Proposition 37 and the Law of Unintended Consequences

For readers outside of California (and the 4-5 Californians who haven’t watch TV or listened to the radio in the last six weeks), Prop 37 is a ballot initiative that would require labeling food that includes genetically modified ingredients.  A comprehensive post on Prop 37 is long overdue on this blog—although a simple Google search will provide hours worth of reading to any interested voter.  The opinions expressed on both sides are neither few nor fragile as it is perhaps the most hotly contested proposition on the ballot. 

As you might guess from reading other positions expressed here, my view is that Prop 37 is a disaster waiting to happen.  Even if you happen to believe that genetically modified foods have an adverse health impact (i.e., you disagree with the federal government’s research on this issue), this law is ill-advised.  It is full of loopholes and contradictions that make little sense and it will invite a host of expensive lawsuits by consumer class action attorneys. 

One the best articles I have seen on the law comes from, Ted Sheely a pistachio farmer who explains how, even though his crops are all natural and not genetically modified, he will have to change his labeling to comply with the law. 

The weird treatment of my pistachio farm provides an excellent example of why Prop 37 is so misconceived.

My pistachio trees are not genetically modified, and they behave just as pistachio trees are supposed to behave: They grow nuts, whose shells crack open naturally. We harvest the pistachios, then roast and salt them.

Before shipping them off, we put them in packages, which describe our product as “naturally opened pistachios.” That’s what they are, so that’s what we call them.

Prop 37 will make us stop. The problem is the word “naturally.” Our pistachio shells may split open on their own, without any human help. Yet we can’t say they open “naturally” because Prop 37 redefines the word. When we roast and salt our pistachios, we somehow make them unnatural–at least according to Prop 37’s crazy definition.

If Prop 37 passes, I’ll suffer from a competitive disadvantage. I’ll have to rethink my entire business model because of a flawed law. Meantime, trial lawyers will line their pockets as you bear the cost of higher food prices for pistachios and many other ordinary products.

Fellow Californians: You not only have a right to know this–you need to know this.

The full article is available here from Western Farm Press.

The good news is that public opinion appears to shifting against the proposition–going from a 2-1 advantage in favor of the proposition to 48.3% in favor, 40.2% against with 11.5% undecided.  So there is hope.  (Poll conducted by Pepperdine University School of Public Policy and the California Business Roundtable.)


Author: Kent Schmidt

As a Partner in the Southern California office, Kent practices in virtually all types of general business litigation, with an emphasis in unfair business practices, First Amendment litigation, defamation, trade secret litigation, class actions, product liability, securities litigation and enforcement, commercial disputes, employment law, intellectual property and Prop 65 (environmental) claims. He is an aggressive and creative courtroom advocate, representing both plaintiffs and defendants. Having spent his entire legal career at Dorsey, Kent is adept at finding the right lawyers in the firm to collaborate with in order to provide the best representation for his clients.