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PROPOSITION 37: BEWARE OF TRIAL LAWYERS LURKING IN YOUR FOOD

Tom Scott, California Citizens Against Lawsuit Abuse

August 7, 2012
[Publisher's Note: As part of an ongoing effort to bring original, thoughtful commentary to you here at the FlashReport, I am pleased to present this column from Tom Scott.  - Flash]

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Readers of the FlashReport know to look at the fine print of ballot initiatives for tricks and hidden agendas by California’s most entrenched special interests. When it comes to Proposition 37, you may want to look at not only the fine print, but look in your refrigerator and kitchen pantry as well. You may see trial lawyers hiding behind a box of cereal.

Cleverly dressed up as a consumer “right to know” measure, Proposition 37 is another red herring by and for trial lawyers.  It authorizes a new avenue to file “shakedown” lawsuits against family farmers, grocers, food companies and others… lawsuits that will cost them (and us) millions. More on that in a minute.

Proposition 37 bans the sale of tens of thousands of safe, common grocery products in California that contain any trace amount of genetically engineered (GE) ingredients unless they are specially repackaged, relabeled or made with non-GE, higher-cost ingredients. Never mind that biotechnology, or genetic engineering, has been safely used for nearly two decades to grow varieties of corn, soybeans and other crops that resist diseases and insects and require fewer pesticides.

And never mind that more than 400 scientific studies have been conducted on these crops, and virtually every respected medical, health and scientific body has concluded GE crops are safe, including the American Medical Association, National Academy of Sciences, World Health Organization, U.S. Food & Drug Administration, and more than twenty-five Nobel Prize winning scientists.

But what you really need to know about Prop 37 is that it contains a bounty hunter lawsuit provision allowing trial lawyers to file predatory lawsuits against family farmers, small grocers, and food producers alleging labeling violations, but requires no proof of any damages prior to filing the lawsuit. Millions will be generated in attorney fees and costs.

According to the State Legislative Analyst, under Prop 37 lawyers can file suit “without needing to demonstrate that any specific damage occurred as a result of the alleged violation.”

In other words “guilty until proven innocent.”

The lawsuits would play out in the real world like this: An unscrupulous lawyer would walk the grocery aisles looking for unlabeled products with ingredients for which GE varieties exist (corn starch, corn syrup, soybean oil, or canola oil). Prop. 37 allows the lawyer to file suit alleging that the product is mislabeled without any testing and even without any proof that the food contains a GE ingredient.

It doesn’t matter if the product has no GE ingredients and the farmer or grocer is completely innocent. The decision then comes down to simple math: Spend tens of thousands of dollars to engage lawyers and testing labs to fight in court to prove innocence; or settle with the plaintiffs’ attorney for less.

It’s a shakedown, pure and simple.

Prop 37 was written and filed by James Wheaton, a trial lawyer who has made (through his law firm and organizations he controls) more than $4 million suing under the terms of another ballot proposition he helped write, Proposition 65.

According to records kept on the Attorney General’s website, Prop 65 has generated more than 16,000 legal actions against California businesses and produced nearly $500 million in legal fees, settlements, attorneys’ fees and costs – the vast majority of which has gone to trial lawyers.

Prop. 37 also undermines voter approved Prop. 64, passed by voters in 2004 to address shakedown lawsuits. Prop. 64 changed the law to require that attorneys actually have a client or injured party prior to filing a lawsuit. Prop 37 requires no client or proof of damage to sue under the measure.

Need more proof this is really about trial lawyers? Just recently, the wife of notorious trial attorney Bill Lerach contributed $25,000 to the Prop 37 campaign. Mr. Lerach has bilked tens of millions from class action lawsuits. In 2008, he was convicted of concealing illegal payments to a plaintiff in a class-action lawsuit and was sentenced to two years in prison.

Proposition 37 has other serious flaws, including special exemptions, huge taxpayer costs, and hundreds per year in higher grocery bills for California families. I’ll leave that to others to articulate.

For now, Prop 37’s shakedown lawsuit provision and its trial lawyer backers should be reason enough for you to reject this “right to know” initiative, which is really nothing more than a “right to sue” bait and switch.
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Tom Scott is the Executive Director of the California Citizens Against Lawsuit Abuse.

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