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HomeMy WebLinkAboutCOM 0271.787 2012-2014 DENNIS "FRESH"ONISHI ;cp.0.1!7 of . . PHONE: (808)961-8396 Wit FAX: (808)961-8912 Council Member �: r., • %�: � «.% EMAIL:donishi @co.hawaii.hi.us District 3 • =- _ a= v • HAWAII COUNTY COUNCIL 25 Aupuni Street, Hilo,Hawai`i 96720 o MEMORANDUM c Q —=i DATE: July 9, 2013 0 - -{ ;1 CI r. TO: J Yoshimoto, Chair And Members of the Hawai`i County Council FROM: Dennis "Fresh" Onishi, Council Member (9A-A0 SUBJECT: Regarding Bill No. 79. Attached is a memo dated March 12, 2013, from Deputy Attorney General Wade H. Hargrove III to State Senator Rosalyn H. Baker regarding House Bill 174, relating to the genetically engineered organisms. Please refer to this memo at the Public Safety and Mass Transit Committee meeting on August 6, 2013. DO:ps Att. Comm. No. tZ/1.78'7 Ref.To: a5 IA�t T[. Hawai`i County is an Equal Opportunity Provider and Employer. Ref. Date AUG A 0 6 ZU13 'Lq'i Ft{ ,9 ` -. F S' NEIL ABERCROMBIE - DAVID M.LOUIE GovERNoa j��. .�,.,�sma 1 y' p i F©RNEY GENERAL RUSSELL A.SUZUKI STATE OF HAWAII FIRST DEPUTY A"CIINEY OFM1 ERAL DEPARTMENT OF THE ATTORNEY GENERAL HEALTH & HUMAN SERVICES DIVISION 465 SOUTH KING STREET.Room 200 HONOLULU.HAWAII 96813 Ph.(808)587-3050 Fax(808)58/-3077 March 12, 2013 The honorable Rosalyn 11. Baker senhaker@capitol.hawaii.gov Senator. Sixth District The Twenty-Seventh Legislature State Capitol, Room 230 415 South Beretania Street Honolulu, Hawaii 96813 Re: Your inquiry dated February 25,. 2012, regarding H.B. No. 174, H.D. 2 ("l-1B 174")—Genetically Engineered Organism: Produce; Labeling; Import Dear Senator Baker: Thank you for your questions regarding the constitutionality of f-1B174.1 You also asked whether the State has the legal authority to restrict the import of genetically engineered or genetically modified organism (GMO) food into the State that otherwise complies with all federal requirements. This bill will very likely he found unconstitutional because (1) state efforts to require GMO labels have been preempted by the federal government, (2) it violates the First Amendment protections of commercial speech, and (3) it violates the Commerce Clause. In addition, the Commerce Clause will prohibit the State from restricting the importation of GMO food into Hawaii that meets applicable federal requirements. As a preliminary matter, we note that the Legislature provides no articulation of the basis for its presumption that HB 174 furthers a state interest. Pursuant to any constitutional inquiry, a federal court will seek to find justification for the proposed state action. The federal government, as discussed in more detail below, has taken the position that GMO food poses no threat to consumers and is not, from a scientific perspective, materially distinguishable from non- GMO food. For purposes of a constitutional analysis of what the likely outcome of litigation in federal court will be, any information that runs counter to conclusions embraced by the Food and Drug Administration (FDA) will certainly be treated as suspect. The absence of any statement of HB174 imposes labeling requirements on imported genetically modified or engineered produce. The bill authorizes labeling of non-genetically engineered food and creates a private right of action to enjoin violations, 49,1570 I DOL' The Honorable R.osulyn 11. Baker March 12, 2(113 Page 2 purpose at all, which is the case here, precludes a federal court from even considering whether a legitimate state interest exists. 1. Express or Field Preemption State law can either he expressly or field preempted. Express preemption is exactly what it sounds like, Congress has explicitly determined and stated that federal law will preempt state law. In the absence of express preemption language in a federal statute, courts may infer an intention to preempt state law where the federal regulatory scheme is pervasive. In this instance, Congress is said to occupy the entire field of regulation to the exclusion of the states. Congress. in enacting the Federal Food Drug and Cosmetic Act (FDCA), empowered the FDA with the authority to create a federal scheme for the labeling of food. State GMO labeling laws may he expressly preempted by section 403A2, an amendment to the FDCA under the Nutrition, Labeling and Education Act, which provides that "lnlo State or political subdivision of a State may directly or indirectly establish under any authority or continue in effect as to any food in interstate commerce lain), requirement for the labeling of food of the type required by [various sections related to misbranded articles] that is not identical to the requirement of such section." See 21 l .S.C. § 343-1(a). The misbranding sections of the FDCA to which this preemption language refers include prescriptions for "definition