What does Prop 37 actually say?

Sign showing: "Voting this way" by Keith Ivey via Flickr.

Voting sign by Keith Ivey via Flickr.

Unfortunately, as with any political debate these days, there’s a lot of mud slinging and less than accurate information coming from both supporters and opponents of proposition 37. This post is not about that. If you’d like to talk about that, you’re welcome to submit a guest post or start a topic in the forum. This post is about what proposition 37 actually says.

There have been a lot of claims about what California Proposition 37 actually does or does not say, and what the effects may or may not be. Let’s actually look at what the text says, line by line. If you wish to discuss a particular line further, simply comment at the bottom of the post and refer to the number of the line. Try to use the “reply” feature to keep conversation on the same topic grouped together.

The ultimate goal of this post is two fold: 1) to help voters gain a better understanding of what they are voting yea or nay on and 2) to attempt to unravel what will happen if the proposition passes.

The full text of the proposition can be found on Ballotpedia. There are three main sections of the proposition:

  1. Background information – Findings and Declarations.
  2. Definitions.
  3. The actual proposed law – The California Right to Know Genetically Engineered Food Act.

Because what we are really interested in here is what the law will do, and because the background information is really long, I’ve switched the order of the sections for this post to 3, 1, 2 – but the numbering of the lines remained the order of the proposition. Paragraph breaks aren’t working in the table, so vertical bars ( | ) were added between paragraphs to separate ideas. Note that the proposition underlines text that is actually to be new law but that didn’t make for easy reading so I italicized that part instead.

Before we get started, a quick disclaimer: this analysis was not conducted by a lawyer. If you see an error, let us know in the comments (show some proof, please!) and the table will be corrected.
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The California Right to Know Genetically Engineered Food Act

