Whole Foods suffers second thoughts on Prop. 37

Oct. 30, 2012

By Wayne Lusvardi

The campaign over Proposition 37 isn’t as simple as it might seem at first glance. On the Nov. 6 ballot, the Genetically Engineered Labeling Initiative would mandate that genetically modified foods be given special labels.

Whole Foods Market, the giant health-foods store, originally backed the initiative. But since then it has taken two giant steps backwards from its original support. In particular, in an “Update” announcement, it has come out against the handling of the enforcement of Proposition 37 by “private plaintiff attorneys pursuing civil litigation”:

“The people of California’s best interests will not be properly represented as the enforcement of Proposition 37 will not be handled in partnership with the California Attorney General’s Office to ensure objective guidance and impartial oversight, but instead by private plaintiff attorneys pursuing civil litigation. Manufacturers could be compelled to label products with ‘May be Partially Produced with Genetic Engineering’ even if it is not the case to avoid costly litigation and protect themselves. This could result in consumers receiving inaccurate information, which is contrary to the intent of the proposition itself.”

Proposition 37 was written by Jim Wheaton, a trial lawyer. According to the California Attorney General’s Office Annual Summaries of Private Settlements (see summary at link), Wheaton assisted in writing previous ballot measures that have shaken down businesses for $500 million over the last 20 years. One of the provisions of Prop. 37 would allow lawyers to sue small neighborhood grocers and family farmers if the wording used on food labels was not compliant.  No harm would have to be proved.

Difference in Standards as Trade Barrier?

Whole Foods added that there are differences between Prop. 37’s standard of 0.5 percent of single micro-ingredients to qualify a product as genetically engineered and the 0.9 percent international standard, which is weaker.  Whole Foods wrote:

“There are differences between standards under Proposition 37 and other standards and labeling programs, which could create labeling challenges and consumer confusion.” 

Whole Foods further clarified that backing off its full support for Prop. 37 was based on “feedback and further evaluation of the proposition.”

What Whole Foods might be hinting at is lawsuits, brought by international food producers, that claim California’s new standard establishes a trade barrier against imported genetically altered foods, violating free trade agreements supervised by the World Trade Organization.  Prop. 37 apparently would affect any food that has a genetically engineered ingredient that amounts to a half percent of the total ingredients in a food product.

Proposition 37 Throws Monkey Wrench into Food Regulation

Whole Foods continues its support of Prop. 37 on its website.  The company “advocates for consumers’ right to know how food is produced.” Maybe instead it also should advocate the “right to know” how California’s laws are produced, something few citizens understand.

The U.S. Food and Drug Administration already regulates genetically modified foods and has powers to recall products, seize products, stop manufacturing by court order and impose criminal fines and jail time.

The Food and Drug Branch of the California Department of Public Health wields similar powers.

What Prop. 37 does is let third-party lawyers in on the enforcement action to shake down businesses. That reminds me of what radical environmental activist Edward Abbey once said:

“There is science, logic, reason; there is thought verified by experience. 
And then there is California.”

John Mackey, co-founder and co-CEO of Whole Foods, is a self-professed libertarian. So it is odd seeing his company advocate greater government regulation. Perhaps Whole Foods’ second thoughts are his conscience poking him.