Prop. 37: Another example of the perils of the initiative process

Love it or hate it, the one thing you can say for sure about California’s ballot initiative process is that it’s the absolute worst way to craft policy dealing with complex scientific issues.

That doesn’t stop advocates on one side or another from constantly trying, with the result that the public’s understanding of the underlying facts plummets faster than you can say, well, “Proposition 37.”

Proposition 37 is on November’s ballot. The measure would require some, but not all, food sold in California and produced via genetic engineering to be labeled as such. (There are exemptions for milk, restaurant food and other products.)

Genetic engineering, or genetic modification, which involves manipulating DNA or transferring it from one species to another, is increasingly common in agriculture and food processing, and wouldn’t be banned or even regulated by the measure. Genetic engineering has pluses and minuses. It can increase crop yields and pest resistance. But it can also affect the environment in negative ways — pollen or seeds from genetically engineered crops can be spread by wind, birds or insects to territory where they’re unwanted, for example.

Once you’ve said that, you’ve said pretty much everything that’s known to be relevant to Proposition 37. The rest is baloney, of the non-genetically engineered variety.

So what does this mean for you? It means that between now and election day your airwaves are likely to be filled with steaming piles of fatuous nonsense about genetically engineered foods (which will be depicted as horrifically perilous or absolutely safe), about trial lawyers, about struggling mom-and-pop grocery stores, about the evils of multinational agribusinesses and federal regulators. You’ll be presented with learned scientific and economic studies on both sides, and they’ll almost certainly be misleading, incomplete or irrelevant, though they’ll sound pretty danged convincing.

This will all come to you courtesy of war chests that are already in the neighborhood of $30 million, total.

Great initiative system we have here in the Golden State. As a procedure for producing rational law, it could only be designed by a mad scientist working with rogue DNA.

Let’s start with the Yes on 37 campaign. It describes its bottom line as your right to know what’s in your food; so what’s wrong with mandating explicit labeling? That’s fair as far as it goes, but it doesn’t go very far. The danger in enacting rules like this is that while they sound perfectly reasonable, they distract from the need for thoughtful and effective regulation and for action at the Legislature, not the ballot box.

“All consumers should have a right to know how their food is produced,” observes Gregory Jaffe, head of the biotechnology project at the Center for Science in the Public Interest, which is no crony of the food industry. “But that includes not merely genetic engineering, but irradiated foods and those produced from cloning.”

Singling out genetically engineered products misleads consumers into thinking they’re the most dangerous products, which may not be true. Jaffe says his group hasn’t seen evidence of any safety risk from eating food produced from genetic engineering; the methodology is widely used to produce corn, soybeans and canola, but Jaffe says those crops are so heavily processed that by the time they cross consumers’ palates they’re biologically and chemically indistinguishable from non-genetically engineered versions.

In any case, he says, if a food is dangerous it shouldn’t be on store shelves, labeled or not. The real regulatory gap is that biologically engineered foods don’t require Food and Drug Administration approval before they’re put on the market. (The FDA can order them removed if problems develop subsequently.)

Something else voters should be aware of is who’s backing Proposition 37. The biggest donor is Joseph Mercola, who with his companies has contributed at least $1.1 million so far. The smooth-talking Mercola’s Chicago-area company and clinic make millions from hawking “organic” nostrums and casting doubt on medical science. He’s attracted regulatory warnings from the FDA on three occasions, most recently for touting thermography as an alternative to mammograms for breast-cancer screening. Medical science regards this as dangerous advice because thermograms aren’t effective in identifying many tumors, while early detection via mammograms has saved the lives of millions of women. A Mercola spokesman says he has “worked with the FDA to resolve all concerns.”

Mercola also backs a campaign against child vaccination, and not only promotes sun exposure as a health benefit but also conveniently sells tanning beds and booths on his website for as much as $3,999.

The Proposition 37 campaign manager, Gary Ruskin, disputed the relevance of Mercola’s background to the push for the initiative. “We don’t endorse everything our supporters say,” he told me.

