Prohibition from marketing genetically engineered foods as "natural"

In addition to requiring labeling of all genetically engineered foods, Proposition 37 would also prohibit companies from describing their genetically engineered products as "natural" or "all natural." This prohibition might apply not only to labels and signage, but also to any advertising or promotional materials. The initiative suggests that to label a genetically engineered food "natural" would mislead consumers. In this manner, Proposition 37 seeks to define both what is genetically engineered and what can be considered "natural" in California.

Enforcement of Proposition 37

We expect that, should Proposition 37 go into effect this November, the law will provoke a significant amount of litigation. Proposition 37 would allow any person to bring suit under the law, regardless of whether that person has suffered any specific damages or injuries from alleged violations. In addition, the proposed law would not require plaintiffs to give any notification to the targets of their lawsuits prior to commencing legal actions. Similarly, persons seeking to sue under Proposition 37 will not need to inform the attorney general's office of potential violations before bringing suit. These enforcement provisions allow potential plaintiffs easier access to the courts than is currently allowed under California's Proposition 65, the law that requires notice to consumers of products that contain substances known to cause cancer or birth defects. Proposition 65 has provoked an enormous amount of litigation since its passage in 1986.

Significantly, Proposition 37 is drafted to allow for prosecution of violations under both the enforcement provisions of the initiative itself and those of California's Consumers Legal Remedies Act. Under the Consumers Legal Remedies Act, plaintiffs may not only recover actual damages, calculated to be at least the retail price of the food products at issue, but also punitive damages. Suing under either law, plaintiffs may also be able to collect attorney's fees.

What’s next?

Proposition 37 will be on California's Nov. 6, 2012 ballot. If enacted, it will become effective immediately, but the provision requiring labeling of genetically engineered foods will not take effect until July 1, 2014. We are preparing now.