The claims: TV ads opposing Initiative 522, the ballot measure to label genetically engineered foods, contend it’s riddled with unfair exemptions.
In one spot airing since September, former Washington agriculture director Dan Newhouse tells viewers I-522 “would require some foods to have special labels but give exemptions to others made with the same ingredients.”
As he speaks, several food items appear on-screen for comparison. Soy milk, juice and bread successively flash on one side of the screen, above the text: “Labeled ‘genetically engineered,’ even if there is no detectable level.” On the other side, a carton of cow’s milk, beer and liquor, and cheese appear above the text, “Exempt even when produced with genetically engineered products.”
Over a final comparison — between a can of dog food on the “labeled” side and a package of steaks on the “exempt” side — Newhouse says: “It’s so badly written that pet food would be covered but meat for human consumption would be exempt.”
In another ad, also airing since September, former state Attorney General Ken Eikenberry tells viewers I-522 “would require some foods to be labeled as genetically engineered, even if they’re not. But it gives special exemptions to many foods that contain or are made with GE products.”
As Eikenberry speaks, cow’s milk, cheese, eggs, steaks, beer and liquor appear above the caption “exempt from labeling even if made with genetically engineered products.”
What we found: Each ad contains some true and some misleading elements.
I-522 indeed exempts from labeling requirements certain foods and drinks, as it applies only to “any food offered for retail sale” — essentially, food sold in stores.
The measure exempts takeout food, food provided by “any restaurant or other food service establishment,” and “medical foods,” such as those provided under a doctor’s supervision.
It also excludes certain food categories, such as certified organic foods and those produced with genetically engineered processing aids or enzymes.
Drafters of the initiative say the exemptions were written to harmonize with existing federal labeling regulations as a way to ease compliance for food producers and safeguard the measure against potential legal challenges.
“We didn’t want to contravene federal law in any way,” said Trudy Bialic, the Yes on 522 campaign co-chairwoman. “Most of the exemptions in this are completely congruent with the existing federal labeling laws.”
And that includes I-522’s exemptions for restaurants, medical food, foods produced with processing aids and alcohol, Bialic said.
A review of corresponding federal laws and interviews with a Washington State University agriculture professor and a U.S. Food and Drug Administration spokeswoman separately confirmed most of Bialic’s assertions about existing federal labeling exemptions.
Still, opponents argue the measure’s exemptions create too many inconsistencies.
“They’re confusing and inconsistent,” No campaign spokeswoman Dana Bieber said.
Perhaps that’s a valid point. But the opposition’s ads in question didn’t stop there.
Meats, milk and eggs
Both ads display several images of packaged animal products — including steaks, eggs and cow’s milk — when claiming such items would be exempt from I-522’s labeling.
But Chuck Benbrook, a WSU agriculture professor and former director of the National Academy of Sciences’ agriculture board, noted no genetically modified animals or their byproducts are sold for consumption today.
The FDA is considering a genetically engineered (GE) salmon for marketing, FDA spokeswoman Shelly Burgess said. But until it’s approved, America’s food markets remain devoid of any GE animal products.
So, despite the ads’ implications, no genetically engineered steaks — or chicken parts, eggs or cow’s milk — exist.
Opponents say they made such claims based on language that exempts products derived from an animal “that has been fed or injected with any food produced with genetic engineering.”
Genetically engineered corn and soy are commonly used as animal feed.
But Benbrook said labeling opponents are taking a leap by implying that because an animal eats feed with genetically engineered ingredients, the animals are somehow genetically engineered.
“They’re trying to make a political point,” he said. “But it’s misleading.”
In fact, should any products from GE animals one day be approved for sale — such as the salmon now under review — I-522 would require them to be labeled. The measure says it exempts only a GE-injected or -fed animal “that has not itself been genetically engineered.”
So, it’s true products from animals that eat feed with genetically engineered ingredients would be exempt under the measure. But the ads’ suggestion that I-522 excludes from labeling genetically engineered animal products is misleading. Overall, the ads’ claims about meat, milk and egg exemptions are half true.
