California’s Unconstitutional Proposition 37

by Hans Bader on August 16, 2012 · 20 comments

in Legal, Nano & Biotech, Personal Liberty, Regulation

Writing in the Daily Caller, legal commentator Walter Olson says that California’s Proposition 37 is bad policy that will only enrich opportunistic lawyers:

Prop. 37 on this fall’s California ballot, pleasantly billed as the Right to Know campaign, would require labeling of food with genetically modified (GMO/GE) ingredients. Backers say Europe already has similar rules and there’s no reason California shouldn’t follow suit. And even though health fears about GMO/GE products have been debunked by virtually every scientific authority to look into the matter — from the AMA to the World Health Organization, and including science reporting in such perhaps unexpected venues as Mother Jones and the Huffington Post — voters in a new Pepperdine poll still approve of the idea by a lopsided 69 to 22 percent. After all, how much could it cost just to put labels on foods?

We may soon find out. California’s fabled Proposition 65, enacted in 1986, requires the labeling of products that expose consumers to substances linked to cancer. That’s a pleasant-sounding idea too, but 26 years later the law has benefited almost no one but litigators. Even as cancer remains just as much of a problem in California as elsewhere, a cadre of lawyers in the state have made many, many tens of millions of dollars filing inadequate-labeling suits against purveyors of such products as candles, fireplace logs, Christmas lights, hammers, billiard cue chalk, matches, grilled chicken, life-saving drugs, brass doorknobs, car exhaust in parking garages, and on and on. (Most of the money in the resulting settlements goes to the lawyers, which is one reason defendants often describe Prop 65 litigation as legalized extortion.)

Weirdly, it might even reduce the availability of certain non-GMO foods, those currently distributed by middlemen that currently sell mostly GMO foods, and don’t want to establish parallel tracks for GMO and non-GMO foods: “By some estimates, 70 percent of the current American food supply would need a ‘contains GMOs’ label” under Prop. 37,” notes Olson in the article. Proposition 37′s enormous documentation burdens and liability risks will have a large chilling effect on suppliers.

Given the utter lack of a health and safety rationale for requiring labeling of GMO foods (much of the food we eat is GMO already), Proposition 37′s compulsory labeling also runs afoul of the First Amendment, which requires that government labeling requirements advance a valid public interest and be reasonably related to that interest.

As CEI biotech expert (and lawyer) Greg Conko previously noted, such scientifically baseless labeling requirements violate the First Amendment:

In a case called International Dairy Foods Assoc. v. Amestoy (1996), the U.S. Second Circuit Court of Appeals held that a Vermont statute requiring dairy products from cows given the biotech growth hormone rbST violated the First Amendment, and that food labeling cannot be mandated simply because some people would like to have the information. The Vermont law was unconstitutional because it forced producers to make involuntary statements contrary to their views even though there was no substantial governmental interest in requiring the label statement.

“We are aware of no case in which consumer interest alone was sufficient to justify requiring a product’s manufacturers to publish the functional equivalent of a warning about a production method that has no discernable impact on a final product. … Absent some indication that this information bears on a reasonable concern for human health or safety or some other sufficiently substantial governmental concern, the manufacturers cannot be compelled to disclose it. Instead, those consumers interested in such information should exercise the power of their purses by buying products from manufacturers who voluntarily reveal it.”

That should mean that the California ballot initiative would also be invalidated. Although the Second Circuit’s decision is only binding on courts in Vermont, New York, and Connecticut, other courts would view the decision as persuasive precedent.

In addition to violating the First Amendment, GMO food labeling mandates can also be invalid by virtue of being preempted by federal law, as Conko previously explained. He discussed a 2011 federal court ruling that rejected, as preempted by federal law, class-action plaintiffs’ attempt to sue over the fact that food had not been labeled to include disclosure of its “GM [sic] ingredients,” since such GM origins did not affect the “objective characteristics of the food” and thus had no relevance to health or safety in the eyes of the FDA.

Manny August 16, 2012 at 2:48 pm

I am sorry that you are so lost on what the foundation of this country is all about. The government is for the People and by the People, NOT for the corporation and by the corporation, no matter how badly you want it to be. When strictly interpreting the Constitution on this issue even Scalia is going to agree that CA has the right to enact prop 37. I can’t wait for the People to win and pass #37 one and the corporate bullies, investors, bought out politicians (all of them), bought out FDA USDA EPA, chemical pushers (DDT, agent orange, dioxin, etc – were all claimed to be safe by these same companies), the junk food industry, industrial factory farmers, and you LOSE!

