On November 6, 2012, Californians voted on Proposition 37, which would have required that foods produced from genetically engineered crops be labeled as such. Support for Prop. 37 was high two months before the election, but it plummeted in the final month to a near tie. It was defeated 53 to 47 percent, and this reversal of public opinion about the proposition has led to many speculations about why it failed. Michele R. Simon, a lawyer and paid writer and spokesperson for the Yes on 37 campaign argued that it lost due to “Lies, Dirty Tricks, and $45 million,” pinning its defeat almost entirely on being outspent by industry using “propaganda and dirty tricks.” However, I believe she missed an opportunity to assess the mistakes committed by the Yes on 37 campaign, along with the proposition’s inborn errors. I would like to offer an alternative view on the reasons why Proposition 37 failed, and make some suggestions that labeling proponents might want to take to heart. Lie for a Lie? First, I would like to address a few of the claims about “lies” and “dirty tricks” that Simon listed. She pointed out that No on 37 made an error in identifying Henry Miller as being with Stanford University, rather than the Hoover Institution at Stanford University, leading to the ad being pulled and redone. Stanford University has a policy against advocacy that may imply that the University supports the opinions being expressed. However, the Yes on 37 also pulled and re-edited their own video after a similar error, which implied that James McWilliams Ph.D., an associate professor at Texas State University at San Marcos, had said that DDT was “safe.” McWilliams told me in an email, “It’s a gross distortion of what I argue in my book. Frankly, I’m offended by the way I’ve been taken out of context, especially by an organization seeking transparency.” The old version was hidden from view (but still available online), changed, and just like the No campaign, no public apology was made. The No on 37 campaign sent out a campaign mailer that misused the FDA logo, and Simon is right to criticize them for the misleading way the quote was presented. However, the FDA has in fact maintained that mandatory labeling of GE foods is “inherently misleading.” The quote was genuine, it just wasn’t specifically about proposition 37. But then 4 days before the election, the Yes on 37 campaign falsely claimed that the Department of Justice and the FBI had opened a criminal investigation of the No on 37 campaign, which was denied by the DOJ. What semblance of an upper hand the Yes on 37 campaign had about the position of government agencies was erased by this last-minute venture. The Yes on 37 campaign also has its share of misrepresentations of scientific groups. For instance, it took a quote out of context from a National Academy of Sciences NRC report to try to make it sound like GE foods were particularly risky. The full quote, however, indicated that old fashioned plant breeding carried the same kinds of risks. My point is that most of the “dirty tricks” and “lies” are the kinds of errors that campaigns make in a hotly contested political battle, always eager to gain an edge – and neither side was immune to this problem. Simon is avoiding the questions that cut to the heart of the details of Prop. 37, focusing instead on these tactical distractions. Why Did Californians Reject Proposition 37? The Yes on 37 campaign tried to make people afraid of GE foods, despite the scientific consensus that they are safe. Faced with a political campaign trying to drum up fears that experts on the subject swiftly deny as baseless, voters grew suspicious. Then, in September, a controversial study was published claiming that GE foods caused tumors in rats, and the Yes on 37 campaign immediately and uncritically jumped on it as proof-positive of the need for labels to warn people about GE foods. Yet, about a week later, this supposed cancer link was dropped completely by the campaign. That’s because the scientific community and science journalists together jumped on the study and laid bare its critical flaws. This led to Michael Hiltzik of the LA Times criticizing the Yes on 37 campaign for using “weapons-grade junk science.” Promoting fringe studies and denying the weight of literally hundreds of published peer-reviewed scientific studies backfired, and the campaign had to defend itself against accusations that it was anti-science. Nevertheless, in a last-ditch attempt right before the election, Yes on 37 secretly included claims of tumors and organ damage in their phone banking scripts and materials, where experts would be unable to respond. Despite this effort, the fact is that more consumers believe that GE foods are safe than not, while most are undecided. Claiming that so many foods that people eat were dangerous did not resonate with voters.