14 SEC. 3.Article 6.6 (commencing with Section 110808) is added to Chapter 5 of Part 5 of Division 104 of the Health and Safety Code, to read: THE CALIFORNIA RIGHT TO KNOW GENETICALLY ENGINEERED FOOD ACT
28 110809. Disclosure With Respect to Genetic Engineering of Food (a) Commencing July 1, 2014, any food offered for retail sale in California is misbranded if it is or may have been entirely or partially produced with genetic engineering and that fact is not disclosed: This means that every single food sold in California (except for the exceptions below, of course) must be labeled as described below or the seller will have broken the law.
29 (1) In the case of a raw agricultural commodity on the package offered for retail sale, with the clear and conspicuous words “Genetically Engineered” on the front of the package of such commodity or, in the case of any such commodity that is not separately packaged or labeled, on a label appearing on the retail store shelf or bin in which such commodity is displayed for sale; Every bin must be labeled and every separately packaged food item must be individually labeled.In other words, a sign hanging in the store that says “Products in this store may contain GMOs” is not adequate.
30 (2) In the case of any processed food, in clear and conspicuous language on the front or back of the package of such food, with the words “Partially Produced with Genetic Engineering” or “May be Partially Produced with Genetic Engineering.” What sort of label meets the “clear and conspicuous” requirement? Can I hold someone accountable for a label that I don’t think is conspicuous enough? This is not very clear. The FDA requires that other labels be a certain size. | How does “May be…” meet the rights of the consumer? Isn’t “May be…” the default state already? Only when a definitive “GMO free” or “Contains GMO” type of label is added do we know for sure. Also, how exactly is “May be…” a clear label? Perhaps they mean visually clear, not free from doubt.
31 (b) Subdivision (a) of this section and subdivision (e) of Section 110809.2 shall not be construed to require either the listing or identification of any ingredient or ingredients that were genetically engineered or that the term “genetically engineered” be placed immediately preceding any common name or primary product descriptor of a food. An ingredient list that says “GMO Corn, water, salt” is not required – and neither does it meet the requirements of the law. This means that while you may have the right to know if a product has some GMO ingredient, you do not have the right to know which ingredient that is.
32 110809.1. Misbranding of Genetically Engineered Foods as “Natural” In addition to any disclosure required by Section 110809, if a food meets any of the definitions in subdivision (c) or (d) of Section 110808, and is not otherwise exempted from labeling under Section 110809.2, the food may not in California, on its label, accompanying signage in a retail establishment, or in any advertising or promotional materials, state or imply that the food is “natural,” “naturally made,” “naturally grown,” “all natural,” or any words of similar import that would have any tendency to mislead any consumer. Why pick out this one detail (genetically engineered) when our food is created with so many other unnatural aspects? In this case, a product made with every other minuscule detail being “natural” but is genetically engineered (say, biodynamically grown virus resistant papaya) then that food may not be called natural or any version of natural. Is that useful to consumers? A product that is grown and processed in as unnatual of a way you can think of can then be labeled natural as long as it does not contain GMOs.
33 110809.2. Labeling of Genetically Engineered Food–Exemptions The requirements of Section 110809 shall not apply to any of the following: According to Yes on 37, “No initiative measure addressing more than one subject area may be submitted to the voters or have any effect (Cal. Const., art. II, §§ 8(d) & 12).”This explains the exemptions for products from animals fed or injected with GM food or drugs, alcohol, and restaurant food.
34 (a) Food consisting entirely of, or derived entirely from, an animal that has not itself been genetically engineered, regardless of whether such animal has been fed or injected with any genetically engineered food or any drug that has been produced through means of genetic engineering. This means that rBST milk does not need to be labeled as genetically engineered, even though rBST is a genetically engineered drug. This is in accordance with FDA regulations.
35 (b) A raw agricultural commodity or food derived therefrom that has been grown, raised, or produced without the knowing and intentional use of genetically engineered seed or food.Food will be deemed to be described in the preceding sentence only if the person otherwise responsible for complying with the requirements of subdivision (a) of Section 110809 with respect to a raw agricultural commodity or food obtains, from whoever sold the commodity or food to that person, a sworn statement that such commodity or food: (1) has not been knowingly or intentionally genetically engineered; and (2) has been segregated from, and has not been knowingly or intentionally commingled with, food that may have been genetically engineered at any time. In providing such a sworn statement, any person may rely on a sworn statement from his or her own supplier that contains the affirmation set forth in the preceding sentence. In other words, testing is not required when the seller swears they didn’t use GMOs. If there is a “right to know”, should we really be depending on sworn statements when testing is readily available?
36 (c) Any processed food that would be subject to Section 110809 solely because it includes one or more genetically engineered processing aids or enzymes. Presumably enzymes are a separate subject area according to California law.
37 (d) Any alcoholic beverage that is subject to the Alcoholic Beverage Control Act, set forth in Division 9 (commencing with Section 23000) of the Business and Professions Code.
38 (e) Until July 1, 2019, any processed food that would be subject to Section 110809 solely because it includes one or more genetically engineered ingredients, provided that: (1) no single such ingredient accounts for more than one-half of one percent of the total weight of such processed food; and (2) the processed food does not contain more than 10 such ingredients. In other words, if 0.5% of the product or less by weight is genetically engineered, then it does not require a label. However a threshold of 0% will come into effect in 2019.Yet, according to part b above, testing is not required for foods that are not knowingly grown with GM seed or commingled with GM foods, so they presumably may contain more than 0.05% or 0% without requiring a label.
39 (f) Food that an independent organization has determined has not been knowingly and intentionally produced from or commingled with genetically engineered seed or genetically engineered food, provided that such determination has been made pursuant to a sampling and testing procedure approved in regulations adopted by the department. | No sampling procedure shall be approved by the department unless sampling is done according to a statistically valid sampling plan consistent with principles recommended by internationally recognized sources such as the International Standards Organization (ISO) and the Grain and Feed Trade Association (GAFTA). | No testing procedure shall be approved by the department unless: (1) it is consistent with the most recent “Guidelines on Performance Criteria and Validation of Methods for Detection, Identification and Quantification of Specific DNA Sequences and Specific Proteins in Foods,” (CAC/GL 74 (2010)) published by the Codex Alimentarius Commission; and (2) it does not rely on testing of processed foods in which no DNA is detectable. In other words, if genetic engineering was not intentionally added to the food, then it is exempt from labeling as long as the lack of genetically engineered materials was verified aka determined to be free of genetically engineered ingredients through appropriate sampling and testing. | This provision appears to be tailored to exempt foods that are verified by organizations like the Non-GMO Project (their procedures are documented in their Guidelines and Standards). | What exactly does independent mean? For example, if a high level employee of a determining company was on the board of a company that sells food, is the determining company independent? What if a high level employee of a food company was on the board of a determining company?
40 (g) Food that has been lawfully certified to be labeled, marketed, and offered for sale as “organic” pursuant to the federal Organic Food Products Act of 1990 and the regulations promulgated pursuant thereto by the United States Department of Agriculture. Conveniently, organic food is not subject to testing or to the 0.05% rule either. While organic may not be grown with GM seeds and farmers must take steps to prevent cross pollination, there is no federal rule that organic must be GM free. You do not have a right to know if your organic food contains GMOs.
