Food Labeling Proposition: “Right to Know” or Right to Sue??

The proposed food labeling proposition aimed for California’s November 2012 ballot was written by attorney Jim Wheaton – a trial lawyer who helped write Prop. 65 and whose law firm has profited more than $3 million from suing California businesses in the last decade under the provisions of this proposition.

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California State Attorney General records show that Wheaton’s Environmental Law Foundation has received more than $3 million in Proposition 65 settlements for attorney fees and “other distributions” between 2001 – 2010. 2001 was the first year the settlements were available online. (Source:  California Attorney General Annual Summaries of Private Settlements. See summary below).

Much like Wheaton’s new food labeling measure, Proposition 65 enacted new labeling requirements on businesses. But in the last two decades, Prop. 65 has been abused by certain plaintiffs’ lawyers seeking to shake down small business owners into paying huge settlements that benefit only the lawyers.

In fact, at least $482 million has been paid by companies settling Proposition 65 lawsuits between 1989 and 2011. (Source: California Attorney General website,  and the U.S. House Committee on Small Business, Hearing on Proposition 65’s Effect on Small Business, HR Rep. No. 106-38 at 43, October 1999).

Similar to Prop. 65, the food labeling proposition creates a new category of lawsuits, allowing any private citizen (i.e. lawyers) to sue, claiming a food company, grocer or farmer has violated the labeling provisions, even if the alleged mislabeling caused no harm or damage.

“… the consumer bringing the action need not establish any specific damage from, or prove any reliance on, the alleged violation.”

This language subjects family farmers, grocers and food companies to enormous risk of lawsuit and litigation costs, even if they have done nothing wrong.

The nonpartisan California Legislative Analyst Office which reviews all proposed ballot measures and reports fiscal impacts to the state of California, agreed the threat of lawsuits was significant, saying the measure will result in “unknown, but potentially significant costs” for the state: (http://lao.ca.gov/ballot/2011/110813.aspx):

• “The measure specifies that consumers could sue for violation of the measure’s provisions.”
• “In order to bring such action forward, the consumer would not be required to demonstrate any specific damage from the alleged violation (emphasis added).”
• “…the state would incur additional costs to process and hear the additional cases. The Attorney General and local district attorneys may also incur some costs…”
• The proposition would result in “unknown, but potentially significant, costs for the courts, the Attorney General, and district attorneys due to litigation resulting from… this measure.”

As the official proponent and primary drafter of the proposition, Mr. Wheaton and his organizations would be in prime position to file countless lawsuits in order to reap huge settlements and fees.