In the bruising, high-dollar battle over California's Proposition 37, truth has often been a casualty.
On Nov. 6, voters will decide whether to approve the country's first law requiring labels for genetically modified foods. More than $36 million has flowed into the campaign so far, with opponents out raising supporters 8 to 1, led by $7 million from St. Louis-based biotech giant Monsanto.
Yet even as the campaigns start to heat up, both sides have already pushed questionable science, dubious studies and uncertain claims in pursuit of votes, underscoring that the stakes are high, and the fight testy.
"There are so many inaccuracies they are hard to count," said Stacy Malkan, a spokesman for the California Right to Know campaign, of the better-funded opposition.
The fight has been heated from the beginning. On the supporters' side, they argue that the measure is about the public's right to know what is in their food.
But they've touted studies suggesting -- though not concluding -- genetically-engineered foods pose a threat to humans, a stance at odds with both the federal government, the World Health Organization and the American Medical Association.
"They're trying to scare consumers into believing GE foods and biotech crops, that there's something wrong with them when the scientific evidence doesn't back that up," said Kathy Fairbanks, a spokeswoman for the No on 37 campaign. "They're making it up. It's not true."
example, last week the Right to Know campaign hastily organized a conference call for reporters to discuss a sensational French study showing Monsanto corn caused tumors in lab rats. Several days later, it re-emphasized the study in a press release.
But the study has been broadly questioned, including for using rats prone to tumors and for the small number of animals used. Several experts wondered how altering plant DNA could even trigger tumors.
"In my opinion, the methods, stats and reporting of results are all well below the standard I would expect in a rigorous study - to be honest I am surprised it was accepted for publication," said University of Cambridge professor David Spiegelhalter, one of a series of expert comments posted on the London-based Science Media Centre website, an independent clearinghouse for scientists to weigh in on current topics.
Malkan said the French study employed many the same methods as studies produced by the biotech industry. And she defended the campaign's touting of that and other studies as legitimate comment, not scare tactics.
"It's absolutely fair, because there are legitimate health concerns," Malkan said. She said the campaign's position is not that genetically modified organisms, or GMOs, are dangerous, only that there are questions.
Biotech backers say technology could make crops more efficient and last longer, improving food delivery for a booming population here and abroad. Many authorities have signed off on genetic alterations to food, saying they are no different than traditional plant breeding.
Still, not everyone is comfortable with GMOs. Dominican Hospital owner Dignity Health is trying to remove GMO foods from its hospitals wherever possible. Sister Mary Ellen Leciejewski, ecology program coordinator, said improved labeling should help the network of more than 40 hospitals achieve its goal.
But the issue that seems to have inspired a cavalcade of newspaper editorial boards to auger against Prop 37 is one that the No on 37 campaign has hammered at from the beginning: that the measure is really a full employment act for trial lawyers.
That claim is debatable. The text of the law clearly allows lawyers to sue for injunctions to stop mislabeling of processed foods, and allows prevailing lawyers to collect costs and fees -- standard for legal cases.
But that is where the two sides part. The proposed law's author, environmental attorney James Wheaton, did help draft the controversial Prop 65, a law allowing for suits over exposure to toxic chemicals that some say has been abused.
But Wheaton maintains that Prop 37 is different from Prop 65, and at one point was quoted saying Prop 37 doesn't allow for legal windfalls in the form of penalties.
That's doesn't appear to be true. Right to Know campaign legal advisor Joe Sandler acknowledged that lawyers could win damage awards under the Consumer Legal Protection Act, though he maintained the two initiatives are different.
"It's not like Prop 65, where there are all kinds of incentives to bring suits and get big contingency fees," Sandler said.
Michael Steele, a San Francisco attorney who sometimes defends Prop 65 cases, disputed that. He said anyone who produces or sells mislabeled goods -- including mom-and-pop corner stores -- could be sued under the law, and that it does allow for damages.
"I think it's just a setup," Steele said.
Sandler disagreed, and said suits would be dismissed if companies corrected their labels. He added that Prop 37 gives companies a defense for honest mistakes: if their suppliers certify products are GMO-free, they're excused from any case.
"If you get certification from your supplier that this is not GMO, then you're protected," Sandler said.
Steele asserted Prop 37 is not clear on this point, but he did concede another point. Even if Prop 37 were passed without a litigation clause, trial lawyers could still sue over labeling -- the measure doesn't give them anything they don't already have.
Those suits could be filed under laws against deceptive advertising, or under broader statutes addressing unfair business practices. Though widely criticized, the latter law gives trial lawyers a wide berth when it comes to making claims against companies.
Despite those laws, Steele said the Prop 37 language concerns him, and probably makes it easier to file a suit.
"It raises the question of why all this additional stuff," he said.
