Two years after Proposition 37 failed at the California polls, the California Senate has introduced S.B. 1381, which, like Proposition 37, would require labeling of genetically engineered (GE) foods. A violation of the labeling requirements would be considered a misbranding violation under the California Sherman Food, Drug and Cosmetic Law and, along with the imposition of civil penalties and injunctive relief, could be prosecuted as a misdemeanor. Like the private enforcement provision of Proposition 65, “any person” may bring a lawsuit obtain injunctive relief to remedy a violation; although the bill would not authorize a private plaintiff to seek civil penalties or damages, the court would be authorized to require the alleged violator to pay the plaintiff’s attorneys’ fees. If passed, the new requirements would become effective January 1, 2016.
S.B. 1381 retains many of Proposition 37’s key requirements:
- Both Proposition 37 and S.B. 1381 require “clear and conspicuous” labeling of GE raw agricultural commodities and packaged foods containing some products of GE.
- Under both proposed laws, the phrase “Genetically Engineered” must be used for GE raw agricultural commodities.
- Neither of the proposed laws require the label to identify the specific GE ingredient or to require the phrase “genetically engineered” to be placed immediately preceding any common name or descriptor of a food.
- Both Proposition 37 and S.B. 1381 allow private persons to seek injunctive relief for an alleged violation.
- Both proposed laws contain similar exemptions from labeling requirements, e.g., alcoholic beverages subject to the Alcohol Beverage Control Act and certified organic foods.
But there are important differences between S.B. 1381 and Proposition 37:
- Proposition 37 allowed processed foods containing GE ingredients to be labeled “Partially Produced with Genetic Engineering” or “May Be Partially Produced with Genetic Engineering”; S.B. 1381 requires the more definitive “Produced with Genetic Engineering” or “Partially Produced with Genetic Engineering.”
- Proposition 37 prohibited all processed foods from being labeled or advertised as “natural,” “naturally made,” “naturally grown,” or similar wording. This provision may have been the main cause of Proposition 37’s failure. S.B. 1381 contains no similar provision.
- Proposition 37 entitled a private enforcer to seek “all reasonable costs incurred in investigating and prosecuting the action,” in addition to attorneys’ fees. S.B. 1381 limits monetary awards to attorneys’ fees. It remains to be seen whether the remedy of injunctive relief also could include a claim for restitution of money paid to purchase the allegedly violative product; although restitution for a product’s purchase price likely would not amount to much for a single private plaintiff, it could add up quickly if a private plaintiff pursues a class action.
- Proposition 37 provided that a violation of that law would be considered a violation of the California Consumer Legal Remedies Act; S.B. 1381 does not contain a similar provision.
- Manufacturers and retailers — but not farmers, producers or suppliers — would be subject to S.B. 1381. Although manufacturers of GE raw agricultural commodities and packaged foods with GE ingredients are required to label such products, S.B. 1381 clearly imposes the labeling requirement on retailers, where a raw agricultural commodity is not separately packaged or labeled. Proposition 37 was not as clear regarding the category of entities subject to the labeling requirements, and their respective responsibilities.
Retailers in particular will have a difficult time with S.B. 1381. The bill appears to assume that retailers will have access to timely and accurate information regarding the GE status of all the foods they sell. Even setting aside whether such an assumption is realistic, S.B. 1381 imposes liability even if the retailer “should have known” that the product was entirely or partially produced with GE. In a lawsuit, “should have known” is a classic issue of fact, the resolution of which usually involves many thousands of dollars in attorneys’ fees for depositions, document production and other written discovery. If enacted, S.B. 1381 surely will create a new cottage industry for plaintiff’s attorneys, not unlike Proposition 65’s private enforcement that for decades has been plagued by frivolous lawsuits.