Small business under Proposition 37 (GMO labeling in California)

by on September 18, 2012 at 3:30 am in Food and Drink, Law | Permalink

I advise anyone who favors Proposition 37 to read the text of the law.  It is full of bad ideas and questionable distinctions, many of which are not apparent from the more superficial descriptions of the proposal.  Here is one of them:

Retailers (such as grocery stores) would be primarily responsible for complying with the measure by ensuring that their food products are correctly labeled. Products that are labeled as GE would be in compliance. For each product that is not labeled as GE, a retailer generally must be able to document why that product is exempt from labeling. There are two main ways in which a retailer could document that a product is exempt: (1) by obtaining a sworn statement from the provider of the product (such as a wholesaler) indicating that the product has not been intentionally or knowingly genetically engineered or (2) by receiving independent certification that the product does not contain GE ingredients. Other entities throughout the food supply chain (such as farmers and food manufacturers) may also be responsible for maintaining these records.

I call this the “how to kill off small farmers and retailers” provision.  And what would it do to local farmers’ markets to have the burden of proof so shifted?  Who is best situated to handle possible lawsuits or shakedown lawsuits?  The larger corporations.

It is interesting to see what receives an exception from the labeling provisions: alcohol, restaurant food, and animal meats raised from genetically engineered crops.  (Lobby much?)  For varying reasons, those are some of the outputs most likely to be harmful to you or to the environment.

Prop. 37 also exempts milk, cheese, and meat and it exempts “small” amounts of transgenic material in foodstuffs.  According to critics of the bill it exempts 2/3 or so of the food products which Californians consume.

I do not think it is very well thought through.

Roy September 18, 2012 at 4:57 am

So they want to put May Wah Supermarket and Ranch 99 out of business, sometimes I am glad I left San Francisco.

Actually it will probably not be enforced in chinatowns for a decade, just like half the ordinances in San Francisco, as long as the signage isn’t in English or Spanish.

Gareth September 18, 2012 at 5:46 am

From what you have there, it seems like the easiest approach is just to label every single product you sell as GE.

david September 18, 2012 at 6:26 am

An ideal way to desensitize consumers to the idea of eating GM food!

TJIC September 18, 2012 at 7:50 am

That was the response to the “labeling foods with peanuts” laws, and I chortle every time I see it – pretty much EVERYTHING I consume is labeled as having been processed on machines that may also process peanuts.

Oreg September 19, 2012 at 12:36 pm

This is a much better argument than the previous post about not labeling because the consumer might react different than TC would like.

John Schilling September 18, 2012 at 3:50 pm

Which is essentially what happened with the spiritual ancestor of this nonsense, Proposition 65. Now every place of business in California has a warning side on the front door saying (paraphrased): “There are hazardous chemicals inside, and if you really want to know which ones, go pester someone at our front office until they give you a list”. Which everyone ignores.

So, yeah, labels saying “May contain genetically-modified foods” on everything that isn’t sold at Whole Foods. Whee.

Curt F. September 18, 2012 at 6:44 am

I think the law is a silly idea but it seems to me that farmers’ markets will have an easy time complying. Aren’t farmers’ market retailers usually also the wholesaler and/or producer of what they’re selling? If so, it would be easy for them to make sworn statements.

anon September 18, 2012 at 7:41 am

easy for them to make sworn statements.

Just think about that for a minute or two. Especially the first word and the last two words.

And then think about what comes next. The regulators, the lawsuits….

Oh yeah, easy peasy.

You must like your government supersized.

The D-man September 18, 2012 at 12:38 pm

Not a big deal in the land of liar loans.

Bob Knaus September 18, 2012 at 7:49 am

I grew up on a vegetable farm which happened to also sell its produce. I can tell you from experience that sellers at farmer’s markets ARE NOT USUALLY the producer or wholesaler of the items they sell. What they are selling is the experience of going to a farmer’s market, which is a distinctly different specialty from farming. Sorry if I’ve shocked anyone.

But, you are right, it is easy for them to make sworn statements.

Andrew' September 18, 2012 at 8:53 am

Maybe some people are shocked, but I worked in a factory and it is distinctly different from strolling through Targe`.

The D-man September 18, 2012 at 12:40 pm

I think factories are awesome to see at work. Someone should start a tour company that just takes you to factories.