41 (h) Food that is not packaged for retail sale and that either: (1) is a processed food prepared and intended for immediate human consumption or (2) is served, sold, or otherwise provided in any restaurant or other food facility that is primarily engaged in the sale of food prepared and intended for immediate human consumption. Restaurants, food trucks, and other businesses that are “primarily engaged in the sale of food prepared and intended for immediate human consumption” are excluded from labeling. This does not exclude things like grocery stores with salad bars or hot foods for sale because they have a different primary function. | The problem with this exclusion is that the exact same food items will have to be labeled in one store and will not have to be labeled in the store next door. That bag of corn chips you bought with your sandwich? No label. The exact same bag of corn chips from the grocery store? Label. | You have a right to know if it has GMOs, but only depending on where you bought it.The restaurant exclusion is due to the aforementioned rule against having propositions on more than one subject. However, doesn’t it seem strange that the right to know doesn’t extend to the exact same product just based on where it is?
42 (i) Medical food. Presumably medical food is a separate subject area from non-medical food according to California law.
43 110809.3. Adoption of Regulations The department may adopt any regulations that it determines are necessary for the enforcement and interpretation of this article, provided that the department shall not be authorized to create any exemptions beyond those specified in Section 110809.2. This authorizes the department (not identified in this proposition, but presumably California’s health or agriculture department) to make new regulations in order to enforce or interpret this act.
44 110809.4. Enforcement In addition to any action under Article 4 (commencing with Section 111900) of Chapter 8, any violation of Section 110809 or 110890.1 shall be deemed a violation of paragraph (5) of subdivision (a) of Section 1770 of the Civil Code and may be prosecuted under Title 1.5 (commencing with section 1750) of Part 4 of Division 3 of the Civil Code, save that the consumer bringing the action need not establish any specific damage from, or prove any reliance on, the alleged violation. | The failure to make any disclosure required by Section 110809, or the making of a statement prohibited by section 110809.1, shall each be deemed to cause damage in at least the amount of the actual or offered retail price of each package or product alleged to be in violation. In other words, if a seller of food does not meet the labeling requirements, they have committed an illegal act. See California Civil Code Section 1770. | Anyone can bring a lawsuit against a seller that they suspect has broken the law, and they do not need to show 1) any proof that the seller has broken the law or 2) that they have been damaged by the failure to label. This is an important detail, because in most lawsuits, the person starting the lawsuit must show that they have been damaged in order for the court to hear their case. | If found guilty, the seller must pay damages of at least the retail price of each mislabeled item, or more, to the person who started the lawsuit. Since the damages are not limited to only the price of the products, the person who started the lawsuit may also ask for punitive damages, court fees, and more.
45 SEC. 4. ENFORCEMENT Section 111910 of the Health and Safety Code is amended to read: 111910. (a) Notwithstanding the provisions of Section 111900 or any other provision of law, any person may bring an action in superior court pursuant to this section and the court shall have jurisdiction upon hearing and for cause shown, to grant a temporary or permanent injunction restraining any person from violating any provision of Article 6.6 (commencing with Section 110808), or Article 7 (commencing with Section 110810) of Chapter 5. | Any proceeding under this section shall conform to the requirements of Chapter 3 (commencing with Section 525) of Title 7 of Part 2 of the Code of Civil Procedure, except that the person shall not be required to allege facts necessary to show, or tending to show, lack of adequate remedy at law, or to show, or tending to show, irreparable damage or loss, or to show, or tending to show, unique or special individual injury or damages. In addition to any repercussions decided in the lawsuits that any person may bring against any seller as described above, the court may take additional steps against the seller.Again, the person starting the lawsuit does not have to show that they have been damaged in any way. Notice the “except” here – this part goes counter to the normal state of injunctions for California.
46 (b) In addition to the injunctive relief provided in subdivision (a), the court may award to that person, organization, or entity reasonable attorney’s fees and all reasonable costs incurred in investigating and prosecuting the action as determined by the court. In other words, if the person that starts the lawsuit wins, and the court grants an injunction (like an additional penalty) that says the seller they can’t continue to act as they have, then the seller has to pay for the attourney’s fees of the person who brought the suit against them.Note that the person who started the lawsuit was already eligible to receive attorney’s fees, etc before the injunction was started.
47 (c) This section shall not be construed to limit or alter the powers of the department and its authorized agents to bring an action to enforce this chapter pursuant to Section 111900 or any other provision of law.
48 SEC. 5. MISBRANDING Section 110663 is added to the Health and Safety Code, to read:110663. Any food is misbranded if its labeling does not conform to the requirements of Section 110809 or 110809.1. Strangely, because so many foods are exempt from labels, and labels are not determined by testing but instead by affadavit, this could lead to foods being actually misbranded, but according to law, branded appropriately.
49 SEC. 6. SEVERABILITY If any provision of this initiative or the application thereof is for any reason held to be invalid or unconstitutional, that shall not affect other provisions or applications of the initiative that can be given effect without the invalid or unconstitutional provision or application, and to this end the provisions of this initiative are severable. Standard language.
50 SEC. 7. CONSTRUCTION WITH OTHER LAWS This initiative shall be construed to supplement, not to supersede, the requirements of any federal or California statute or regulation that provides for less stringent or less complete labeling of any raw agricultural commodity or processed food subject to the provisions of this initiative. Standard language.
51 SEC. 8. EFFECTIVE DATE This initiative shall become effective upon enactment pursuant to subdivision (a) of Section 10 of Article II of the California Constitution. Standard language.
52 SEC. 9. CONFLICTING MEASURES In the event that another measure or measures appearing on the same statewide ballot impose additional requirements relating to the production, sale and/or labeling of genetically engineered food, then the provisions of the other measure or measures, if approved by the voters, shall be harmonized with the provisions of this act, provided that the provisions of the other measure or measures do not prevent or excuse compliance with the requirements of this act. | In the event that the provisions of the other measure or measures prevent or excuse compliance with the provisions of this act, and this act receives a greater number of affirmative votes, then the provisions of this act shall prevail in their entirety, and the other measure or measures shall be null and void. Standard language. This only applies if another proposition affecting GMO labeling was to appear on the same ballot as proposition 37.
53 SEC. 10. AMENDMENTSThis initiative may be amended by the Legislature, but only to further its intent and purpose, by a statute passed by a two-thirds vote in each house. In other words, a simple majority can not amend the act. Also, even if 2/3 of each house votes to amend, they may not amend in a way that does not further the act’s intent and purpose.The stated plan of the labeling proponents is to go state by state. However, this section makes it extremely difficult to modify. | If the State of California has to harmonize it with the laws of other states or the federal government, it will require a 2/3 majority to do so. | If the law turns out to be harmful, it cannot be repealed by the state government. Only a ballot proposition can repeal a ballot proposition. This is called legislative tampering. A passed ballot proposition may be challenged in court – this is the only source of checks and balances for propositions.

