. The No on 37campaign points to the consensus in the scientific community that the genetically engineered foods on the market are not inherently risky, which is based on hundreds of published, peer-reviewed studies.

Initially, support for the proposition was high in the polls at 67 percent in favor, and 20 percent against, but in the final month of the election these numbers have converged to a statistical tie in the low 40% range. The latest online Pepperdine poll also shows opposition leading 50% to 39%. The dramatic shifts in opinion are likely due to the high number of negative ads, and with numbers this close the campaigns have been desperate to gain an edge over the competition.

Jill Richardson, who is a board member of the OCA, published photographs of a No on 37 mailer she received in early October, which used the logo of the U.S. Food And Drug Administration (FDA) when describing the measure. Pictured on the right, it read:

“The US Food and Drug Administration says a labeling policy like Prop 37 would be “inherently misleading.”
US Food and Drug Administration

This implies that the FDA has taken a position on Proposition 37, which it has not, as reported by KPBS.

“The FDA has not made such statements with respect to Prop 37,” wrote FDA spokeswoman Morgan Liscinsky in an email. “We cannot speculate on Prop 37 and have no comments at this time.”

The Yes on 37 campaign seized on this, calling the No on 37 campaign deceptive and guilty of fabricating a quote from the FDA. Mis-using the FDA seal is a legal offense, and the campaign contacted the Department of Justice (DOJ) to lodge a complaint against the No on 37 campaign.

However, as misleading as the use of the seal in the mailer may be, the quote from the FDA about mandatory labeling is genuine. According to KPBS, and the Chicago Tribune, the terms “inherently misleading” came from a statement from the United States FDA in a 2009 report (PDF) to the World Health Organization. From the document,

Inherently Misleading Labelling – Moreover, mandatory method-of-production GM/GE labelling would likely be inherently misleading. A mandatory method-of-production GM/GE labelling regime creates the impression that the labelled food is in some way different from or less safe than a comparable, unlabelled non-GM/GE food (for example, no requirements exist that all food be labelled to indicate the breeding technique used to produce it). As such, mandatory method-of-production GM/GE labelling would be inconsistent with the Codex General Standard for the Labelling of Prepackaged Foods, which states that foods shall not be described or presented in a manner that is false, misleading or deceptive, or is likely to create an erroneous impression regarding its character in any respect.

The FDA has maintained since before the commercialization of genetically engineered foods in 1996, that mandatory labeling of merely containing GE foods could be misleading since they are not different from conventional foods in a uniform way. The FDA has issued draft guidance on voluntary labeling of GE and non-GE foods, which outlines ways in which foods can be labeled in non-misleading ways. While it was not a quote from the FDA specifically about proposition 37, the phrase contained in the mailer was accurate in that both proposition 37 and the policy being objected to in the 2010 statement were the same kind of mandatory labeling. The FDA has not issued an opinion on the unique aspects of Proposition 37, however. As even truthful labeling of foods can be misleading to consumers, so too can poorly explained campaign mailers that are based on true statements.

The EWG page on the press conference as it appeared before it was deleted. (cached)

As a result of the legal complaint made by the Yes on 37 campaign, they received a call from an FBI agent on Thursday informing them that they looked into the matter, and forwarded their complaint to the FDA. Hastily, the Yes on 37 campaign and the Environmental Working Group (EWG) organized a press conference via phone for 11 am on Friday the 2nd of November, along with the Center for Food Safety and Michael Hansen of the Consumers Union. The headline of their press release read: “BREAKING: FBI Opens Investigation into No on 37 Shananigans,” which the Sacramento Bee noted misspelled the word “Shenanigans.” The EWG page explained that reporters participating in the call would “hear from the top election lawyer for the Yes on 37 campaign on the U.S. Department of Justice’s investigation into the activities of No on 37 campaign.”

Prior to the press conference, however, the DOJ issue a statement that indicated that this was false, as reported by The Sacramento Bee and many other news outlets.

“We have referred the matter to the FDA for any action they believe is appropriate,” U.S. Attorney Ben Wagner said in a statement. “Neither the FBI nor this office has a pending investigation related to this matter.”

