The Trial Lawyer Bogeyman

Posted on 02 November 2012

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By Lea-Ann Tratten

Halloween has passed but we still face a few more days of political scare tactics heading into Election Day. One such campaign zombie that deserves to be exposed is an argument against Proposition 37, the ballot measure that will require labeling of food products that contain genetically engineered organisms (GMOs). It's that old political horror flick standby - the trial lawyer bogeyman.

Before we confront the scare tactic, let's look at some facts. GMOs are increasingly found in our foodstuffs. Reasonable minds disagree about their relative benefits for the food industry when weighed against the potential of health risks. Whichever side you fall on, it would seem fundamentally unreasonable to hide information from consumers about the presence of GMOs in food.

In 1992, the corporate food lobby successfully stopped the U.S. Food and Drug Administration from regulating GMOs in food, arguing that genetically engineered products were "substantially similar" to natural crops and there didn't requiring regulating, much less labeling. Monsanto and its chemical industry allies weren't so successful in Europe. More than 60 other countries have seen fit to label genetically modified food so consumers were fully aware what was going into their stomachs and what they were feeding their children.

But here in the U.S. you would be hard pressed to figure out whether you are consuming genetically engineered foods. Use of GMOs has become so prevalent in the American food industry that I guarantee you are consuming what some critics have labeled "Frankenfoods." Corn genetically engineered with its own built-in pesticides finds its way into your everyday foodstuffs. Maybe it won't hurt you. But maybe it will. Meanwhile, wouldn't you like to know what you are eating so you can choose what to put in your body?

Monsanto has invested more than $7 million to defeat Proposition 37. It is joined by its chemical brethren at DuPont ($4.9 million), Bayer ($2 million), Dow ($2 million) and Syngenta ($2 million). This is a partial listing of the vast sums spent by the corporate chemical industry to deny basic information to consumers about what they are eating.

So how does Monsanto scare voters off Proposition 37? They prop up the trial lawyer bogeyman. Here's the lawyers-as-zombies pitch: Family farmers will be sued by greedy trial lawyers if Proposition 37 is enacted. Lawyers will get rich while family farms shut down.

But let's get real. Who is really behind Proposition 37? Those scary folks over at Amy's Kitchen, maker of organic microwavable dinners, and the walking-dead hordes (but only after an ultramarathon) at Clif Bars. That's who is funding the campaign for sunshine about our foodstuffs.

We all know that a law isn't worth the paper it's written on if it can't be enforced. With the current dire circumstances for government budgets, it's very unlikely California regulators would step up as an effective watchdog against unlabeled GMOs. Boosters of Proposition 37 wisely took that into account when they wrote the proposed new labeling rules. As spelled out, it's drafted so that citizens can't sue for money, but can seek an injunction to force the labeling if a manufacturer fails up front to reveal the presence of GMOs in their food.

Now, do you think the average consumer can afford to hire an attorney to sue Monsanto? Of course not. So the law has a provision that allows a court to award reasonable attorneys fees if the lawsuit is meritorious. If it isn't, the attorney doesn't get paid. That fact alone would seem a prohibition against the farm fields and food factories being flooded with frivolous litigation.

Had Proposition 37 been written with no enforcement mechanism of any sort, businesses that chose to violate a GMO labeling rule would be blissfully free of any realistic oversight threat. Some might simply not bother with the label while they continued to market food products containing GMOs.

So if a consumer decides to take on Monsanto, why shouldn't their attorney get paid? Do we expect anyone to work without getting paid for their labors? Such lawyers give consumers a fighting chance against big corporations that on occasion choose to deceive, almost always in a bid to fatten the bottom line.

For the record, though I work for the state's professional organization representing the trial bar in Sacramento, I first learned about Proposition 37 when I saw an email alert that it had been submitted at the Attorney General's office for qualification. The authors and supporters of the measure have not asked for the help or support of me or anyone else at the Consumer Attorneys of California in drafting or pushing Proposition 37. Instead, trial lawyers have been dragged into this political battle by ballot measure foes grasping for a bogeyman. Meanwhile, proponents of Proposition 37 like Amy's Kitchen and Clif Bars have been vastly outspent by their chemical and GMO-embracing food industry foes.

So let me leave you with this question: Who is the REAL bogeyman in this fight?

Lea-Ann Tratten is political director for Consumer Attorneys of California and a California League of Conservation Voters board member.

The single biggest donor to this proposition is Joe Mercola, leading anti-vaccination advocate and a man who sold algae that he claimed would cure cancer, now wants to get only certain foods labeled? His companies and their cohorts are exempted while his ongoing feud with the USFDA sucks thousands of man hours and millions of dollars into implementing a Swiss cheese policy. Hmmmm..

Probably there is also a trial subpoena for the lawyer case that it measured a certain aspects of fundamentals.