Loading...
HomeMy WebLinkAboutCOM 0271.151 2012-2014 Margaret Wille oF;,� Phone No. Hilo: (808)961-8027 Council Member o°°�tv ' +. �. Phone No. Waimea: (808) 887-2043 Ui.strict 9-South and South Kohala � �'�' Fax No.: (808)887-2072 •��\.!►. %���• E-Mail: mwille(r�co.hawaii.hi.us ...':•;:"*1 Mj,�'•• HAWAII COUNTY COUNCIL County of Hawai 7 Hawaii County Building Holoniva Center 41'est Hawaii Civic Center Bldg. .I 25.-lupuni Street 64-1067,1lanzalahoa Highway, Suite C-5 74-5044 ane Keohokalole Hoc. Hilo, Hawaii 96720 IVcn,nea, Hawaii 96743 Kailua-Kona, Hawai'i,96740 � 7 t"j CI � °O N -- --f %O TO: J Yoshimoto, Chair s -'-� and Members of the Hawai`i County Council FROM: Margaret Wille, Council Member DATE: May 29, 2013 SUBJECT: Additional Information Regarding Genetically Engineered Seeds Please find attached a copy of a memorandum dated August 25, 2004, from Stephen R. Vina, Legislative Law Attorney, American Law Division, concerning the constitutionality of a state law that places a moratorium on the planning of reproducible genetically engineered seeds. Attachment Comm. No. 9-7 l ' ( Serving the Interests of the People of Our Island Ref. To: Ref. Date MAY 2 8 2013 Hawaii County Is An Equal Opportunity Provider And Employer • a`� �--& Congressional " Research � Service Au ust 25, 2004 Memorandum TO: Hon. Bernard Sanders Attention: Michael Behan FROM: Stephen R. Vina Legislative Attorney American Law Division SUBJECT: Constitutionality of a State-Wide Moratorium on the Planting of Genetically Engineered Seeds • Pursuant to your request,this memorandum further develops the analysis we provided on Febriiary 6,2004,regarding the constitutionality of a state law that places s moratorium on the planting of reproducible genetically engineered (GE) seeds. In particular, requested that we focus our analysis on a GE-moratorium bill proposed in the state of Vermont (S.B. 162) during the 2003-2004 state-legislative sessions.' The Bill was left pending in the Senate Finance Committee at the close of the 2003-2004 sessions;it seems, however,to have the possibility of being reintroduced in the upcoming session. Background Vermont Senate Bill 162. S.B. 162 (Bill)would have amended 6 V.S.A. §641 to define"genetically engineered seed"or"GE seed" as"an agricultural, flower, or vegetable whole seed,or its living progeny,that has been altered at the nucleic acid level." "GE plant part" was defined as "a whole plant or plant part, including scions intended for planting, which contains material derived from a GE seed." The Bill included the following"findings"by the Vermont general assembly:that the health of Vermont agriculture is critical to Vermont's economy;that the health of Vermont agriculture depends in large part on the high reputation of Vermont farmers and agricultural • products; and that the significant use of GE plants would create a cloud of doubt about Vermont agriculture,jeopardizing the health of Vermont's economy. In addition,the Bill's findings stated that GE technology may pose serious consequences not yet fully understood ' "Reproducible"is used in contrast with"sterile"and refers to a patented trait that results in seeds which only reproduce when specifically induced, commonly through exposure to a specific proprietary compound. 2 This memorandum was prepared with the help of Grace Chu,Law Clerk,American Law Division. Congressional Research Service Washington, D.C.20540-7000 CRS-2 by scientists; GE plants have the potential of altering neighboring crops and the natural environment;and genetically modified StarlinkTM corn had already caused economic losses in the U.S. The Bill proposed to place a moratorium on the planting of GE seeds or plant parts in the state of Vermont from January 1,2004 through January 1,2006. The commissioner of agriculture, food, and markets would have been given the ability to grant exceptions to the moratorium in instances where it was shown that the use of a GE seed or plant part would be within a controlled environment and no other plant would be affected. GE Moratoria Legislation In Other States. Since 2001,moratoria-type legislation has been introduced in at least thirteen states? In 2003 alone,it appears at least seven states (California,Hawaii,Iowa,Massachusetts,New York,Texas,and Vermont)had pending moo torea legislation.' Though currently no state has a GE crop moratorium in effect, two (California and Maryland) have moratoria on transgenic fish. California's moratorium prohibits spawning,cultivating, or incubating transgenic fish in Pacific waters over which California has jurisdiction. Maryland's five-year moratorium limits the raising of transgenic fish in Maryland waters that do not flow into any other body of water.' Much GE b re o and than moratorium laws are laws that (1) protect GE crops, (2) promote or(3)regulate the use of such crops (e.g.,labeling and inspection). U.S. Regulation of GE Seeds. Federal regulation of GE seeds consists of