ANSWER: The language of the proposed law could
be read as imposing a two-part test for compliance. We expect
plaintiffs to argue that the grocer must:
(1) be able to show that the food was not "knowingly and
intentionally" made with genetic engineering;
(2) have a sworn statement on file from the supplier attesting
to the non-GE nature of the food.
This reading would be based upon the language of the initiative,
"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."
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.
Plaintiffs' attorneys can be expected to argue that in
addition to showing that the food was made without knowing or
intentional use of genetic engineering, one must also have a sworn
statement on file to support that fact, or the exemption will not
"Food will be deemed to be described in the preceding
sentence only if the person otherwise
responsible for complying with the requirements of subsection (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: (i) has not
been knowingly or intentionally genetically engineered; and (ii)
has been segregated from, and has not been knowingly or
intentionally commingled with, food that may have been genetically
engineered at any time." (Emphasis added.)
In effect, read as we expect plaintiffs will read it, the
sworn-statement provision is simply an additional requirement
tacked on to the first prong of the test: was the food made without
knowing and intentionally using genetic engineering? If the farmer,
processor, or grocer can make that showing, he or she must also
have a sworn statement that no genetic engineering was used in the
product. Read this way, the exemption applies only if
both showings can be made.
Accordingly, in order to take advantage of this exemption, the
defendant would first have to submit to discovery on the question
of knowledge and intent. In the context of Proposition 65, this is
how plaintiffs' attorneys have made their livings; the threat
of expensive and time-consuming discovery—depositions,
interrogatories, document production, and more— drive
settlements that do little more than enrich bounty-hunting lawyers.
Only if the defendant could get past this hurdle would the sworn
statement come into play as an additional burden that must be met
in order to establish the defense.
Because of the generality of this update, the information
provided herein may not be applicable in all situations and should
not be acted upon without specific legal advice based on particular
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