Mary Artemis August 17, 2012 at 6:49 am

Wow, if you can’t see that the buying off money and influence of companies with sway money exists here. . .! I’m afraid our country is doomed! But it isn’t, because, most people are not brainwashed by jabber (I hope). Because, you see, there is NO REASON in hell whereby a company should get away with foisting SECRET ingredients upon anyone for any reason. They are “providers” merely, and they get paid for what they provide. You are in charge of making sure they are honest and at least representative with what they’ve done. Only then can you cast your honest vote for their product or not for their product. Without honesty, you have nothing. You should be afraid of any ingredient any company would “uh hem, ‘ra-ther’ (read english stuffy pronunciation) not say”, like “eod rah-tha nawt say”. What’s more, any court that would uphold such a notion of allowing a company, like a person, to have privacy, is missing more than a few notches on their IQ belt. You see,
anyone who has background in anything intelligent would consult Jeffrey Smith’s book that compiles all the evidence “Genetic Roulette” and Seeds of Deception’ and further evidence of direct harm at this website
Further, here is the damage caused by the first amendment gone adrift and too far. That said, I’m Libertarian. However, I see the need for people to be protected and for the earth to be protected (from nuclear power, for example). Here is a news station subverting the truth and threatening and firing news reporters for exposing the growth hormone.
Further, here is the scientist who found the harm in the growth hormone and his story. It is quite compelling when you see the coverups and threats by the corporations with money. You see, the truth is, the corporation is NOT a person. We must never give them the power of treating them that way. The corporation has no soul and it does not care about YOU. And that is why you must protect each other and the public. Here’s Dr. Shiv Chopra. Please also check out Jeffrey Smith and his research. And bear in mind what this Libertarian says. There is a limit. There is a place where we say, “Tell the Truth”.
Here’s a freebie on more deception for the US People
When you finally understand the gist and the magnitude of the power of these corporations and the level of deception and harm done to your mother, you act. Sometimes that action means you reign it in and say NO. Backbone.
And google information on the Swine Flu Hoax. Here’s just only one great piece on how you’ve been duped.

Adi August 17, 2012 at 7:19 am

This article is just a compliation of lies, as is pretty much everything on this website. Total losers.

Marc Scribner August 17, 2012 at 2:01 pm

Rather than relying on the scaremongering nonsense from professional kooks and liars such as Jeffrey Smith, I wish more people would take time to actually understand the science. If they did this, they would know that every major scientific body in the world has found that 1) agricultural biotechnology is no more dangerous to humans than conventional/”organic” breeding, 2) agricultural biotechnology offers massive environmental benefits over unsustainable conventional practices. The opposition to genetic engineering is based solely on politics, and rather stupid politics at that.

Here are two free books from the National Academy of Sciences that I encourage you to read:

Safety of Genetically Engineered Foods: Approaches to Assessing Unintended Health Effects

Impact of Genetically Engineered Crops on Farm Sustainability in the United States

A lighter, well-researched book on this topic can be purchased here.

William Brooks August 17, 2012 at 6:07 pm

Scientific Studies show that in areas like the Mississippi River Basin, the overall agricultural use of glyphosate has increased 8 fold from 11,000 tons in 1992 to more than 88,000 tons in 2007 (It is now much higher). This increase directly results from the introduction and spraying of GMO crops.
Further studies show a huge increase in Deformations and Sterility in the fish and amphibians living in the run off water surrounding these areas.

Abstracts show that Glyphosate is absorbed from multiple sources and is present in the blood of individuals living in the high spray areas. Glyphosate even crosses the placental barrier and can reach the developing fetus.

Last year the US Geological Survey consistently found glyphosate in stream, rain and even air in agricultural areas of the US, and you still condone the spraying on the actual food we are eating…. amazing…..

Marc Scribner August 17, 2012 at 6:58 pm

Nope, you’re wrong. Stop reading nutjob Greenpeace-y/Mercola blogs and you might get a clue. Glyphosate does not bioaccumulate, and is far safer than many pesticides routinely sprayed on so-called “organic” crops, such as rotenone. For an actual glyphosate risk assessment (note to enviro-dummies: risk is never zero), see, e.g.,

William Brooks August 21, 2012 at 11:17 am

How can you say I’m wrong – have you actually read this report from California (where POEA’s with glyphosate are banned) – they conclude the risks are there? I’m glad that least you agree that the risk is never zero. How about you stop reading your eco-dummies Herbicide Sales Brochures and start studying the facts from other non-chemical industry funded universities:

The University of Pittsburg: “ecologists added Roundup at the manufacturer’s recommended dose to ponds filled with frog and toad tadpoles. When they returned two weeks later, they found that 50 to 100 percent of the populations of several species of tadpoles had been killed.

One specific inert ingredient, polyethoxylated tallowamine, or POEA, was more deadly to human embryonic, placental and umbilical cord cells than the herbicide (glyphosate) itself – a finding the researchers call “astonishing.”

