37 Is the new 65: A field day for trial lawyers

37 Is the new 65: A field day for trial lawyers


Sept. 19, 2012

By Laer Pearce

The warm, caring hands of government are poised to protect us once again.  Just like how California started protecting us in 1986 from chemicals it knew, in its wisdom, could cause cancer, birth defects and other reproductive harm, it may soon be protecting us from those nasty genetically engineered foods.

In 1986, it was Proposition 65, the Safe Drinking Water and Toxic Enforcement Act. I began to understand how sleazy that proposition was when I got a frantic call from a homebuilder client just a couple months after it passed.

“I’m going to have to put warning signs on all my new model homes or I’ll get sued,” he moaned. “What’s it going to do to sales if people have to walk by a cancer warning to go into one of my models?”

I told him not to worry because his competitors would have to post similar signs.  But I was curious why a model home would need a Prop. 65 warning.  After all, a brand new home is hardly a toxic sump of the sort the Yes on Prop. 65 ads had frightened Californians about.

“Well, for starters,” he said, “estrogen and testosterone are both on the Prop. 65 list of known carcinogens, so unless something other than men and women is going through my models, I’m going to have to post the signs.”

That was when I realized California had become what I’ve come to call “Crazifornia,” a state that has become a state of disaster. And it will be even more of a disaster if Proposition 37 passes this November.

Prop. 37

Prop. 37, we learn from its campaign website, “is a common-sense November ballot measure that will help consumers make informed choices about the food they eat.” That sounds reasonable.  If my donut is laced with DDT or my orange was doused in Agent Orange, I want to know about it before I take a bite.  Who could possibly have a problem with that?

Certainly not Jim Wheaton (pictured above), the Berkeley-educated lawyer who wrote Prop. 37. That would be the same Jim Wheaton who heads up the Environmental Law Foundation, a Bay Area litigation mill that has made $3 million in settlements and legal fees off Prop. 65 lawsuits.  Oh, and he’s the same Jim Wheaton who wrote much of Prop. 65 in the first place.

Prop. 37 is a genetically engineered clone of Prop. 65. To create it, Wheaton simply grafted an anti-genetically engineered food gene onto Prop. 65’s DNA. If you’re worried about genetically engineered foods running rampant and destroying ecosystems, you should see what a genetically engineered proposition can do to California’s already reeling business sector.

More bureaucrats

Like Prop. 65, Prop. 37 would create a panel of experts, hand selected by Wheaton and his environmentalist and trial attorney collegues, that would decide what food ingredients and compounds at what concentrations constitute risk in California’s eyes. As a starting point, California’s regulations will be about twice as tough as ones that are already hurting farmers and food processors in Europe.

And as occurs with Prop. 65, each year attorneys from litigation mills and their environmentalist expert witnesses will petition this panel to have more compounds added to the list.  Industry will push back, but most of the compounds will make it onto the list.

Then, similar to Prop. 65, state functionaries will look for violators who have missed the latest round of updates. They will monitor tens of thousands of food labels at grocery stores, retail outlets, farms and food processors, burning through tax dollars to produce the citations that are the raw materials for one of California’s biggest products: anti-business litigation.

The Prop. 65 litigation mills worked this formula so well with Prop. 65 that, between 1989 and 2011, companies have paid attorneys like Wheaton nearly half a billion dollars in legal fees and settlements to settle nearly 20,000 lawsuits.  That’s apprently not enough, so the trial attorneys are hopeful they’ll open a big new market with Prop. 37.

At the top of this column, I alluded to DDT in my donuts and Agent Orange in my oranges.  Surely the Yes on 37 campaign wouldn’t stoop so low as to dredge up dangerous chemicals that have long since been banned, right? Think again.

“You’ve heard the false corporate health claims before,” says a pro-37 ad.  “DDT is ‘safe.’ Agent Orange is ‘harmless.’ Now they say genetically engineered food is safe.”

Of course, food manufacturers, retailers and farmers are lining up against Prop. 37, but as with the earlier Yes on 65 campaign, Yes on 37 is simply painting them as greedy corporations that don’t mind killing off customers, as long as they make an extra buck or two.

In 1986, 63 percent of California voters bought the lie. With polls showing 51 percent of likely voters planning to vote for Prop. 37 and just 16 percent planning to vote against it, there’s little evidence the voters have wised up to Wheaton’s game.

Laer Pearce is the author of “Crazifornia: Tales from the Tarnished State.” Portions of this column are excerpted from the book.


Write a comment
  1. Edward Steele, Chief Investigator
    Edward Steele, Chief Investigator 19 September, 2012, 11:51

    We don’t need to know what’s in our food. We should just eat what our corporate masters want to feed us and be glad.In any event— who cares about 47% of us anyway? We should just be happy to be alive.