and standard of identity," "standards of quality and fill of container." and "nutrition levels and health-related claims." Sec 21 U.S.C. § 343(0, (h), and (r), respectively. These provisions strongly suggest that, where there is no federal mandate to label GMO food, any state effort to do so would be contrary and inconsistent with the misbranding provisions of the FDCA and be expressly preempted. Interestingly, the FDCA does not require any nutritional labeling on produce. to which H13174 is currently directed. :Sec 21 U.S.C. § 343(q)(4). Nutritional labeling for what the FDA describes as "conventional" foods, by which it means fruits and vegetables, is voluntary. However, the same analysis that applies to food more broadly also applies to produce, i.e., the FDA has determined that, in both instances, there is no basis in fact or in the federal misbranding laws to require what would amount to a GMO "warning" label. Requirements to label GMO food may also be field preempted. The federal government, via the FDA and its authority to prescribe the content of food labels pursuant to the FDCA, in furtherance of Congress' power to regulate commerce, has arguably "occupied the field" of food labeling. The FDA's regulations are expansive and cover all aspects of what a food label must and must not contain. Specifically, the FDA has examined the question of whether food labels should contain information about the content of GMO and has determined that no such information should be on the label. In fact, the FDA has suggested that even the voluntary labeling of food as "non-GMO" by the industry might be a violation of its rules because it would constitute the misbranding of food. The FDA reaches this conclusion because it has found no scientific basis for the claim that there is a material difference between GMO foods and non- 2 Note that the FDCA contains section 403A. which consists of nutrition labeling requirements.and section 4th eta). which is part of the material defining misbranding. "Thus. what appears at first to be a possible typo is. instead.a reference to different sections of the FIX A 49,i579 I.DOC The honorable Rosalyn II. Baker March 12, 2013 Page 3 GMO foods. Therefore, the requirement by state law, as contemplated by JIB 174, of GMO labeling is inconsistent with the scope of FDA's rules regarding food labeling and is thus preempted. Even if the Legislature were to amend FIB 174 by articulating a state interest, it is likely to he viewed as inconsistent with the conclusions reached by the FDA. The FDA has advised that, [TJhc use or absence of use of bioengineering in the production of a food or ingredient does not, in and of itself, mean that there is a material difference in the food. Therefore, a label statement that expresses or implies that a food is superior (e.g.. safer or of higher quality) because it is not bioengineercd would be misleading. Guidance for Industry: Voluntary Labeling Indicating Whether Foods Have or Have Not Been Developed Using Bioengineering; Draft Guidance in Docket Number OOD-1598 (Draft released for comment January 2001 for comment purposes only)_ 2. First Amendment Protection of Commercial Free Speech In addition to facing preemption challenges, state measures requiring GMO food labeling will likely be subject to claims that such measures violate the First Amendment. In the case of Vermont's effort to require the dairy industry to label milk produced from cows treated with growth hormones (International Dairy Foods Ass'n v. Amestoy, 92 F.3d 67 (24 Cir. 1996)), the Second Circuit Court of Appeals undertook a very methodical review of the rationale provided by the Vermont legislature and determined that the state label requirement was an impermissible restriction on the dairy producers' right to free (commercial) speech. The court reached this conclusion despite Vermont's argument that the legislation was justified on the basis of consumer protection and a citizen's right to know. Id. at 73. This case was decided strictly on First Amendment grounds without reaching the preemption or Commerce Clause issues raised in the lower court. Id. at 70. This suggests that any state effort (regardless of how well- intentioned) to require labeling that is inconsistent with federal law, particularly where the veracity and relevance of the information sought to be mandated remains a matter of contention at the federal level, will be met with great skepticism in federal court. The decision in International Dairy also demonstrates the lengths to which a federal court will go to call into question the state's rationale in support of its labeling requirement. The court found: Vermont's failure to defend its constitutional intrusion on the ground that it negatively impacts public health is easily understood. After exhaustive studies, the FDA has "concluded that rBST has no appreciable effect on the composition of milk produced by treated cows, and that there are no human safety or health concerns associated with food products derived from cows treated with rBST." 898 F.3d at 248. Because bovine somatotropin ("BST") appears naturally in cows, and because there are no BST receptors in a cow's mammary glands, only trace amounts of BST can be detected in milk, whether or not the cows received the supplement. 