The No on 37 campaign waged its own campaign of fear – but instead about economic impacts and the potential for lawsuits. While I think the $400-per-person figure was a worst-case-scenario and an exaggerated figure, the Yes on 37 campaign made an even less credible claim – that it would cost companies and thus consumers absolutely nothing! Even voters with little to no knowledge of how our food system works can see that record-keeping is not free. Others realized that tracking and segregating GE from non-GE commodity crops would increase the costs of the 70-80 percent of processed foods that contain them. People learned from the campaign that many food products may contain GE foods, but also that they could avoid them if they wished by looking for “non-GMO” labels that already exist on products. The question then became, what were the motivations of the sponsors of Prop. 37? The primary financial backers of Proposition 37 were organic food corporations and advocacy organizations that would benefit from the measure. Ronnie Cummins, director of the Organic Consumer’s Association and Fund, which donated $1 million to the Yes on 37 campaign, revealed in an open letter that market share was in fact a goal. He said, “[How] 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.” The ban on “natural” labels in the proposition also reflected this interest. Organic foods compete with other “natural” foods for the same market niche, but in the effort to give them a marketing edge, this provision was so carelessly worded that even the State said that it could ban “natural” from all processed foods sold in California. Don’t get me wrong – I like organic agriculture and its goals, and I think it can actually work together with technologies like genetic engineering. But the financial interests on the Prop. 37 side were clear, just as clear as the financial interests of the biotech and food companies that opposed it. Finally, California has already had a bad experience with labels that did little to inform consumers and increased litigation. It didn’t help that Prop. 37 was written by the same lawyer who wrote and profited from prop 65, which led to useless cancer warning labels ad infinitum. While Prop. 37 was different in some respects with how it would have been enforced, Yes on 37 said – and I took them at their word – that there was no financial incentive to sue. Stacy Malkan said in a press-release dated on October 13, “And any penalties from a violation go only to the state, not the plaintiff or lawyer.” (Original text preserved in comments here.) However, during an interview I conducted with both sides, Kathy Fairbanks of the No on 37 campaign pointed out to me that you could indeed have sued for damages. I investigated the claim, and found that Fairbanks was correct. For a week I repeatedly asked the Yes on 37 campaign to verify this, and I was ignored. Instead, they quietly changed their press release during the week before the election to say that the state gets the damages only if the state sues. In other words, if a plaintiff or lawyer started the lawsuit, they can get damages and penalties for all mislabeled products. The Yes on 37 campaign did not even know how the enforcement section of their own proposition worked! Few voters probably noticed this exchange, but faced with competing stories about incentives for lawsuits, many Californians probably had a realization similar to mine. When polled, 90 percent of consumers say that they would like labels on GE foods, however, this does not mean that they would automatically accept a labeling scheme. When you include cost as a factor, support drops precipitously. This is because consumers, while they want to have more information about their food, are not as willing to foot the bill for this information. Polls that do not try to figure out how much people are willing to pay are useless in this regard, and it is a mistake to assume that people will automatically vote without considering the consequences. Instead of having an election that changed nothing, all the millions of dollars spent by either side could have gone to make an impressive public education program instead. Of course, the No on 37 campaign vastly outspent Prop. 37 proponents in advertising; however that alone does not make people vote one way or the other. Kent Bradford, Ph.D., who directs the Seed Biotechnology Center at UC Davis said, “If the supporters of Prop 37 had presented a simple initiative, enforced in a simple way and without all of the special interest exemptions, it might have passed. Instead, they chose to implement enforcement through lawsuit mechanisms sure to be abused, they included ambiguous language about the scope of their ban on the use of the term ‘natural,’ and they offered exemptions to an array of foods and food sellers mainly to avoid having them actively oppose the initiative. These components of the initiative provided the opportunity for the No on 37 campaign to advertise these flaws, which eventually overcame the message that Prop 37 was simply about the “right to know.” Proposition 37 may ultimately have been its own undoing. Had its proponents been more forthright about the costs of regulation, enforcement and record-keeping, the revelation that it would cost money would not have been a surprise. Had it been drafted better, more openly and not served narrow interests, it may instead have become law in California. Its defeat will put a damper on similar efforts in other states as well as nationally. Given these political realities, it would be a mistake to continue on the present course. If supporters of mandatory GE labeling are to have any hope of achieving their goals, they need to stop misrepresenting the science, be honest about what kinds of costs different labeling schemes would bring, and reach across the farm rows to work with the other side. Members of the industry need to also be willing to listen to their concerns, because this issue will not just go away. I myself am open to the possibility of requiring labels on genetically engineered foods, but it comes down to the benefits versus the drawbacks. Imagine if there was a labeling scheme that was informative, inexpensive, served the public interest and was not part of an effort to compete with or eliminate GE foods. You would have an army of scientists, major food companies and people like me on your side. Note: I have not received any funding from either of the proposition 37 campaigns, nor any biotech or food company.