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Findings and Declarations

1 This initiative measure is submitted to the people in accordance with the provisions of Section 8 of Article II of the California Constitution.This initiative measure amends and adds sections to the Health and Safety Code; therefore, new provisions proposed to be added are printed in underline type to indicate that they are new. This initiative measure amends and adds sections to the Health and Safety Code; therefore, new provisions proposed to be added are printed in underline type to indicate that they are new. PROPOSED LAW The people of the State of California do enact as follows: The California Right to Know Genetically Engineered Food Act
2 SECTION 1. FINDINGS AND DECLARATIONS(a) California consumers have the right to know whether the foods they purchase were produced using genetic engineering. Genetic engineering of plants and animals often causes unintended consequences. Manipulating genes and inserting them into organisms is an imprecise process. The results are not always predictable or controllable, and they can lead to adverse health or environmental consequences. Based on the text of the proposition, a Californian’s “right to know whether the foods they purchase were produced using genetic engineering” is actually a “right to know whether a farmer, producer, or distributor says they intentionally used or commingled with genetically engineered foods, except if you are right about to eat the food, if it contains alcohol, if it is organic, or if it contains GE enzymes”. While some of the exemptions are justified by California law, it seems strange to discuss a right and then limit the right so very much. | These statements about uncertainty could be made more accurately about other plant and animal breeding methods that are truly random genetic changes. While the insertion site of a gene or genes introduced by genetic engineering is not controlled, the site is easily characterized, and any unintended mutations due to insertion is easily screened for, and any lines with unwanted mutations are removed from the breeding program.
3 (b) Government scientists have stated that the artificial insertion of DNA into plants, a technique unique to genetic engineering, can cause a variety of significant problems with plant foods. Such genetic engineering can increase the levels of known toxicants in foods and introduce new toxicants and health concerns. Which scientists, exactly? When and where did they say that? Was it in a peer reviewed journal backed up by appropriate evidence? | The technique of genetic engineering does not cause any problems itself, as evidenced by hundreds of studies, many of which were conducted without industry influence. It is possible that a toxin could be introduced through genetic engineering, but that must be considered on a trait by trait basis. It is simply not scientifically accurate to lump all past, present, and future traits together.
4 (c) Mandatory identification of foods produced through genetic engineering can provide a critical method for tracking the potential health effects of eating genetically engineered foods. Not really. We know pretty clearly when we are eating meat, yet studies that try to determine the health effects of eating meat are usually too muddled with other factors (exercise, consumption of various food types, socioeconomic effects, etc) to be of much use at all.If one wanted to compare people eating genetically modified foods to those who are not, there are already plenty of groups of people available to compare with, such as people in countries that have banned genetically modified foods and people who only eat organic.
5 (d) No federal or California law requires that food producers identify whether foods were produced using genetic engineering.At the same time, the U.S. Food and Drug Administration does not require safety studies of such foods. Unless these foods contain a known allergen, the FDA does not even require developers of genetically engineered crops to consult with the agency. The 1986 Coordinated Framework for Regulation of Biotechnology gives responsibility for regulating biotechnology to the USDA, EPA, and FDA, based on the unique expertise in each agency. See the Coordinated Framework for a discussion of the role of each agency. | Specifically, “The FDA is responsible for ensuring the safety and proper labeling of all plant-derived foods and feeds, including those developed through bioengineering. …any food additive, including one introduced into food or feed by way of plant breeding, must receive FDA approval before marketing. (The term “food additive” refers to substances introduced into food that are not pesticides and are not generally recognized as safe by qualified scientific experts.)” | Substances that are pesticides are regulated by the EPA: “The EPA through a registration process regulates the sale, distribution and use of pesticides in order to protect health, and the environment, regardless of how the pesticide was made or its mode of action. This includes regulation of those pesticides that are produced by an organism through techniques of modern biotechnology.” | It is true that testing is not required, however, ALL current GE crops underwent the consultations and produced the requested research. | If a genetically engineered trait results in a change in nutritional composition, then a label is mandatory. See Labeling of Genetically Engineered Foods for more information.
6 (e) Polls consistently show that more than 90 percent of the public want to know if their food was produced using genetic engineering. Polls that ask “would you like to see labels for x” will always result in a high number of yes responses. A far more accurate way to ask this question is to ask something like “what additional labels would you like to see on food?” Also more useful is to conduct consumer studies that evaluate desire for labels based on how much people will pay for a label.
7 (f) Fifty countries–including the European Union member states, Japan and other key U.S. trading partners–have laws mandating disclosure of genetically engineered foods. No international agreements prohibit the mandatory identification of foods produced through genetic engineering. If Johnny jumped off a bridge would you do it too? (Sorry, just had to go there.) Saying that some other country is doing it isn’t very meaningful, particularly without context.
8 (g) Without disclosure, consumers of genetically engineered food can unknowingly violate their own dietary and religious restrictions. Many others with dietary and religious restrictions currently have to research food that they consider eating, yet this proposition does nothing for them. Vegetarians and vegans, Jews that keep Kosher, Muslims that keep Halal, and many more have to seek out voluntary labels or contact companies to find the information they seek. If the concern was really for people with ethical and religious dietary restrictions, then why not write a proposition for all of them?
9 (h) The cultivation of genetically engineered crops can also cause serious impacts to the environment. For example, most genetically engineered crops are designed to withstand weed-killing pesticides known as herbicides. As a result, hundreds of millions of pounds of additional herbicides have been used on U.S. farms. | Because of the massive use of such products, herbicide-resistant weeds have flourished–a problem that has resulted, in turn, in the use of increasingly toxic herbicides. These toxic herbicides damage our agricultural areas, impair our drinking water, and pose health risks to farm workers and consumers. | California consumers should have the choice to avoid purchasing foods production of which can lead to such environmental harm. Roundup Ready crops are resistant to glyphosate (the active ingredient of Roundup), and have resulted in a switch to glyphosate away from other herbicides. Because the environmental impact (as measured by Environmental Impact Quotient) of glyphosate is lower than that of many herbicides, that resulted in improvement of safety for farm workers, water, and consumers. See section 3.2 and 3.3 of Bonny, 2011. | However, the success of Roundup Ready trait may be relatively short lived. Because of its benefits, the trait has been used without adequate rotation and many weeds have developed resistance to glyphosate, which is leading to a return to the original herbicide regimens. Herbicide resistance is not unique to use in conjunction with genetically engineered crops. See the International Survey of Herbicide Resistant weeds, which shows glyphosate (a glycine) resistant weeds to be only a portion of all the herbicide resistant weeds. | Further, herbicide resistance is not unique to genetic engineering. It can be developed through breeding as well. For a list of herbicide resistance traits, see the bottom of BFI’s page of Biotech Traits. | What about GMOs grown for fuel, fiber, plastic and feed? If we’re really concerned about their impact on the environment, then labeling animal products and biofuels as fed or made with GMO crops would have far more impact as they make up the bulk of the GMO crop. Of course this law can only be about one subject, but shouldn’t this at least be mentioned for consistency in the “right to know”? | If the concern here is pesticides (whether herbicides, insecticides, or otherwise), then wouldn’t it make more sense to label pesticides? Or, if the proposition is really about allowing consumers to avoid products that cause environmental harm – EIQ or a similar measure would be far more useful in determining the environmental harm of farming methods.
10 (i) Organic farming is a significant and increasingly important part of California agriculture. California has more organic cropland than any other state and has almost one out of every four certified organic operations in the nation. California’s organic agriculture is growing faster than 20 percent a year. That’s nice, but… if it is growing so successfully, then why are special protections necessary?
11 (j) Organic farmers are prohibited from using genetically engineered seeds. Nonetheless, these farmers’ crops are regularly threatened with accidental contamination from neighboring lands where genetically engineered crops abound. This risk of contamination can erode public confidence in California’s organic products, significantly undermining this industry. | Californians should have the choice to avoid purchasing foods whose production could harm the state’s organic farmers and its organic foods industry. Genetically engineered seeds are an “excluded method” for certified organic farming. However, organic foods may contain genetically engineered ingredients as long as efforts to exclude them have been made.If this proposition is based on the idea that people have the right to know if they are eating genetically engineered foods, shouldn’t organic be required to be tested for GMO content as well? | As for concern of accidental contamination, there are already farming methods that farmers can use to prevent gene flow, as well as legal actions that farmers can take against their neighbors if needed. See these Biofortified Blog posts: one and two. A label won’t add any new protections for organic farmers.
12 (k) The labeling, advertising and marketing of genetically engineered foods using terms such as “natural,” “naturally made,” “naturally grown,” or “all natural” is misleading to California consumers. Maybe, but what about all of the other unnatural methods? Grafting, wide crosses, mutagenesis, tissue culture, cloning, etc. It seems a bit arbitrary to pick out genetically engineered only. Also, what about all of the unnatural methods that have nothing to do with genetics, from farming methods to processing to cooking?
13 SEC. 2. STATEMENT OF PURPOSE The purpose of this measure is to create and enforce the fundamental right of the people of California to be fully informed about whether the food they purchase and eat is genetically engineered and not misbranded as natural so that they can choose for themselves whether to purchase and eat such foods. It shall be liberally construed to fulfill this purpose. Very few laws are based on “fundamental rights”. We have life and liberty. Even the pursuit of happiness is limited by other laws. If knowing about the presence of GMOs is truly is a fundamental right, shouldn’t they at least address the problem of the exceptions somewhere in this proposition?

