Jared Ponder

commented on Read Prop 37 2012-10-27 05:41:34 -0700 · Flag
Hi there, First, I just want to clarify for those that are interested just what the enforcement policies of Prop 37 are and just where exactly the opponents are getting their gunpowder, so to speak, with the bandying about of ‘’Bounty-hunter Trial Lawyers’’ and to give you all an explanation for those who have their doubts about the legal ramifications of this proposition. (Like I did)

Secondly, I’d like to note that I read the entire bill then dug up a Proposition 65 and Prop 37 Comparison of Litigation Incentives [written by a University Law professor, one James C. Cooper, J.D., Ph.D. of George Mason University School of Law]

I’ve taken the liberty of adding 3 arrows e.g: >>> to the really key points where the sources are and I’ve added the link to the .pdf so you can check the veracity of the analysis yourselves.
Okay, so basically someone who isn’t familiar with California law can easily get confused reading the Enforcement and Penalties clause of Prop 37 but read on and you’ll understand that the SHERMAN FOOD, DRUG, AND COSMETIC LAW which is part of the California Health and Safety Code, Division 104, Part 5 is extremely lenient to violators who seek to rectify violations which in this case would be mis-branding processed foods as ‘natural’ when that isn’t the case.

Public officials and private citizens can sue to enforce Label GMO THROUGH TWO MEANS- First, Label GMO provides that ‘’any person may bring an action in superior court… and the court shall have jurisdiction… to grant a temporary or permanent injunction restraining any person from violating any provision [of Label GMO]’’46 In Addition to obtaining injunctive relief, the court may award the person bringing the suit ‘’reasonable attorney’s fees and all reasonable costs incurred in investigation and prosecuting the action as determined by the court.’’47

Second, a person can bring an action under the California Legal Remedies Act (CLRA) on her own behalf and also on behalf of similarly situated consumers.48
Label GMO does not require the plaintiff to ‘’establish specific damage from, or prove any reliance on, the alleged violation.’’49 Under the CLRA, the plaintiff must provide the defendant notice of the alleged violations, and the defendant has thirty days in which to cure the alleged violation through ‘’correction, repair, replacement, or other remedy.’50 If the defendant cures the violation, ‘’no action for damages may be maintained.’’51 Further, a plaintiff cannot collect damages if the defendant’s violation was an accident and the defendant takes appropriate remedial action.52

44 Id. § 110809.2(h)
45 Id § 110809.2(i)
46 Label GMO, Section 4.
47 Id.

48 Label GMO § 110809.4. Specifically Label GMO provides that a violation of the labeling and disclosure requirements shall be deemed a violation of Cal Civ. Code § 1770(a)(5), which prohibits as an unfair or deceptive act or practice ‘’representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities which they do not have.’’ The CLRA allows both individual and class actions. See Cal. Civ Code § § 1780(a),1781(a). >>>Only consumers have standing to bring a case under the CLRA.>>50 Cal. Civ. Code § 1782(a). The notice provision of the CLRA is strictly applied, and if not followed precisely will result in dismissal of a CLRA claim. See Von Grabe, 312 F. Supp. 2d at 1303-04; Outboard Marine Corp. v. Superior Ct., 52 Cal. App. 3d 30, 40-41 (1975).

>>>51 Id. § 1782(b). In the class action context, no action for damages can be maintained if the alleged violator had made reasonable efforts to identify and notify all consumers in the class that they will cure the violation upon their request, the violation has been cured, and the alleged violator has ceased engaging in the alleged illegal acts. Id. At § 1782©(1)-(4).

>>>52 Id. § 1784: No award of damages may be given if the [defendant] proves that such a violation was not intentional and resulted from a bona fide error notwithstanding the use of reasonable procedures adopted to avoid any such error; and {b} makes an appropriate correction, repair or replacement or other remedy of the goods and services…..

>>>> SOURCE: A Comparative Litigation Analysis of Prop 65 and the Proposed CaRighttoKnow Genetically Engineered Foods Act [Prop 37]: http://www.anh-usa.org/wp-content/uploads/2012/07/Prop65-and-GMO-Label-Initiative.pdf

Art and gaming are my passions. I am a Sci-Fi/Fantasy geek who loves to discuss Philosophy and Existententialism, as well as anything in the realm of Physics.