In just a little more than three weeks, Californians will vote on Proposition 37, the Genetically Engineered Foods Right to Know Act, which would require labeling of food products made from genetically engineered crops. Food processors and agricultural groups, including the NCC, believe that such labeling will be used by anti-biotech activists to scare consumers. Additionally, such mandated labeling would violate the Food & Drug Administration’s (FDA) long-standing policy for labeling.

Prop 37 once held a statewide lead by more than a 2-1 margin. In the latest poll conducted by the Pepperdine U. School of Public Policy and the California Business Roundtable, that lead has tightened – going from 48.3 percent to 40.2 percent, with undecided voters accounting for 11.5 percent.

Kathy Fairbanks, a spokesperson for the “No on 37 Campaign,” said greater skepticism shown in the poll was the result of a combination of television advertising, news stories and newspaper editorials opposed to the measure.

"The more people learn about Proposition 37, the less they like it," Fairbanks said. She noted that what people don't like are the many exemptions in the initiative.

Under the measure, most dairy products and alcoholic beverages, for example, are exempt — even though biotech corn is fed to cows and other animals and goes into beer, bourbon whiskey and other liquors. A similar initiative in Oregon was defeated by opposition from the dairy and alcohol industries. Organic products, fresh meat, eggs, restaurant meals and even bake sale offerings also would be exempted.

Two Washington, D.C., law firms say that even if California voters approve Prop 37, it will be vulnerable to legal challenges. In a Washington Legal Foundation-sponsored webinar, Sarah Roller, a partner in Kelley Drye & Warren LLP, said Prop 37 raises substantial First Amendment concerns.

"Government has the burden to prove a need for restrictions on commercial speech,” Roller said. “If government chooses to require a warning, it must demonstrate that harms are real.”

Roller cited an overturned Vermont law requiring dairy farmers to disclose use of recombinant bovine somatotropin (rBST) in producing milk products. In the case of International Dairy Foods Association v. Amestoy, the Second Circuit Court of Appeals, in 1996, ruled that mandatory disclosure of rBST use on labels would be "the functional equivalent of a warning" and require dairy farmers to "speak against their will" on a matter that doesn't involve "a reasonable concern for human health."

Eric Lasker, a partner in Hollingsworth LLP, noted that Prop 37 proponents argue on behalf of consumers' right to know. He said food labeling based on consumer demand violates the Federal Food Drug and Cosmetic Act because it "misleads the consumer into thinking there's a material difference" between biotech and non-biotech foods. He cited FDA guidance issued in 1992, 2001 and 2009 stating that there is no evidence of a safety concern with biotech foods.