'Trial Lawyer' Claims Are Ridiculous, Inaccurate
We have the right to know what’s in our food. That’s the simple premise of Proposition 37, which would require labeling of food that is made with genetic engineering. But instead of taking issue with that fundamental right, opponents of the measure – the largest chemical and processed food companies – are claiming the new law would lead to a wave of costly litigation, exposing food retailers to abusive lawsuits by rapacious trial lawyers. Nothing could be further from the truth.
See below for the facts to counter their false claims.
False Claim #1: Proposition 37 is “a measure for trial lawyers written by trial lawyers.”
Truth: Under Proposition 37, there are no incentives for lawyers to sue. Why would trial lawyers write a measure they can’t make money on? The real history is that Prop 37 was written by a group of food industry, farm, science and health experts, including from Lundberg Family Farms, the Organic Consumers Association, Food Democracy Now!, Nature’s Path and the Center for Food Safety.
False Claim #2: Proposition 37 will provide “countless new opportunities for shakedown lawsuits.”
Truth: As noted, Prop 37 offers no economic incentives for lawyers to sue. Consumers can't file a class action without first giving notice and if the defendant fixes the labels, then no class action is permitted. With no class action, a consumer could sue only to get a court order to require labeling and for the few dollars that consumer paid to buy the product. And if the State brings a court action to enforce the new law, any penalties recovered by the State go only to the State-- not the plaintiff or lawyer. That is, penalties stemming from an enforcement action by the state Department of Public Health would go to the State. By contrast, under Prop 65, a portion of the penalties actually go to the private plaintiff-- that's the so-called "bounty" provision that Prop 37 does not have.
Food companies are required by law to label for ingredients, calories, etc., and there have been few violations. Companies are also likely to label genetically engineered foods accurately.
False Claim #3: Prop 37 is just like Prop 65, the toxics labeling law.
Truth: Prop 37 is so significantly different from Prop 65 that comparing the two laws makes no sense. The opposition knows this -- but they do it anyway. According to an independent analysis by James Cooper, JD, PhD, George Mason University School of Law, Prop 37 "covers less economic activity, provides more exemptions from its provisions, and is likely to provide greater certainty for businesses" than Prop 65 -- differences which substantially reduce the potential for lawsuits.
False Claim #4: Prop 37 is "a nightmare scenario for grocers” and retailers because they have to obtain and keep "reams of paperwork."
Truth: This is completely false. Retailers would only have to label the few raw commodities (sweet corn, papaya, squash) that are genetically engineered. They can either stick a simple label on the bin or, if they wish, they can ask their supplier for a sworn statement that the crop is not genetically engineered.
Furthermore, retailers are protected under the law in two ways. First, class action lawsuits are expressly forbidden unless the retailer is given a chance to put the labels on -- if they do, no lawsuit. Second, the law protects anyone for whom a claimed violation was not intentional or resulted from an error; since retailers have no reason to know what's inside the packages of food on their shelves, they aren't liable at all. It couldn't be clearer.
False Claim #5: Prop 37 will lead to rampant lawsuits against farmers and retailers.
Truth: Under basic legal principles, legal liability for violating a rule falls on the person responsible for complying with the rule. Under our initiative, the person responsible for labeling processed foods is the person who puts the label on -- the manufacturer. The retailer would only be responsible for labeling a raw agricultural commodity that is genetically engineered.
The other side is lying about farmers and retailers because they want to take the spotlight off the junk food manufacturers who are responsible for putting the labels on the food.
False Claim #6: “An interconnected web of trial lawyers – with a history of working together to champion and sue under a ballot measure that has made them millions from shakedown lawsuits – is at the heart of the campaign for California’s Proposition 37”
Truth: The California Right to Know campaign began with the efforts of Pamm Larry, a former midwife, farmer and longtime Chico resident. In 2011, Pamm started organizing mothers and volunteers across the state toward a 2012 ballot drive with only one goal in mind — to let California consumers know if the food they are eating is genetically engineered. With the help of thousands of volunteers, the Right to Know campaign gathered nearly one million signatures from California voters within a 10 week period.
Talk about Shakedown Lawsuits!
For the real story about abusive lawsuits by rapacious trial lawyers, check out what Monsanto is up to: suing farmers across the country for growing their own seeds. As the Business Week recently reported, “Monsanto has a policy that prohibits farmers from saving or reusing the seeds once the crop is grown, ensuring that farmers have to buy new seeds every year… The company has filed lawsuits around the country to enforce its policy against saving the seeds for the future.”
