Analysis of Washington State GMO Labeling Initiative I-522

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Background

Recently, supporters of the Washington State initiative I-522 submitted signatures to the Secretary of the State of Washington.  This initiative is designed to “establish mandatory labeling of foods produced through genetic engineering”. The official web site for the initiative support effort can be found at: ( labelitwa.org [EDIT 3/2/2013: Initiative supporters have put up a new WEB site at Yes on I522]) and the initiative text can be found at: (I-522 Text ). The author of I-522, Chris McManus (Chris McManus), is an advertising executive from Tacoma, Washington.  When asked about technical details of the initiative, he reportedly replied “Well, you know, I’m not a scientist.  I work in media. Those kinds of questions I’ll have to defer to later in the campaign.”  (McManus Quote ).  One would think that addressing such issues might be an important consideration before signing the petition, however, the process has now moved beyond that point.

The effort has strong support from the organic community, with the initiative itself having several sections devoted specifically to the promotion of organic production methods as well as the backing of large organic business and consumer interests such as Whole Foods Market Inc. (Wikipedia: Whole Foods Market & wholefoodsmarket.com ), PCC Natural Markets, the largest certified organic coop in United States, (Wikipedia: PCC Natural Markets  & pccnaturalmarkets.com),  and the non-profit advocacy group, The Organic Consumers Association (Wikipedia: Organic Consumers Association & organicconsumers.org ).  Several other smaller businesses with interests in organic production have also committed to supporting the measure (see for example Labelitwa Supporters ).Pike Street Market

Much of the initiative text is taken, sometimes verbatim, from the earlier 2012 initiative process in California, Proposition 37 .  While the similarity of the two initiatives is substantial, there are important differences.  Proposition 37, for example, contained language intended to regulate the use of the term “natural”.  That component of Proposition 37 was highly contentious and was possibly its weakest legal aspect (Legal Analysis of Proposition 37 ).  Such language has been dropped from I-522.  While the similarities of the Washington State initiative text may present many of the same legal issues already raised by Proposition 37, I-522 has its own unique language, which may initiate other challenges.  The similarities and differences of these proposals will be addressed as they occur below.

Taking a purely empirical view, labeling of genetically modified organisms provides little useful consumer health or safety information. GE products currently in the marketplace have proven safe in foods and animal feeds through use and testing. Environmentally, these products can have a good record of improvement over conventional production methods while maintaining the high yields and profits necessary for farmers.  These facts have been repeatedly demonstrated in the peer reviewed scientific literature, much of which is from independent sources, despite claims to the contrary (see Biofortified Genera for an extensive list).  The widespread acceptance of genetic engineering in the farming community is further evidence of the unique utility of these tools.  Farmers are not foolish and do not gamble on, or stick with, risky ventures where their livelihoods are at stake (see for example the opinion of farmer Brian Scott ).

Alternatively, some people may have ethical concerns such as intellectual property rights or corporate control over food supplies, and these could provide an impetus and societal pressure for mandating GE food product labels.  The text and labeling process proposed by I-522, however, are ill suited for informing consumers.  The vague labeling requirements of I-522 are designed to scare consumers away from GE products, not provide desirable information. Simultaneously, the law appears designed to strongly promote organic methods as an equal and preferred GE alternative. These unfounded biases, as well as the extensive exemptions incorporated into the law, remove any usefulness the labeling might have to consumers wishing to avoid GE products.

Executive Summary

1) The proposed label system is too vague and contains little useful information.  The supporting arguments suggest labeling could help consumers concerned with health, dietary, religious, environmental, and corporate control issues avoid GE products.  The actual labeling, however, does not guarantee any GE content will be present in the product.  The proposed labels are not required to specify what ingredients may be GE, nor the extent to which they may be present.  In addition, the law does not require testing for the presence of GE components.  Consumers wishing to discern between GE and non-GE products can already do so through existing, non-mandatory labeling designations provided by USDA Organic certification, or one of several private non-GE certification businesses.

2) Too many exemptions are granted to large agricultural and food industries.  These exemptions further reduce any usefulness of the labeling allowing producers and retailers of restaurant foods,  animal products, and alcoholic beverages among many others to serve customers GE products without informing them.

3)  The penalties for noncompliance are onerous, especially for small businesses.   The potential penalties will most likely lead larger national and global food producers to simply apply the most generic GE label to all their products.  They would likely be able to compensate for any negative consumer reaction to such labeling through their large volume of sales.  Smaller local producers, however, would be left with little choice but to either comply with a designation that has been demonized in the popular media or pursue costly alternatives such as USDA Organic or private non-GE certification.  Any business that intentionally avoids labeling must provide a sworn statements from their suppliers that their product is non-GE.  For smaller producers and retailers, this paper trail could present a cumbersome and expensive process to maintain.

4)  The State is required to enforce the law without additional resources.  The initiative does not stipulate or mandate additional funding sources for monitoring or enforcing compliance.  Given the current budgetary challenges faced by Washington State, it is unlikely new money will be allocated for labeling enforcement.  This will either entail poor enforcement of the law or a potential reduction of current Health and Safety services elsewhere in the State system.  Because any person may file a complaint and seek legal costs for alleged labeling violations (without evidence), a further burden will be placed on State courts and Health and Safety departments.  The law could lead to unnecessary legal actions at the expense of taxpayers and consumers.

5)  The labeling law requires the GE designation be conspicuously present on the front of the package or retailer’s display (for raw produce).  In doing so, the GE label would be removed and segregated from preexisting nutritional and health information.  Because GE products have been demonized in the popular media, this is likely to promote a negative perception to the consumer.  Forcing producers and retailers to prominently display such a label without justification will likely lead to a Constitutional First Amendment objection regarding compelled speech.

6)  The numerous arguments suggesting that Washington State’s organic production and international trade are threatened by GE production are unfounded.  Organic production has successfully coexisted alongside conventional and GE production for many years in the US.  Likewise, international trade in the presence of GE products has been successfully carried out for many years.  It is unlikely that the multi-million dollar agricultural export industry will require or depend on a state level labeling law that does not require product testing.  The commodity identities referenced in the initiative are already provided by national USDA Organic and private non-GE certifications.

NOTE: This analysis was provided on a voluntary basis and was not supported by any organizations, industry or otherwise.

