As of July 2012, the GENERA database listed 583 scientific studies on the safety of GMO crops and their food ingredients. In addition, the experiential evidence of billions of meals consumed by persons around the world since commercial release of genetically-engineered crops in 1996 supports the safety of genetically-modified foods. Since 1996, there has not been one verified health complaint to humans, animals or plants from genetically-engineered crops, raw foods, or processed foods. Despite some published attempts to deny this overwhelming scientific evidence in support of genetically engineered foods, the scientific consensus is clear —genetically-engineered crops, foods, and processed ingredients do not present health and safety concerns for humans, animals, or plants. SPS Agreement Article 3 sets forth provisions that could save Proposition 37. Paragraph 3.2 affirms a SPS measure that conforms to international standards relating to health and safety. However, Paragraph 3.2 does not protect Proposition 37 because there are no international standards that categorize genetically-engineered raw or processed foods as unsafe or unhealthy. Comparing Proposition 37 to the legal standards in the SPS Agreement shows that Proposition 37 almost assuredly is not compliant with the SPS Agreement. Indeed, the WTO SPS claim against Proposition 37 is so strong that its proponents are probably not going to defend it as meeting the legal standards of the SPS Agreement. Despite its textual language and the electoral advertising emphasizing food safety and health concerns,vertical farming aeroponics proponents will argue that Proposition 37 cannot properly be characterized as a labeling requirement “directly related to food safety.” Proponents of Proposition 37 will seek to have it classified as a technical barrier to trade in order to avoid the SPS Agreement and its scientific evidence standards.

The TBT Agreement applies to technical regulations, including “marking or labelling requirements as they apply to a product, process or production method.” As Proposition 37 imposes mandatory labels, Proposition 37 is a technical regulation under the TBT definitions. TBT Article 2 sets forth several provisions against which to measure technical regulations for compliance with the TBT Agreement. It states, “Members shall ensure that technical regulations are not prepared, adopted or applied with a view to or with the effect of creating unnecessary obstacles to international trade. For this purpose, technical regulations shall not be more trade-restrictive than necessary to fulfill a legitimate objective, taking account of the risks non-fulfillment would create. Such legitimate objectives are, inter alia, … the prevention of deceptive practices; protection of human health or safety, animal or plant life or health, or the environment. …” Article 2.2 expressly lists three legitimate objectives: national security requirements; protection of human health or safety, animal or plant life or health, or the environment; and prevention of deceptive practices. As for health and safety, Proposition 37 does not provide a label giving consumers information about how to use a product safely or a safe consumption level or any other health and safety data—unless the warning-style label against genetically-modified food itself is considered a valid warning. But, as discussed with regard to the SPS Agreement, there is no scientific evidence available to indicate that genetically modified foods have negative health or safety implications for humans, animals, or the environment. Proposition 37 does not assert a legitimate health and safety objective under TBT Article 2.2.Proposition 37 can be defended as upholding the third legitimate objective—prevention of deceptive practices. Indeed, the Proposition is titled the “California Right to Know Genetically Engineered Food Act,” indicating that labels will assist California consumers in knowing what they are purchasing and avoiding purchases that they desire to avoid. Those who would challenge Proposition 37 for noncompliance with the TBT Article 2.2 will argue that Proposition 37 is not a protection against deceptive practices. Opponents can point to the structure of the proposed Act and its exemptions to provide evidence that Proposition 37 will actually confuse consumers more than inform them accurately.

Proposition 37 exempts foods that lawfully have the USDA Organic label. Under the USDA National Organic Program , organic foods can contain traces of unintentional genetically-modified crops or ingredients without losing the organic label. Simultaneously, those California consumers still will be eating unlabeled food products containing genetically modified crops or ingredients at trace levels, except those products will carry the label “USDA Organic.” In other words, opponents of Proposition 37 will argue that Proposition 37 is itself the deceptive labeling practice and, thus, fails to promote a legitimate objective under TBT Article 2.2. Proponents of Proposition 37 will respond by citing to the recent WTO Dispute Resolution Appellate Body relating to the challenge of Canada and Mexico against the United States country-of-origin label for meat. The WTO Panel ruled against COOL on the grounds of a violation of TBT Article 2.2 because the COOL law would confuse consumers. But the WTO Appellate Body reversed this Panel ruling and determined that COOL did provide information as a legitimate objective under Article 2.2.Aside from “legitimate objectives,” TBT Article 2.2 also requires that technical regulations not be “unnecessary obstacles to international trade” and “not more trade-restrictive than necessary.” Opponents of Proposition 37 will argue that it violates these TBT obligations primarily because consumers already have labels that provide the same level of consumer protection from deception. Opponents will point to the existence of the Non-GMO label and the USDA-Organic label that allow consumers to choose foods which will have minimal levels of genetically-engineered content. These Non-GMO and USDA-Organic labels are voluntary labels that do not impose legal and commercial burdens upon other food products in international trade. TBT Article 2.1 also provides a standard against which to measure Proposition 37 by stating, “Members shall ensure in respect of technical requirements, products imported from the territory of any Member shall be accorded treatment no less favorable than that accorded like products of national origin and to like products originating in any other country.”TBT Article 2.1 requires Members to treat “like products” alike and to refrain from favoring either domestic or other international “like products” as against the products of the Member bringing the Article 2.1 complaint.