494579 I.DO(' The Honorable Rosalyn H. Baker March 12, 2013 Page 4 Id. Moreover, it is undisputed that neither consumers nor scientists can distinguish rBST-derived milk from milk produced by an untreated cow. Id. at 248-49, Indeed, the already extensive record in this case contains no scientific evidence from which an objective observer could conclude that rBST has any impact at all on dairy products. It is thus plain that Vermont could not justify the statute on the basis of'`real" harms. See Edenfield v. Fane, 507 U.S. 761, 770-71 (1993). We do not doubt that Vermont's asserted interest, the demand of its citizenry for such information, is genuine; reluctantly, however, we conclude that it is inadequate. We are aware of no case in which consumer interest alone was sufficient to justify requiring a product's manufacturers to publish the functional equivalent of a warning about a production method that has no discernable impact on a final product. Id. at 73. 3. The Dormant Commerce Clause State action to restrict the importation of GMO, whether taking the form of a labeling requirement, an additional tax burden or an outright ban, will likely run up against the Commerce Clause's overarching goal of ensuring a national marketplace. The Supreme Court has said: This principle that our economic unit is the Nation, which alone has the gamut of powers necessary to control of the economy, including the vital power of erecting customs barriers against foreign competition, has as its corollary that the states are not separable economic units. RP. Hood & Sons, Inc. v. Du. Mond, 336 U.S. 525, 537-38 (1949). j.W]hat is ultimate is the principle that one state in its dealings with another may not place itself in a position of economic isolation. Baldwin v. Seelig, 294 U.S. 511, 527 (1935). Article I, section 8, clause 3 of the United States Constitution empowers the federal government to regulate commerce among the states. A line of Supreme Court cases, exemplified most recently in United Haulers Assoc., Inc. v. Oneida-Ilerkimer Solid Waste, 55() U.S. 330 (2007), has developed the concept of a dormant Commerce Clause which dictates that, in addition to the power it vests in the federal government, the Commerce Clause also acts as a limitation on the individual states' authority to regulate commerce even in the absence of a contrary federal statute. This line of cases is summarized by the United Haulers decision as follows: 49)4579 1.DOC The Honorable Rosalyn H. Baker March 12, 2013 Page 6 Moreover, as appellants correctly note, that "residuum" (of legislative authority' is particularly strong when the State acts to protect its citizenry in matters pertaining to the sale of foodstuffs. Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 146 (1963). By the same token, however, a finding that state legislation furthers matters of legitimate local concern, even in the health and consumer protection areas, does not end the inquiry. Such a view, we have noted, "would mean that the Commerce Clause of itself imposes no limitations on state action . . . save for the rare instance where a state artlessly discloses an avowed purpose to discriminate against interstate goods." Dean Milk Co. v. Madison, 340 U.S. 349, 354 (1951). Rather, when such state legislation comes into conflict with the Commerce Clause's overriding requirement of a national "common market." we are confronted with the task of effecting an accommodation of the competing national and local interests. Id. at 350. 4. Conclusion It is likely that any state effort to require UMO labeling (of any kind) will be viewed as either expressly preempted by the FDCA or an intrusion on the comprehensive federal scheme of food labeling. Furthermore, as the International Dairy decision clearly demonstrates, the federal courts will apply strict scrutiny to examine whether a labeling requirement violates the First Amendment protection of commercial speech. Finally, the Commerce Clause may he implicated where a state seeks to impose a restraint on interstate commerce and a court examining, for example, a labeling requirement, an import tax, or sonic other import restriction, may find that law invalid where the facts arc not: sufficiently compelling to justify state action. Very truly yours, \Ara& rive III Deputy Attorney General APPROVED: \c,., David M. Louie Attorney General 494574 K.r)oc