Here are some other scientific reports:

Glyphosate: Causes various birth defects in frog and chicken embryos at lower doses than is recommended for use in the used in the field:
Paganelli and Gnazzo (2010) Chem Res Toxicol 23(10): 1586–1595

May cause DNA damage in humans: Koller et al. (2012) Arch Toxicol

Causes spontaneous abortion and skeletal/visceral abnormalities in rats and rabbits:
Antoniou et al. (2011) Report: “Roundup and Birth Defects,” sponsored by Earth Open Source

50 countries have decided that the ever increasing use of herbicides from GMO introduction, is enough of a risk that they have either banned GMO’s or require that they be labelled.

Marc Scribner August 21, 2012 at 2:38 pm

This is the best you can do?

1) The U.S. EPA has repeatedly found that ecological and health impacts are trivial enough for it to be approved. We live in a world of trade-offs, and glyphosate meets higher health and ecological standards than many, many organic pesticides. POEA’s impact on amphibian development is inconclusive and likely very small at levels expected to be found in a real-world setting.

2) Re: UPitt. You realize what that study was about, right? Rick Relyea dumped a bunch of Roundup (which is not an aquatic pesticide) in a frog tank in an attempt to kill surface algae. Frogs died instead of surface algae. So, yes, if you use pesticides incorrectly, you can exacerbate risk and do harm. That’s essentially what that study found. Habitat reduction in urban areas appears to be a far greater contributor to amphibian ill health and population decline than agricultural pesticides.

3) One Argentine study that contradicts a number of other studies and respected U.S. researchers such as Prof. Wayne Parrott at UGA have cast doubt on the findings. Hardly conclusive and as long as women aren’t injecting chemicals into their embryos, they should be fine. Ask your “organic” friends who regularly treat their produce plants with rotenone dust about the ill effects. It is known to be both toxic (and may be responsible for an increase in Parkinson’s disease among farm workers) to humans and highly toxic to aquatic life. But who cares, right? It’s “organic.”

4) The Koller study has been largely ignored by serious scientists because it was funded by France’s anti-biotech lobbying organization, CRIIGEN (which has ties to Greenpeace), the same goes for the Antoniou (who is affiliated with CRIIGEN) study. Both also created highly selective bibliographies and ignored the most comprehensive data sets available on glyphosate impact.

5) Most countries have worse biotech regulatory regimes than the United States because of political, not scientific, pressure. Their leaders are nutjobs and their populations are rationally ignorant of the actual science, thanks largely to the well-funded efforts of the humanity-hating enviros. The Europeans are the worst, though. And perversely, their regulatory apparatus is so stupid that they actually create the crop monopolies (by slowly approving only a few varieties that are approved elsewhere) that anti-biotech activists whine about so often.

Jonica Brooks R.N. August 19, 2012 at 2:58 pm

The only entity who holds any credence to your argument is corporate greed and those vested to profit from it. We have the right to know, ok? It is that simple. If your “miracle” food where allowed to be distributed without labeling, think of the doors of diseption that would open. All kinds of “hidden” products could flood our lives. And all in the name that we common people are too stupid to be made aware? You offend the basic principle of democracy.

Marc Scribner August 19, 2012 at 4:08 pm

First, food products containing biotechnology-derived crops are currently unlabeled with respect to this use of biotechnology, as they should be. Second, the purpose of product labeling ought to be to convey important information to consumers, yes? Here’s why *government-mandated* labeling of products containing biotech-derived crops makes zero sense, assuming your goal is rational labeling policy:

1) It implies a special risk where no evidence exists to support such a claim.
2) It runs contrary to the global scientific consensus on biotechnology safety.
3) It would dramatically increase the cost of product development (most of which will be passed onto consumers).
4) It punishes a superior technology to assuage Luddite paranoia.

So even if it was constitutional (which it isn’t), it would still be harmful policy. What you *do* have a right to is to voluntarily purchase “Organic Certified” products at higher prices, which are widely available to consumers. You *do not* have a right to force your ignorance of science on humanity in order to misinform consumers. Or do you believe a “basic principle of democracy” could include the government endorsement of a Flat Earth or the rejection of evolution?

Awake August 17, 2012 at 5:17 pm

This article is complete unadulterated propaganda and nonsense.

Hear me now: the studies Monsanto itself published are at Pub Med…. buy them, take a copy to your vet or your doctor….see how safe they think they are.

Label GMOs!*%2C%20J.%20Lemen%20a%2C%20R.%20Dudek%20a%2C%20D.%20Ward%20a%2C%20C.%20Jiang%20a%2C%20M.%20Nemeth%20a%2C%20J.%20Burns%20b

Awake August 17, 2012 at 5:19 pm
Marc Scribner August 17, 2012 at 5:25 pm


Did you actually read this or any other peer-reviewed study? Here’s what it found: no statistically significant difference in health outcomes (of force-fed rodents) that were fed biotech maize and conventional maize. Did the abstract (where this is made quite clear) not tell you this? And last time I checked, most vets do not hold PhDs in molecular biology (which you don’t as a house cat specialist) or any other relevant discipline. Please, stop spreading the lies of the anti-biotechnology Luddites, unless your goal is to starve poor people in developing countries. Your (lack of) “analysis” is comparable to that of the entire anti-”GMO”/”organic” movement — spewing fact-free and immoral pronouncements from your wealthy, uneducated Western throne.