The Washington Initiative Process

The State of Washington has two types of initiatives, “Initiatives to the People”, and “Initiatives to the Legislature”.  While the first type of initiative would go directly to a voter ballot, this initiative is of the second type.  That means, once the appropriate number of valid signatures is certified by the Secretary of the State of Washington (accomplished on 1/31/2013 ), the initiative will be submitted to the Legislature during their January 2013 session (currently slated for a 2/14/2013 hearing).  At that point, three things can happen (from:  participedia.net ):

• The Legislature can adopt the initiative as it has been proposed by the public and it then becomes law without a vote by the people.

• The Legislature can reject the proposed initiative or refuse to act on it and the initiative must be placed on the ballot for the state’s next general election.

• The Legislature can approve an amended version of the proposed initiative and, in this case, both the amended and the original versions of the bill will appear on the state’s next general election ballot.

It is not certain which path the State legislature will take, but it is most likely that option one, immediate acceptance, will not be taken.  The Washington legislature recently rejected two GE labeling attempts by members, see: Washington Bill 6298 & Washington Bill 2637 .  Of the remaining options, the second is the most probable as it is the common course for legislative initiatives.  The third option, however, would present an interesting circumstance where two similar versions appear on the same ballot and potentially lead to confusion in the voting booth.  It reasonable to assume that I-522 supporters would want to avoid this vote splitting possibility by preventing amendments to the initiative, although from a technical, scientific, and potentially legal standpoint, I believe it should be.

I-522 and Comments

Below the initiative is presented, section by section, with some comments and observations on these faults.  Each section is in blockquotes and my analysis is below. On the side, Frank N. Foode™ will help us out by pointing out whether each section was taken from Proposition 37 or not.  In this analysis, the terms genetically engineered (GE), genetically modified organism (GMO), and genetically modified (GM) are used interchangeably.  [Edit 3/7/2013: The term Genetic Engineering (GE) is used here and meant to be consistent with the definition provided in I-522, Section 2, Part 3a.  Previous references to Genetically Modified Organism (GMO) or Genetically Modified (GM) have been changed throughout to reflect this definition and nomenclature.  Exceptions are made in the cases of organization names, products, and quoted references.]

NEW SECTION. Sec. 1. The  people find that:

(1) Polls consistently show that the vast majority of the public, typically more than ninety percent, wants to know if their food was produced using genetic engineering. Without disclosure, consumers of genetically engineered food unknowingly may violate their own dietary and religious restrictions.

This section is intended to provide arguments in favor of the initiative and “inform the public”.  As will be seen, the statements here provide poor rationale for mandating labeling and often digress into promotional material for organic production methods or material meant to scare consumers and producers away from GE products.

This is true, polls have indicated a large percentage of survey respondents have a preference for labeling.  It is unlikely, however, that GE labeling in I-522 would prevent people from violating their dietary or religious restrictions.  Products that might fit these categories, such as vegetarian, vegan, gluten free, kosher, etc, are already labeled as such voluntarily for marketing reasons.  More to the point, a verified non-GE designation is already available to any food manufacturers who desire it (for example, The Non-GMO Project and Genetic ID ).  By definition, people concerned with these issues are already scrutinizing what they are consuming and the products containing GE ingredients are already well known.  Additionally, organic production in the US prohibits GE products. A consumer using the “USDA Organic” label designation can already avoid all GE products.  Furthermore, even if I-522 labeling was imposed, little information other than “genetically engineered” or “may be partially produced with genetic engineering” would be provided.  Genetic engineering is a process, not a thing.  Many attributes to food products or the systems that produce them can be addressed through genetic engineering.  The initiative, however, does not require the specific type of modification, or even the specific ingredient that has been modified, to be listed.  As written, the measure would tell the consumer no more about dietary or religious preferences than a label specifying “Organic” or “Natural”.   Hence, the vegetarian or vegan would not be informed whether an animal protein was incorporated in a product.  The Jewish customer would have no additional information telling them a porcine attribute was present.  I-522 does nothing to address dietary or religious restrictions.  It should also be noted that previous mandatory GE labeling efforts for religious reasons have failed to be upheld by the courts .  In addition, the Vatican and Islamic officials have both found no problems with GE products.

A short note on the effectiveness of labeling:  Studies examining existing labels for nutritional content have shown that they are consistently overlooked or ignored by consumers.  Although participants said they looked at nutritional labels, the same respondents failed to completely do so while purchasing products (University of Minnesota survey of consumers ).  GE labels are likely to suffer the same fate.  A study from Europe, where GE labeling is enforced, found consumers typically bought products labeled GE, even though they indicated that they would not [EDIT 3/18/2013: Additional survey information on GM label use: Do European Consumers Buy GM Foods? ].  The relationship between personal desire for labeling and the effectiveness of labeling is weak.

(2) Currently, there is no federal or state law that requires food producers to identify whether foods were produced using genetic engineering. At the same time, the United States Food and Drug Administration does not require safety studies of such foods. Unless these foods contain a known allergen, the United States food and drug administration does not require the developers of genetically engineered crops to consult with the agency. Consultations with the United States food and drug administration are entirely voluntary and the developers themselves may decide what information they may wish to provide.

This is true, no federal or state law for mandatory labeling of GE products exists at this time.  An effort to force the FDA to label GE products through federal law was signed by 1 million people, although the FDA decided against it (Just Label It ).  While this seems substantial, it should be recognized that this represents only an approximate 0.5% of all eligible voters  in the United States (2012) and is not an immediate mandate for labeling.  Additionally, mandatory GE labeling legislation introduced to the US Congress by Senators Bernie Sanders (I-VT) and Barbara Boxer (D-CA) failed to pass the US Senate in 2012.  [Edit 4/2/2013: The FDA actually supports voluntary labeling by industry and provides a guide for doing so.]

The implication of this I-522 statement regarding the FDA is that no testing of GE products is required and that the testing that is done is completely voluntary.  This is a misrepresentation of the truth.  While, the FDA itself is not mandated to assess GE safety, regulation of GE products in the United States is divided among various agencies and existing federal law:

The responsibility for regulatory oversight of these products is shared by three Federal agencies: the U.S. Department of Agriculture’ s Animal AND Plant Health Inspection Service(APHIS), the U.S. Environmental Protection Agency(EPA), AND the Department OF Health AND Human Services ‘ Food AND Drug Administration(FDA ).”   [Emphasis added].