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Definitions

15 15110808. Definitions
The following definitions shall apply only for the purposes of this article:
Thank goodness. Some of these definitions are so expansive, they could change the meaning of existing California laws.
16 (a) Cultivated commercially. “Cultivated commercially” means grown or raised by a person in the course of his business or trade and sold within the United States. Reasonable enough.
17 (b) Enzyme. “Enzyme” means a protein that catalyzes chemical reactions of other substances without itself being destroyed or altered upon completion of the reactions. Reasonable enough.
18 (c) Genetically engineered. (1) “Genetically engineered” means any food that is produced from an organism or organisms in which the genetic material has been changed through the application of: The FDA says: “Biotechnology – refers to techniques used by scientists to modify deoxyribonucleic acid (DNA) or the genetic material of a microorganism, plant, or animal in order to achieve a desired trait. In the case of foods, genetically engineered plant foods are produced from crops whose genetic makeup has been altered through a process called recombinant DNA, or gene splicing, to give the plant desired traits. Genetically engineered foods are also known as biotech, bioengineered, and genetically modified, although “genetically modified” can also refer to foods from plants altered through methods such as conventional breeding. While in a broad sense biotechnology refers to technological applications of biology, common use in the U.S. has narrowed the definition to foods produced using recombinant DNA.”
19 (A) In vitro nucleic acid techniques, including recombinant deoxyribonucleic acid (DNA) techniques and the direct injection of nucleic acid into cells or organelles, or This is in agreement with the FDA definition for biotechnology. Part B of this definition is not.
20 (B) Fusion of cells, including protoplast fusion, or hybridization techniques that overcome natural physiological, reproductive, or recombination barriers, where the donor cells/protoplasts do not fall within the same taxonomic family, in a way that does not occur by natural multiplication or natural recombination. These methods generally only work with plants from the same family, with very few exceptions. I suppose it is possible that in the future new techniques may make it possible to fuse more evolutionarily divergent plant cells.
21 (2) For purposes of this subdivision: (A) “Organism” means any biological entity capable of replication, reproduction, or transferring genetic material. Reasonable enough.
22 (B) “In vitro nucleic acid techniques” include, but are not limited to, recombinant DNA or RNA techniques that use vector systems and techniques involving the direct introduction into the organisms of hereditary materials prepared outside the organisms such as micro-injection, macro-injection, chemoporation, electroporation, micro-encapsulation, and liposome fusion. This definition may be more expansive than it looks. For example, some upcoming plant breeding methods involve using zinc finger nucleases or other biological or chemical tools to remove or replace bits of DNA. According to the USDA, when DNA is replaced, the resulting plants will be regulated on a case by case basis – it isn’t necessarily “genetic engineering” the same way as adding an entire gene is. Yet this law would lump all of these methods as well as any future methods together.
23 (d) Processed food. “Processed food” means any food other than a raw agricultural commodity, and includes any food produced from a raw agricultural commodity that has been subject to processing such as canning, smoking, pressing, cooking, freezing, dehydration, fermentation, or milling. This is a very expansive definition, for obvious reasons.
24 (e) Processing aid. “Processing aid” means:

(1) A substance that is added to a food during the processing of such food, but is removed in some manner from the food before it is packaged in its finished form;
The FDA definition that is closest to this definition is for secondary direct food additive. “Secondary Direct Food Additive – This term is in the title of 21 CFR 173, which was created during recodification of the food additive regulations in 1977. A secondary direct food additive has a technical effect in food during processing but not in the finished food (e.g., processing aid). Some secondary direct food additives also meet the definition of a food contact substance. For more on food contact substances, consult the Food Contact Substance Notification Program.”
25 (2) A substance that is added to a food during processing, is converted into constituents normally present in the food, and does not significantly increase the amount of the constituents naturally found in the food; or This is vague. The FDA calls this sort of substance a food additive, but is much more specific. “Food Additive – A food additive is defined in Section 201(s) of the FD&C Act as any substance the intended use of which results or may reasonably be expected to result, directly or indirectly, in its becoming a component or otherwise affecting the characteristic of any food (including any substance intended for use in producing, manufacturing, packing, processing, preparing, treating, packaging, transporting, or holding food; and including any source of radiation intended for any such use); if such substance is not GRAS or sanctioned prior to 19581 or otherwise excluded from the definition of food additives.”Note that, according to the FDA, a food additive is not a processing aid.
26 (3) A substance that is added to a food for its technical or functional effect in the processing, but is present in the finished food at insignificant levels and does not have any technical or functional effect in that finished food. The FDAdefinition that is closest to this definition is for indirect food additive. “Indirect Food Additive – In general, these are food additives that come into contact with food as part of packaging, holding, or processing, but are not intended to be added directly to, become a component, or have a technical effect in or on the food. Indirect food additives mentioned in Title 21 of the U.S. Code of Federal Regulations (21CFR) used in food-contact articles, include adhesives and components of coatings (Part 175), paper and paperboard components (Part 176), polymers (Part 177), and adjuvants and production aids (Part 178). Currently, additional indirect food additives are authorized through the food contact notification program. In addition, indirect food additives may be authorized through 21 CFR 170.39.”It is important to note that (for at least current traits) the gene and/or protein added to a genetically engineered crop are present in the finished food at insignificant levels and do not have any technical or functional effect in the finished food.
27 (f) Food Facility. “Food facility” shall have the meaning set forth in Section 113789. No change to the existing definition in California law.

