The opening salvo in the battle over the proposal to label genetically modified foods includes ammunition that hit the mark last year in
Wrong on both counts, say supporters of Initiative 522. Pet food isn't covered by the initiative, but genetically modified meats, would have to be labeled – if they ever reach the local supermarket.
Each campaign can produce legal theories of the state’s complicated initiative case law to support their claims. The Yes campaign has mounted a response ad which the No campaign is actively rebutting.
The average voter might wonder whether it’s worth fighting about…
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… It likely is, because the pet food argument comes from the playbook that defeated a ballot measure last year in California. Proposition 37 had similar wording and many of the same big-spending donors, with major natural-product companies like Mercola and Dr. Bronner’s Magic Soaps contributing to the Yes campaign and chemical companies like Monsanto and DuPont subsidizing the opposition. (Click here to go to the Public Disclosure Commission page for initiative campaign reports.)
It also enjoyed an early lead in public opinion polls, as I-522 does now. But a $44 million campaign turned the tide, in part with an argument that Prop 37 was poorly written and had major inconsistencies, like requiring labels on canned pet food but not fresh meat.
“Pet food would be covered but meat for human consumption would be exempt,” Dan Newhouse, a former state agriculture secretary, says in recent commercials against I-522.
I-522 doesn’t mention pet food in its 2,448-word text. It does exempt meat that has been fed genetically modified products from the labeling requirements, but requires meat from a genetically modified animal to be labeled. No genetically modified animals have been approved by the federal government for commercial sale, although the Food and Drug Administration is reviewing a request to allow farm-raised genetically modified salmon to be sold to the public.
The key point is the initiative doesn’t define “food,” Rob Maguire, an attorney for the No campaign, said. So courts would look at the definition in Article 69 of state statutes, which deals with food labeling, federal law and the common dictionary definition of food.
“That’s just false,” Knoll Lowney, attorney for the Yes campaign, said this week. The initiative wouldn’t be part of Article 69, but Article 70, so that definition doesn’t apply, he said.
Courts would look first at the initiative, which says in the introductory section that its purpose is “to ensure people are fully informed about whether the food they purchase and eat was produced through genetic engineering”, Lowney said. People don’t eat pet food.
If supporters wanted to exempt pet food, they easily could have done so in the initiative, just like they exempted meat and dairy products, medical food and any food cooked at a restaurant, Maguire said.
“Why on earth would you leave a key term in the initiative undefined,” he said.
Both Lowney and Maguire agree that pet food would only have to be labeled if the state Health Department includes it in rules the agency must write if the initiative passes. If the department says no, a consumer who believes pet food should have labels could file a challenge. At that point, a court would review the kinds of arguments Lowney and Maguire are making right now. A judge would also consider the voter’s pamphlet, which also doesn’t mention pet food, and the Yes campaign’s statements, which deny it covers pet food, Lowney said.
Pet food manufacturers aren’t going to wait and take a chance, Maguire said. Even if the department initially says no, they'd face court costs from defending a consumer's challenge. (Editor's note: An earlier version of this post implied the consumer's challenge could result in a $1,000 day penalty. Under I-522, that penalty would only apply to a product that didn't have a label required by the Health Department.)
Lowney said there's one key differency between I-522 and Prop 37, despite the similar wording. In California, supporters wanted their proposed law to cover pet food. They tried to amend a part of that state’s statutes that covers human and animal food, so there was no dispute between the two sides on that point. Washington’s supporters are only concerned about human food, and put it in a different part of this state’s laws.
It wasn’t until after I-522 was drafted that opponents in California made headway by raising the pet food issue. “By the time the whole California thing happened, (I-522) was already out there,” Lowney said
That meant Washington supporters couldn't add specific language to I-522 to exempt pet food. Once an initiative begins gathering signatures, it can’t be changed.