The phone call the Yes on 37 Campaign received from the FBI agent was merely a courtesy call in response to their complaint. According to DOJ spokesperson Lauren Horwood in an interview with the LA Times, “a telephone call from an FBI agent does not constitute ‘an investigation.’ ”

Jason Hopkin at the Santa Cruz Sentinel notes, with support for the proposition slipping, “Barring a turnaround, Friday’s episode may have been the last gasp of a foundering campaign.”

In the aftermath of this event, the Yes on 37 campaign removed almost all references to their “criminal investigation” claim, except for one. At the time this article was published, it was still visible on their “Documented Deceptions of No on 37 Campaign” page (below). The Environmental Working Group, who hosted the press conference, deleted the page referring to it, which is currently still available in Google Cache.

Statement from Yes on 37 campaign about quote “fabrication” and “criminal investigation.”

Neither the Yes On 37 Campaign nor the Environmental Working Group have issued retractions apologizing for their erroneous announcements, issued 4 days before Election Day.  In the same thread, the No on 37 campaign has not issued any apologies for potentially misleading consumers about what exactly the FDA had issued an opinion on.

The political battle over mandatory labeling has raged for over a decade, and how ever the result of this election comes out it is sure to continue. This episode may demonstrate that some supporters and opponents of mandatory GE labeling still struggle to label their own campaigns and the opinions of others accurately and transparently.

Update November 4, 9:50 pm CST: The Yes on 37 Campaign has modified the statement displayed above in the screenshot so that it no longer mentions a criminal investigation (presumably after reading this article). At the same time, a press release was published that makes no mention of the claims they made before.

This article was prepared without assistance from either the Yes on 37 or the No on 37 campaigns. Hat tip to Ronald Bailey’s August 14, 2012 Reason column that led to the source of the FDA quote. Thanks also to Rachael Ludwick for documenting the EWG’s page deletion.

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Karl earned his Ph.D. in Plant Breeding and Plant Genetics at UW-Madison, with a minor in Life Science Communication. His dissertation was on both the genetics of sweet corn and plant genetics outreach. He currently works as a public research geneticist in Madison, WI. His favorite produce might just be squash.


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21 comments to The FDA, The FBI, and Prop 37

  • I wish I could imagine a process where facts and blog posts by engaged scientists saved the day for solid science-related policy. But I’m afraid it would require a fictional planet and some time travel. Or something. I really don’t know….

  • Thank you for digging this up. I’m very frustrated by the misinformation from Yes and the lack of attention to detail from No. I get the impression that both campaigns are rushed, trying to get out whatever they can to support their own side.
    No’s mistakes have been inexcusable yet don’t seem to be malicious. They should have checked to see what proper use of the FDA logo might be (which I found within seconds of searching for FDA logo policy), and they shouldn’t have misrepresented Henry Miller’s employment. They may be exaggerating the potential costs of Prop 37, but I think their values are more likely than Yes’s values. Yes’s mistakes include posting information that goes completely against known science (I have documented some of their Facebook posts on Twitpic). This all reminds me very much of the discussion that we had on Becca’s post onHedging.

    • There are numerous NGOs and organizations who are independent of the biotech companies, and even direct corporate influence from the other side, who comment on and analyze issues related to GE crops. But what I have noticed is that during this political battle, none of them challenged both sides of proposition 37. They either sided completely with one or the other, and pointed out the blemishes on the opposite side while ignoring the ones on their own side. Organizations with narrow political goals that are not primarily the search for truth and a better way are just that – narrow.
      I hope you’ll remember the EWG’s deletion tendency when you debate them later this month!

  • Jonathan

    How depressing that if the vote goes the way of ‘No on 37′ the ‘Yes on 37′ campaigners will immmediately spread conspiracy theories about Big Ag rigging the vote.