Which agency is involved in the regulation process depends on the intended use of the product.  If food items are in question, the FDA has been involved.  During product evaluations, it is standard assessment protocol to test all intended food items for known allergens.  The FDA can and will request any and all information they deem necessary for assessment.  No GE product on the market has passed through less than two of the mentioned agencies .  This position statement by the author(s) of I-522 is disingenuous at best.  While many may view this process as inefficient and incomplete, mandatory labeling requested by I-522 will do nothing to improve the process nor will it induce the FDA to be involved in GE regulation.

It should also be noted here that the safety of crops developed through traditional breeding methods, is unregulated and completely voluntary, even though these have occasionally shown problems in the past, (see section (4) below).

(3) Mandatory identification of foods produced with genetic engineering can provide a critical method for tracking the potential health effects of consuming foods produced through genetic engineering.

It is hard to imagine how the labeling provided by I-522 could possibly help track a potential problem given that: 1) The required labeling has no specific information about the type of modification, nor the ingredient modified and 2) the extensive product exemptions to the required labeling (listed below) would severely confound any efforts to track a problem.  Because the proposed label is vague on which ingredient may be included, or even if a modified protein is present in the final processed product, it has no value for notification of allergic individuals at all.  If a known allergenic component were present, Federal law would already require it to be labeled separately.

Further, any product intended to be consumed in a restaurant, for example, would not require labeling.  By posing the supporting statement in this manner, the author is explicitly suggesting that GE products can and will have problems, despite the fact that no health problems have ever been found in the many years that people and animals around the world have consumed genetically modified food products. Simply put, the GE labeling information provided by I-522 cannot help track health problems.

(4) Consumers have the right to know whether the foods they purchase were produced with genetic engineering. The genetic engineering of plants and animals is an imprecise process and often causes unintended consequences. Mixing plant, animal, bacterial, and viral genes in combinations that cannot occur in nature produces results that are not always predictable or controllable, and can lead to adverse health or environmental consequences.

The “right to know” has been a debatable topic in GE labeling, dependent on perceived costs, benefits and risks.  The implication here, however, is that consumers have this right because the process of genetic modification is dangerous and uncontrollable.  All crop breeding techniques, including those used prior to GE, can lead to unintended results.  Relative to these traditional crop breeding techniques, however, GE methods are more precise and controlled.  Genetic engineering processes are very specific in the changes made, typically involving only one or two genes. [EDIT 3/19/2-13: Methods are now poised to become even more precise.]  Because specific genes are targeted, the functional changes are anticipated ahead of time. Traditional techniques, however, may use processes such as outcrossing of varieties or mutagenesis through irradiation and chemicals.  These methods induce simultaneous multiple changes in the genetic structure that are random in nature with unknown and unpredictable outcomes.  Traditional breeding programs on crop plants such as potato, celery and kiwi, for example, have resulted in unintended and harmful effects in the past.  [Edit 3/21/2013: New crops are regularly introduced to new markets with out testing and with unknown consequences.  See the cucamelon, for example].  Admittedly, GE methodologies, like all breeding methods, may occasionally produce undesirable traits, however, they are unlikely to reach the marketplace because they are heavily scrutinized and tested for adverse effects prior to release. [Edit 3/23/2013:  Kevin Folta has a nice comparison of plant improvement methods and their characteristics].

The mixing of plant, animal or viral/bacterial genes is actually quite common in nature.  The complete genome of a bacterium (Wolbachia), for example, has been found nested within the chromosomes of the common fruit fly, drosophila.  Viral components (endogenous retroviruses or ERVs) are commonly found in many vertebrates and can encompass a large proportion of their genetic code. Pea aphids have been shown to have acquired fungal genes  for coloration.  Snake genomic features have also been recently observed in cattle.  Such examples of horizontal transfer of genetic material across phylogenetic categories are numerous and considered by some to be an important mechanism in the natural process of evolution . There is no reason to expect or suspect that this process would necessarily create adverse health or environmental consequences more than any other type of genetic transfer processes .

(5) United States government scientists have stated that the artificial insertion of genetic material into plants, a technique unique to genetic engineering, can cause a variety of significant problems with plant foods. Such genetic engineering can increase the levels of known toxicants in foods and introduce new toxicants and health concerns.

Without a reference, it is unclear where this comes from.  The United States implements GE technology more than any other nation and private, academic and US government scientists broadly and openly support genetic engineering efforts.  Over the many years of GE use, globally and in the US, scientific investigation into potential toxicants or health concerns have all proved negative or been exposed in regulatory testing programs.  When problems have been identified, development of the products in question has ceased (see for example the example of Brazil nut genes introduced into soybean).  Scientists did recognize early on that the safety of this technology is important and should be monitored. Self imposed regulation and restrictions were set in place as early as 1988.  The implication of this statement that the GE process is uncontrolled and that scientists are generally unsupportive of GE is unfounded.

(6) Forty-nine countries, including Japan, South Korea, China, Australia, New Zealand, Thailand, Russia, the European Union member states, and other key United States trading partners, have laws mandating disclosure of genetically engineered foods on food labels. Many countries have restrictions or bans against foods produced with genetic engineering.

Many countries do implement GE labeling, although the number reported seems to vary from around 40 to as many as 61 (Proposition 37 reports 50 in a similar section).  Regardless of the number, the details of these labeling laws often differ from I-522.  In the European Union, for example, tolerance levels for unintended GE contents are set at 0.9% (EU GE Regulation ). While I-522 imposes this limit initially, it will eventually require a zero tolerance level after July 1st 2019, a practical impossibility.  Note that in I-522, this will apply even in cases of unintended GE use.  After this time, any errant producer or reseller, large or small, will be held accountable without a label.  Assuming that the detection abilities for genetic material will only increase with time, and that transfer of genetic material across phylogenetic constructs is quite liberal in nature, it virtually guaranteed that problematic genetic material will eventually be detectable in any product.  The zero tolerance aspect of this initiative creates a condition that is impossible for any producer, GE or not, to meet.

