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; and

(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, which exempts:

“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.

Please see full alert below for more information.