Brad Hutchings September 18, 2012 at 12:50 pm

Thanks for ruining it for everyone. Now we have to put a tablecloth over that punchbowl before we can carry on. Geez.

Andrew' September 18, 2012 at 7:25 am

Since there is surely no risk of acute injury it is certainly something amenable to the market forces. But the government has only one kine of hammer and this looks the same as everything I see from them- except maybe for the bizarre statement from the IRS that they won’t be enforcing our new insurance ‘tax.’

Bill September 18, 2012 at 8:24 am

Doesn’t all cattle breeding create “genetically” engineered meat? Isn’t cross polination of plants to create hybrids genetical engineering?

Maybe you can sue an organic farmer who sells hybrid sweet corn.

Andrew' September 18, 2012 at 8:50 am


Cliff September 18, 2012 at 11:45 am


wrparks September 18, 2012 at 9:13 am

Don’t quibble over definitions when you know the distinction . GMO is a very specific thing defined as insertion of foreign DNA into a host.

Though in second thought, I hope they don’t use that exact definition, because then a cucurbit infected with cucumber mosaic virus would be a GMO….

Bill September 18, 2012 at 9:21 am

Does insertion of foreign DNA by a sperm into an egg constitute a GMO product? Or, does it have to be a different species? What if the species were at some point related in the path to evolution? Is that foreign? If we show that we evolved from a fish or bird, and therefore share common some common genes, is that foreign? Or is it the only last stage of evolution which is not foreign?

Andrew' September 18, 2012 at 9:40 am

The definition is “whatever is vaguely in this space that poses a threat.” California certainly isn’t the place to look for to handle such a regulatory innovation properly. The problems include: introducing genes that could not be bred in (otherwise they could be bred in), the unforeseen consequences of these genes, the spillover fertilizing to non-GMO crops, the ownership issues of now an entire species is owned because some schmoe inserted a single (potentially useless except for privatizing the breed) gene, the general unease of people with promoting the GMO industry, effects on weed and pest resistance from things like “roundup ready” GMOs, the inclusion of potentially toxic substances right into the plant genome, the idea that squeezing yield out of crops allows us to treat the soil even worse for example (if we are genetically engineering a plant that is itself a warning sign), etc. I know very little about this subject.

Andrew' September 18, 2012 at 9:45 am

One point is that there are honest-to-goodness public good issues with this technology. I’d bet dollars to donuts that the government will trip over itself making sure that it doesn’t get anywhere close to addressing its legitimate public goods responsibilities, so it is almost academic to discuss them, but what are you gonna do?

Cliff September 18, 2012 at 11:50 am

Oh good, because most GMO foods pose no threat, so according to you they will be exempt from the labeling requirement.

Andrew' September 18, 2012 at 11:52 am

Isn’t that obviously the way everything would work in a just world?

Let’s neglect for now how we got to the point where we assume GMOs don’t pose a threat (we experimented on people).

wrparks September 18, 2012 at 10:43 am

No, because you are intentionally obfuscating the issue by pretending there isn’t an accepted definition of what constitutes a GMO.

It isn’t that hard.

A GMO plant is one that has had DNA inserted into it’s genome via either agrobacterium or the biolistic gene-gun. That is it. Doesn’t matter the source of the DNA now that I think about it. It could even be inserting a gene from the same organism. Unless it is inserted in the exact same place as the gene is found in nature (currently quite difficult), it would be a GMO since an effect is possible. For animals, I’m less familiar with techniques (actually completely unfamiliar).

I work in crop improvement (though non-GMO research), and strongly support genetic engineering, but your objections are silly.

Bill September 18, 2012 at 10:52 am

wrparks, I guess you missed the point that I was not objecting. The only issue I see is one of tipping: that for those who to supply non-GMO because their customers, in the EU or otherwise, get pushed into purchasing GMO because they share the same distribution system with GMO products. I’ve watched a trade association discuss with its members the adaptation of GMO in their industry, and the risks it would pose for exports for one segment of the industry, and the indifference it has on another. But, because the product is non-segregable at the first level of acquisition, once GMO gets introduced, all products–GMO and non-GMO–gets classified as GMO because they can’t segregate for export.

So, there’s an issue. Ultimately, farmers, growers decide whether the increased output per acre offset the lost revenue for export.

wrparks September 18, 2012 at 1:35 pm

Yes, I certainly missed the point. All those things you say below (or above, stupid comment system makes me unsure where this comment will appear) are reasonable.