Several countries currently do restrict or ban GE products.  These restrictions, however, are not as complete as implied.  European Union members, for example, regularly approve and import GE products intended for animal feed.  Many of these countries also have both privately and publicly funded GE research programs (see, for example, the GE approval database).

Despite the intentions of this line of argument, the existence of laws outside of the State of Washington or the United States is a poor guide.  In most cases, other countries have imposed such laws based on widely criticized science, political pressure from groups opposed to GE technology, fear of corporate influence, or as a protection for their agricultural producers.

(7) No international agreements prohibit the mandatory identification of foods produced through genetic engineering.

This is currently true.  Regulations mandating labeling would impose no legal restrictions on export commodities.  Buyers, sellers and brokers for exported commodities, however, already contend with international laws regarding GE products.  Therefore, the existence of a labeling law, particularly one at the state level that does not require testing for genetically modified components, would have no impact on international trade.

(8) Numerous foreign markets with restrictions against foods produced through genetic engineering have restricted imports of United States crops due to concerns about genetic engineering. Some foreign markets are choosing to purchase agricultural products from countries other than the United States because genetically engineered crops are not identified in the United States, making it impossible for buyers to distinguish what does or does not meet their national labeling laws or restrictions, rendering United States’ products less desirable. Trade losses are estimated at billions of dollars. Mandatory identification of foods produced with genetic engineering can be a critical method for preserving the economic value of exports to markets with restrictions and prohibitions against genetic engineering.

As mentioned above, restrictions and bans have not prevented these countries from importing GE products.  GE animal feeds (primarily soybean) are openly sought by many countries, including the European Union.  For commodities intended for human consumption, it is unlikely that a State level regulation will influence international trade.  Buyers and exporters of such items are likely to certify the quality and contents of the products they handle themselves.  The ‘mandatory identification’ referred to above would be provided by the buyers and exporters testing the materials themselves for the security of their business transactions.  The billions of dollars in trade implied would not be casually gambled on a State mandated label that does not even require testing for GE content.  State level labeling is not now, and would not be in the future, critical to preserving economic value.  The initiative is intended for Washington State consumers, not international markets.  This statement goes beyond the intended scope of the initiative.

(9) Industry data shows foods identified as produced without genetic engineering, including conventional foods identified this way, are the fastest growing label claim. Consumers have a right to an informed choice at the point of sale.

This is an odd claim to make in an initiative pleading for mandatory labeling.  If true (no reference is given), and voluntary use of such labels is so popular, why should the State make them mandatory?  Why impose regulation where it is not needed?  This statement implies that any consumers ‘right to know’ is already being addressed by producers without the need for further regulation and that the ability to distinguish GE/non-GE products from one another already exists.

(10) Farmers from a wheat growing region of the state have gathered more than two thousand six hundred signatures on a petition demanding mandatory disclosure for crops produced with genetic engineering. The farmers are concerned they will lose their wheat export markets if genetically engineered wheat is approved.

This is clearly a play by the author(s) to gain voter traction in Central and Eastern Washington where there are large farming operations (Wheat, Potato, Onion, and Apples).  These regions of Washington State are historically  conservative and often heavily influenced by Libertarian and Tea Party politics that would not be expected to support an initiative that imposes expanded government regulation on growers, producers and retailers.  The case is not closed regarding labeling, however.  The agricultural sector in Washington is keenly aware of negative public perceptions.  Washington State apple growers, for example, suffered large financial losses in the 1970’s after a scare concerning a plant growth regulator, Alar.  Potato growers were also preemptively frightened away from GE potatoes after activist groups pressured fast food and processing companies into banning GE products.   This supporting statement seems designed to leverage the fears and sensitivities of Washington growers and marketers towards the initiative.  Support, however, would be damaging to growers in the long run.  Diseases such as late blight in potato and fire blight in apples are a continuing problem for which conventional control measures are few.  Genetic modification techniques, however, offer hope for both potato and apple.

The effects of mandatory State labeling on export markets is not clear.  As stated earlier, it is unlikely that buyers and exporters would rely on a State level labeling requirement for product quality assurance, especially when the measure does not mandate product testing.  Furthermore, clearly labeled non-GE, organic grains are already sold and promoted as such for sale within and outside of Washington State with no problems (see: Bluebird Grain Farms or Organic grains in Washington , for example).  Initiative I-522 will do nothing to enhance the market size or value for Washington State commodities.   Additionally, there are indications that some farmers elsewhere have no interest in mandatory labeling, despite the claims made in the initiative. [EDIT 3/2/2013: Contrary to the claim in the initiative, Washington Wheat Growers have now come out against labeling.]

(11) Agriculture is Washington’s number one employer and wheat is Washington’s number two export crop, second only to goods and services produced by the Boeing company, and ahead of Microsoft, which ranks third.

This is a continued attempt to portray the farming community as threatened without justification as to how a State level labeling law would influence multinational export trade.  See 10) above.  This is at odds with the experience of other farmers across the United States who have found that the use of GE products has helped strengthen and secure their economic positions.  There is no reason to imply otherwise other than to frighten voters into supporting the measure.

(12) Preserving the identity, quality, and reliability of Washington’s agricultural products is of prime importance to our state’s fiscal health.

Product identity is important, but the labeling initiative would not provide or enhance this.  Producers desiring the identity of “Non-GMO” already have services available to them through private agencies such as The Non-GMO Project or official certification using the USDA Organic designations.  Mandatory GE labeling is not required to accomplish this identity.  Since the initiative requires only GE products to carry a label, products lacking labels would have no identity with ‘GMO free’ outside the State of Washington.  Even with the initiative in place, producers of these products would still need to implement one of the above designations or similar in order to achieve the desired identity. I-522 does nothing to enhance product identity, quality or reliability.

(13) The cultivation of genetically engineered crops can cause serious impacts to the environment. For example, most genetically engineered crops are designed to withstand weed killing herbicides. As a result, genetically engineered crops have caused hundreds of millions of pounds of additional herbicides to be applied to the nation’s farmland. The massive increase in use of these herbicides has caused emergence of herbicide-resistant  weeds, which have infested farm fields and roadsides, complicating weed control for farmers and encouraging use of increasingly toxic and more dangerous herbicides. These toxic herbicides damage the vitality of the soil, contaminate drinking water supplies, and pose health risks to consumers and farmworkers. The public should have the choice to avoid purchasing foods produced in ways that can lead to such harm.

