Warning: Voting for Proposition 37 May Result in Serious Financial Harm

Kim Stone
President of the Civil Justice Association of California

The genetically engineered food labeling initiative on the November ballot – Proposition 37 – should give us all a case of déjà vu.

In 1986, California voters approved Proposition 65, another labeling initiative that required warning signs in areas where people could come into contact with chemicals known to cause cancer or reproductive harm. Chances are that you see these signs on a daily basis – they are on cars, they are at grocery and retail stores, they are in parking garages, and so on. The warnings are so ubiquitous that they have become meaningless. My minivan – rated #1 in safety by Consumer Reports magazine – warns me that the car contains chemicals known by the state to cause birth defects or reproductive harm. But as a mother who needs to drive her children to school and soccer practice, that warning label does not tell me what the substance is, how prevalent it is, how I might be exposed, or how to mitigate the risk. And every other car I looked at buying also had the same warning label!

Plaintiffs’ lawyers have made the most of Prop 65. The initiative allowed for private enforcement through lawsuits in addition to public enforcement by the Attorney General’s office. Records of the settlements reached each year are posted on the Attorney General’s website, and they tell an interesting story. In 2011 alone, 15 private plaintiffs settled 327 cases for $15.8 million, compared to the 11 settlements reached by the Attorney General’s office for $395,000. Of the $15.8 million in private settlements, almost 75% went to attorney’s fees! If you look through the settlements in previous years, you’ll find that these kinds of attorney’s fees are the norm and that the list of plaintiffs is very similar year to year.

Now we have Prop 37 to create warning labels on genetically engineered (GE) food and, guess what? It was submitted by plaintiffs’ lawyer James Wheaton, who helped write Prop 65 and is the President of the Environmental Law Foundation, which is one of the plaintiffs you will find year after year on the list of Prop 65 settlements. Prop 37 also allows for private enforcement by plaintiffs’ lawyers, meaning they will have a new way to make money by going around suing farmers, grocers, and small businesses for the lack of a warning sticker.

At least Prop 65 was targeted at toxic chemicals that can cause harm, (although the list of chemicals that applies to Prop 65 has gotten out of control) but when it comes to GE food, there is no medical evidence that it causes harm! GE food is very common. Roughly 90 percent of all corn and soybeans grown in the U.S. come from GE seeds. The World Health Organization, the American Medical Association, and the U.S. Food & Drug Administration, among other reputable organizations, all agree that GE food is safe!

Under Prop 37, for every product that is not labeled, there must be documentation showing why the product is exempt, which means a retailer will either need a sworn statement from the producer or independent verification that the product does not include GE ingredients. Farmers and food manufacturers will of course have to keep their own records in order to protect themselves.

And with any slip up at any point along the way, they could be hit with a lawsuit.

Retailers are free to label their foods if there is a clientele they are trying cater to. But there is no need to create a litigation morass by empowering plaintiffs’ lawyers to target our food industry.

Everywhere we go, we see the Prop 65 warning labels – meaningless and ignored by all but the handful of lawyers who make millions off their absence. Let’s not have a repeat with Prop 37.

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