Herb Ocide August 18, 2012 at 6:13 am

Folks like science when it gives them more choices. But we don’t like it when science is used to force change upon us and not even tell us. Who in their right mind gave the seed companies the right to introduce new life forms into agriculture whose genes are now spreading to and changing all the original types of crops? This is sound public policy? We complain and the creators of these new life forms get all offended and call us names (stupid, ignorant, luddites, anti-science, creationists, wackos, anti-vaccine) and say we’re obviously wrong. But the consumers of these new life forms have not been given a chance to weigh in. Perhaps because they think we’re not capable of deciding. Very patronizing. The marketplace is wise, but it cannot do its job if the truth about the products is hidden from the ultimate consumer. Make it so we can decide, we’re not little children. Hiding it makes us super mad.

Marc Scribner August 19, 2012 at 4:19 pm

Mankind has been “genetically modifying” plants (and animals) to better serve our purposes for thousands of years. Biotechnology is just far more advanced and precise than selection breeding or mutation breeding, and hence more easily testable and likely safer. If biotechnology creeps you out, look up mutation breeding, which is perfectly legal and safe if done properly, and *no one* in the so-called “organic” movement is calling for mandatory labeling. And Mother Nature herself is quite the genetic modifier — look up transposons, aka “jumping genes.” What is patronizing is that you believe you know more than every global scientific body and that you have a right to mislead consumers by implying through government fiat that a product is somehow less safe when it is not.

lynx lannock August 21, 2012 at 3:33 pm

Individuals are very capable of doing our own research and coming to our own conclusions. Labelling food as containing GMO’s says nothing about the safety of GMO’s….it just states the ingredients of the food product. It is up to us as individuals to decide for ourselves if we think we want to eat GMO products or not. If products are labelled as containing GMO’s, sugar, soy products, fruit….whatever…….then we have the knowledge with which to base out choice….to buy and eat…or not to buy and eat. If the foods are not labelled with all the ingredients that consumers would like to know about…..then consumers cannot make personal choices very easily. The real issue is not about safety……it is about knowledge and CHOICE.

Marc Scribner August 21, 2012 at 7:42 pm

That makes no sense. Do you believe that *all* plant breeding practices should be disclosed on product labels mandated by the government? What about soil types? Pesticides used? Water sources? Fertilizers? Equipment? Energy consumed? Labor market composition of those who harvested it? When does the madness end? Biotech crops present *NO NEW RISKS* relative to conventionally bred crops. If you don’t believe that, you’re just ignorant. But for a second, assuming that is true, do you still think labeling should be mandated by the government?

William Brooks August 22, 2012 at 4:23 pm

1) “Belinda Martineau, Ph.D., was the genetic engineer and a Principal Scientist at Calgene, Inc. (in Davis, CA), she helped create and develop the world’s FIRST commercially available genetically engineered whole food, the Flavr Savr™ tomato. During the development of that tomato, however, she was transformed from a devout believer in the promise of agricultural biotechnology into a skeptic WARY OF IT’S UNCERTAINTIES”.!! Please read her research papers and decide for yourself.

When the chief creator of Genetically Engineered Organisms now talks about it’s dangers, don’t you think intelligent scientists should take note?

2) If GMO’s are the savior of mankind, the chemical industry should be proud, publicize and LABEL IT. Show us all that it’s better, and Vote “YES on PROP 37 “.

Marc Scribner August 22, 2012 at 5:22 pm

1) Martineau was not the “chief creator of Genetically Engineering Organisms [sic]” nor was she the lead scientist behind the Flavr Savr tomato. She is no longer an active genetic engineer and her whole point is fostering a dialogue between, as she sees it, pro-biotech scientists who think (rightfully, in her estimation) that anti-biotech activists are deeply ignorant and (not in her estimation) worthy of contempt and ridicule, and anti-biotech activists in order to give the science-illiterate some actual facts and context. She admits that agricultural biotechnology is not without risk. Again, so what? Nothing is without risk. But one point ought to be made: Martineau, who does *not* reject agricultural biotechnology as inherently unsafe as most enviro-nuts do, is in the minority among biotech scientists.

2) They are proud. They’re also afraid of unnecessarily frightening ignorant consumers and opening the door for increasingly stupid regulation (the type that you advocate, for instance). If you want to be a paranoid Luddite, fine. Grow your own food or buy overpriced “organic,” but please stop talking about things you don’t understand.

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