Local Governments Can’t Stop GMOs

In the November election cycle last year, the voters of Maui County, Hawaii passed an initiative that banned most genetically engineered food and plant products from being grown within the county’s borders. The measure passed by a slim 51% majority, and immediately faced legal action by agricultural companies seeking to enjoin the county from enforcing the ordinance. Simultaneously, some county residents filed an action seeking a declaratory judgment that the ordinance was valid and needed to be certified and implemented.

Last week, the United States District Court for the District of Hawaii determined that the ordinance must be struck down because it is preempted by both federal and state law. In Robert Ito Farm, Inc., et al. v. County of Maui, Civil Action No.: 1:14-cv-0511-SOM-BMK (login necessary), the Court determined that the municipal ordinance cannot be implemented because it frustrates the federal “Plant Protection Act,” 7 U.S.C. 7701 to 7786. The act, originally passed in 1987, governs the ‘movement’ of various plants and plant products in order to help protect against invasive pests and weeds, also called plant pests, within the United States. The act explicitly states that no other body of state or other government can regulate this issue.

The Judge made careful efforts in her opinion to emphasize that no judgment was being made on the health, environmental, or moral implications of GMOs. She identified strong passions on both sides of the matter, and stated that this decision is one of pure legality, and her analysis did not reach any of the other concerns that the parties presented beyond the preemption issue.

Though this decision sets a new precedent and may likely serve as a guidepost for companies seeking to defend against other similar voter-backed efforts against GMOs, it is important to note that in the field of ‘food law’ and particularly GMOs, GEs and other biotechnology products, the government’s regulation is ever shifting. On Thursday, the White House released a new order to the FDA, EPA and Department of Agriculture to revisit the “Coordinated Framework for the Regulation of Biotechnology” which has been in place and untouched since 1992. The White House acknowledges changes in technology and advances in food products, and consumer confusion and concerns, as the primary reason behind the effort to update the government’s regulation and approach to this industry.

Accordingly, those in the chain of production of biotechnology products should keep abreast of the shifting landscape – both judicially and legislatively – in order to keep up with all requirements that apply to their industry. Check back here as we continue to monitor these changes.