fragmented enforcement of several diverse laws. The basic administrative guidance for regulating biotechnology products stems from the Coordinated Framework for Regulation of Biotechnology'–a 1986 product from the White House Office of Science and Technology Policy(OSTP). Key to this product was the concept that GE products should continue to be regulated according to existing statutes and their characteristics,not their production method. As a result,three federal agencies—the U.S.Department of Agriculture(USDA),the Food and Drug Administration(FDA),and the Environmental Protection Agency(EPA)—have primary responsibility for the regulation of agricultural biotechnology. Collectively these federal agencies enforce at least ten different laws and numerous agency regulations and guidelines with respect to biotechnology.' The laws and regulations that these federal agencies apply may regulate the genetically modified plant itself or a further product produced from the original genetically modified product,such as in the case where a food plant is altered to make proteins that could be extracted to make industrial chemicals. Of the three agencies,the USDA's Animal and Plant Health Inspection Service regulates the potential importation,interstate movement,and field testing of GE plants and See Pew Initiative on Food and Biotechnology, Legislation Tracker, available at: [http://pewagbiotech.org/resources/factsheets/legi slation/index.php?TopiclD 7]. °Id.at[http://pewagbiotech.org/resources/factsheets/legislation/index.php?TopiclD=7&Year=2003]. 5 CAL FISH&GAME CODE § 15007 (2004);MD.NAT.RES.ANN. §4-11A-02 (2003). 6 51 Fed.Reg.23302. ' With respect to GE products, the laws enforced by USDA include the Plant Protection Act, 7 U.S.C.§§7701 et seq.and the Virus,Serums,and Toxins Act,21 U.S.C.§§151 et seq.;for the FDA, the Food,Drug,and Cosmetic Act,21 U.S.C. §§301 et seq. and the Public Health Service Act,42 U.S.C. §§201 et seq.;and for the EPA,the Federal Insecticide,Fungicide, and Rodenticide Act, 7 U.S.C. §§136 et seq. CRS-3 organisms that are or might be plant pests. The FDA regulates food and animal feed additives and human and animal drugs,including those from biotechnology. The EPA must approve the use of all pesticides,including those genetically engineered into plants. While federal oversight does seem to be expanding, there is no comprehensive federal law specifically addressing GE agricultural products.' Potential Obstacles for State Regulation At least two constitutional concerns may arise when a state attempts to regulate in an area of national concern.' First,the Supremacy Clause10 may bar a state attempt to regulate in an area where Congress has already legislated. Second, the Commerce Clause of the Constitution," may also limit state regulations that implicate national interests. The following sections discuss these potential constitutional challenges. Supremacy Clause Concerns. Congress'power to preempt state law arises from the Article VI, Clause 2 of the Constitution, which provides that"the Laws of the United States . . . shall be the supreme Law of the Land . . . any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." In Gade v. Nat'l Solid Waste Mgmt. Ass'n, the Supreme Court held that "under the Supremacy Clause, from which our preemption doctrine is derived, `any state law,however clearly within a State's acknowledged power, which interferes with or is contrary to federal law,must yield. Preemption may be express or implied.13 In express preemption, congressional intent is explicitly stated in statute. In implied preemption, congressional intent is implicitly contained in the statute's structure or purpose. At least two types of implied preemption have been.recognized by courts: field preemption and conflict preemption. Under field preemption,the scheme of federal regulation is so pervasive that it is reasonable to infer that Congress left no room for the states to supplement it. In conflict preemption, compliance with both federal and state regulations is a physical impossibility,or state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Regarding express preemption,neither Congress nor any of the three federal agencies primarily responsible for regulating biotechnology in the United States appears to have For more information,see CRS Issue Brief IB 10131,Agricultural Biotechnology:Overview and Selected Issues,by Barbara A. Johnson. ' The Bill may also be potentially challenged under the Due Process Clause of the Fourteenth Amendment,which restricts state and local governments from depriving individuals of life,liberty, or property without due process of law. However, a state promoting a moratorium only needs to show a rational relationship between the moratorium and a legitimate interest of government. Here, as discussed in the Commerce Clause section, there is arguably legitimate state interests being protected—Vermont's environment,agricultural industry, and possibly the health of its citizens. 