United States: The State And Local Regulatory Landscape For Bioengineered Plants

Across the country, numerous state and local governments have enacted or are considering laws affecting the cultivation, use, and labeling of genetically engineered plants ("GMOs").  These laws are best described in three different categories: (1) laws that ban the cultivation of GMOs; (2) laws that regulate the handling of GMOs; and (3) laws that impose disclosure requirements on the sale of GMOs, such as food labeling.  The landscape of GMOs laws is constantly in flux.  Although only a few laws are currently in effect, many more are being proposed.  Additionally, some laws are subject to legal challenges, and at least one has been overturned.

Laws that ban GMOs are straightforward prohibitions against any form of growing a bioengineered plant.  Currently, there are versions of these laws in California (Marin, Mendocino, Santa Cruz, and Trinity counties, and the cities of Arcata and Point Arena), Hawaii (Hawaii County), Maine (Town of Montville), Oregon (Jackson and Josephine counties), and Washington (San Juan County).  Generally, these laws make it unlawful for "any person or entity to propagate, cultivate, raise, or grow genetically modified organisms" in the specified jurisdiction.  Some versions of these laws are more stringent, making it unlawful to "sell, distribute, propagate, cultivate, raise or grow seeds or crops of genetically engineered organisms."  Arcata Ordinance 1350; see also Point Arena Code § 8.25 (same).  Other versions, such as Hawaii County's, impose a general prohibition on the open air cultivation, propagation, development, and testing of genetically engineered crops or plants, but exempt certain crops (e.g., papaya) and allow for continued cultivation on land where GMOs were already planted before the ordinance became effective.  Hawaii County Code § 14-128.

A number of states have reserved the right to regulate GMOs by requiring permits prior to open-air cultivation.  Idaho, for example, restricts the "shipment, introduction into or release within this state of any . . . genetically engineered plant . . . except under permit issued by the department, or as exempted by rule."  Idaho Code § 22-2016.  Minnesota (Minn. Stat. § 18F-07), Nebraska (Neb. Rev. Stat. §§ 2-10, 113), Oklahoma (Okla. Stat. § 2-11-36), Wisconsin (Wis. Stat. § 146.60), and Washington (Wash. Rev. Code § 17.24.051) have similar laws.

These provisions require notification to and approval by the state before any GMO is grown within the state.  Most of the laws contain exemptions where the Animal and Plant Health Inspection Service has permitted the release.  See, e.g., Wash. Rev. Code § 17.24.051 ("A special permit is not required for the introduction or release within the state of a genetically engineered plant or plant pest organism if the introduction or release has been approved under provisions of federal law and the [state agricultural] department has been notified of the planned introduction or release.").  Some laws grant the state the authority to quarantine an area or take other actions to prevent the spread of a GMO that is considered to be a noxious weed.  See id. § 17.24.041.

There are two types of labeling laws: those that apply to food and those that apply to seed.  There are only four states (to date) that have passed GMO food labeling laws: Alaska, Connecticut, Maine, and Vermont.  Of these, only the laws in Alaska and Vermont went into effect immediately.  The laws in Connecticut and Maine are not currently enforceable, but will be triggered if other states pass similar legislation.

Of the laws in effect, only Vermont's has real consequences, because Alaska's law pertains only to seafood, of which there are no GMO varieties currently available.  The Vermont law requires any food offered for retail sale that is entirely or partially produced with genetic engineering to be labeled as such.  Vt. Stat. Ann. Title 9, § 3043.  It also prohibits any GMO food from bearing the term "all natural" on its label.  The Vermont law lists a number of exemptions from the labeling requirements.  The failure to label a food that is not exempt subjects a liable party to a penalty of "not more than $1,000.00 per day, per product."  Id. § 3048.

Several states have enacted laws that require labeling of GMO seed.  Under Vermont law, "[f]or all seed containing genetically engineered material, the manufacturer or processor shall cause the label or labeling to specify the identity and relevant traits or characteristics of such seed, plus any requirements for their safe handling, storage, transport, and use, the contact point for further information and, as appropriate, the name and address of the manufacturer, distributor, or supplier of such seed."  Vt. Sta. Ann., Title 6, § 644.  In Virginia, "[f]or transgenetic seed, in addition to any other requirements, the guarantor shall label all seed produced from transgenetic plant material pursuant to regulation."  Va. Code § 3.2-4008(K).  In Maine, "the manufacturer or seed dealer of the genetically engineered plants, plant parts or seeds shall provide written instructions to all growers on how to plant the plant parts, seeds or plants and how to grow and harvest the crop to minimize potential cross contamination."  Me. Rev. Stat., Title 7, § 1052 (2001).

Here is an in-depth look at various GMO laws and regulations throughout the country.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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