Courts Address Localism, Federalism Amid New Legislation
January 23, 2015
Since 2013, state and local measures aimed at regulating genetically modified organisms (GMOs) have proceeded along two tracks. Some are aimed at restricting − or increasing the transparency of − GMO cultivation, while others would require the disclosure of genetically engineered ingredients on product labels. Both approaches have been hotly contested at the ballot box and in the courts. In the latter half of 2014, a federal court in Hawaii twice struck local ordinances aimed at regulating GMO husbandry, citing state and federal preemption. In November 2014, voters in Colorado declined, by a 2-to-1 margin, to require mandatory labeling, but a vote in Oregon on a similar measure was so close it required a recount. That same month, a lawsuit filed by two farmers prompted Jackson County, Oregon, to suspend its six-month-old ban on the cultivation of genetically engineered plants.
For now, the frenzy has culminated in a hearing on a motion to enjoin the country’s first statewide mandatory labeling law, in Vermont. The argument, which was heard on Jan. 7, is expected to produce the first federal court decision regarding how such laws fare against free speech and preemption arguments. It will have clear implications for the various bills introduced in state legislative sessions on that very same day.
Varied Legislative Outcomes Leave Mandatory Labeling in a State of Flux
In April 2013, six months after a mandatory labeling measure failed to pass in California, two U.S. legislators − Sen. Barbara Boxer, D-CA, and Rep. Peter DeFazio, D-OR − got in front of a groundswell of GMO activity in New England by introducing identical bills known as the Genetically Engineered Food Right-to-Know Act. The law would have amended the federal Food, Drug and Cosmetic Act (FD&CA) to classify as “misbranded” any food that has been genetically engineered, or that contains genetically engineered ingredients, unless that fact is clearly disclosed. Later that year, in November 2013, a mandatory-labeling measure on the ballot in Washington failed after a sustained and expensive campaign by opponents. Boxer’s and DeFazio’s bills ultimately died in committee.
At about the same time, however, labeling proponents were enjoying their first state-level successes. A Connecticut law requiring labels on GMO-containing foods became effective in December 2013, and Maine’s governor signed a similar requirement into law in early January 2014. The Connecticut and Maine laws, however, do not actually take effect until a critical mass of nearby states adopt similar laws, and less than two weeks after Maine’s law was enacted, the New Hampshire House of Representatives voted down a similar provision.
Barely three months later, as Vermont’s mandatory-labeling law moved forward in that state’s senate, the U.S. Congress saw the introduction of a second GMO-labeling bill: the Safe and Accurate Food Labeling Act of 2014 (SAFLA), introduced by U.S. Rep. Mike Pompeo. SAFLA would establish a federal labeling standard for foods with genetically modified ingredients and give sole authority to the Food and Drug Administration to require their mandatory labeling. It would also expressly preempt any state or local labeling requirements, as well as any other laws affecting bioengineered organisms intended for use in food.
Vermont’s bill proceeded through the legislative process, however, and in May 2014 − shortly after SAFLA was referred to the House’s Subcommittee on Health − Vermont became the first state in the U.S. to require the labeling of genetically modified foods by a date certain. Six months later, in the November 2014 elections, the winds shifted once again. Colorado’s Proposition 105, which would have required food companies to label packaged foods with the text “produced with genetic engineering,” was soundly defeated, by a 2-1 vote. Oregon’s Measure 92, which would have required affected food labels to include the words “genetically engineered,” also failed, but by a much narrower margin; of 1,506,311 ballots cast, the difference was 837 votes. Although SAFLA died without fanfare at the end of the second session of the 113th Congress, it seemed it wasn’t needed − at least with respect to mandatory-labeling laws.
Local Cultivation Bans Find Popular Appeal, but No Friends in the Court
Measures aimed at regulating the local cultivation of GMOs fared better at the November 2014 polls than did their labeling counterparts. Voters in Maui County, Hawaii, approved an ordinance prohibiting the growth, testing, or cultivation of genetically engineered crops pending a safety study, and voters in Humbolt County, California, approved a similar initiative, to “prohibit the propagation, cultivation, raising, or growing of genetically modified organisms.”
Such laws are only the latest in the GMO war’s second front. Various other counties, such as San Juan in Washington and Trinity, Marin, and Mendocino in California, also bar the local cultivation of genetically engineered foods, and some have done so since 2004. Last May, two counties in Oregon, Jackson and Josephine, approved measures similar to Maui County’s. A third county in Oregon, Benton County, is likely to vote on the issue this coming May.
Despite such grassroots momentum, two court decisions since August 2014 have delighted opponents of GMO regulation and previewed the challenges − preemption in particular − likely to be faced by labeling laws. On Aug. 25, 2014, the U.S. District Court for the District of Hawaii invalidated Kauai County Code §§ 22-23 et seq., which mandated the filing of annual public reports identifying and describing GMOs under local cultivation. See Kauai County Code 22-23.4(b)(2). The court concluded that the field was preempted by a state statutory scheme that vests the Hawaii Department of Agriculture with the authority to designate “restricted plants” and to control and eradicate “noxious weeds.” Syngenta Seeds v. Couty of Kauai, 2014 WL 4216022, at *9 (D. Haw. Aug. 25, 2014).