    • I have already read claims that the polls have been rigged, so I am sure that will happen. I don’t understand why someone would want to rig a poll, because then they have no idea whether they are ahead or behind, and need to change their strategy or buy more ads. Some of the Yes campaign supporters have been girding themselves against a loss. Some are crying Tobacco Industry foul, while some are saying a loss is really a win because of the attention it got.
      The troubling thing is some commentators have tried to make proposition 37 a bigger issue than just GE crops, like that it is a vote against monocultures, or proof of whether or not there is a food movement (Michael Pollan). The problem with putting so many chips on the table is it increases your chance of losing big. If prop 37 fails, does that mean there is no food movement?

    • Yes, soon after this failed conference call I began to see the CT about how the mainstream media is against them already too.

  • I wouldn’t say almost all references. Most of their tweets (or retweets) that imply a criminal investigation still exist. Examples:

    This one is a retweet that says: “DOJ pursues criminal probe of complaint that pro #GMO No on 37 group illegally used FDA seal, says @CARightToKnow http://www.carighttoknow.org/documented_deceptions…”

    Their original tweet announcing the action reads: “Breaking: Feds to investigate deceptive tactics of NO campaign. Media call 11am PST http://bit.ly/QZlsjN #YesOn37 #LabelGMOs”

    Moreover the Facebook post is still there. This is one where I commented to point out there wasn’t a criminal invstigation (linking to the release on the DoJ website). My comment has been removed and I can no longer post on their Facebook page at all. I see Karl’s posted as well and hopefully it will stay up — though the comments scroll by so quickly no one will likely notice the correction in a few hours as it will be hidden behind the “previous comments” link.

  • Flame

    The problem with this alleged “FBI investigation” is that there’s such a revolving door with circulation of personnel between the FDA and Big Chem and Big Pharma that looking to the FDA for food safety or testing is a lost cause. Perfect example is Bt-engineered corn. The FDA won’t test it because Bt is a pesticide and falls in the purview of the EPA. EPA says they won’t test it because corn is a food and not their “department.” So the food goes untested—or it’s tested by Monsanto, and the government agencies that are supposed to be protecting the people accept the tests—often rigged—from Big Chem. Can you say “fox guarding the hen-house”?

    • Hi Flame, I suggest that you take a look at the pages on the EPA, FDA, and heck, USDA websites that talk about their role in regulating GE crops. While problems can arise from the 3-agency system of regulation, and I think it should eventually be a 1-agency system, the responsibilities are not tossed around like that with no one taking a hard look at these crops. Some writers have tried to make it seem that way. Perhaps you could consider that their description of the regulations are wrong?
      Um, how did Big Pharma get involved in this?

      • Flame

        Big Pharma is not directly involved with the GMO issue, but there is a revolving door of employees of FDA, politicians (e.g., Rumsfeld, who pushed through approval of aspartame when FDA had previously intended not to approve it), and lobbyists who seem to play “musical jobs” among the agencies and the corporations, so that people working at FDA or EPA at any one time may have previously worked in one of the Big Pharma corporations—and vice versa.
        Okay, I’ll look (perhaps with some skepticism) at FDA and EPA (waiting for them to open)—but know that my tenants and I cast our ballots a few hours ago in favor of Yes on 37. Looked at several of your suggested pages (tho my browser doesn’t seem to want to save them), and frankly, I’m not particularly consoled that these agencies are any more trustworthy than before I read the pages.

    • pdiff

      Can you say “fox guarding the hen house?”

      Kind of like having a litigation lawyer write propositions designed to induce litigation, eh?

  • DebbieC

    I second that, MikeB! Based on the innumerable typical comments in forums and OpEd pieces by the Yes on 37 crowd and so few comments by the “no” side, I figured this would pass. I was pleasantly surprised to see Prop 37 lagging last night. The No on 37 put good information out there and people paid attention – they may not have commented in great numbers, but they were reading. When I did see comments by those opposed to Prop 37, they quoted or linked to many authors here.

    Predictably, the Yes on 37 folks are already making accusations about the media, lawyers, and politicians being paid off by Monsanto. However, hopefully the failure of this proposition means that people are questioning sensational claims and willing to look at, not both “sides”, but at science.

  • Joaquin Delanuit

    The issue (acceptance of GMO foods by consumers) has not been resolved in any which way by the defeat of the ballot.