Everything else in this thread was nonsense quibbling about things a scientifically illiterate public might find convincing but are completely irrelevant.

There are real concerns here. Such as the farmer who gets non-GMO seed. He plants it and it is naturally pollinated by GMO pollen. Do you sue him for this? He will never know unless he tests.

Personally, I think a voluntary GMO-free certification program is perfectly fine. Will be easy for many crops since GMO’s are rare (or non-existent at present). For things like corn or soybean, the assumption would be that GMO’s are present unless certified otherwise. And the price tag would be commensurate. It isn’t that hard to segregate the seed at harvest and test it for pollen contamination if it is financially worthwhile.

Barnley September 19, 2012 at 7:35 am

A GMO plant is one that has had DNA inserted into it’s genome via either agrobacterium or the biolistic gene-gun.

You do realise that agrobacterium inserts its DNA into plants in nature, it is natures genetic engineer, and not only may its genes be present in infected plants, but might well be common in many species of plants having been passed down from generation to generation.

So by your definition we would have to test every plant for natural T-DNA before it can be sold, because you cannot otherwise prove that it is absent.

Quote from Agrobacterium: The Natural Genetic Engineer 100 Years Later

“Agrobacterium is truly a natural genetic engineer, in that not only does it transform plants to synthesize food (opines) for itself but its DNA can be found even in perfectly normal appearing, uninfected plants. In Seattle, Frank White and colleagues reported that the T-DNA (rol) genes of A. rhizogenes can be readily detected in uninfected N. glauca and many other species of tobacco. It seems most likely that A. rhizogenes infected a Nicotiana plant millions of years ago to form hairy root tumors which then regenerated into normal appearing plants which passed down the conserved sequences to their progency. This observation puts to rest the idea that transgenic plants represent an unnatural phenomenon that only occurs in the laboratory. One can safely bet that the finding of T-DNA in many species of Nicotiana is not an isolated phenomenon limited to this plant”.

chuck martel September 18, 2012 at 9:33 am

Isn’t it about time somebody took a cane to the originator of one of these measures?

derek September 18, 2012 at 10:30 am

“I do not think it is very well thought through.”

Hope springs eternal in the human breast. What if in fact it was very well thought through?

elambend September 18, 2012 at 10:45 am


Andrew' September 18, 2012 at 10:48 am

He just said it wasn’t.

Dare not dabble in heresy and hubris mortal! The God of Knowledge of the Internet hears all.

Dustin September 18, 2012 at 11:23 am

I am starting a company printing “May contain GMO” labels. ;)

tl;dr the text of the law, but do they specify how the testing must be conducted? I’ve tested soy oil that I GUARANTEE was made with transgenic soybean, but we couldn’t detect DNA, so it is ipso facto GMO free.

Nathan W September 18, 2012 at 11:33 am

I’m not sure who should cover the up front costs of checking stuff, but if a fairly significant share of consumers indicate that they’d rather know whether the food they eat is GMO, then it should be easier for them to know. Personally, I probably wouldn’t judge food on the basis of whether it’s GMO or not, but consumers should have access to this information. I doubt it would actually cost that much, since it could simply amount to identifying GMO, non-GMO or unknown inputs, weighted by cost of weight, and I doubt that businesses don’t already have easy access to most of the relevant information. Small business exemptions could make sense though, with the largest retailers perhaps facing a somewhat heavier burden, but in percentages is it really that big of a deal? Say, if you expressed it as a multiple of the effect of an average daily absolute change in food input prices or something.

Cliff September 18, 2012 at 11:53 am

If it’s so easy, why aren’t many foods labeled non-GMO now? If a fairly significant share of consumers indicate they’re rather have a pony, should we make it easier for them to get a pony?

I mean I am generally in favor of labeling laws, but there has to be a very clear benefit to outweigh all the costs.

Murray September 18, 2012 at 12:08 pm

I trust this law will dictate that all potatoes and maize/corn will be labeled as genetically engineered . . . never forget that maize/corn was invented seemingly out of thin air in the Americas in a way we simply have no idea how it was done, and potatoes are members of the deadly nightshade family, genetically engineered by our ancestors into something edible. Neither existed at whatever point you consider the dawn of human civilization and thank goodness we were brilliant in ways we don’t understand today such that these two staples play such a large role sustaining us.

wrparks September 18, 2012 at 1:25 pm

Yes, we know nothing about how corn evolved:

Seriously, “genetic engineered” has a very good definition that does not cover selection from a pool of natural variation. Potatoes nor corn were genetically engineered. Why not discuss the real question instead of nonsense?