.

Many thanks to Karl Haro von Mogel for his assistance in this analysis of Proposition 37. We are both very much looking forward to discussion about this proposition.

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Anastasia is a Board Member of Biology Fortified, Inc. and the Co-Executive Editor of the Biofortified Blog. She has a PhD in genetics with a minor in sustainable agriculture from Iowa State University. Her favorite produce is artichokes! Learn more about Anastasia at about.me. Disclaimer: Anastasia's words are her own and views expressed do not necessarily represent the views of her employer(s). She is not paid to blog or conduct any social media activities. Any mention of a specific company or product does not indicate endorsement of that company or product.


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21 comments to What does Prop 37 actually say?

  • Thanks for putting this up. It is hard to find someone that supports this that actually has read it. The Findings and Declarations section is such insanity. I imagine that if it passes it will be repealed due to the lack of evidence for justification of the Act.

  • Where is the part where it ends monocultures, patents, and herbicides? I missed it.

  • Adam Merberg

    Great post! There are so many conflicting claims about what the law actually says, which is unfortunate because the whole thing is online for everyone to read. I appreciate your efforts to translate it into friendlier terms.

    Something that’s been a bit controversial is the section about natural labeling. That section applies to food that “meets any of the definitions in subdivision (c) or (d) of Section 110808.” Those subdivisions are the definitions of genetically engineered foods and processed foods. So the no campaign has insisted that it would prohibit natural labeling of almost all processed foods. The yes campaign insists that this is ridiculous.

    The state seems to have sided mostly with the no campaign; the summary on my ballot read “Requires labeling of food sold to consumers made from plants or animals with genetic material changed in specified ways. Prohibits marketing such food, or other processed food, as ‘natural.’”

    • Yes, the section prohibiting “natural” labels is very odd indeed. For one thing, it singles out one artificial method involved in food production and not others. Bizarrely, you could have an herb extract dried and packed into a seaweed agar pill capsule and labeled as natural, yet a genetically engineered papaya grown in a low-input or organic-like farm not allowed to have anything that implies that it is natural.
      Second, the legal language of this paragraph is also odd. If the purpose of this section is to prohibit the labeling of GE food as natural, then they only needed to reference 110808 subdivision (c), which deals with GE ingredients, and not (d), which deals only with processed food. They had to purposefully decide to include all processed food in this prohibition.
      Now comes in the sticky part. My first reading of the proposition months ago made me think that it included processed food only if it was not exempted by the other provisions, like if there was the paper trail of non-GE sources, etc. However, after hearing other opinions on it, and reading further, I realized that my first reading was probably incorrect.
      The section that prohibits Natural labeling is called section 110809.1. It identifies GE (c) and processed food (d) as not being allowed to be labeled natural. But, it says that it can be labeled natural if it is “otherwise exempted from labeling under Section 110809.2″ That’s where I misunderstood it the first time around. Section 110809.2 identifies a list of exemptions, and I thought they applied to it, but there is a very clear line at the top of section 110809.2 that says “The requirements of Section 110809 shall not apply to any of the following:”. It does not say that any of the requirements of section 110809.1 don’t apply to what is in this list – only section 110809! Section 110809.2 clearly identifies that it only applies to section 110809 and does not identify any exemptions from section 110809.1, so it does not in fact exempt any GE and/or processed foods from the labeling prohibition! It only exempts foods from requiring the GE labels. All they needed to do was paste in “and 110809.1″ after everywhere it said “110809″ in the exemptions, and this would not have been an issue.
      In contrast, if you look at the enforcement section, 110809.4, it identifies BOTH 110809 and 110809.1 when talking about how to enforce them. So they knew to include 110809.1 for enforcement, but not exemptions? This is sloppy at best, and at worst, deceptive.
      I am no lawyer, of course, but I can read. I would very much like to hear how I am wrong on this, without reference to campaign press releases. People aren’t voting on a press release, they are voting on the text as written above.
      My take on this “natural” exemption is that the companies and organizations pushing the labeling initiative are having a hard time competing against non-organic “natural”-branded products, and want a marketing advantage over them. But this could bizarrely backfire, as an unintended consequence is that even organic processed foods cannot be labeled as natural under this proposition. Which begs the question, ought we to just ban “natural” from all foods anyway? :)

      • Adam Merberg

        If the purpose of this section is to prohibit the labeling of GE food as natural, then they only needed to reference 110808 subdivision (c), which deals with GE ingredients, and not (d), which deals only with processed food. They had to purposefully decide to include all processed food in this prohibition.

        One possibility is that in an earlier draft they split the definition of genetic engineering into two subdivisions (c) and (d) so that the definition of a processed food was in (e). Then they decided to combine (c) and (d) and forgot to update the section about natural labeling.

        But yeah, the natural label is a joke anyway.

      • I’m don’t agree with your analysis here, Karl.

