Pro-GMO Food Industry Fights to Keep Costs of Its Big Legal Fight Secret

Why are big players in the food industry saying this state's campaign finance laws are unconstitutional?

(Photo: Lucy Nicholson/Getty Images)

Jan 14, 2014· 2 MIN READ
Clare Leschin-Hoar's stories on seafood and food politics have appeared in Scientific American, Eating Well and elsewhere.

A national trade group that represents familiar brands such as Coca-Cola, General Mills, and Hershey’s is hot on the offensive when it comes to using its legal firepower to keep using genetically modified ingredients—and dictating how those products will be labeled.

The Grocery Manufacturers Association has petitioned the FDA in recent weeks to allow the term “natural” to appear on labels for food products that contain genetically modified ingredients. That move came after a slew of lawsuits calling for the term to be removed from packaging. The trade group is also trying to introduce its own national labeling legislation that would nullify individual state GMO labeling laws.

Now the big food industry representatives are trying to invalidate Washington state's finance disclosure laws and have also brought a civil rights complaint against the state's attorney general, Bob Ferguson.

Why? Because in the midst of Washington’s ballot-initiative battle over GMO labeling (the proposition was known as I-522), Ferguson’s office slapped the trade group with a lawsuit, saying the industry backers failed to form a political action committee that was properly registered with the state.

The attorney general's lawsuit revealed juicy details of the association’s strategy to defeat GMO labeling legislation, including details about how the organization solicited and collected approximately $10.6 million from members and deposited the money in a “Defense of Brand Strategic Account.” The funds were then used to shield companies from the backlash they faced after a similar GMO labeling initiative was defeated in California. The industry group used the money to defeat Washington’s ballot measure—while concealing the brand names of the food companies that donated the funds. That is, until Ferguson filed suit and the GMA disclosed the names less than a week before the Nov. 5 ballot.

Apparently registering as a PAC and complying with state laws that are designed to keep out-of-state money from influencing local elections was too darn burdensome: The law requires that out-of-state organizations like the Washington, D.C.–based trade group receive at least 10 donations of $10 from in-state donors. GMA argues that that requirement is unconstitutional.

“What they’re saying is enforcement of the laws in this state [which have been on the books in some form since 1972] is being done in an unconstitutional manner and one of the laws is unconstitutional on its face—that it’s unconstitutional to apply it to them. We disagree,” says Washington state deputy attorney general Christina Beusch.

The food industry says it's a matter of being heard.

"The Attorney General is challenging GMA's efforts to speak with one voice about the adverse consequences of a now-defeated initiative proposing to require burdensome, costly and scientifically unsupported labeling requirements on foods containing genetically modified organisms,” said GMA spokesperson Brian Kennedy in a statement.

Ferguson has pledged to defend Washington’s campaign finance laws and suspects GMA’s lawsuit could lead to a protracted (and likely costly) fight.

If you don’t live in Washington state and are wondering why you should care, A. Bryan Enders, associate professor of agricultural law at the University of Illinois, has food for thought.

“This is part of a larger narrative involving increased consumer awareness,” he says. “The GMA countersuit can be viewed as not pro- or anti-consumer but about maintaining control over the messaging of our food system. As various states respond to consumer demand for heightened food labels, this shifts control away from GMA and its members and places it within the hands of diffuse consumer interests.”

The latest countersuit isn't GMA’s only stick in the fire. According to Reuters, the trade group is working with a coalition including biotech crop developers and unnamed lawmakers to introduce federal GMO labeling legislation—legislation that would have the power to nullify individual state laws, a tactic public health lawyer Michele Simon spoke with us about in September.

“The devil is in the details,” Simon said. “Industry will agree to federal labeling, but in exchange, they say, ‘we want to preempt or stop any states from going further.’ ”

While news that original Cheerios would be going GMO-free came as a surprise, General Mills CEO Ken Powell’s support of a national GMO labeling law is not. The food industry wants to avoid state-by-state, store-by-store labeling requirements that are not uniform—which is one reason a national law sounds appealing.

But in its latest move to file suit against Washington’s attorney general, did the GMA go too far in flexing its muscles? Ferguson has said the action “raises the stakes.”

Beusch agrees.

“To say your law, an initiative passed by the people and found by our courts to be constitutional, is flawed does raise the stakes. That’s a significant attack,” she says.