In a press release, No on 37 even associated notorious trial lawyer Bill Lerach with the measure, noting archly Lerach's past dealings with Wheaton's firm and the fact that Lerach's wife, Michelle, donated $25,000 to the campaign.
But Lerach -- whose career focused on Wall Street misdeeds, not consumer law -- can't sue over Prop 37. He was disbarred in 2009 following a conviction for obstruction of justice related to suspect litigation tactics.
Also unmentioned is that while Michelle Lerach did donate to the Right to Know campaign, she has in interest in the debate -- she owns an organic cupcake business in La Jolla.
Both sides have also touted studies about the cost of Prop 37 without advertising that they, or their allies, paid for them. Understandably, those studies came to favorable conclusions for their respective patrons.
For example, the Right to Know campaign's website includes studies minimizing both the costs and any resulting litigation from Prop 37. Those studies, conducted by experts at George Washington University and Emory University School of Law, were both paid for by the Alliance for Natural Health, which supports the measure.
No on 37 has also produced two studies about the costs associated with Prop 37. One argues that Prop 37 would cost households up to a whopping $835 in added grocery costs a year, while the other argued it would cost the state's agricultural industry $1.2 billion.
If the first were true, that could top $10 billion in added household food costs across California. But that high-end figure assumed something that seems highly unlikely -- that the California food industry would switch to organics -- and far exceeds estimates in most other studies.
Merely changing labels was estimated to cost much less, but still $300 million to $800 million. That is closer to, but still much higher than, a 2003 Oregon study for a failed labeling vote there that found the costs to be $3 to $10 per person.
No on 37 paid for both studies. The former was produced by Boston-based Northbridge Environmental Management Consultants, which has been paid $55,000 by No on 37, according to state campaign finance reports. The report also includes loaded language, including 17 references to "bounty-hunter" lawsuits.
The latter was produced by two UC Davis professors. The school's ties to the biotech industry were documented in a 2007 investigation by the Sacramento Bee, and co-author Julian Alston was paid $30,000 by the No on 37 campaign, which is primarily funded by the biotech industry.
To come up with the $1.2 billion, the authors estimated the value of California crops used for processed good and applied a 3 percent premium, based on the meat industry's experience with a nationwide county-of-origin labeling law.
But when the U.S. Department of Agriculture originally published that rule, the agency singled out fruits and vegetables -- meats are exempt from Prop 37 -- as being easier and far cheaper to track than meat.
Report co-author Dan Sumner, a UC Davis agricultural economics professor, said the meat analogy is close to what he predicts for state growers, including extensive record-keeping and separate crop handling and processing.
"There's a case where they needed to separate the raw materials," Sumner said.
And neither study addresses that U.S. food producers already have to deal with labeling restrictions. With America's agriculture industry having worldwide reach, farms and producers are undoubtedly exporting to the European Union, Japan, China, Australia, Russia and more -- all countries with some form of GMO labeling laws.
"They don't have the lawsuit business and they don't have the zero tolerance that's coming," Sumner said, when asked why he didn't analyze this. "It's quite a different deal."
There are concerns about Prop 37, even from those that support it. One source of controversy is the amount of biotech product that would allowable before a GMO label must be applied.
The law sets that limit at one-half of one percent, and at zero beginning in 2019. A common standard is 0.9 percent, and while Whole Foods Market endorsed the measure, it wants some changes made if voters approve it.
"Because of the inconsistency in thresholds and the lack of Attorney General oversight, manufacturers could be compelled to label products with 'May be Partially Produced with Genetic Engineering' even if it is not the case to avoid costly litigation and protect themselves," the company wrote on its website.
The money being poured into the No on 37 campaign speaks to the biotech industry's concerns over the law. The vast majority of American processed food contains genetically-engineered foods.
And while newspaper editorial boards seem to be lining up against it, their money hasn't seemed to gain much traction with voters, at least yet. A Thursday L.A. Times poll shows more than 2 to 1 support for the measure, at 61 percent to 25 percent.
In addition, a Thursday tracking poll by the California Business Roundtable and Pepperdine University showed opposition to Prop 37 dropped over the last two weeks to 22 percent, while support remained unchanged at 66 percent.
"It appears to indicate that their campaign of lies is not working well," Malkan said.
But No on 37's campaign is just getting underway in earnest, having hit radio airwaves last week and rolling out television ads on Tuesday. Fairbanks pointed to part of the L.A. Times poll suggesting support drops once people learn more about the law.
"It seems like the more people learn about Prop 37, the less they like it. Which is a good sign," Fairbanks said.
Follow Sentinel reporter Jason Hoppin on Twitter at Twitter.com/scnewsdude
©2012 the Santa Cruz Sentinel (Scotts Valley, Calif.)
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