        In line 32, it says that, in addition to mandatory GMO labels for foods that were intentionally made with GMO ingredients, any foods that are made ingredients that meet definitions on line 18-22 (their very expansive definition for GMO) and line 23 (anything processed) may not be labeled “natural” or any similar words… unless it is exempt from labeling under Section 110809.2 – I don’t think that section 110809.2 also has to say what sections it’s exemptions apply to. To put it simply – a double headed arrow would have been more clear, but a single headed arrow does the job.

        So, here’s where the exemptions come in. You can still label your food as “natural” and don’t have to include the GMO label if –
        if it is an animal product from animals that aren’t themselves GMO (34), there’s a sworn statement it’s not GMO (35), it only has GMO enzymes (36), it’s alcohol (37), it’s < 0.05% GMO (38), it’s determined to be non-GMO by someone like the Non-GMO Project (39), it’s certified organic (40), it’s for immediate consumption in a place that is mainly engaged in selling food for immediate consumption (41), or it’s medical food (42).

        What does this mean for producers? If you’re not organic, you have to either write an affidavit saying your food is not GMO, or get it tested (unless you sell animal products, alcohol, medical food, or food for immediate consumption, of course).

        • Pdiff

          What is considered immediate consumption? Is Papa Murphy’s immediate consumption? I don’t eat it there, but take it home to cook whenever I want.

        • You make a good point about whether double-ended arrows are needed or if single-headed arrows are sufficient, and that’s where my non-lawyerlyness comes into play – I don’t know how the law gets interpreted in this case. My inclination is that if it is not spelled out, then it may not apply. This could be why some of the lawyers and judges who looked at it said that it may be interpreted this way, or that it is ambiguous. If it is unclear, that’s still not a good sign. Also, if it turns out that the law gets interpreted to read that all processed food cannot be labeled as natural, it cannot be amended to exempt them, except by proposition or the courts.

          I would like to point out, however, that the 110809.1 section spells out that it can’t be labeled as “natural” if (c) or (d) apply – not if both apply. So it can get hooked in 110809.1 by being only a processed food, and then it proceeds to the possibly ambiguous 110809.2.

    • We had a discussion about the “natural” labeling a couple months ago. The “Yes” campaign basically sticks by their opinion that it won’t restrict non-GE products from being labeled as “natural” but it’s pretty clear at least one judge (who ruled on what the voter materials coulds say) disagrees.

      As a side note, the version of this proposition circulating in Washington which has fairly similar text (so far as the GMO labels go) does not have the natural branding section.

    • Adam Merberg

      Here’s an analysis written by lawyers which explains why natural labeling of non-GM processed foods would be allowed to continue: http://www.coveringyourads.com/2012/10/articles/advertising-law/proposition-37-permits-natural-labeling-for-nongmo-processed-food/

      The main reasons cited are intent and the single-subject rule. It bothers me that intent should be a consideration because as a voter, I really shouldn’t have to guess what the authors meant. They owe it to voters to write clearly. And the argument about the single-subject rule just seems backwards, but I’m not a lawyer.

  • This is awesome, I’m glad to see it up. Like I said while we were editing it, I should have done the interviews a month ago, because of all the discussion coming out of it.

    The details about people who sue violators seems pretty clear, and in the past several days, repeated questions to the Yes on 37 campaign to clarify it have been obfuscated. I understand that they are probably very busy in the last few days of their campaign to respond in great detail, but all I have been asking for is a reference to the line of legal language that specifies that my analysis is wrong, and that supports their statement that the damages go to the state.

    • Marsha Cohen at UC Hastings also seems to agree with me in this article that there is nothing that specifies that damages go to the state:
      “Cohen would have preferred that Proposition 37 contain a clause spelling out fines for violations that would go to the state’s coffers. She also would have limited consumer action to people who have suffered harm from eating mislabeled foods.”

  • Pdiff

    On section 29 you reply that “Each and every packaged food item must be labeled” The section clearly says “raw agricultural commodity”. I think you should rewrite the interpretation there as “Each and every packaged raw food item must be labeled”.

    Why do you feel section 31 does not meet the requirements? I read that as “you don’t have to list things separately”, not “it can’t go here”. This, IMO, is actually the proper place for a label. Consumers already know to look there for similar things like allergen information.

    Section 32 is, I believe, the weakest part. If it gets thrown out, this is a likely cause. GMO unatural, but hydroponic produce, cloned apples and potatoes are. Weird. What if a company has Natural in the name. Is that not advertisement?

    Sections 33 & 34: Also means “we don’t want to FCK with the powerful Wine, Cheese and Dairy/cattle lobbies”.

    Section 35: This is an area where I thought the Yes interview was contradictory. We need this law because we can’t trust corporations/business, but don’t worry we can trust them here. They’ll comply and testing won’t be needed.

    Section 38 is another Achilles heal. Zero is not practical or feasible. It is impossible to measure. Can a detail like this be amended before the law goes into place?

    Section 39: Or a member of the board is an employee of a competing company. This is the “Let’s write our other friends into the $$ along with the Pred Lawyers”. What exactly does the last part of this mean: ” it does not rely on testing of processed foods in which no DNA is detectable”? Do you have to detect protein and DNA, not just protein?

    I better stop here . :-)

    • 29: Changed from “Each and every packaged food item must be labeled, and each and every produce or other bin must be labeled.” to “Every bin must be labeled and every separately packaged food item must be individually labeled.”

      31: The law says that the label has to be clear and conspicuous on the front or the back of the package. For one thing, ingredients are often on one of the other sides of the package, and the text may not be large enough to satisfy the requirement.

      32: I agree this is scientifically weak, but who knows what the courts will do. In one RR beet court case, the judge misinterpreted info about pollen pretty badly (see about 1/2 way down this page).

      33/34: Maybe. But it does seem that alcohol and animal products are different from other agricultural products.

      35: Seriously! This part doesn’t make any sense at all!

      38: Zero is never going to work, but I’m guessing that the authors think everyone will go organic or not intentionally use GMOs anyway. If you can swear you didn’t intentionally use GMOs then your product doesn’t have to be tested.

