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California Prop 37 – Genetic Labeling for Food

Posted in Agriculture Law, Food Safety

The battle over Prop 37 (Labeling Genetically Engineered Food) in California is escalating with television and print ads as well as strong editorials, questioning why certain ag interests do not want these labels to appear on foods. (for a Pro-37 editorial on who is opposing the Prop see the artcle At this juncture it appears that the proposition is likely to pass this November which would require the labels on genetically engineered crops or processed food, such as corn, soybeans, sugar beets and papayas.  As noted Industry is pushing back and has expended considerable funds opposing the proposition; one industry fear is that this initiative would spread to other states as well.

Prop 37 would require that foods that contain genetically engineered ingredients be labeled, “Partially produced with genetic engineering” or “may be partially produced” with genetic engineering.  It does exempt most meat, dairy, alcohol products, and organic foods. It also prohibits labeling or advertising genetically engineered food as “natural,” “naturally made,” naturally grown,” or “all natural.”  Of particular significance, to victims of Proposition 65, this statute also provides a citizen’s suit provision similar to Proposition 65.  On the positive side, there appears to be an attempt to avoid some of the issues that plague 1985’s Proposition 65, in particular, it does not allow for penalties, except for intentional violations (The failure to make any disclosure required by Section 110809, or the making of a statement prohibited by section 110809.1, shall each be deemed to cause damage in at least the amount of the actual or offered retail price of each package or product alleged to be in violation”) which depending upon the number of products in commerce could be considerable; and only injunctive relief and attorney’s fees if the court permits them. the Proposition also allows for investigation and prosecution costs: (b) In addition to the injunctive relief provided in subdivision (a), the court may award to that person, organization, or entity reasonable attorney’s fees and all reasonable costs incurred in investigating and prosecuting the action as determined by the court.

Thus the statute could clearly encourage a similar cottage industry as has Prop 65 that profits from the enforcement of this law.  Additionally the statute will allow injunctions to be issued more readily because it attempts to remove the irreparable harm element and equitable relief requirement of a cause of action for injunctive relief:

” Any proceeding under this section shall conform to the requirements of Chapter 3 (commencing with Section 525) of Title 7 of Part 2 of the Code of Civil Procedure, except that the person shall not be required to allege facts necessary to show, or tending to show, lack of adequate remedy at law, or to show, or tending to show, irreparable damage or loss, or to show, or tending to show, unique or special individual injury or damages.”

The proposition states that a food is “misbranded” under the California Health and Safety Code,  if it does not comply with the statute; query whether “misbranding” under this statute triggers federal or state Food and Drug statutes and or creates additional civil causes of action for false advertising or under the Unfair Business Practices statutes. Such issues and the concern expressed by some entities that more worrisome food safety issues already exist have caused the LA Times and others to endorse a “no” vote on the Proposition.