Drawing on the experience in the aftermath of Proposition 65 – which involved chemicals and water – three national law firms are bracing for an onslaught of lawsuits that will result if Proposition 37 passes. The firm Alston and Bird says Prop 65 has led to 16-thousand lawsuits and 500-million dollars in settlements. Their website expects Prop 37 will impact many California businesses – creating an atmosphere favorable to private enforcers and leading to frequent litigation and settlements. The Prop 37 ballot initiative outlines certain labeling requirements for genetically engineered food products sold in California. Law firms are warning that the measure will expose grocery retailers, food companies, farmers and others to what they call predatory, shakedown lawsuits.

Much like Prop 65 – Prop 37 allows trial lawyers to file suit against anyone and everyone associated with any food product without a label. They don’t even need evidence, testing or research to show the unlabeled product contains genetically engineered ingredients. Those promoting the proposition emphasize that those sued have an easy out if they produce sworn statements that there was no knowing or intentional use of GE. But a client alert from Morrison and Foerster says the defendant would have to submit to discovery on the question of knowledge and intent in order to take advantage of that exemption.

The law firm Downey Brand says the sworn statement exemption will hit everyone on the food production chain – setting in motion a series of certifications and indemnity agreements that will stretch from the grocery stores all the way back down the chain of production to the nursery or seed company. They go on to say a sworn statement will be required of the farmer, the trucker, the packer, the processor, the wholesaler/distributor and finally the retailer. While aimed directly at the retailer – Downey Brand says Proposition 37 will mean everyone in the food supply chain is responsible for compliance.