Yet Monsanto and the pesticide companies want us to believe that a simple labeling law is too threatening. Remember, they’ll say anything to try to convince us we don’t have a right to know what’s in our food.
Letter by Joe Sandler -- Right to Know Law: No Incentives to Sue
Independent report by James Cooper, George Mason U: Frivolous lawsuits unlikely
Truth about Exemptions
Truth about Costs
Don't let the Pesticide Companies Buy Your Vote!
Your concerns as a small business owner are understandable. However, you are correct to say that Prop. 37 is different from Prop. 65. In fact, they are much different. Please read this document prepared by an attorney comparing/contrasting the two initiatives. Particularly focus on pgs. 10 -15. I think after reading this your concerns will have been assuaged.
I’d like to bring your attention to the first paragraph on page 11:
" . . . a party would be able to rely on a sworn statement from a supplier that the food in question has not been knowingly or intentionally genetically modified, in which case the party would not be required to have its product tested."
I think this fact, that a retailer such as yourself, can require sworn statements from your suppliers is the answer to your concern: “by us being forced to put a label stating that our product might contain GMOs just so that we can stay clear of lawsuits is also a disservice to the consumer.” You do NOT have to put ‘may contain genetically engineered ingredients’ on your products just so you’re legally covered. The onus is on the supplier, not the retailer, to guarantee if the product is GMO free. If you are in possession of these sworn statements, then no one has any grounds to sue you. None.
Also, please note that if your business employs fewer than ten people, the you are exempt from all of this. Even if you knowingly sell unlabeled GM herbs, no one can sue you. So the small business is truly protected from frivolous lawsuits. I’d also like to point out that there are no genetically engineered herbs on the market to date. Unless your products contain the processed ingredients from the five commodity crops, then you have nothing to worry about.
To quote you, “But I do hope to see a bill that will enforce the labeling while at the same time protect small businesses from unfairly being subjected to lawsuits or being forced to put misinformation on their label in order to keep lawsuits away.” This bill you wish for, one that protects small businesses from lawsuits and has their best interests at heart, is Prop. 37. The crafting of this initiative was carefully done, not rushed.
Furthermore, make no mistake – the stakes are high. If we do not pass Prop. 37, then we forgo our chances of ‘getting it right’ in the future re: a GMO labeling law. Instead, we have sent a clear signal to Washington that we would rather have pesticide companies decide for us what goes in our food rather than exercise our individual right to chose for ourselves. And, we will have green-lighted Monsanto’s practice of SNEAKING IN pesticide-laden, scientifically risky and untested GMO’s into our food supply. Why on earth would we want to do that?
To quote you again: “And realistically, this bill is not going to stop Monsanto from using GMOs.” Do you think an initiative to ban GMO’s would be easier to pass?
When you say, “I understand and do not like the business that Monsanto runs and I want to do something about it,” then here and now is your chance to do something about it. Quite likely the best chance we will ever get. Let’s not blow it.
I understand your concerns, but you want to make this sound like I am somehow affiliated with or supporting Monsanto when I am not. I am actually part of a small herbal company that this law as it is written poses a great concern to me. Yes, Monsanto and others that are knowingly putting GMO products on the market should have to label them as such. Kashi included. However, the way the law is written, anyone can take a lawsuit out against my company because they want to say they belief we may have unlabeled GMOs. We do not, but our option is then to run the company into the ground attempting to take the prosecutors to court to fight this claim and prove it isn’t true. Or we will be forced to pay them a bunch of money that we don’t have to settle. Also, how would we prove that we didn’t “knowingly” do something. How do you prove intent? That is very subjective. But enough that anybody can make a lawsuit to “claim” that you knowingly did something and you will have to fight it. I don’t understand why this being a concern to us small businesses doesn’t make sense. We have the same concern with Prop 65 and have been battling that for years. And yes, I know the two are different but there are similarities between the two that are concerning. Why would we want to put a bill through and take this risk rather than write the bill the way it should have been written. Do we want to rush into to something just to get it out as quickly as possible or do we want to make sure that we do this right to truly help the consumer? I understand and do not like the business that Monsanto runs and I want to do something about it, but I want to do what would be the most effective and still supportive for the small businesses that are still trying to do business the right way. And realistically, this bill is not going to stop Monsanto from using GMOs. Making them label it is not going to stop the use and sadly will probably not stop consumers from purchasing it. But I do hope to see a bill that will enforce the labeling while at the same time protect small businesses from unfairly being subjected to lawsuits or being forced to put misinformation on their label in order to keep lawsuits away. By us being forced to put a label stating that our product might contain GMOs just so that we can stay clear of lawsuits is also a disservice to the consumer. It would make it look to them as though our product does contain GMOs when it does not. Isn’t that going to be more confusing to the consumer?