      39: I think they wrote it like this say that something like soybean oil has to be labeled based on whether it was pressed from GMO seed, because we all know that the refined oil has very little DNA or protein.

  • I am interested in enforcement. What does this proposition mean for farmers, grocers, and other businesses that sell food, particularly small businesses? What will the consequences be for grocers that sell mainly ethnic foods from other countries?

    Let’s think this through. If I live in California and I see something that’s not labeled GMO or organic or 3rd party certified, and I don’t believe that it’s not GMO (and I feel like either being a jerk or trying to get some free money), then what are my options?

    The relevant part of the proposition is in 110809.4. (line 44):

    any violation of Section 110809 or 110890.1 shall be deemed a violation of paragraph (5) of subdivision (a) of Section 1770 of the Civil Code which says:

    (a) The following unfair methods of competition and unfair or deceptive acts or practices undertaken by any person in a
    transaction intended to result or which results in the sale or lease of goods or services to any consumer are unlawful: …
    (5) Representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities
    which they do not have or that a person has a sponsorship, approval, status, affiliation, or connection which he or she does not have.

    (Since the proposition calls out the exact paragraph, I am assuming this means that the rest of 1770 does not apply here.)

    and may be prosecuted under Title 1.5 (commencing with section 1750) of Part 4 of Division 3 of the Civil Code – the Consumers Legal Remedies Act.

    Section 1752 of the Act says:

    Nothing in this title shall limit any other statutory or any common law rights of the Attorney General or any other person to bring class actions. Class actions by consumers brought under the specific provisions of Chapter 3 (commencing with Section 1770) of this title shall be governed exclusively by the provisions of Chapter 4 (commencing with Section 1780); however, this shall not be construed so as to deprive a consumer of any statutory or common law right to bring a class action without resort to this title.

    So, we can skip ahead to section 1780 because that’s what applies to section 1770…
    * Section 1780 lays out rules for lawsuits (individual and class action) brought against people who violate section 1770.
    * Section 1781 has details for class action suits specifically.
    * Section 1782 has more details about how to bring suit – but I can’t tell if it applies only to class action or to any lawsuit! Anyone have any ideas here? According to the firm Morrison Foerster, it only applies to class action suits.
    - This section says that the person who wants to start a lawsuit (the suer) has to give 30 days notice to the seller. If the seller corrects the error within the 30 days, then there is no lawsuit (no action for damages), if the seller contacts all other customers “similarly situated” to tell them the error has been / will be corrected and if the seller doing the error. Now, this “similarly situated” part leads me to believe that it does only apply to class action suits.
    - Then it says that, if the seller doesn’t correct the error in 30 days, then the suer can request damages from the court.
    - Finally, any attempt by the seller to correct the error is not an admission of guilt.

    If section 1782 does apply to indiviual suits, then

    I send the seller a letter demanding they solve the error and wait 30 days. What can the seller do?

    * They can add “May be…” stickers to the products without labels.
    * They can contact the producer for an affidavit to show it’s not GMO.
    * They can pay for 3rd party testing.

    If they correct the problem and contact the other customers, then as far as I can tell the suit is over. If they don’t or can’t correct the problem – then what? Presumably it goes to court.

    If it’s not a class action, as far as I can tell, you just sue, without providing notice.

    Then we get to go to court where my lawyer tries to show they knew it was GMO and the sellers lawyer tries to show they didn’t know.

    Here’s what Morrison Foerster has to say about it:

    Prop 37 does not say that it applies to a grocer only if he or she “knowingly and intentionally” offers genetically modified food for sale. Instead, it says that any food can be the basis for a lawsuit, unless the food was produced without knowing and intentional genetic engineering. This subtle difference in language could have a major impact on litigation because it could be read to put the burden of proving that there was no “knowing and intentional” use of genetic engineering on the grocer. Proving the negative—that one did not know something—is very difficult.

    So the seller can either battle it out in court, or settle. Either way, they are losing money.

  • One point on Findings table item 9–the irrational hatred of Roundup clause. It completely discounts two things (at least):

    1. There can be conventional Roundup resistant plants developed. Here is a story I saw recently on that: Firm developing non-GMO herbicide-resistant varieties:

    The first spud product they plan to release is a non-GMO Roundup-resistant Russet Burbank.

    So this potato will be in the bin, unlabeled, and grown with RoundUp. This is transparent how exactly?

    2. Conventional herbicide resistant plants are numerous. The whole Clearfield line is just one example. The canola in the prior link won’t be GMO either. None of this gets a label. So producers could move to these lines and avoid the label entirely. Prop37′s impact on herbicides = zero.

    Again, the problem is aiming at the wrong target. If you hate herbicides, go after those.

    So how does this happen for herbicides with these products?

    California consumers should have the choice to avoid purchasing foods production of which can lead to such environmental harm.

  • Jonathan

    Excellent post explaining the situation for those of us living outside the US.

    Am I correct in thinking that any crop produced via mutagenesis (UV, EMS, neutron etc) that isn’t Organic will have to bear a GM label? The definitions 19/22 of “In vitro nucleic acid techniques” seems to suggest so.

    If this Proposal passes there should be a push to enforce this just to show the public how many foods we eat have been produced this way and are considered to be GM by the proposal they have voted for.

    On a separate note “Government scientists have stated that the artificial insertion of DNA into plants….can cause a variety of significant problems with plant foods”. Surely cannot go down in ANY law. It is plainly untrue.

    Good luck with your voting all. It will be interesting to see how it turns out.

    Jonathan

  • Lisa

    One tiny nit-picky thing: doesn’t (38) mean it has to be less than 0.5% GMO to be exempt from a label? This article says 0.05%. Not trying to be a jerk, but just pointing it out, lest someone else try to use it as an argument that the rest of the article may be similarly misleading (which I don’t believe it is.)

  • [...] you want to view a paragraph by paragraph break-down and lay-person interpretation of Prop 37, check out Biofortified recent posting. Share this:ShareLike this:LikeOne blogger likes [...]

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