The FDA, The FBI, and Prop 37

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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.

Follow Karl Haro von Mogel:
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 recently moved back to his home state of California. His favorite produce might just be squash.