It’s clearly established in the initiative that the ‘all-natural’ label only pertains to foods containing genetically engineered ingredients. Processed food manufacturers, such as Kashi (owned by Kellog), have marketed their products to people as ‘all-natural’ (an unregulated label) when in fact the products were riddled with GM ingredients. When the Kashi customers finally figured this out, they voiced their ire at Kashi for this act of deceit. Common sense tells us that genetically engineered ingredients is hardly ‘all-natural.’ Interestingly, Kashi is busily pulling GMO’s out of a lot of their products. They opted to do this rather than take the ‘all-natural’ label off. This explains why the pesticide companies are so heavily invested on stopping Prop. 37 from passing. If so, processed food manufactures may opt to just take out the GMO’s rather than label. They would go back to buying the conventional commodities, no big deal for them. However, not so for the pesticide companies. This would eat into the profits the pesticide companies have been enjoying for so long: selling their proprietary, heavily pesticide dependent GMO’s to Big Ag farmers. But, I digress.
Prop. 37 was written to keep this kind of deception from happening again. Any processed food product that contains GMO’s may not bear the ‘all-natural’ label. Prop. 37 looks after the consumer, restoring their rights to know and freedom to choose. We are Americans, after all, known for priding ourselves on our individual liberties.
Another tactic of the opposition is to attempt to confuse the issue and infuse doubt. This casting of doubt over the issue is sometimes all it take for the voter to ‘play it safe’ and vote ‘no.’ But these deceptive tactics are easy to see through. People realize their being duped and quickly go back to their initial instinct that we should label GMO’s, and Prop. 37 is a wonderful way to accomplish this.
Thanks for the reply, I appreciate your taking the time to respond. Can you tell me how a retailer would prove that a claimed violation was “not intentional?” Won’t that still entail showing up in court with a lawyer – potentially a big cost for smaller stores?
Also, you didn’t specifically address the statement from the Legislative Analyst’s summary in the California Voter Guide:
“For each product that is not labeled as GE, a retailer generally must be able to document why that product is exempt from labeling. There are two main ways in which a retailer could document that a product is exempt: (1) by obtaining a sworn statement from the provider of the product (such as a wholesaler) indicating that the product has not been intentionally or knowingly genetically engineered or (2) by receiving independent certification that the product does not contain GE ingredients.”
Can you address this? Do you have some reason why you think that this is not going to actually be the outcome of passing Prop. 37? If it is, do you consider obtaining documentation on every non-GM product to be manageable for small grocers?
I wish that deciding how to vote on a proposition was as simple as following the money. I know that proposition 37 is well-intentioned and Monsanto and friends are profit-motivated. But I’ve seen many well-intentioned propositions work out badly.
The Consumer Legal Remedies Act, which, as the LAO report notes, is the main enforcement device used for this measure, contains the following two protections for retailers (and anyone else):
1. It expressly prohibits any class action unless the consumer has sent a notice 30 days before and allows the company to correct it. If the company cures it, NO lawsuit. Civil Code section 1782.
2. There is no case against a company if the claimed violation “was not intentional” or resulted from an error. Civil Code section 1784.
So in other words, there are two protections in the existing laws we used. First, they expressly prohibit class actions unless the retailer is given a chance to put the labels on — if they do, no lawsuit. Second, the law protects anyone for whom a claimed violation was not intentional or resulted from an error; since retailers have no reason to know what’s inside the package it’s not their fault and they aren’t liable at all.
It’s also important to follow the money here. It’s not the retailers but rather the food manufacturers (who would be responsible for labeling) who are funding the No on 37 campaign, along with the big pesticide companies (which are making huge profits selling GMO seeds and the pesticides that are designed to go with them). They don’t want California consumers to have a choice about genetic engineering. That’s what this is about.
“Retailers (such as grocery stores) would be primarily responsible for complying with the measure by ensuring that their food products are correctly labeled. Products that are labeled as GE would be in compliance. For each product that is not labeled as GE, a retailer generally must be able to document why that product is exempt from labeling.”