10 U.S.CONST. art.VI,c1.2. 11 U.S.CONST. art.1,§8,cl. 3. 12 505 U.S. 88, 108 (1992). 13 Id. at 98. 14 Id. CRS-4 directly spoken on whether states may regulate the planting of GE seeds within their borders.15 As to implied preemption, Congress has not passed any comprehensive agricultural biotechnology laws and has only tangentially addressed the issue through existing laws that deal primarily with the movement of plant pests, the safety of food and animal feed additives,and the use of pesticides. Accordingly,it seems that Congress has not completed a "scheme of federal regulation . . . so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it. Moreover,it does not appear that Congress has more narrowly regulated GE seed in a way that would necessarily conflict with a state planting moratorium. Commerce Clause Concerns. Aside from preemption, a state or local law that regulates in an area of national concern may be challenged under the Commerce Clause. The Commerce Clause grants Congress the power to regulate interstate and foreign commerce." Because of this congressional prerogative, a state may not adopt laws that discriminate against or unreasonably burden interstate commerce. States can, however, invoke police powers to .rotect the health and safe of their citizens,even when doing gr-wutir'dhave an as the local incidental effect on commerce. aws outweigh the incidental burdens theysplac g eon interstate pu alive cne s • commerce.'8 Even where Congress has not acted,the Supreme Court has recognized certain negative implications arise under the doctrine of the dormant Commerce Clause.1° The modern approach to dormant Commerce Clause analysis begins with the determination of whether a state statute is facially neutral or facially discriminatory. Facially discriminatory statutes generally favor in-state interests over out-of-state interests and are usually declared invalid'° If the statute is determined to be facially neutral,then it will be subject to the balancing test established under Pike v.Bruce Church,Inc.' According to Pike, a facially neutral statute will be upheld unless the burden imposed on interstate commerce is clearly excessive in 15 Pursuant to the Plant Protection Act (PPA), however, Congress has expressly preempted the regulation of plant pests, articles,noxious weeds,etc.,with respect to foreign commerce and has prohibited any state from regulating plant pests if the Secretary of Agriculture has issued a regulation or order to prevent the dissemination of the plant pest. GE plants are generally considered "regulated articles"under USDA regulations. Accordingly, it appears a state law regulating a GE plant that(1)the USDA determines to be a plant pest and(2)affects foreign commerce or has been subject to a specific USDA regulation or order could be preempted. It is unclear whether the Bill would be affected by this preemptive language since it is a law intended to prevent the planting of GE crops—i.e.,there would be no plant pest to regulate. 16 Gade v.National Solid Wastes Management Ass'n,505 U.S.88,96(1992)(quoting Rice v.Santa Fe Elevator Corp.,331 U.S.218,230(1947)). "U.S.CoNsT.art. I,§8,cl. 3. 18 Pike v.Bruce Church Inc., 397 U.S. 137, 142(1970). 19 Maine v.Taylor,477 U.S. 131, 137(1986)(citing Lewis v.BT Inv.Managers Inc.,447 U.S.27, 35 (1980)). 22D Under the first prong of a dormant Commerce Clause challenge,a court will likely strike down a facially discriminatory state statute unless the state or locality can demonstrate "under rigorous scrutiny that it has no other means to advance a legitimate local interest." C&A Carbone,Inc.v. Town of Clarkson,511 U.S. 383,392 (1994). 21 397 U.S. 137, 142(1970). CRS-5 • relation to the putative local benefits. A court also looks to see if less discriminatory means exist to accomplish the state law's purposes. 1. Facially Neutral or Discriminatory. The Vermont Bill is facially neutral and does not appear to have any type of extraterritorial reach!' It prohibits all individuals from planting reproducible GE seed in Vermont regardless of the individual's state of residence, and it prohibits the planting of all reproducible GE seed,not just GE seed produced out-of-state. The Bill is indifferent to GE seed actions that occur outside of Vermont and would presumably allow GE seeds from other states to enter and be sold in the state. Accordingly, because the Bill only prohibits the planting of GE seeds in Vermont and does not attempt to regulate GE seed production,sales, or movement in or from other states,the Bill would likely survive a challenge under the first prong of a dormant Commerce Clause challenge. 