Election Day approacheth! On November 6th voters will descend on the polls to choose our local, state and federal leaders, from the city council to the White House. In California, voters will also be asked to decide on many ballot initiatives, including Proposition 37: The California Right to Know Genetically Engineered Food Act, an initiative that, if passed, will have detrimental implications for the food industry, including dietary supplements.

In the unfortunate circumstance that the initiative prevails on November 6th, what can the dietary supplement industry expect? Lawsuits, lawsuits, lawsuits—one of the main reasons that companies and groups, both within and outside of the food industry, joined forces to oppose the Proposition. The food and bio coalition, business associations, agricultural groups and even nearly every newspaper editorial board in California, have all expressed consistent reasons for why Prop 37 needs to be defeated. Perhaps the most repeated reason of all is the widespread agreement that the initiative is confusing, unclear and ambiguous in nature, and could lead to wildly varying legal interpretations down the road. That’s precisely why the dietary supplement industry should oppose this misguided initiative and urge California voters to vote against Prop 37.

How bad is the ballot measure? Due to ambiguity of the language, the wording could be interpreted as an outright prohibition on labeling any product that has been processed (e.g., cooked, frozen, canned, etc.), whether it contains any genetically engineered ingredients or not, as “natural.” Proponents say they didn’t intend that meaning, but at least one court has offered that is a reasonable interpretation of the provision. That could pose a huge problem. If the word “nature” or “natural” appears in the product name, you could be the target of lawsuits. The way the proposition is written leaves the storm walls down for a tsunami of class-action lawsuits from trial lawyers itching to sue food companies, including dietary supplement manufacturers and retailers, on the ambiguous meaning of the “natural” provision. While that may not have been the intent of the language, it will most certainly be the result.

Even if California’s GMO labeling initiative fails, we should not expect this issue to be resolved or go away any time soon. It’s clear that many other states will be considering their own GMO labeling measures when state legislatures reconvene in early 2013. Presumably, we could see the California legislature address this issue too, especially if the outcome of Prop 37 is close. The dietary supplement industry must take a serious look at this issue and answer some complex questions.

CRN will be talking with its members over the next few months to determine next steps and will thoughtfully review this issue with other industry stakeholders to determine if there is common ground, but the solution most certainly won’t include bounty hunter provisions. If consumers truly want to know about genetically engineered ingredients in their food, a federal solution or some form of national uniformity is better than a patchwork of state laws. The solution should also ensure there is ample time for compliance with any new labeling requirements. If there is not a federal solution, then responsible industry might look to voluntary programs that will provide our consumers with meaningful information about their products while we continue to ensure that dietary supplements are safe, beneficial and meet high quality standards.   

If Prop 37 becomes law, there will be one more type of lawsuit that will quickly appear. Already there is talk of litigation to prevent Prop 37’s implementation until there is further legal clarity on the scope and reach of the initiative. So if Prop 37 passes, we can expect a potential delay of its enforcement provisions, and costs to taxpayers, as the flawed initiative winds its way through the courts. What we do not know is whether the courts will be willing to block certain aspects of the law, but not others. Or, if the courts will allow the 18-month clock to start ticking for some provisions while delaying implementation of other provisions, leaving those provisions to be challenged and potentially decided through litigation.

As voters learn the truth about Prop 37, the latest poll numbers show that Californians are split, essentially 50/50 and that support has begun to ebb. As more becomes known about how onerous this proposition is, the proponents of Prop 37 have watched their once large-lead slip. But it’s not over yet. Typically in areas where one party is dominant and there are few if any competitive campaigns on the ballot, voter turnout will be lower than in those areas where Republicans and Democrats are more evenly distributed and tight races exist, typically producing higher voter turnout. In California, the supporters of Prop 37 have engaged in a massive grassroots effort to bring out voters; opponents of Prop 37 need to do the same to ensure that those who oppose the initiative get to the polls too. To label or not to label … this will remain the question whether California’s Proposition 37 passes or fails on Tuesday.  

Mike Greene is vice president, Government Relations, and Rend Al-Mondhiry is regulatory counsel, at the Council for Responsible Nutrition, the leading trade association for the dietary supplement industry.

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The ideas and opinions expressed in this article are those of the author and do not necessarily reflect views held by Nutraceuticals World.