Cross-posted at Forbes.com’s Washington Legal Foundation contributor page
The “California Right to Know Genetically Engineered Food Act,” also known as Proposition 37 (“Prop 37”), advances the deeply misguided aspirations of several powerful special interests, including the plaintiffs’ bar, environmentalists, and public health activists. Part of this ballot initiative would require all raw and processed foods whose production was impacted in any way by biotechnology to be labeled as such. Prop 37 allows private citizens (i.e., lawyers) to sue farmers, distributors, grocers, and food companies for $1,000-a-day fines and punitive damages if a product is out of compliance.
The mandated labeling and the private enforcement provisions of the initiative have received an increasing amount of attention. There is, however, another part of Prop 37 which has been subjected to very little public scrutiny. That is about to change, however, because this section contains a possible poison pill that may sink the entire initiative. In addition to requiring “genetically engineered” labels, Prop 37 prohibits the use of terms such as “natural” and “all natural” in product packaging and any advertising and promotional materials.
This prohibition of course applies to products impacted by biotechnology. But it also can apply to other foods regardless of whether or not they have been genetically engineered or include ingredients that have been. The California Attorney General’s title and summary of Prop 37 reflects this, as does the independent, non-partisan Legislative Analyst’s Office‘s summary. The “Yes on Prop 37” crowd urged a state judge to clarify that the “natural” marketing ban only applies to genetically engineered processed foods. But on August 10, the judge denied their request, instead ordering a minor wording change to the Legislative Analyst’s Office’s summary.As a result, the “natural” marketing ban is entirely counterproductive to the purported larger aims of Prop 37. Consumers who want to avoid processed goods that contain chemical or synthetic ingredients will now find it harder to distinguish between products if none of them can be labeled “all natural.” Prop 37’s marketing ban also establishes an entirely absurd, completely radical notion of “natural.” Under the broad interpretation:
- Olives sold in bulk at a store, natural; olives bottled in oil, unnatural (due to canning)
- Apples sold individually, natural; apples cut up and packaged individually for your convenience, unnatural (due to cutting and packaging)
- Unshelled peanuts, natural; peanuts ground up and canned with no added ingredients (i.e. peanut butter), unnatural (due to pressing and canning)
The list could go on and on. Food producers that would otherwise benefit from, and thus support, Prop 37’s mandated biotech label, may end up opposing Prop 37 once they think through the impact on the “natural” marketing ban. This product differentiating term will be acceptable for products shipped to 49 states, but not for California. What will the costs be to create California-specific packaging? And will food companies risk running ads on national TV, in magazines, or online promoting their “all-natural” product that might be seen by consumers in California? A potential lawsuit is just one click on an ad link away. For you constitutional enthusiasts out there, doesn’t all this sound like a Dormant Commerce Clause challenge waiting to happen?
Was this all due to a drafting error, or is there something else going on here? The cynics among us might consider the profession of the author and lead proponent of Prop 37 and wonder whether the possibility of hundreds, if not thousands, more lawsuit defendants might have inspired the marketing ban’s lack of clarity. Or, just as cynically, perhaps the supporters wanted to use the Prop 37 hammer to move consumers toward an entirely unprocessed diet.
The initiative’s language is now set in stone, as are the accompanying materials which essentially say that under Prop 37, oranges can be promoted as “natural,” but orange juice, probably cannot.