2. State Interests. Assuming the Bill is found to be nondiscriminatory,it would still be subject to scrutiny under the balancing test articulated in Pike. A state law is sustainable if it serves a legitimate state interest without burdening commerce excessively. State laws with the purpose of protecting a ealth,safety,and environment o ciTiUM are generally found to be legitimate state interests.23 As such, states commonly regulate the introduction of animal and plant species solely under state law or in conjunction with federal law to protect the integrity of their agriculture industry and to keep products detrimental to human health out of interstate commerce. A number of states, for example,prohibit certain species of animals or plants from entering their borders or provide inspections and quarantines to determine indicates prey the and prevent the spread of animal and plant pests.24 Here, moratorium would protect a number of state interests, including the state's agricultural industry, economy,environment, and in some respects,human health. The Bill's focus on the protection of the state's agricultural industry could be a legitimate state interest under this constitutional analysis. Although the Bill does not appear to be grounded on the physical health or safety of Vermont citizens,the Bill does cite environmental concerns that possibly could constitute a legitimate state interest!' The Bill makes clear, for example, that the greatest potential harm associated with the use of GE seeds are likely to be unintentional effects on neighboring crops or other plants, animals, or insects that interact with domestic crops. 22 "Under the Commerce Clause, a state regulation is per-se invalid when it has `extraterritorial reach,'that is,when the statute has the practical effect of controlling conduct beyond the boundaries of the state." Cotto Waxo Co.v.Williams,46 F.3d 790,793 (8th Cir. 1995). 23 Maine v.Taylor,477 U.S. 131, 151 (1986). 24 See, e.g., CAL. FOOD AND AGRICULTURE CODE §§ 5301 et seq. (Quarantine and Inspection Stations);HAWAII REV.STAT.,ch. 150A(Hawaii Plant Quarantine Law). 25 See,e.g.,NewYorkState Trawlers Ass'n.v.Jorling,16 F.3d 1303(2"Cir. 1994)("The protection of the environment and conservation of natural resources—including marine resources are areas of `legitimate local concern."'); S.D. Farm Bureau, Inc. v. Hazeltine, 340 F.3d 583 (8th Cir. 2003) (concluding that protecting the environment is a legitimate state interest);CfMannington Mills,Inc. v. Shinn, 877 F.Supp.921 (D.N.J. 1995)(finding the environment a legitimate state interest in a due process challenge). CRS-6 Unintentional altering of neighboring crops,for example,may occur from pollen that drifts from a GE farm to a non-GE farm via wind, bird, or insect. According to some, the unintentional altering of crops could also have adverse effects on indigenous plant and animal life. Protecting indigenous species has been found to be another legitimate state concern.,For example,in Pacific Northwest Venison Producers v.Smitch2b the N hCirau t upheld a Washington regulation that prohibited the importation, holding, possession, propagation of"deleterious exotic wildlife." The ban was put in place to protect Washington wildlife from diseases and parasites and to maintain the genetic purity of its wildlife. A court that draws a correlation between state quarantine and import laws and the moratorium may potentially have to analogize the possible dangers associated with each. While courts may hesitate to question a state law that appears to protect the environment or agriculture from a particular threat,there is lingering disagreement over the impacts of GE crops on human health,other crops,and the environment in general. If a court finds that GE crops generally do not pose a danger, then there may not necessarily be a legitimate state interest to protect. Proponents of GE crops generally suggest that such crops are safe for humans and the environment. For example,the biotechnology industry,leading U.S.agricultural groups,and many scientific authorities generally cite to various studies in asserting that there is no evidence that current GE crops have harmed the environment or human health. One such y study that received some attention concerned the relationship between monarch buseafcy caterpillars and GE corn (of the Bacillus thuringiensis [Bt] variety).28 Early indicated that Bt corn posed a threat to monarch butterfly caterpillars. Later examinations, however,conducted and coordinated by the USDA,the EPA,and other private parties were highly critical of the procedures used by the early studies and ultimately concluded that there were no'significant risks to monarch butterflies from environmental exposure to GE corn. Indeed, to date, no adverse health effects attributed to genetic engineering have been documented in the human population.29 Opponents of GE crops naturally disagree and generally suggest that the long-term effects of GE foods on human health and the environment are unknown and not scientifically 26 20 F.3d 1008(9th Cir. 1994). The aim of the ban was to protect native wildlife against perceived dangers presented by captive herds of these animals;see also Taylor, 477 U.S. 131. 