Obviously, proponents of Proposition 37 consider genetically-engineered agricultural products as fundamentally different than organic and conventional agricultural products. Proponents will argue that Proposition 37 deals with genetically-engineered agricultural products that constitute a class of products of their own.Opponents of Proposition 37 will respond with two arguments. Opponents can argue that regulatory agencies around the world have considered genetically-engineered raw agricultural products to be substantially equivalent in every regard to conventional and organic agricultural products. Opponents will argue that the substantive qualities of genetically-engineered agricultural products are “like products” and that the process producing the “like products” does not create a separate product classification. Opponents will argue “product” over “process” as the appropriate TBT Article 2.1 interpretation. Opponents of Proposition 37 will also present a second argument. More precisely, opponents of Proposition 37 will highlight the fact that Proposition 37 imposes labels, testing, and papertrail tracing on vegetable oils even though the oil has no DNA remnants of the crop from which the oil came. Soybean oil is soybean oil regardless of what variety of soybean the food processor crushed to produce the oil. With regard to the TBT Article 2.1 arguments,vertical indoor hydroponic system opponents of Proposition 37 may gain support from the Canada and Mexico WTO complaints against the U.S. COOL law. Both the WTO Panel and the WTO Appellate Body determined that Canadian and Mexican meat was a “like product” to United States meat. As a “like product,” the WTO reports ruled that the U.S. COOL law violated TBT Article 2.1 by imposing discriminatory costs and burdens on meat imported into the United States.TBT Articles 2.4 and 2.5 provide a safe harbor for technical regulations if those technical regulations adopt international standards. However, the Codex Alimentarius Commission, the international standards body for food labels, has not created an international standard which proponents of Proposition 37 can claim as its origin and safe harbor.SPS Agreement Article 11 and TBT Agreement Article 14 are both titled “Consultation and Dispute Settlement.” Thereby the SPS Agreement and the TBT Agreement make explicit that Member States to these agreements can complain using the WTO Dispute Settlement Understanding Agreement. For example, Argentina or Brazil or Canada—all likely to be affected by Proposition 37 for the export of soybeans and canola, especially for cooking oils—have the treaty right to file a complaint within the WTO dispute resolution system. Bringing a WTO complaint is fraught with difficulties. Members must think politically and diplomatically about whether it is worthwhile to bring a complaint—even a clearly valid complaint. Members must be willing to expend significant resources in preparing, filing, and arguing WTO complaints. Finally, even if a Member prevails in the Panel or Appellate Body reports, Members recognizes that its WTO remedies are indirect and possibly not fully satisfactory. Although the United States is a Member of the WTO Agreements, the United States, in contrast to Argentina, Brazil and Canada, is not an exporting Member to California.

Consequently, the United States cannot file a WTO complaint invoking the DUS Agreement against California. But by being a Member of the WTO Agreements, the United States has ratified these treaties as part of the law of the United States, transforming these treaties into the supreme law of the land under the U.S. constitution. Moreover, under the WTO Agreements, the United States has the duty to ensure that local governments comply with the WTO Agreements. Therefore, the United States has the legal authority to challenge Proposition 37 in order to protect its supreme law of the land and to avoid violating its WTO obligations.Opponents of Proposition 37 are likely to challenge Proposition 37 immediately if California voters adopt it in November 2012. As indicated in the introduction, these opponents are likely to bring challenges on three different grounds under the U.S. Constitution. These opponents have non-frivolous grounds upon which to pursue these U.S. constitutional challenges. Whether these opponents can add a claim challenging Proposition 37 based on alleged violations of the SPS Agreement or the TBT Agreement is much less clear. TBT Agreement Article 14.4 highlights that the opponents will have difficulty in bringing a WTO-based challenge. TBT Article 14.4 makes clear is that Member States have the legal status to bring WTO-based complaints.Proponents of Proposition 37 will challenge the standing of those opponents who seek to challenge Proposition 37. Proponents will seek to have this WTO-based claim dismissed because the opponents do not have a right to make a legal claim based on the WTO. Proponents will argue that standing to bring a WTO-based claim resides solely in exporting Member States or the United States. By contrast, opponents bringing the immediate challenge containing a WTO-based claim will argue that they are not invoking the WTO Agreements directly. Opponents will argue that they are challenging Proposition 37 to enforce the supreme law of the United States. By invoking the supreme law of the United States, opponents will hope to blunt the standing issue and to avoid dismissal of the WTO-based claim.Assuming that the United States does not file a lawsuit against California and that other opponents are blocked, by the doctrine of standing, from raising WTO-based challenges, Proposition 37, if adopted in November 2012, would become California law. Thus, the first lawsuits related to Proposition 37 would come through either administrative action or a consumer lawsuit against food companies and grocery stores alleging failure to label or misbranding. When facing administrative actions or consumer lawsuits, food companies and grocery stores will want to respond with all possible legal challenges to Proposition 37. Food companies and grocery stores will want to raise the issues of whether Proposition 37 complies with the SPS Agreement and the TBT Agreement as defenses to being found liable for administrative penalties or consumer damages. The agency or consumer bringing the lawsuit against the food company or grocery store will argue that the food company or grocery store does not have standing to raise the WTO-based challenges. The plaintiff likely has to concede that the defendant faces an actual injury. However, the plaintiff will contest vigorously that the defendant is not within the zone of interests that the WTO Agreements mean to protect. In other words, the plaintiff will argue that the WTO Agreements only mean to protect sovereign interests and not private commercial interests.