The idea the GE products are inexorably linked to herbicide tolerance is one of the most persistent claims of anti-GE supporters.  In truth, however, they are not.  Herbicide tolerant traits can and are introduced into crops using non-GE techniques.  BASF, for example, markets an entire line of crops including rice, wheat, canola, corn, sunflowers, and lentils that are tolerant of the herbicide Beyond® , developed using the process of mutagenesis, not GE (BASF Clearfield products).  They are marketed as non-GE products.  Even if GE products were completely banned, herbicide tolerant crops and the potential problems associated with them would still exist.  The trait is simply too valuable to farmers and producers to abandon. The vagueness of the proposed label would not enable a consumer to avoid GE herbicide resistance traits because they are not explicitly designated as such on the label.

Farmers and agricultural scientists have been aware of herbicide resistant weeds for many years, predating the existence of GE crops.  Their management and control has, therefore, been a topic of discussion for many years and effective strategies to minimize their impact have been subsequently developed.  Agricultural university extension offices and consultants, for example, routinely advise and make material available to growers on the use of best practice methods for controlling resistant pests.  Producers of GE seeds include legal clauses in their contracts with growers, mandating they use accepted management strategies for controlling resistant pests.  Even with these measures in place, researchers continue to evaluate and investigate new management techniques.  No pest control method is immune to development of resistance.  Weed control through tillage and rotation, for example, have encouraged resistance through crop mimicry and seed dormancy.  Diamondback moths exposed to the popular organic insect control, Bacillus thuringiensis (Bt) have shown resistance on at least one occasion.  Pest resistance is not a problem that is unique to GE crops and the means to effectively counter it are well known and used in practice. [EDIT 3/2/2013: An interesting case of weed resistance to hand weeding was recently brought to my attention as well.]

The concept of measuring herbicide (or pesticide) use through simple weights is a non-standard method for measuring product use that has unfortunately been popularized by C. Benbrook in his alarmist anti-GE publications.  For this reason, among many others, these publications have been shown to be inaccurate and misleading.  Because pesticides vary in molecular weight, formulation, efficacy, toxicity, and environmental impact, measuring their impact on a simple weight to weight basis has no meaning or relevance.  More appropriate measures such as the Environmental Impact Quotient (EIQ) are a much better choice.  These measures jointly account for important factors such as the levels of active ingredients (ai), their toxicity, and their environmental effects (EIQ ).  Using this type of metric, it can be shown that use of GE technology to replace an environmentally toxic herbicide like atrazine with a safer alternative, glyphosate, is beneficial (see for example: Brookes and Barfoot 2012).  Likewise, genetic modification of crops to express environmentally benign Bt toxins in order to replace multiple applications of toxic insecticides, provides a vast improvement in environmental and human health concerns. Accurate assessments of the potential environmental impacts of pesticide usage should be based on complete information and not simple “pounds used” comparisons.

This supportive I-522 statement is designed to identify GE technology as different from other agricultural practices and cast it as an environmentally dangerous alternative.  The truth is, however, that GE technology can, in fact, be a much more environmentally friendly choice.  The value of its benefits must be judged on a case by case basis and not summarily dumped into an ‘all are bad’ category.

(14) United States department of agriculture data shows Washington state ranks second in the nation for organic farm-gate sales at two hundred eighty-one million dollars per year. While total United States food sales are virtually stagnant, growing less than one percent overall, the organic food industry grew at 7.7 percent according to 2010 data. Sales of organic fruits and vegetables increased eleven and eight-tenths percent,  accounting for approximately twelve percent of all United States’ fruit and vegetable sales. Organic dairy, another key industry in Washington state, grew at nine percent and comprises nearly six percent of the total United States dairy market. Organic farmers are prohibited from using genetically engineered seeds or livestock feed.

(15) Trade industry data shows the organic industry is creating jobs at four times the national rate.

(16) Published data shows organic farming is more profitable and economically secure than conventional farming over the long term. This important element of Washington’s economy must be protected.

Section 1, Part (15) and Section (16) text not found in Proposition 37.

Section 1, Parts (14) through (16) are primarily promotional material for organic farming methods and have no direct relevance to I-522.  As stated in Section 1, Part (14), organic producers do not use GE products, hence they are labeled as non-GE by default and are not influenced by the direct labeling of GE products.  The implication and claim in Section 1, Part(16) is that GE somehow threatens organic producers.  There has been much talk about the possibility “GE contamination”, however, such claims are overstated as explained in this post and associated comments.  Farmers and producers routinely take precautions to prevent contamination in the crops that can cross pollinate.   In addition, some states have already implemented guidelines for controlling contamination where it might occur.  More to the point, it is not possible that a labeling initiative such as I-522 could or will address these issues.  These concerns must be, and are, dealt with through other means.  The profitability and security of organic versus conventional agricultural methods is far from established in any credible literature.  These qualities are highly dependent on the production system and markets for each particular commodity.  Whether organic is better or not, however, is irrelevant to the labeling question.  The fact that conventional systems , both with and without GE components, currently coexist with organic production systems without problems invalidates the protection claim of Section (16).  Organic production is not threatened by GE operations.

(17) Conventional farmers have a right to choose what crops they grow and many conventional farmers want to grow traditional crops developed without genetic engineering. Identifying seeds and seed stock produced with genetic engineering would protect farmers’ rights to know what they are purchasing and protect their right to choose what they grow.

This is straw man argument and simply a non issue.  Conventional farmers can already plant whatever they think is best for their situation and there is no reason to think they would not be able to in the future.  Many plant both GE and non-GE crops simultaneously (see for example: eatocracy.cnn.com [EDIT 3/2/2013: Lundberg Family Farms of California, a large supporter of Proposition 37 and founder of CaliforniaRightToKnow, farm 14,000 acres of organic and conventional crops together with no apparent problems]).  The vast majority of farmers plant seed or seed stock that is already certified by the USDA or state agencies to be what it says it is.  This ensures they get a uniform quality crop free of weed seeds and other pests.  Seed sold with certification is already clearly labeled and identified as GE or not.  In some areas, there is even a trend towards farmers moving back to non-GE crops because the enhanced GE traits previously employed have been so effective that they are no longer needed.