    $ 47 mil have been spent on propaganda by corporations to defeat the sure-win of the Prop37. That’s the equivalent of having to buy the NBA Dream Team to defend a local high school hoop troupe by a few points.

    The consumer who got scared by possible food price increases will repay this of course to the bio tech corporations. By voting NO they weren’t promised lower prices, right? So any food increase will tell them that THEY pay the millions back!

    The bio tech corporations in turn will start even bigger war chests, and that’s really needed. Because these consumers who voted ‘No’ are not one iota less scared about what’s in their food. Their fear will turn to confusion, which in turn will have to be addressed with even more ‘natural’, ‘greener’, ‘healthier’ food label claims. Not with more info about GMO. Then the customers confusion will turn to anger. Question is who they will direct it at and how? Organic food booms, and grocery stores will take note. Been to a Walmart lately and seen the no-cornsyrup and organic stuff creeping into Pepsicos shelf space?

    In the meantime more lobbying efforts will be made to coral any legal attempts the Prop37 folks might try next. The BioTech corporations got scared themselves this time around, and they won’t rely on their politicians and ad budgets alone anymore. Universities will experience tighter sponsoring clauses; research grants will be regulated more as well. The pressure on scientists to perform will rise: marketable shelf ready products are needed yesterday. Mistakes will be made in the administration, labs, and in field tests. Counterproductive decisions slip in and egos will be bruised–whistle blowers will be created. Real ones or wannabes, who cares.

    The media is there to built up right on where the hype about Prop37 had left their readers in 2012: Fertile ground to plow, created by those scare tactics. Because a now fearful & angry customer will flock to the media. And HuffPost & Co will whip them into a frenzy. Sure as a scientist you want to be part of this? Prop 37.2 will have a nutty billionaire and/or a top notch ad budget and agency network behind them next time around.

    They will win. Because their positioning is simpler and stronger: “What’s in my food?”
    The GMO industries $47 mil answer is: “Too expensive to tell you!”

    Lordy lord…don’t bet your career on those corporate honchos. At least try to tell the customer that they are too dumb to comprehend what academic wisdom and humanity saving patents are hidden in a bag of chips. In nicer words of course.

    • Hi Joaquin,

      That is a fantastic scenario, especially how the biotech companies will somehow change their policy as a response to winning prop 37 in such a way that it generates whistle blowers that will undermine the whole system. I can just hear the Yes on 37 campaign saying “Ah ha! By defeating the proposition you have just fallen into my little trap!”

      I also like how you compare the No on 37 people to an NBA Dream Team, and the Yes on 37 campaign to a local high school hoop troupe. How many local high school teams do you know that have a budget of $8 million?

    • It’s also evidently ok to scare people falsely about health and safety concerns, but wrong to scare them about potential litigation and increased food costs.

      You may be right about 37.2 having a nutty billionaire behind it. 37 itself had plenty.

  • Joaquin Delanuit

    Hi Karl,

    Don’t start of with patronizing a communication peer. I have marketed edible substances (not nutrition) for many decades and sat in strategy meetings till the cows came home.

    I don’t make much different arguments than what Scientific Journal lamented about yesterday: The undermining of academic freedom by corporate money.

    http://www.scientificamerican.com/article.cfm?id=how-drug-company-money-undermining-science

    • Hi Joaquin,
      I think you should think more about your scenario before you consider the tone of my response. You went all the way from the biotech companies winning against proposition 37 to them tightening the reigns on academia? I can’t think of a possible scenario that actually connects those two things. If anything they want academics not to be angry at their corporate policies and turn them into enemies.
      Also think about what you are proposing – it seems that you are looking forward to this outcome, an outcome that includes this as a means to bringing it about: “Mistakes will be made in the administration, labs, and in field tests.” You seem to be hoping that something goes wrong and people are hurt so that mere labels will become a political reality. No communication “peer” of mine would consider that a hopeful prospect. That’s absurd and wicked.

  • Joaquin Delanuit

    I am predicting, not wishing. It’s Murphy’s Law that will make it happen. The individual within a corporation, the corporate investor or the individual scientist sponsored by the corporation are keeping their integrity; most certainly in their own perception.

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