Sorry, that won’t do. Mercola isn’t just any backer of Proposition 37; he’s the biggest donor, and one who has built his business around some of the scare claims inherent in an anti-genetic engineering initiative. Moreover, he didn’t just write a check — he was solicited to contribute in February by Doug Linney, then the initiative’s campaign manager, who could not have been unaware of Mercola’s history.

The campaign’s founding organizer, Ruskin says, is Pamm Larry, 56, a Chico business owner and organic farmer who says she began traveling the state earlier this year on her own to drum up interest in a ballot measure.

Larry has appeared in a promotional video with Mercola and clearly has been deeply influenced by him. “I really admire the man and very much admire his integrity,” she says. She has bought into Mercola’s depiction of the FDA as a wickedly ineffective bully — she praises him for “standing up” to the agency over mammograms — but her grasp of the facts is poor.

“The FDA approved thalidomide!” she informed me during a brief interview, referring to the morning-sickness drug that produced an epidemic of birth defects in the 1950s and 1960s. Well, no. The FDA banned thalidomide, sparing the U.S. from the worst of the disaster. Meanwhile, she seems to think Mercola’s interest in Proposition 37 is entirely altruistic, despite his multimillion-dollar “natural” products empire.

On the other side of the ballot campaign is, big surprise, the food processing and agribusiness industries. Biggest donors to “No on 37” (as of Aug. 15): Monsanto ($4.2 million), DuPont ($4 million) and PepsiCo ($1.7 million).

They contend, among other things, that the measure would increase California farmers’ costs by $1.2 billion a year. Their source? A study for which they paid two UC Davis agriculture professors, Julian M. Alston and Daniel A. Sumner, at least $30,000. Their paper acknowledges that the direct implications of the initiative for California agriculture “are very difficult to assess,” a disclaimer you won’t find in the No on 37 advertising.

The study assumes that food producers will respond to Proposition 37 by removing genetically engineered ingredients to avoid the labeling. The authors don’t devote much attention to the possibility that producers will respond to the labeling mandate by simply relabeling, which seems the easiest course since as much as 70% of the food in our groceries contains some genetically engineered ingredient.

Sumner told me the main resistance to labeled foods may come from supermarkets — because they fear not customer backlash, but street activism. “If I’m Safeway, I could figure that 95% of my customers may not care … but what they don’t want is somebody dressed in a Frankenstein suit marching in front of the store.” Is that a plausible concern? Here’s betting that the Frankenstein regalia will get pretty old pretty quickly for anyone inclined to marching in front of his local Vons in the heat or rain.

Another claim is that Proposition 37 will generate “shakedown” lawsuits against mom-and-pop groceries because the measure allows private attorneys to sue to enforce the law. The No campaign cites Proposition 65 of 1986, which mandated those now-familiar warnings about toxic chemicals on buildings and workplaces and was drafted by James Wheaton, an environmental attorney who also drafted Proposition 37. “The real threat is not against giant companies but small businesses,” says the No campaign’s legal advisor, Tom Hiltachk.

Yet there’s a difference between the two measures. Proposition 65 granted private attorneys a share of fines and penalties exacted from violators, making it more of a bounty system. Proposition 37 doesn’t — private attorneys can sue only to obtain injunctions, not penalties, Wheaton says. They can get their legal fees paid if they prevail, but a big score plainly doesn’t exist.

The measure’s opponents say small businesses will still be vulnerable to petty legal harassment, but Wheaton contends what the opponents really desire is to limit enforcement to the attorney general or district attorneys, who are sure to treat it as a low priority. “They want no enforcement,” he says.

Anyway, Proposition 37 is aimed chiefly at food processors; the No campaign’s professed concerns notwithstanding, the entities it’s looking out for aren’t mom-and-pop fruit stands but Gog and Magog-scale companies like Monsanto and DuPont. Those firms’ interest lies in quelling public activism against genetically modified foods, and the best tool for that is to limit the flow of information.

The public’s interest, for that matter, lies in a reasoned, informed debate about whether to label, what to label and how to label. In the next six weeks that debate will be waged in 15- and 30-second television spots, and that’s no way to make law.

Michael Hiltzik’s column appears Sundays and Wednesdays. Reach him at [email protected], read past columns at latimes.com/hiltzik, check out facebook.com/hiltzik and follow @latimeshiltzik on Twitter.