From: greenbook.net

                Jon Lundgren, Ph.D., entomologist with the USDA Agricultural Research Service in South Dakota, said, in general, there seems to be a “developing market for non-GM corn.”

                “Bt technology has been so effective for so long that we have eliminated the target pests in a lot of the growing regions. The European corn borer has been driven to such low populations that farmers are starting to wonder where did it go, and do I need to plant Bt corn every year. If the pest isn’t there, then the economic value isn’t there for Bt hybrids.”

The additional labeling of seeds and seed stocks by I-522 would be redundant to existing labeling and certification and would provide no additional information to producers.

(18) The purpose of this chapter is to ensure people are fully informed about whether the food they purchase and eat was produced through genetic engineering so they may choose for themselves whether to purchase and eat such food. Identifying foods produced through genetic engineering also will help protect our state’s export market.

The labeling proposed by I-522 is so general as to be useless for informing a consumer.  The labeling of products that qualify would contain no specific information on the type or nature of the modification, nor the ingredient(s) modified, nor the amounts present.  As shown below, the numerous product exemptions granted by the labeling initiative would completely confound consumers’ efforts to avoid GE products based on only the information provided by I-522.  Labeling information on non-GE product status is already voluntarily available to retailers and producers through the USDA Organic designation or GE testing organizations.

NEW SECTION. Sec. 2. The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.

Section 2 provides definitions for terms and phrases used in the initiative below.  No comments are given here.  Refer to the Initiative text for more information.

NEW SECTION. Sec. 3. (1)

Beginning July 1, 2015, any food offered for retail sale in Washington is misbranded if it is, or may have been, entirely or partly produced with genetic engineering and that fact is not disclosed as follows:

(a) In the case of a raw agricultural commodity, on the package offered for retail sale, with the words “genetically engineered” stated clearly and conspicuously on the front of the package of such a commodity, or in the case of such a commodity that is not separately packaged or labeled, on a label appearing on the retail store shelf or bin where such a commodity is displayed for sale;

The fact that raw commodities would be required to display GE labeling on the front of the package is troubling.  Why the front of the package?  Nutritional and health related labels are commonly found together on the side or back of the packaging.  Consumers know, through experience, where to find this type of information, yet this section intentionally deviates from this and requires the label to be on front, separated from other similar information.  California Proposition 37 had a similar clause.  A legal analysis of that initiative stated:

“The government may compel purely factual disclosures to consumers for purposes of preventing consumer deception.  The disclosures required by Prop 37—simple statements indicating that the product is genetically engineered—are factual in nature.  But there is room for debate as to whether the disclosures serve the state’s interest in preventing consumer deception.” (from: foodlawfirm.com).

In other words, if the information is factual (it is) and non-disclosure is intentionally trying to deceive a consumer, the government can force a producer to say something.  But there is a large doubt as to whether producers are intentionally deceiving consumers.  GE products are commonly used in US food items and their use is not a secret.  As part of the First Amendment to the US Constitution, the government cannot compel one to make unwarranted speech.  Forcing producers to put a label on the front of a package, in distinct area separate from other labeling information when no intent to deceive is evident, would appear to be compelled speech.  The legal analysis above concludes with “I predict that if Prop 37 passes, the lawsuit challenging it will contain a First Amendment Element.”  In all likelihood, passage of I-522 will generate this First Amendment battle.  The state will then be obligated to defend a potentially unconstitutional law.

(b) In the case of any processed food, on the front of the package of such food produced by a manufacturer, with the words “partially produced with genetic engineering” or “may be partially produced with genetic  engineering” stated clearly and conspicuously; and

Again, as with raw food items, the labeling information for processed foods is specifically required to be placed on the front of the package, unlike any other food related nutritional or health information.  This seems like a clear attempt to blatantly distinguish GE items as markedly different than non-GE counterparts, contrary to the overwhelming scientific consensus and Federal legal status of GE foods. The required separate and prominent placement of a GE label can be seen as an attempt to scare consumers away from such products. There is evidential precedence for this possibility.  Consumers tend to overstate the importance of labels placed only on the front of a package and separated from nutritional and health information. Given the common negative perceptions of genetic engineering that have been established by anti-GE efforts, the placement language in I-522 would seem to go beyond the implied purpose of a consumers ‘Right to know’ and instead tend towards consumer rejection of the labeled products.  In implementing I-522, the state would be complacent in actively denigrating certain products over others without justifiable cause.  For these reasons, the compelled speech arguments above should apply here as well.

Because the law has the ability impose substantial legal and financial consequences on producers and retailers, the label of ‘may be partially produced with genetic engineering’ is likely to be applied to most products by default simply to preemptively avoid such threats even at the cost of customer appeal. Such wording would of little use to consumers, however, since it is not a guarantee that GE contents are or are not present.  The only means for a consumer to guarantee the GE status of a product would be for them to purchase those labeled as Certified Organic or non-GE; Labels that already exist.  I-522 would provide no additional services to those that are already in place.

(c) In the case of any seed or seed stock, on the seed or seed stock container, sales receipt or any other reference to identification, ownership, or possession, with the words “genetically engineered” or “produced with genetic engineering” stated clearly and conspicuously.

As outlined in section 1, Part (17) above, this is redundant with current practice and government certification of seeds and seed stocks.  Seed companies such as Monsanto, for example, clearly labels all their GE products as such because that quality is a strong selling point for their farming customers.  This section may be present only as an aide in helping support and enforce the required chain of documentation necessitated by later sections of the bill.

(2) Subsections (1) and (3) of this section do not require either the listing or identification of any ingredient or ingredients that were genetically engineered, nor that the term “genetically engineered” be placed immediately preceding any common name or primary product descriptor of a food.

This portion of the initiative continues the removal of any useful label information for the consumer.  The labeling will not provide any clue as to what ingredient(s) are modified.  Referring back to Section 1- Part (1), Section 1- Part(3), and Section 1- Part(13), arguments are made that labeling would help: consumers avoid religious and dietary conflicts, aid the state in tracking health problems, and identify crop products that are herbicide tolerant.  The lack of specific information regarding GE content, however, clearly makes these initial claims false.  The vague labeling provided by I-522 provides no useful information to consumers or state officials.