27 These studies include the Institute of Medicine/National Research Council 2004 report Safety of Genetically Engineered Foods: Approaches to Assessing Unintended Health Effects; National Academy of Sciences/National Research Council(NAS/NRC)2002 report Environmental Effects of Transgenic Plants: The Scope and Adequacy of Regulation; the NAS/NRC 2000 report Genetically Modified Pest-Protected Plants:Science and Regulation;the Council for Agricultural Science and Technology(CAST)2001 report Evaluation of the U.S.Regulatory Process for Crops Developed Through Biotechnology and the CAST 2002 report Comparative Environmental Impacts of Biotechnology-derived and Traditional Soybean,Corn,and Cotton Crops. For more information, see CRS Issue Brief IB 10131, Agricultural Biotechnology: Overview and Selected Issues, by Barbara A.Johnson. 28 See[http://www.ars.usdagov/is/br/btcorn/). 29 Safety of Genetically Engineered Foods: Approaches to Assessing Unintended Health Effects, Report of the Institute of Medicine and Natural Research Council,National Academy of Science at 8(2004)). CRS-7 established.30 For example, a recent Amicus Curiae brief submitted on behalf of fifteen organizations to the World Trade Organization regarding the European Union's moratorium and approval process for GE crops cites numerous studies and examples that basically call into question the safety of GM foods and crops.31 Others have pointed to a recent National Academy of Science report to suggest that there are"substantial gaps in our ability to identify unintended changes in biotech foods or to determine the human health impacts of those changes."32,One often cited example of the potential adverse effects of GE products involved the reported contamination of GE-Starlink corn with non-GE corn.33 Food items thought to contain Starlink corn (e.g., Taco Bell taco shells) had to be recalled in mass quantities because the product had only been approved for use as animal feed due to, among other things,concerns that the product could be an allergen. The fallout from the contamination was costly to the producers of Starlink corn and to the worldwide reputation of U.S. corn. Despite the reported lack of evidence or uncertainties that may exist,st. -• may have .. , .. - _vironmental ri espite le p. .11 that they may ultimately prove to be negligible.' In Maine v. Taylor,on of all lion example,a fish importer challenged a Maine statute that banned the importatie bait fish due to a parasite that existed in some out-of-state bait bout the The Supreme e Court fish recognized that there was"substantial scient parasites and nonnative species could have on Maine's fisheries. The Court,however, (in agreeing with and quoting the District court) stated that "[t]he constitutional principles underlying the commerce clause cannot be read as -• iring the State of Maine too sit ndl thy 1 ands wait until..ote • • - �. •I..-s .1 •:male _ '� is o•a o •• s ' :•,-. " The Court ultimately upheld,Maine's statute partly Acts to avoid such consequences because expert testimony demonstrated that current inspection procedures could not prevent the commingling of live bait fish with Maine's wild bait fish 36 Although the Taylor case concerned wildlife,it seems to demonstrate the possibility that irrespective of the current 3°See CRS Trade Briefing Book,Biotechnology and Agricultural Trade by Charles E.Hanrahan. 31 Amicus Curiae Brief for the Amicus Coalition before the W.T.O., European Communities — Measures Affecting the Approval and Marketing of Biotech Products(DS291;DS292;DS293)(May • 27,2004)at§2.3 Risks Associated With Genetically Modified Products. 32 Press Release,NAS Says Genetically Engineered Foods Not Proven Safe,The Center For Food Safety(July 27, 2004)(statement by Dr. Doug Gurian-Sherman, Senior Scientist) (referring to Safety of Genetically Engineered Foods: Approaches to Assessing Unintended Health Effects, Report of the Institute of Medicine and Natural Research Council,National Academy of Science at 15 (2004)). "For more information regarding the Starlink controversy see CRS Report RS20732,Starlink Corn Controversy:Background,by Alejandro E.Segarra and Jean M.Rawson. 34 A settlement for the Starlink corn episode reportedly paid$110,000,000 to farmers and other persons with a financial interest in non-Starlink corn harvested between 1998 and 2002. See In re Starlink Corn Products Liability Litigation(relating to all non-Starlink fanner actions)MDL Docket No.1403,available at:http://www.starlinkcorn.com/Claims/Documents/34800Starlink1232gxd.doc. Internationally,confidence in U.S.corn apparently faltered as countries like Japan insisted that the U.S. implement plans to assure that no commingled corn was shipped to Japan. 35 Taylor,477 U.S. at 147. 