    Reply this comment
  2. Dyspeptic
    Dyspeptic 19 September, 2012, 14:03

    Edward Spiel, Chief Regurgitator, can you please get a clue. “Corporate masters”, really? We live in a one party state run by corporation hating, hysteria mongering authoritarian collectivists and you’re whining about corporate masters like the place was an 1890’s company mining town. How pathetically reactionary and delusional.

    Please stop regurgitating the tired, empty headed rhetoric of the 1970’s. That era is as gone as Jerry Browns hairline. 21st century Kalifornia is a lunatic asylum run by the corporation hating, hyper-regulating, taxaholic inmates of your party.

    Your left/liberal bromides should require a Prop. 65 warning for being intellectually carcinogenic.

    Reply this comment
  3. Queeg
    Queeg 19 September, 2012, 14:49

    More bile and doom….yadda….what is your personal future, and why stay here and be so so so miserable.

    Reply this comment
  4. Queeg
    Queeg 19 September, 2012, 14:50

    Queeg keeps you balanced!

    Reply this comment
  5. Edward Steele, Chief Investigator
    Edward Steele, Chief Investigator 19 September, 2012, 15:15


    zzzzzzzz– bromides? Hmmmmm…..don’t think so. I remain part of the unwashed 47%. I know that your master Mitt doesn’t care much for all of us. I wish I could say it has been a pleasure watching you extreme righties turn the rains of power back over to us, but it’s just sad.

    Type on lad!

    Reply this comment
  6. Mark Lytle
    Mark Lytle 19 September, 2012, 16:27

    So how much are you getting paid by Monsanto? I hope you eat a LOT of GMO corn.

    But no, I’d bet you eat only organic…and laugh at the public that doesn’t know…and ridicule those that do…

    Reply this comment
  7. Hondo
    Hondo 20 September, 2012, 08:33

    What the authors of this proposition really are going after are salt, sugar and fat. Like NY banning big gulps, the guv will ban anything that tastes good. No more whoppers with cheese. No more cookies. No more dorritos.
    I’m getting hungry already. I’m off to in-and-out while they are still open.

    Reply this comment
  8. Tom in SoCal
    Tom in SoCal 20 September, 2012, 08:57

    I just want to know if this panel will bring back my foie gras!

    Reply this comment
  9. Queeg
    Queeg 20 September, 2012, 09:15

    Great…just wonderful…more name calling…character bashing…

    Reply this comment
  10. Queeg
    Queeg 20 September, 2012, 09:19

    Teddy is the sage of CWD. Applaud his enlightenment and positive leadership even when dark clouds hover….

    Reply this comment
  11. Dyspeptic
    Dyspeptic 20 September, 2012, 09:31

    @ Queeg-

    Teddy is to sagacity what you are to literacy 🙂

    Reply this comment
  12. Edward Steele, Chief Investigator
    Edward Steele, Chief Investigator 20 September, 2012, 09:44

    Thank you #Queeg — You remain aloof yet accurate sir!

    Reply this comment
  13. Rex the Wonder Dog!
    Rex the Wonder Dog! 20 September, 2012, 09:54

    Teddy is to queeg sock puppet what queeg is to teddy gimmick account.

    Reply this comment
  14. Jared
    Jared 27 October, 2012, 09:23

    Wow, what’s with all the hate, you two? If you’d read the legislation and were familiar with CA Law, you’d know that saying Prop 37 is the new Prop 65 is a FAR cry.

    Let me leave this independent study by Professor James C. Cooper here. It’s a comparison of litigation incentives and the man is a notable law scholar from Arlington, VA


    Reply this comment
  15. Jared
    Jared 27 October, 2012, 09:28

    Basically, there’s a 30 day grace period for the violator of the misbranding/s to rectify the mistake before any litigation can be effective and there are several different protection clauses for suppliers. For instance, if the defendant can prove that the product/s unknowingly contained GMO ingredients, the case would be thrown out, etc. There are more. Check it out.

    I don’t even live in CA and was really concerned after reading the entire ballot initiative bill but after 6 hours of research, I realized that yet again the monolithic corporations’ propaganda was effective on me, if only for a moment.

    Reply this comment
  16. Jared
    Jared 27 October, 2012, 09:28

    Also: ONLY consumers can press charges as required by CA state laws

    Reply this comment
  17. CalWatchdog
    CalWatchdog Author 27 October, 2012, 09:32

    Editor’s note: I just deleted some abusive posts here. Keep it civil.

    — John Seiler

    Reply this comment

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