(3) Subsection (1) of this section does not apply to any of the following:

Like its California predecessor, I-522 provides a long list of exemptions, often targeted at politically and economically powerful agricultural and food sectors. Section 3, similar to Proposition 37 Section 3, 110809.2, begins this list.

(a) Food consisting entirely of, or derived entirely from, an animal that has not itself been genetically engineered, regardless of whether the animal has been fed or injected with any food produced with genetic engineering or any drug that has been produced through means of genetic engineering;

Here an exemption is conveniently given to the entire dairy, livestock, poultry (meat and eggs) as well as farmed seafood industries where the animals may be fed, injected or treated with GE products indiscriminately with no adverse consequences from the law.  It is notable, and probably no coincidence, that these industries comprise up to 30% of Washington State’s agricultural income  and constitute a powerful lobbying group in state politics.  The author(s) of I-522 clearly want to avoid conflicts with these groups.

(b) A raw agricultural commodity or food that has been grown, raised, produced, or derived without the knowing and intentional use of genetically engineered seed or food. To be included within the exclusion under this subsection, the person supplying a raw agricultural commodity or food must provide a sworn statement that the raw agricultural commodity or food: (i) Has not been knowingly or intentionally produced through genetic  engineering; and (ii) has been segregated from, and has not been knowingly or intentionally commingled with, foods that may have been genetically engineered at any time. In providing such a sworn statement, a person may rely on a sworn statement from his or her own supplier that contains such an affirmation;

Section 2, Part(3.b) outlines the immunity of producers who inadvertently violate the law.  The caveat is that producers must be able to provide sworn documentation that each and every ingredient used is GE free (see Section 3, Part(1.c) above, for example).  As with Proposition 37, this section will induce substantial book and record keeping for producers.  Such documentation must be available for all production periods, commodity lots, and years of production, as long as the products are on retailer shelves.  Large retailers and producers can probably incur the costs of maintaining this documentation with little trouble. Smaller businesses, particularly artisan and home based operations, however, would find these additional regulations cumbersome and expensive.  Consider, for example, a small retailer at a booth in the world famous Pike Street Market selling a relish, salsa, preserve or similar product.  Such people would have to keep track of every ingredient they used in their products, documenting the source and potential GE content of each.  Likely, they would have made the product multiple times, with different sources for their materials each time.  Yet, they will be required to have documentation available for each and every instance.  This is far too cumbersome for such small producers who will have little choice but to submit to the “potentially contains GE” labeling, whether it is true or not.  Even if they were to decide to source materials from more expensive organic or certified non-GE ingredients, they would still need to have proof available to demonstrate this.  Small producers are left in a no win situation, regardless of their stance on GE.  Failing to document is not an alternative, as substantial, potentially crippling fines and legal consequences can be levied against them at any time, by any willing party, as mandated in the sections to follow.

It is clear that I-522 will place burdensome and binding inhibitions on small businesses who desire to sell food products in Washington State.  This is in contrast to the numerous exemptions given to large agricultural and food interests removing any liability they may have for GE contents.  Again, the State would find itself complacent in promoting one sector of agricultural business over another for no justifiable reason.

(c) Any processed food that would be subject to this section solely because one or more processing aids or enzymes were produced or derived with genetic engineering;

Another broad exemption which excuses food industry products such as cheese, yoghurt and bakery products that may use enzymatic components in production.  These enzymes are often manufactured through GE technologies.  Up to 80% to 90% of cheeses made in the US and Britain, for example, are made using a GE based rennet product.  These exemptions provide another chance to avoid conflict with economically important and powerful sectors of the agricultural community, many of which often portray themselves as natural and organic producers.

(d) Any alcoholic beverage that is subject to regulation under Title 66 RCW;

Washington State is regarded as number two in production of premium wines giving a 3 billion dollar boost to the state economy in 2006.  Since regulatory changes in 2008, distilleries are also becoming a large business in Washington State.  It is no surprise then that an exemption is also granted to such operations.  These producers may use GE products at will in their products without bothering with the labeling requirements specified in I-522.

(e) Until July 1, 2019, any processed food that would be subject to this section solely because it includes one or more materials produced by genetic engineering, provided that the engineered materials in the aggregate do not account for more than nine-tenths of one percent of the total weight of the processed food;

This clause introduces a time limit (exactly the same as Proposition 37) to the tolerance of 0.9% GE in affected products.  After this time, the implication is that no GE will be permitted, although obtaining such a zero tolerance level is practically impossible.  This will make application of the law difficult at best after the stated deadline.  This appears to be an underlying attempt to an eventual outright ban on GE products.  [Edit 4/5/2013: Lowering limits have been shown to greatly increase costs and make compliance all but impossible.  Even some organic farmers are concerned about this issue.]

(f) Food that an independent organization has determined has not been knowingly and intentionally produced from or commingled with genetically engineered seed or genetically engineered food, provided that such a determination has been made pursuant to a sampling and testing procedure approved for this purpose in rules adopted by the department. These rules may not approve a sampling and testing procedure unless it is consistent with sampling and testing principles recommended by internationally recognized standards organizations, such as the international standards association and the grain and feed trade association. No testing procedure may be approved by the department unless: (i) It does not rely on testing processed foods in which no deoxyribonucleic acid is detectable; and (ii) it is consistent with the most recent “Guidelines on Performance Criteria and Validation of Methods for Detection, Identification and Quantification of Specific DNA Sequences and Specific Proteins in Foods” (CAC/GL 74, 2010) published by the codex alimentarius commission;

This provision allows for private testing entities to give producers a non-GE certified status.  These agents, such as the Non-GMO Project typically provide the certification on a pay-to-play basis.  Again, the producer will be expected to fund any costs of certification and be required to keep track of the associated documentation to avoid coverage and legal consequences of I-522.  Labeling laws provide an attractive business opportunity for these groups.  Not surprisingly, such organizations were vigorous supporters of Proposition 37 and can be expected to offer strong support of I-522.

