Editorial: No on 37: Flawed measure could prove costly and add to litigation burden

October 7, 2012
Santa Cruz Sentinel

At first hearing, Proposition 37 on the Nov. 6 ballot seems like a no brainer. After all, who would oppose truth in labeling? That’s the ostensible purpose behind this measure: to label genetically engineered food so consumers know exactly what they’re buying.

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Supporters point out the opposition is bankrolled by corporations such as Monsanto, which has so far contributed $7 million of the whopping $36 million raised to defeat 37. Corporate food companies, they note, have a vested interest in not revealing how much of the food they produce is GE. Some foods, for instance, have their genetic structures altered to make them resistant to weed killers such as RoundUp, which is produced by Monsanto. Processed foods, for instance, commonly contain genetically modified ingredients.

Supporters also note that Prop. 37 does not ban the use of GE ingredients in food; all it does is require these ingredients are labeled.

For these reasons, and, we suspect, because many Californians fear the very concept of genetically modifying foods such as corn and soybeans, Prop. 37 has enjoyed a nearly 3-1 favorable margin in polling.

But consumers also are concerned that in most cases, they aren’t informed by labels about the use of pesticides, hormones or antibiotics, or about the conditions in which animals bred for meat are kept. Prop. 37, however, would not provide this information; it only applies to GE food.

And the science — mostly sponsored so far by the companies producing GE foods — so far doesn’t provide evidence that changing the genes of a plant or animal causes a health risk for consumers. With all the problems with antibiotics and animal feed, not to mention pesticide use, why single out only GE foods?

And that’s not the only problem with the measure. According to the nonpartisan state Legislative Analyst’s Office, Prop. 37 — designed to prevent any foods with a genetically modified ingredient from being labeled as “natural” — could include any processed food.

Perhaps our biggest issue, however, is how Prop. 37 puts the burden on retailers for ensuring foods have a label.

Citizens would be empowered to sue grocers they believe to be selling unlabeled GE foods, without needing to prove any damages. Clearly, this provision would create even more lawsuits. And who would this benefit? Lawyers. That’s what happened after voters in 1986 approved Prop. 65, requiring disclosure of toxic chemicals. The result has been more than 16,000 legal actions. Some were warranted, others were aimed at forcing businesses to settle quickly rather than pay for court costs.

The text of Prop. 37, written by environmental attorney James Wheaton, who also helped draft Prop. 65, clearly allows lawyers to sue to stop alleged mislabeling of GE foods, and to collect standard court costs and fees in these lawsuits. Supporters, however, say that unlike 65, this measure does not allow for legal windfalls in the form of penalties.

Farmers, meanwhile, regardless of the size of their operations, fear that under Prop. 37 they will have to provide sworn statements proving that they do not have genetically engineered crops, creating even more paperwork and liability issues.

For the record, organic foods by law cannot contain GE ingredients. Almost no fruits sold in markets have been genetically changed. And nothing would stop larger retailers from labeling foods or letting consumers know about GE ingredients in products for sale.

This isn’t to say there aren’t legitimate concerns about genetically engineered foods or the public should be kept in the dark about what they are buying and eating. But this sloppily written measure is not the answer. The upshot is that Prop. 37 could add to food costs for consumers, hurt small businesses and create yet another avenue for costly litigation.

A better approach would be for independent studies to provide conclusive evidence on any health risks associated with bioengineered foods. Based on such studies, more oversight and a comprehensive, national food policy can be put together that would also deal with antibiotics, pesticides and hormones.

The initiative may be well intentioned, but it creates more problems than it solves. Vote no on Proposition 37.

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