Food-Labeling Initiative Could Encourage Lawsuits

LOS ANGELES—Supporters of a ballot proposal to label cereals, sodas and other products containing genetically modified ingredients say their effort is about empowering consumers who deserve to know what’s in their food. Legal scholars say the right to know contained in Proposition 37 also comes with the right to sue.

The initiative on Tuesday’s ballot is worded in such a way that it could invite lawsuits against food producers and grocery stores, experts say. Plaintiffs, including individual consumers, could sue for an injunction to halt mislabeled goods without having to show they were somehow harmed or deceived. In class-action lawsuits, the prevailing side could win damage awards and recoup attorney’s fees and other costs.

If Proposition 37 passes and survives on appeal, “you’re looking at full employment for lawyers without a doubt,” said law professor David Levine at the University of California, Hastings College of the Law, and who is not affiliated with either campaign.

The initiative’s backers, which include consumer advocates and the organic food industry, have countered the notion that passage would lead to endless litigation and devoted a section on their website to this point. Supporters say there will be no reason for lawyers to act if companies follow the labeling rules and that any class-action claim would be dismissed if the defendants fixed the labels.

“There’s not much in it for the trial lawyers,” said Joe Sandler, legal advisor for the California Right to Know campaign. Foods from genetically modified crops have been a staple of the American diet for more than a decade. Most processed foods sold in supermarkets such as cookies and snack bars contain ingredients derived from plants whose genes were tweaked in the laboratory.

The federal government has not mandated special labels on GMO foods because there’s no chemical difference between them and non-modified versions. Major science and health groups have said such foods are safe to eat.

Despite the assurances, some shoppers remain wary. Under Proposition 37, processed food and produce that was genetically engineered would have to be marked. Organic products, restaurant meals and alcohol are excluded. Meat and dairy also are exempt even if the animals were fed grains enhanced through biotechnology.

Monsanto Co. and other international conglomerates have raised $44.4 million to prevent California from being the first state to enact GMO food labels. In part, they contend that grocery bills will be more expensive if the measure wins.

The nonpartisan California Legislative Analyst’s Office, which deciphers the impacts of ballot propositions, said state courts would see an increase in cases because Proposition 37 allows individuals to take legal action.

Consumers could sue for violations under a state statue “designed to encourage litigation,” said Derek Muller, an associate law professor at Pepperdine University who is not part of either side. “That will encourage more lawsuits.”

The primary targets, Muller said, would be the giant food makers, but retail grocers also might find themselves in the crosshairs.

“It’s easier to win,” Muller said. “It’s easier to convince the mom-and-pop stores to settle than to convince Monsanto.”

That worries grocers such as Ray Martinez, owner of La Playa Market, which caters to lower-income families. For every unmarked item at his Inglewood store, Martinez would need to get a sworn statement from suppliers or get independent certification confirming products are GMO-free.

“It makes no sense to me as a businessman and as a consumer,” he said.

Sandler, of the California Right to Know group, said supermarkets would be responsible only for labeling their shelves and would not be penalized for mistakes by manufacturers.

Marsha Cohen, who teaches law at UC Hastings, said the initiative’s language on enforcement is very broad and allows anyone to sue for violations. “I would not have chosen to write it in this way,” she said.

Cohen, who has no role in either campaign, noted this is a common problem with ballot initiatives, which are not subjected to the same scrutiny as bills passed by the Legislature. There’s always some uncertainty about how initiatives that become law should be interpreted, she said.

Cohen would have preferred that Proposition 37 contain a clause spelling out fines for violations that would go to the state’s coffers. She also would have limited consumer action to people who have suffered harm from eating mislabeled foods.

San Francisco Bay Area environmental attorney James Wheaton filed the labeling initiative language with the state attorney general’s office last year. He also drafted Proposition 65, which requires businesses to post warnings about chemicals, and his firm has won judgments from litigating claims under that initiative, which was passed by voters in 1986.

A message left with Wheaton seeking comment was not returned.

Reprinted from San Jose Mercury News (11/03/2012)