The court also concluded, however, that the law’s GMO-reporting requirements did not conflict with, and were not otherwise preempted by, the federal Plant Protection Act (PPA). Id. at 13–14. Three months later, on Nov. 26, 2014, the same court struck a more aggressive local ordinance, Hawaii County Code §§ 14-128 et seq., which had been signed into law barely a year before and which prohibited − with certain exemptions − “the open air cultivation, propagation, development, or testing of genetically engineered crops or plants.” See Hawai’i Floriculture and Nursery Assoc. v. County of Hawaii, Case No. 1:14-cv-00267-BMK (D. Hawaii), Dkt. No. 70 at 2. The court concluded that, as was true of the Kauai County ordinance in Syngenta, the Hawaii County law was impliedly preempted by the state statutory scheme. Id. at p. 10.
But it also determined that the local law’s ban on open-air field testing of genetically engineered crops and plants that meet the PPA’s definition of “plant pests” or “noxious weeds” regulated by 7 CFR Part 340 was preempted. Id. at 22. The ban on field testing of plants that are not “plant pests” or “noxious weeds” regulated under Part 340, however, was not preempted by the PPA. Id. Moreover, the court concluded, federal law − specifically, the PPA, the Federal Food, Drug and Cosmetic Act, and the Federal Insecticide, Fungicide, and Rodenticide Act − did not impliedly preempt (whether via field preemption or conflict preemption) the ordinance. Id. at 23–24. In so holding, it stressed the presumption against federal preemption of state law.
At least one more court is expected to weigh in soon on the question of whether local bans are preempted, at least by state law. Voters in Jackson County, Oregon, passed a measure in May 2014 aimed at creating “a genetically engineered crop-free zone,” to protect local farmers from transgenic contamination. The county later delayed enforcement of the measure, in response to a state court lawsuit filed in November 2014 by two alfalfa farmers. The suit asserts that the GMO ban violates Oregon’s Right to Farm Act and seeks damages for restricting the farmers’ use of their land. On New Year’s Eve 2014, two Jackson County farmers and two nonprofits, including the Center for Food Safety, filed a motion to intervene as defendants.
First Light 2015: Seminal Hearing in GMA v. Sorrell; (Re)Introduction of Mandatory-Labeling Bills
The new year brought new developments in a higher-profile GMO lawsuit in which the Center for Food Safety had also moved to intervene. Exactly five weeks to the day after enactment of Vermont’s mandatory labeling law, 2014 Vt. Acts & Resolves No. 120 (Act 120), a coalition of trade associations led by the Grocery Manufacturers Association challenged the statute in the U.S. District Court for the District of Vermont. (The Center for Food Safety and the Vermont Public Interest Research Group were ultimately denied the right to intervene, but they have been allowed to participate as amici curiae.)
Like the challengers of cultivation bans, the plaintiffs in GMA v. Sorrell assert that Act 120 is preempted − in this case, expressly, by the FD&CA, the Federal Meat Inspection Act, and the Poultry Products Inspection Act. In arguments that have no obvious parallel in the context of cultivation bans, however, they also assert that the law violates the First Amendment, because it is a “politically motivated speech regulation” that does not serve a legitimate government interest, and because its ban on such words as “natural” on the packaging of GMO-containing foods constitutes viewpoint discrimination. Plaintiffs also argue that Act 120’s ban on such words as “natural” is void for vagueness and a violation of the Fifth Amendment.
Unsurprisingly, the defendants − Vermont’s attorney general and an assortment of other state officials − moved to dismiss the case for failure to state a claim upon which relief can be granted and, among other things, lack of standing. Plaintiffs countered with a motion for a preliminary injunction. The dueling motions were heard on Jan. 7 by U.S. District Court Judge Christina Reiss, a 2009 Obama appointee. Because plaintiffs’ motion in particular will require a thorough analysis of the merits, her pioneering decision will be momentous.
Meanwhile, in a flurry of other activity during that first full week of January, legislators in multiple states introduced a number of bills much like Act 120. On Jan. 6, in Indiana, Sen. Dennis Kruse, R-Auburn, introduced a bill that would require labeling of foods produced by genetic engineering and bar the use of “natural” to describe foods containing GMOs. On Jan. 7, a democratic legislator in Missouri introduced a similar bill. Also on Jan. 7, a mandatory-labeling bill that had failed in 2014 was re-introduced in both chambers of New York’s legislature; the Assembly version alone had some 65 sponsors. A different bill introduced the same day would establish a GMO registry. The sponsors of New York’s proposed GMO legislation not only cite consumers’ right to know, but also assert that genetically engineered crops can have serious environmental effects, and that labeling will protect New York exports in the more than 60 countries that mandate disclosure of GMO foods.
On Jan. 8, a mandatory labeling law was introduced in the Virginia House of Delegates that would make violators guilty of a Class 3 misdemeanor. Nor did activity slow the following week; mandatory labeling laws were introduced in Rhode Island and Arizona on January 14 and 15, respectively. In New Jersey, meanwhile, where legislative business during a single term can be carried over from one legislative session to the next, a mandatory-labeling law introduced in early 2014 is still alive.
How Judge Reiss will rule, and whether all or none of the proposed legislation will become law, is unclear. Certainly, advocates of mandatory labeling, cultivation bans and greater transparency surrounding the use of GMOs have not been daunted by their recent losses − in Colorado, Oregon and before the U.S. District Court in Hawaii. Just as certainly, an unequivocal decision by Judge Reiss in defendants’ favor will prompt a faster introduction of the Safe and Accurate Food Labeling Act of 2015 than would a plaintiffs’ win. Either way, expect to see SAFLA again.