Have you heard about California's Proposition 37?

California’s Proposition 37, on an already daunting ballot this November, is described as a consumer “right to know” measure, but has broad-reaching effects.  If Proposition 37 passes, California would become the first state in the nation to require new labels on a host of food products commonly found on grocery store shelves, from breakfast cereals to soda to tofu.  The text of the proposed law contains several exemptions, including foods that are certified organic, contain only small amounts of genetically engineered material, or are sold for immediate consumption, like at a restaurant.

Proponents, largely big natural food companies and consumers passionate about organic food, have raised $2.8 million as of the mid-August reporting deadline.  According to the committees backing Prop 37, the movement started a "grandmother from Chico" woke up and decided it was her duty to lead the grassroots effort to label genetically modified foods. Since then, individual small donors have joined the cause, enough to attract the attention and support of big-money backers like Dr. Joseph Mercola, who runs a popular alternative health website.   Other major donors include the Organic Consumers Fund, Dr. Bronner's Magic Soaps, Nature's Path Foods, and Lundberg Family Farms.

Opponents, as of the same filing deadline, have raised nine times as much money. Almost all of the nearly $25 million has come from a variety of chemical, seed and processed-food companies, including Coca-Cola, General Mills, Nestle, PepsiCo, DuPont Pioneer, the Grocery Manufacturers Association, Council for Biotechnology Information, and a number of chambers of commerce and other business groups and biotech organizations.

Voting YES on Prop 37 means you want genetically engineered foods and food products to be labeled in California.  Voting NO would mean no change to existing law. No labeling would be required.

Proponents argue labeling will allow consumers to know which foods have genetically engineered material so they can decide for themselves whether to eat them.  Having such information could help consumers protect themselves and their family, as some physicians and scientists claim such foods are linked to allergies and other health risks.  More than 40 other nations currently require such labeling, including "most of Europe, Japan, and even China and India."  Proponents contend it will cost nothing to include this information on a label because manufacturers will have time to phase in new labels, or decide to change their products to avoid the labeling requirement.  Finally, Prop 37 will prevent the misleading use of the word "natural" on genetically engineered foods.

Opponents argue Prop 37 will add more government bureaucracy and increase taxpayer costs because of the need to monitor "tens of thousands of food labels."  It will lead to more lawsuits and create "a new class of 'headhunter lawsuits' allowing lawyers to sue family farmers and grocers without any proof of harm."  Prop 37 will increase food costs by billions as farmers and food companies are forced to implement "costly new operations" or switch to the more expensive, non-genetically engineered foods, a cost that will ultimately be passed on to consumers.  Prop 37 is full of special-interest exemptions, including milk and dairy products, alcohol, and meat.  Lastly, opponents argue scientific and medical organizations have concluded biotech (GMO) foods are safe, including the National Academy of Sciences, American Council on Science and Health, Academy of Nutrition and Dietetics, and the World Health Organization.

According to the legislative analyst's office (“LAO”), the cost to the State of administering the proposed labeling program could be as much as $1 million a year, because the Department of Public Health would have to monitor food producers to evaluate compliance. The LAO also predicts an unknown but "potentially significant" cost for the courts, the Attorney General, and district attorneys to handle lawsuits arising from violations.

Why?  The proffered statute contains what is commonly referred to as a “bounty hunter” provision, allowing trial lawyers to file lawsuits against alleged violators alleging labeling violations, but requires no proof of any damages prior to filing the lawsuit.  According to the LAO, lawyers can file suit “without needing to demonstrate that any specific damage occurred as a result of the alleged violation.”  This provision potentially undermines Proposition 64, passed by voters in 2004, which changed the law to require that attorneys actually have a client or injured party before filing a lawsuit.  Prop 37 requires no client, or proof of damage to sue under the measure.

Questions?  Concerns about how pending legislation or litigation may impact your business?  Comment, or send me an email, and let’s discuss. 

Nothing in this blog is intended to create an attorney-client relationship.  This article is intended to provide a general overview of the current status of the law for informational purposes only, and is not intended to constitute, or serve as a substitute for, a professional legal consultation.  Laws change every day; please consult an attorney regarding the current status of the law, and how the law affects your specific circumstances. Thank you.