Tuesday, October 30, 2012

The New Kashrut


It used to be God and the rabbis told us what we could and could not eat, and how we should prepare our food. These days, although the government imposes some restrictions on foods deemed to be dangerous or corrupting we are mostly left alone to choose. But in order to choose wisely, we must have knowledge.

Proposition 37 aims to arm us with knowledge about the foods we eat: specifically, whether it was genetically modified. Is this a good proposition? Since everyone agrees that knowledge is good, the short answer is: Duh! But still, does it matter what’s in the law, how it will operate, who will be hurt by it and how, or what knowledge it will truly arm us with. Well, yes, that too. So how does Prop 37 stack up?

As citizen legislators, here’s what we should know about this proposed law. It would state: “Any food offered for retail sale in California is misbranded if it is or may have been entirely or partially produced with genetic engineering and that fact is not disclosed.”

Retailers will be required to mark food that may have been genetically engineered with the slogan “Genetically Engineered,” either on packages, or on a label near the display bin at the grocery store. For processed foods, the label must read “partially produced with genetic engineering”, or “may have been produced with genetic engineering.” The law encourages individuals to sue, it encourages class action lawsuits, and it subjects offending retailers to pay the attorney fees of successful plaintiffs.

Alcohol, meat raised on genetically engineered feed, processing enzymes, and certified organic foods are all exempt from the labeling requirements. Also exempt is any food produced “without the knowing and intentional use of genetically engineered seed or food.” However, in order to take advantage of this exception any retail seller must have a sworn statement from whoever he or she obtained the food that (1) the food has not been knowingly engineered, and (2) has not been genetically commingled with any genetically modified foods. Let’s call them the new certificates of Kashrut.

How does your neighborhood grocer obtain such a certificate? The law states that “in providing such a sworn statement, any person may rely on a sworn statement from his or her own supplier.” The idea seems to be that the seed store obtains a kosher certificate from the manufacturer of the seeds (Monsanto), the farmer obtains it from the feed store, and the wholesaler obtains it from the farmer, and the retail merchant obtains it from the middleman. Depending on the supply chain this could be a whole bunch of certificates.

A kosher certificate can also be provided by “an independent organization” which may perform “sampling and testing” pursuant to procedures to be approved in regulations adopted by the State.

How many kosher certificates will your grocer need to be safe? How many different items of food are sold in the grocery store? That’s how many. Since virtually any food “may have been” produced with some genetic engineering, the only way to avoid potential liability will be for every last item of food in the grocery store to either have a certificate on record, or it will require a label that it is or may have been genetically modified. If not, the grocer will be sued by this new litigation cottage industry. If you’ve been on the fence about going to law school because the job prospects look bad, you may want to reconsider.

I don’t know who paid for the signature gathering to get Prop 37 on the ballot, but the leading supporters are the businesses who will benefit from its passage: natural and organic food growers, the very ones who are also exempted from the labeling requirement, although (to be fair) this exemption may also be related to federal preemption concerns. Organic food is regulated by the FDA.

Passage of proposition 37 is a guaranteed headache for the food industry, and not just for Monsanto and Pepsi. It will foster a new cottage industry of litigation. Small and large businesses will be put through the ringer and incur great expense, and this will not be correlated to good guys or bad guys. Will the public be any wiser? Chances are that most stores will find an innocuous way to label virtually everything as “may have been genetically engineered.” The end result will be that the public will be no wiser as to what is actually genetically engineered than they are now. If you really care about the food you eat, you will still have to educate yourself about your food sources, and look for natural food just like you have to do now.

I’m voting no on Prop 37.