One key problem with Proposition 37, says Paul Rosenlund, a lawyer who specializes in defending people from Proposition 65 litigation, is that it lacks objective criteria — just as Proposition 65 does.
So history could repeat itself. "Virtually anyone — even people who haven't been exposed, damaged or suffered any kind of a loss, they don't have to have purchased the product — almost anyone in the world can file an enforcement action," says Rosenlund, who is with the firm Duane Morris.
PHOTO BY STEPHEN LAM/REUTERS/NEWSCOM
Jonathan Youtt performs a puppet show in support of Proposition 37.
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The Nov. 6 ballot measure requires that even foods that might contain genetically engineered food carry the label.
"I don't know how any food producer, even the most responsible one, is supposed to comply with that," Rosenlund says.
Moreover, under Proposition 65, attorneys had to file a 60-day notice before they could sue somebody. But Proposition 37 says enforcement actions can be filed without any warning. The law, if passed, could morph into "a litigation machine," Rosenlund warns.
"What you'll see is a lot of small, convenience-store owners, and bodegas, and mom-and-pops, getting tagged by lawyers who come to them and say, 'You don't have the necessary paperwork to show that you're in compliance,' " agrees Michael Steel, a lawyer with Morrison Foerster, who has spent years defending people and companies over Proposition 65 lawsuits.
Store owners may be so unnerved by the prospect of being ruined — the lawsuits can hold them liable for the full retail price of every unit of that item sold after the law takes effect — that foods they're uncertain about could vanish from shelves.
To proponents of the natural-food movement pushing Proposition 37, that would not be a bad thing.
Stacy Malkan, spokeswoman for Yes on 37, points to "numerous animal studies showing links to allergies and other health impacts" from genetically engineered foods — to say nothing of the fact that genetically engineered fruits and vegetables are designed to withstand the application of products like Monsanto's Roundup. This has encouraged the use of higher levels of pesticides on those crops.
That "greater good" argument is the same one employed by defenders of Proposition 65 to this day.
"What you don't hear is that Proposition 65 has caused literally thousands of products to be reformulated to get rid of deadly, toxic chemicals," says Reuben Yeroushalmi, of Los Angeles–based law firm Yeroushalmi and Associates, whose bread and butter is Proposition 65 litigation.
He sees the much-maligned Proposition 65 as a preemptive measure. "Had we stopped the Sept. 11 attacks, nobody would have known how great the action was," Yeroushalmi says. "If we can stop the exposure of toxic and deadly chemicals in the same way, you could never measure the amount of lives saved."