Murray September 18, 2012 at 10:38 pm

Ouch! First, I didn’t say we know nothing; but the leap from teosinte to maize is large and not as well understood as you (or Utah) imply. Significant gaps in our knowledge of this event exist. Genetics confirms teosinte is the source, but you’d be hard pressed to replicate the event today (and harder pressed to explain why you’d start with such a seemingly unpromising plant). Second, the leap from deadly nightshade to world-staple potato was an important event, and one we can only speculate how it was achieved. Countless souls (thousands?) must have died before the toxicity was bred out.

My point – and I did have one, obviously far too oblique; my bad – is that human progress is a series of advances that were dangerous and for which a high price must have been paid. What, you think the Aztec Teosinte Farmer’s Union didn’t threaten to rip the hearts out of the maize-engineers? You think that ancient elders didn’t protest experimentation with toxic nightshades in an attempt to make french-fries? Today we manipulate DNA strands. 12,000 years ago we cross-bred plants (and the maize crop today is incredibly vulnerable to disease as a result). Same costs and risks, same potential payoff, same story.

wrparks September 19, 2012 at 12:09 pm

Yes, but nightshade isn’t universally toxic either. Both tomatoes and peppers are in the same family. Co-evolution with humans is common throughout history with plants (and animals). It wasn’t directed or purposeful for the first few thousand years, it just happened.

Highgamma September 18, 2012 at 12:51 pm

“I do not think it is very well thought through.”

Quite the contrary, it strikes me as being very well thought through.

yi September 18, 2012 at 2:33 pm

The anti-Science Left strikes again.
Appropriate now that the left has also embraced anti-blasphemy laws to protect Islam.

Somewhere in America there’s a liberal who still has a soul. Haven’t met him yet, though.

Sisyphus September 18, 2012 at 2:54 pm

This initiative was very well-designed for its true purpose, which is not to label genetically modified organisms in stores. Rather, it is a new market for certain trial lawyers, who are the primary funders of the initiative.

The key to the whole initiative is that the labeling requirement has a private right of action, which means anyone can sue for supposed violations. And since there are literally tens of thousands of small food retailers in California and a similar number of packaged food sellers (most of whom are not located in California), there is an enormous pool of potentially uninformed targets of shakedown lawsuits. No harm need be shown, ever, so it literally is irrelevant whether GMO ingredients in food cause harm or not. Just a violation of the labeling requirement on the product’s face and a lack of proof there is no GMO ingredients in it are all that is needed.

It is the same thing that has afflicted enforcement of the ADA and carcinogen labeling laws, and which formerly afflicted California’s unfair competition laws until a proposition required plaintiffs to show actual injury, whereupon nearly all the lawsuits disappeared. And it’s basically the same trial lawyers pushing for the initiative, because it is a potentially lucrative new market for them. As Tyler would say, there markets in everything, even new fields of litigation.

chuck martel September 19, 2012 at 7:38 pm

You’ve nailed it. The legal profession is the secular priesthood of the now atheist USA. They determine the rites and rituals required to function in society, regardless of their necessity or practicality and in exchange take their cut off the top.

Kane M September 20, 2012 at 1:13 am

Your reasons for resisting are marginal, at best. GMO has been proven to be harmful to the body that ingests it. I eat 95% organic from local farmers and if I have to purchase processed foods, I will reach for a non-gmo product any day.

There are far greater consequences to GMO that many have not yet thought of. Many of the agribusiness companies are buying up the seed distribution companies. Combine that with patents and such and a few companies will have control over a major percentage of the worlds food. This is very unwise for the sovereignty of any nation.

From a generalist perspective, food has stood the test of time. GMO has not. It is a shortcut with potentially disastrous results if we become dependent on it. The more complex a system is, the more susceptible it becomes to failure… do we want this?

I am not against the study and potential use of GMO, but many many more years is necessary and even then, a very slow introduction with extensive testing. Not a rush to profits.

zzk September 21, 2012 at 1:12 pm

what about a rush to actually feed people? Organic food is 5-30% less efficient than conventional farming… very problematic when much of the world is living on a few dollars per day with large population growth.

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