36 Id.at 152. • CRS-8 scientific controversy that surrounds a product, a state may take measures to protect itself from potential threats that are not completely understood. The Taylor holding,in combination with the Starlink incident,would appear to indicate that a planting moratorium may be constitutional. On the other hand,a moratorium may still be vulnerable to the degree it can be shown to be the kind of"economic protectionism"that the Commerce Clause seeks to avoid. For example, in striking down a state ban on the importation of out-of-state waste pending a determination that the waste posed no danger to local health,the Supreme Court observed: The opinions of the Court through the years have reflected an alertness to the evils of "economic isolation" and protectionism, while at the same time recognizing that incidental burdens on interstate commerce may be unavoidable when a State legislates to safeguard the health and safety of its people. Thus, where simple economic protectionism is effected by state legislation,a virtual per se rule of invalidity has been erected.37 It perhaps may be arguable that the proposed moratorium is,at heart, protectionist. It might be argued, for example, that the moratorium is primarily intended to keep certain otherwise safe agricultural activity outside its borders in order to preserve a competitively advantageous image for its current agricultural products. Moreover,because the Bill reports only a"slight"GE agribusiness in Vermont,proponents of GE products may argue that the Bill is really concerned with protecting in-state interests at the expense of out-of-state interests, since they may bear the brunt of the burden imposed by the Bill. Is the moratorium an attempt to position state products in the marketplace by prohibiting practices that are viewed as commercially disadvantageous,or is it an attempt to protect the integrity and healthfulness of the environment and crops? From the face of the Bill, arguments can probably be made for both, although there is strong support for the latter, since the Bill recognizes the unintentional effects on the environment as the greatest potential harm associated with the use of GE seeds. (whether that is in fact true,however, would have to be demonstrated in court). In contrast to the "protectionism" cases are quarantine cases, in which the Court routinely upholds regulation of threats to crops, livestock, and public health. The difference is that quarantine laws do "not discriminate against interstate commerce as such, but simply prevent[ ] traffic in noxious articles, whatever their origin.s38 Proponents of GE products may also look to a recently invalidated Vermont state law that required the labeling of milk and milk products produced from rBST(a synthetic growth hormone). In Int'l Dairy Foods Ass'n v.Amestoy, the Second Circuit examined whether a 37 Philadelphia v.New Jersey,437 U.S. 617, 623-624 (1978). However, at least with respect to a Commerce Clause challenge to a state marketing order for California raisins,the Supreme Court in Parker v.Brown accepted the state law's declared purposes of conserving the agricultural wealth of the state and preventing economic waste in agricultural marketing.317 U.S.341 (1943)(stating"that the adoption of legislative measures to prevent the demoralization of the industry by stabilizing the marketing of the raisin crop is a matter of state as well as national concern and, in the absence of inconsistent Congressional action,is a problem whose solution is peculiarly within the province of the state."). Though not a moratorium,this case could be viewed to suggest that some agricultural legislation may meet the balancing test when the local public interest is primarily economic. 38 Philadelphia v.New Jersey,437 U.S. at 629. • • CRS-9 Vermont state law that required milk producers to put a label on their products that contained rBST was unconstitutional under the First Amendment 39 At trial, the state of Vermont justified the legislation on the basis of"consumer interest"and"curiosity"because there was no evidence that rBST posed a health risk or had any impact on dairy products. The Second Circuit found that"consumer interest"was not a"substantial"interest,and therefore failed to meet the constitutional requirements for compelled commercial speech.40 Ultimately,the court held that the state law resulted in an irreparable harm to manufacturers because it caused them to speak when they would rather not' While the Second Circuit case concerned a GE product, the case appears inapposite because it concerned a labeling issue evaluated under First Amendment"commercial speech" principles—not the Commerce Clause. For example,it could be argued that the"substantial" state interest needed to validate a restriction on commercial speech is a stricter standard than the"legitimate"state interest generally needed to justify a burden on interstate commerce. Furthermore,unlike the lack of risks posed by rBST, the risks posed by GE crops are still disputed. Although the Bill and the rBST law focus on similar interests (e.g., economic health of the state),the Bill does not appe p urpose of