Could consumers sue for damages under Proposition 37?
A "rather odd" exchange with the Yes on 37 campaign.
- A point of contention in the debate over California's Proposition 37 is whether consumers will be able to sue for damages if the measure were to pass. The No on 37 campaign has made the potential for "shakedown lawsuits" a major part of their argument. Newspaper editorial boards have echoed this concern, with one paper even suggesting that the enforcement provisions make Proposition 37 the worst proposition ever.
On the other side, the Yes on 37 campaign insists that these concerns are without merit. The campaign says on its website that "any penalties from a violation go only to the state, not the plaintiff or lawyer." If this were true, then I would agree with the campaign that the proposition didn't provide any incentives for consumers to sue.
Of course, the text of the proposition is freely available, so in principle anybody should be able to read the text and figure out whether consumers could sue for damages. It turns out it's a bit more complicated because the proposition says that violations "may be prosecuted under Title 1.5 (commencing with section 1750) of Part 4 of Division 3 of the Civil Code."
The Civil Code is also freely available, but I decided to put reading that off for later. My procrastination paid off when Karl Haro von Mogel, @kjhvm, posted a comment at the Biofortified blog explaining his reading of the law and linking to the relevant sections of the code, which "states right away that the consumer who brings the action is entitled to damages, including punitive damages."
Though Karl emphasized that he was not a lawyer, I found his explanation persuasive and decided to share it on Twitter.
- To my surprise, the Yes on 37 campaign felt compelled to respond to my tweet. Less surprisingly, they didn't see need to answer with more than talking points.
- My best guess is that the campaign was trying to argue that it won't be possible to sue for damages because everybody will be compliant. That argument completely misses the point, so I persisted, and Karl chimed in as well.
- Alas, the campaign was no more helpful this time.
- It's true that Karl's comment didn't mention lawyers, but I hadn't mentioned lawyers, either. That said, I'm not sure why it should matter because lawyers are likely to take in a chunk of any damages won by consumers.
I decided to try to clarify my question again.
- To no avail...
- If my question had been whether @CARightToKnow understood the meaning of the word "compliance," this is the point at which I would have been satisfied.
- So much for "specific clauses in the legislation."
This was where @CARightToKnow gave up on me. I guess I can live with that.
- Karl decided to take a constructive approach, passing the question along to the @CARightToKnowPR account.
- I was frustrated that a campaign claiming to stand for a "Right to Know" would be so evasive in answering a simple question about what its legislation actually said, so I took a different approach.
- I'm not sure they picked up on the sarcasm...
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- Norman BensonGood stuff, Adam. I wonder too if the law that "has actually worked well and has not led to any problems with excessive or abusive litigation" is what is used...Good stuff, Adam. I wonder too if the law that "has actually worked well and has not led to any problems with excessive or abusive litigation" is what is used in Prop 65 lawsuits, which have not lowered cancer rates nor raised risk awareness (surmising that I have yet to find data).more2012-11-03T15:14:52.379Z