(g) Food that has been lawfully certified to be labeled, marketed, and offered for sale as “organic” pursuant to the federal organic foods production act of 1990 and the regulations promulgated pursuant thereto by the United States department of agriculture;

This section exempts certified organic producers who are prohibited by Federal law from using GE anyway.

(h) Food that is not packaged for retail sale and that either: (i) Is a processed food prepared and intended for immediate human consumption; or (ii) is served, sold, or otherwise provided in any restaurant or other food  service establishment that is engaged primarily in the sale of food prepared and intended for immediate human consumption; or

Probably the most substantial exemption in I-522, Section 2, Part(3.h) provides a free I-522 pass to all restaurants.  Americans are estimated to eat out an average of 5 times a week and spend as much as $142 billion on fast food alone.  By providing an exemption to the restaurant industry, I-522 proponents avoid a massive conflict with this prominent and economically powerful sector of the food economy.  Consumers who dine out, however, will find no use in the I-522 labeling initiative as chefs, cooks and restaurateurs will be able to use any and all of the GE ingredients they desire, without informing their patrons.  This makes the “Right to know” argument pointless for most citizens.  Proposition 37 saw a long list of celebrity chefs sign on as supporters, and with good reason; Their businesses would have been free of any obligation to comply with the labeling law.  It would be expected that Washington State, with its well known and revered chefs and restaurants, will also attract a list of food centric celebrities who support I-522.  They too, will be immune to its consequences, should it pass.

(i) Medical food.

The last of the exemptions list.   It is somewhat perversely amusing that an initiative that was earlier so concerned with dietary restrictions, allergens, adverse health effects, and unintended health consequences, should so casually and succinctly give an exemption that allows those under medical care to be fed GE products without informing them.  Apparently, eating GE products is ok if one is sick and under medical supervision.  They evidently do not qualify for the “Right to know’.

NEW SECTION. Sec. 4. The department may adopt rules necessary to implement this chapter, provided that the department is not authorized to create any exemptions beyond those provided in section 3(3) of this act.

The State may use any regulatory measures required to enforce I-522, but it cannot adjust or modify the exemptions it covers.  Once made law and surviving any legal challenges, changes to the regulations would be difficult.  Voters may offer a veto referendum (an initiative to repeal a law), but not immediately: From ballotpedia.org– “In Washington, no initiated statute may be amended or repealed for two years without a 2/3 supermajority vote of both chambers. Any initiated law, so amended, is not subject to veto referendum. After two years, the law may be repealed or amended by a simple majority vote.

NEW SECTION. Sec. 5. (1)

The department, acting through the attorney general, may bring an action in a court of competent jurisdiction to enjoin any person violating this chapter.

(2) The department may assess a civil penalty against any person violating this chapter in an amount not to exceed one thousand dollars per day. Each day of violation is considered a separate violation.

( 3) An action to enjoin a violation of this chapter may be brought in any court of competent jurisdiction by any person in the public interest if the action is commenced more than sixty days after the person has given notice of the alleged violation to the department, the attorney general, and to the alleged violator.

(4) The court may award to prevailing plaintiff reasonable costs and attorneys’ fees incurred in investigating and prosecuting an action to enforce this chapter.

Section 5 describes the legal claws of the measure.  In Parts (1) and (2), the state is authorized to bring a legal suit against a producer or retailer and seek financial penalties at the rate of $1000 per day.  Each day is considered a separate violation, requiring the defendant to account for all days that the plaintiff claims are in violation.  Recall from Section 2, Part(3.b) that this means the defendant will be required to produce the documented sworn statements for all the days in question.  Failure to show such documentation for even one day could still amount to a substantial fine.  This is another example where I-522 will place a heavy burden on small producers and retailers.

Parts (3) and (4) are similar to the clauses in Proposition 37 (Section 4, 111910, Parts (a) and (b)) that received extensive debate and attention.  These Parts of I-522 allow anyone to initiate court proceedings against a defendant, if the defendant fails to produce documentation or submit to labeling requirements within 60 days of notification to the state.  Once undertaken, the court can determine that the plaintiff’s legal and investigative costs be taken from the defendant.  In California, this was seen as an opening for frivolous lawsuits by anyone having the gumption to legally attack another.  This seems to be a possibility in Washington as well.  By extending the action of this law to the general citizenry, the initiative author(s) have potentially opened a legal doorway for unnecessary and costly legal actions.

Perhaps a more troubling aspect of Section 5 is that it represents a complete antithesis to the conceptual basis of US law where a defendant is assumed innocent until proved guilty.  In the case of I-522, the plaintiff merely needs to make the complaint.  No evidence is required.  The burden of proof is placed squarely on the defendant, even during the 60 day grace period.  They will either submit to the implied guilt of a “may contain GE” label or be forced to defend themselves in a costly legal battle. For this reason, and the potentially costly financial and legal consequences imposed by the bill, it is likely that most producers will preemptively opt to label all their products with the “may contain GE” designation.  In doing so, they would remove their own liability while simultaneously destroying what little utility the label might have provided in guiding consumer purchases.  Retailers and producers would be left to comply with a useless regulation while consumers would gain nothing except the burden of paying for enforcement and the underlying product costs.

NEW SECTION. Sec. 6. Sections 1 through 5 of this act constitute a new chapter in Title 70 RCW.

If passed into law, I-522 would become part of Washington’s Public Health and Safety regulations (Title 70 RCW).  The initiative provides no funding mechanism for the required monitoring or enforcement actions. [EDIT 3/2/2013: A similar GE labeling bill in Colorado which failed to pass, HB13-1192, was estimated to have cost $480,000 and require 5-6 full time employees to implement.]

NEW SECTION. Sec. 7. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.

Provision is given that the entire law cannot be struck down if one part of it is found to be invalid.   This is a standard clause in initiatives to ensure that a single faceted legal challenge will not defeat the entire law.

NOTE: This analysis was provided on a voluntary basis and was not supported by any organizations, industry or otherwise.

 

Follow Bill Price:

Statistician

I've worked in agricultural research for nearly 40 years and I am currently a statistician in the College of Agriculture at the University of Idaho. Any words written here reflect my opinions and not those of my institution or colleagues. Disclosure: In 1981 I interviewed with Monsanto Corp. It was mutually agreed that my long hair and lack luster attitude towards the corporate atmosphere did not match their requirements at that time.
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