That claim that I-522 would require labels on pet food appears to be a carry-over from opponents’ successful ad campaign to defeat Proposition 37, a similar labeling measure that barely lost in California last year. Under that state’s definition of food, pet food is included.
But supporters of I-522 say such a contention is false in Washington’s campaign, because a paragraph in the measure states its purpose “is to ensure people are fully informed about whether the food they purchase and eat was produced through genetic engineering …”
Rob Maguire, a Seattle attorney representing the No campaign, said that statement is contained in a nonbinding section and conflicts with other wording in the measure, creating an ambiguity.
Maguire added that because the initiative doesn’t actually define what food is, courts tasked with deciding the meaning would first look to the dictionary, then likely to definitions applied under existing federal and Washington state laws. Most such definitions say food means items consumed by people and animals.
“As a textual matter, the initiative says that it applies to ‘any food offered for retail sale in Washington,’?” Maguire said. “And, the standard definition of food applies to both people and animals.”
University of Washington Law Professor Sean O’Connor agrees Maguire’s argument is credible.
“If it ended up in court, that could be a winning argument,” said O’Connor, who specializes in biotechnology and food-and-drug law.
O’Connor also noted I-522 contains its own definitions section, but didn’t include food in it — leaving the definition open to interpretation.
But O’Connor also said such a dispute might never end up in court.
“It only becomes an issue if the state, when it’s implementing this, decides to apply it to pet food,” he said. “If that happens, then a private party could bring a challenge forcing the court to decide it. But it’s not clear anyone’s going to do that.”
So, the pet-food dispute comes down to a legal hypothetical. If a court were to decide it, pet food could be covered under I-522. But the ad’s claim it “would be covered” is a stretch. The pet-food claim is mostly false.
Alcohol and cheese
The No camp’s most accurate claims about I-522’s exemptions appear to be those based on alcohol and cheese.
Supporters say that, like with I-522’s other exemptions, they looked at existing federal food labeling regulations to make parallel exceptions for food produced with GE processing aids or enzymes, such the cheese-producing enzyme chymosin. Though cheese isn’t specifically cited as exempt, I-522 supporters say it would fall under the measure’s enzyme exemption, if produced with genetically engineered chymosin.
Estimated to aid production in up to 70 percent of domestic cheeses, bioengineered chymosin, also known as rennin, is cheaper and more consistent than its animal-produced natural counterpart. Such enzymes help curd milk into cheese but don’t actually appear in the end product.
The FDA confirmed most processing aids and enzymes are typically exempt from federal labeling requirements. But Burgess, the FDA spokeswoman, noted that chymosin has several different uses.
“If chymosin is used as an enzyme to make cheese,” she said, “it is required to be declared as part of the ingredient statement on cheese products.” Only the word “enzyme” is needed under such labeling demands, Burgess added.
Likewise, supporters say they exempted alcohol from I-522’s requirements because, they contend, it’s exempt from federal labeling requirements. Some alcohol products could include genetically engineered ingredients, such as corn or brewing enzymes.
Alcohol is “not considered a food under federal regulations,” Bialic said. “It’s regulated by a different agency (than the FDA), which does not require the same labeling as traditional kinds of food.”
Existing federal labeling of alcohol actually falls to two agencies. Most alcohol is regulated by the U.S. Treasury Department’s Alcohol and Tobacco Tax and Trade Bureau (TTB), but the FDA also oversees certain low-alcohol wines and non-malted beer. And, alcohol is indeed considered a food under the federal Food, Drug and Cosmetic Act, said TTB spokesman Tom Hogue.
Federal labeling requirements for alcohol vary by alcohol type. Nutritional labeling for beverages under the TTB’s authority isn’t required, but health warning labels and other labels for certain products are mandatory. Alcohol products regulated by the FDA are subject to the same labeling requirements as conventional food, including possessing nutritional and ingredient labels, Burgess said.
“States impose their own labeling requirements on alcohol beverages,” added Hogue.
Even though any GMO ingredients potentially in alcohol and cheese wouldn’t be major components, both products could be subjected to labeling under I-522 without conflicting with federal regulations. So, the ads’ claims about their exemptions ring true.