informing the public—the sole reason argued in court and ultimately rejected by the Second Circuit 42 3. Burdens on Interstate and Foreign Commerce. Assuming a court would find the Bill serves a legitimate local purpose, the question then becomes one of degree.Here,it is only the planting of GE seeds that is restricted,which according to the Bill,makes up only a"slight"percentage of Vermont's agriculture industry. Presumably,farmers would be able to conduct business in all other types of seeds and should be able to carry out other activities associated with GE seeds in Vermont,provided they do not "plant" GE seeds within the state. Furthermore, Vermont's interest need only be sufficient to balance a two-year moratorium, not an indefinite ban. The temporary moratorium,according to the Bill,is essentially needed so that the state legislature can have the time to study and search for a less discriminatory means of protecting against threats posed by the unregulated use of GE technology. Finally,the Bill allows an exception to be granted for those who can show that use of GE seeds would be within a controlled environment. Still,a court would likely look to the discriminatory effect on interstate commerce this Bill may present since it does not appear to pose such a threat on its face (see discussion above). CRS is not in a position to make such a factual determination;however,because the Bill is limited to the"planting"of GE seeds in Vermont,is only in effect for two years,and provides an exception,it appears a strong argument can be made that a court would find the burdens on interstate commerce only incidental at this time. 39 92 F.3d 67 (2d Cir. 1996). 40 Id. at 73. 41 Id. at 71. 42 Id. at 73 and n.l. The dissent,however, stated that the record and the district court's findings looked into the other interests formulated in the rBST legislation;see id.at 78(Leval,J.,dissenting). • CRS-10 4. Less Intrusive Alternatives. Courts will In relation r the diburdens a state law scriminatory means exiists that interstate commerce, law's examine whether less atin GE agricultural products from non-GE purpose. Here, due to the fact that segregating case), there may be no practical way of products has proven to be difficult(e.g., safeguarding against unintentional environmental contamination other than sbs upheld from the the use of such GE materials, as the Bill indicates. Similar reasoning held Maine's the Supreme Court in Maine v. Taylor.' As previously discussed, the Court up statute partly because expert testimony demonstrated that current t wild bait fish." Like the not prevent the commingling of live bait fish with preventing to difficulty in preventing the commingling of bait fish in Taylor,the difficulty in p g unintentional GE product contamination could arguably make the moratorium the best available option at this time. Conclusion There is undoubtedly a growing trend among states to legislatively address GE agribusiness issues. States will likely be t fate this 11 a unless ate can not pass a�lava addresses the issue in a way that would preempt places not pass a w on interstate either commerce that are clearly against e in relation to the local benefits received. interstate commer Vermont's proposed moratorium appears to be protecting legitimate state interests its attempt to protect its agriculture industry. To the extent the Bill is wholly through designed to protect the state's local economy,however, there may be some question to its constitutionality. Some argue that there is no substantial interest to be protected because there is little evidence that GE crops pose a danger o does not have to or"sit h health by and people. Vermont,however, is likely to maintain until the scientific community agrees on what is dangerous to human health and the environment before it can act to protect its legitimate interests. With iespect to balancing the interests involved, it appears a strong argument can be is: made that the moratorium is placing only an incidental burden on commerce be cause it for (1)temporary,(2)not extraterritorial,(3)affects only a"slight"industry,and(4) an exception. Moreover,the moratorium could arguably be the only or most effective way ed with the to prevent the commingling of GE and crops. These reasons could shift the b a n le in favo of reported uncertainties that surround the of the moratorium. Until a state law that restricts GE products is enacted aandsubject lleno d on the Hg grounds posed in this memorandum,the conclusions set forth herein from the analogies that can be drawn from applicable case law, it appears plausible to conclude that Vermont's Bill could survive the posed constitutional challenges at this time, provided of course,compelling evidence substantiates the state's case. These conclusions nonetheless,are fact sensitive and may not be applicable to the other moratorium bills being considered in other states. • 43 477 U.S. 131 (1986). 44 Id.at 152. •