(Photo: tjdewey)Just a couple of weeks ago, it looked like the backers of California’s Proposition 37, the GMO-food labeling initiative, were in a solid position to score a victory. Numbers from a LA Times/USC poll showed the California Right to Know campaign with a comfortable two-to-one margin over the No on 37 campaigners, who are mostly backed by Big Food interests such as Monsanto, DuPont, the Grocery Manufacturers Association, and Coca-Cola.

What a difference a $34 million campaign chest can make. The latest public opinion survey shows public support for the GMO labeling initiative is crumbling. A poll released last week by the Pepperdine University School of Public Policy and the California Business Roundtable shows that less than half (48.3 percent) of California voters are in favor of the measure. Forty percent of poll respondents are opposed, while 11.5 percent of voters are undecided.

According to California Right to Know spokeswoman Stacy Malkan, a loss of public support is to be expected when massive television, radio, and mail advertising gobsmacks the electorate. “We attribute [the new poll numbers] to the pounding, incessant lies the No on 37 campaign has been hammering voters with all day, every day.”

Asked what she meant by “lies,” Malkan listed two: “The false claims about cost increases. The confusing talking points about exemptions.”

(No on 37 campaign spokeswoman Kathy Fairbanks did not respond to repeated voice mail messages asking for comment.)

When Prop. 37 landed on the ballot, I expected that its opponents — a who’s who of veteran tobacco industry and oil company operatives — would base their arguments on some standard talking points against lawyers and onerous regulations. As you can see from this No on Prop 37 “fact sheet,” I haven’t been all that wrong. The labeling opponents say “Prop 37 was written by a trial lawyer to benefit trial lawyers,” and will lead to “shakedown lawsuits.” The opponents complain the initiative “forces state bureaucrats to administer its complex requirement.” And they warn darkly that Prop 37 “would increase food costs for the average family by hundreds of dollars per year — a hidden food tax.”

I have been surprised, though, to watch the way in which the No on Prop 37 campaign has played up the issue of the exemptions that the labeling initiative makes for various foods. The exemptions were highlighted in a controversial No campaign television spot featuring a research fellow at the conservative Hoover Institution at Stanford. And earlier this week I received a mailer at my home in Oakland with the headline: “If you want accurate and reliable food labels, you won’t like Prop 37.”

It’s a snazzy sound bite, and no doubt informed by the No campaign’s polling and focus group findings that show this is a wedge issue. But it’s a strawman argument and fundamentally misleading. On close inspection it becomes clear that there are plenty of holes in the loophole argument.

The mailer I received lists eight different alleged exemptions. Let’s go through them one by one.

Two of the eight exemptions are the exact same and involve the difference between packaged foods and prepared foods. The mailer compares “frozen pizza” verus “delivery pizza” and “soup from the grocery story” versus “the same soup at a restaurant.” This is absurd — and cynically misleading. Of course the initiative doesn’t affect restaurant food or take out food — for the simple reason that no prepared foods have ingredient labeling. When was the last time you saw an ingredient label at an Olive Garden? Nuff said.

Ditto the supposed exemption between “fruit juice” and “beer, wine and liquor.” Beer, wine and spirits are covered by different laws than non-alcoholic beverages. While an Ocean Spray lemonade has a mandated ingredient and nutrition label, a Jack Daniel’s lemonade doesn’t. Prop 37 just sticks with the status quo.

Four of the eight claims focus on Prop 37’s exemption around animal products. The mailer I received points out that while “chicken pot pie from the grocery story” falls under the GMO labeling rule, the “same chicken as in a pot pie” does not. Same with “dog food made with beef” versus “beef”; “tofu made from soy beans” versus “meat for human consumption from animals fed on GE grains or silage”; and “soy milk” versus “cow’s milk.” The most obvious reason why meats and other animals products wouldn’t fall under Prop 37 is that — for now, at least — there are no genetically modified cows, pigs or chickens. In comparison, the dog food, the soy milk, the chicken pot pie from a store, and the tofu are all likely to contain GMO soy or corn.

It is true that most animals, if raised in industrialized feedlots, do consume GM corn or soy. So why not label the end product?

According to Stacy Malkan, the authors of Prop 37 modeled the animal products exemption on the GMO labeling requirements already in place in Europe. “Even with cows eating GM feed, that exemption is common around the world,” Malkan told me. “We didn’t think it made sense for California to leapfrog over Europe, not when we are already playing 15 years of catch-up.”

The No on 37 campaign’s complaint about the animal products exemption strikes me as cynical. After all, had the measure included animal products, the initiative’s opponents would have screamed bloody murder and argued that the bill went too far. Now, they seem to be arguing that the law doesn’t go far is too lax. Given opponents’ broader complaint that the measure overreaches, it’s hard for me to take this exemption criticism seriously.

Finally, the No campaign makes the rather bizarre claim that “noodles made in China” or “fortune cookies and candy made in China” won’t be covered by the initiative. Never mind for a minute the grossly demagogic and xenophobic language here (China-bashing has become de rigueur in US politics these days.) Packaged food from other countries is not exempt from the measure, which you should read for yourself here. The No campaign appears to be basing this claim on the initiative’s text that makes an exemption for food “produced without the knowing and intentional use of genetically engineered seed or food.” Yes, that could include foods coming from other countries. But the China name-dropping seems to me a crude attempt to scare voters.

“They [the No campaign] are using the exemptions to scare voters,” Malkan says.

After a close reading of the Prop 37 language, I have to agree. If anything, the No campaign’s exemption claims just reveals that Prop 37 doesn’t go as far as it should to give people full transparency about the food they are eating. But it’s a good first step — and it deserves your vote.