Justice Department Drawn into Prop 37 Debate

CALIFORNIA As the Nov. 6 election draws nearer, the debate over California's initiative requiring labeling of genetically engineered food is becoming more explosive.

In a letter sent Thursday to federal authorities, the campaign in favor of the initiative has accused opponents of fraud and potential criminal behavior through misrepresentations in written materials.

Yes on 37 Accuses Opponents of Fraud

The Justice Department should investigate this fraudulent dirty trick perpetrated by the No on 37 campaign," said Gary Ruskin, campaign manager of California Right to Know Yes on 37, in a statement.  They are running a campaign of lies, deceit and trickery, and some of it may be criminal."

The Yes on 37 campaign contends the committee formed to oppose Prop 37 has disseminated a direct mail piece falsely stating the U.S. Food and Drug Administration (FDA) has expressed the view that a labeling policy such as the California initiative would be "inherently misleading". The committee also affixed FDA's seal in violation of federal criminal law, according to the Yes on 37 campaign.

"Of course, the FDA has never taken a position on Proposition 37," Joseph E. Sandler, a legal advisor to the Yes on 37 campaign, wrote in a letter to officials from FDA, U.S. Department of Justice and U.S. Attorney's Office. It "would be unlawful for the agency to do so, in the general election; and the quoted statement from FDA was made in an unrelated context more than twenty years ago."

The Yes on 37 campaign also claims that a rebuttal in the official Voter Information Guide improperly identifies Dr. Henry I. Miller as the "Founding Director, Office of the Biotechnology of the Food and & Drug Administration."

"Dr. Miller in fact, does not currently work for the FDA in any capacity," Sandler wrote. "The use of a false official federal title to make it appear that a high-ranking FDA official opposes the ballot proposition would seem to be a blatant violation of 18 U.S.C. §912, making it a federal offense to 'assume or pretend to be an office or employee acting under the authority of the United States or any department, agency or officer, thereof, and acts as such, ..'"

No on 37 Campaign Denies Allegations

Responding to the allegations, No on 37 campaign spokeswoman Kathy Fairbanks said the other side is resorting to unwarranted attacks while sensing voter opposition to the measure. Polls have shown support for Prop 37, although it appears to be waning.

"Yes on 37 has too much time on their hands," she said in an emailed statement Thursday. "Our campaign did not forge or alter the government seal. And, if Yes on 37 objected to Dr. Miller's title in the ballot arguments, and reference to the FDA also in the ballot arguments, they had an opportunity to challenge both in late July/early August. But they didn't."

Fairbanks further explained the campaign isn't precluded from using a government seal under the statute that the Yes on 37 campaign referenced. Rather, she said, the law "prohibits the forgery, counterfeiting, mutilation, or alteration of a government seal. "

She also stated, "Dr. Henry Miller was the founder of the FDA's Office of Biotechnology. That fact is not in dispute. We listed him as such in the ballot arguments. Tell me how that's false?" Miller currently serves as the Robert Wesson Fellow in Scientific Philosophy and Public Policy at Stanford University's Hoover Institution.

The letter was sent to Lanny Breuer, Assistant Attorney General of the USDOJ Criminal Division; Laurel Rimon, Chief of the Special Prosecutions Unit of the U.S. Attorney for the Eastern District of California; and Vincent Tolino, Director of the Ethics and Integrity staff at the FDA.

Morgan Liscinsky, a spokesperson for FDA, denied that FDA has made remarks concerning Prop 37 that were referenced in the letter.

"We cannot speculate on Prop 37 and have no comments at this time," Liscinsky said.

U.S. Government Indicated Opposition to Labeling

However, Fairbanks shared a document from the World Health Organization and the Food and Agriculture Organization of the United Nations. Referencing a meeting in Calgary, Canada on May 4-8, 2009, the document reflected comments from various countries concerning draft recommendations for the labeling of foods obtained through specific techniques of genetic engineering and modification. In that document, the United States indicated its opposition to mandatory labeling of genetically engineered food.

"Moreover, mandatory method-of-production GM/GE labelling would likely be inherently misleading," the U.S. was quoted as saying in the document. "A mandatory method-of-production GM/GE labelling regime creates the impression that the labelled food is in some way different from or less safe than a comparable, unlabelled non-GM/GE food (for example, no requirements exist that all food be labelled to indicate the breeding technique used to produce it). As such, mandatory method-of-production GM/GE labelling would be inconsistent with the Codex General Standard for the Labelling of Prepackaged Foods, which states that foods shall not be described or presented in a manner that is false, misleading or deceptive, or is likely to create an erroneous impression regarding its character in any respect."

The position of the U.S. was drafted by FDA and the U.S. Department of Agriculture, according to an April 20, 2010 letter from Consumers Union and a number of other organizations. That letter urged the government to "drop its opposition to any work on GE/GM labeling".

"We find it hard to understand how FDA and USDA can argue to Codex [Committee on Food Labeling] that mandatory labeling is inherently false and misleading, but voluntary labeling, which is permitted in the United States, is not," stated the letter, which was addressed to FDA and USDA top brass. "We are, in fact, concerned that the current US position appears to seek to establish precedents at Codex that would make it difficult to label food as non-GM in the US."