THE SENATE

S.B. NO.

1329

TWENTY-SEVENTH LEGISLATURE, 2013

 

STATE OF HAWAII

 

 

 

 

 

 

A BILL FOR AN ACT

 

 

RELATING TO LABELING.

 

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 


     SECTION 1.  The legislature finds that Hawaii consumers have the right to know whether the foods they purchase were produced with genetic engineering so they can make an informed choice of products.  Consumers nationally and in Hawaii overwhelmingly favor knowing whether the food they purchase and consume is produced with genetic engineering for health-related, economic, environmental, religious, ethical, and other reasons.  Polls consistently show that the vast majority of the public — more than ninety per cent — wants to know if its food was produced with genetic engineering for health, economic, environmental, religious, and ethical reasons.  There is currently no federal or Hawaii state requirement that these foods be labeled.  In contrast, sixty-one countries, including Japan, South Korea, China, Australia, Russia, Malaysia, the European Union member states, and other key United States trading partners, already have laws requiring that foods produced through genetic engineering be labeled.  The United States Food and Drug Administration does not require or conduct safety studies of genetically engineered foods.  Instead, any consultations are voluntary, and developers may decide what information they may wish to provide to the agency.

     The legislature finds that the genetic engineering of plants and animals can cause unintended consequences.  It has been demonstrated that manipulating genes through genetic engineering and inserting them into organisms is an imprecise process, so the results are not always predictable or controllable.  United States government scientists have stated that the artificial insertion of genetic material into plants via genetic engineering can increase the levels of known toxicants or allergens in foods and create new toxicants or allergens with consequent health concerns.  Mandatory identification of foods produced with genetic engineering can provide a critical method for detecting and tracking, at a large epidemiological scale, the potential health effects of consuming such foods.  Without mandatory disclosure, consumers of foods produced through genetic engineering may unknowingly violate individuals' dietary and religious beliefs.

     No international agreement prohibits the mandatory identification of foods produced with genetic engineering.  In 2011, Codex Alimentarius, the food standards organization of the United Nations, stated that governments are free to decide on whether and how to label foods produced with genetic engineering.  To that end, numerous foreign markets with restrictions on foods produced through genetic engineering have restricted imports of United States crops due to concerns about genetic engineering.  Some foreign markets are choosing to purchase agricultural products from countries other than the United States because genetically engineered crops are not identified in the United States, making it impossible for buyers to distinguish what does or does not meet their national labeling laws or restrictions and contemporaneously rendering United States' products less desirable.

     Mandatory identification of foods produced with genetic engineering can be a critical method of preserving the economic value of exports or domestically sensitive markets with restrictions and prohibitions against genetic engineering.  Labeling requirements will give importers greater confidence in Hawaiian agricultural products.  The State of Hawaii has a national reputation for producing high-quality foods and maintaining a pure and preserved natural environment, and the State's unique agricultural heritage and vitality in its tourism industry rely upon this reputation.  Hawaii farmers' farm gate revenues total approximately $700,000,000 annually, and agriculture employs approximately 23,000 residents.  Preserving the identity, quality, and reliability of Hawaii's agricultural products and exports is critical to Hawaii's economic well-being.

     Organic food sales are increasing.  While total United States food sales are virtually unchanged, growing less than one per cent yearly, the organic food industry grew at a rate of 9.5 per cent in 2011, and, for the first time, surpassed the $30,000,000,000 mark.  Sales of organic fruits and vegetables are up 11.8 per cent, accounting for approximately twelve per cent of all United States fruit and vegetable sales.  Organic dairy is growing at nine per cent and comprises nearly six per cent of the total United States dairy market.  Trade industry data shows organic farming is more profitable and economically secure than conventional farming over the long term.  Hawaii's organic farmers are prohibited from using genetically engineered seeds.  Nonetheless, these farmers' crops are threatened with transgenic contamination from neighboring fields of genetically engineered crops.  The risk of contamination can erode public confidence in organic products, significantly undermining the job creating, economy boosting growth of the organic market.

     Foods identified as non-genetically engineered are the fastest growing market segment, with annual sales increases in 2011 between twenty and twenty-seven per cent.  However, only a small portion of the food industry participates in voluntary labeling of foods claimed not to contain genetically engineered ingredients.  Nor are there consistent standards for such labeling or for enforcement of voluntary labels.  As such, voluntary labels are insufficient to provide consumers with adequate information on whether or not the food they are purchasing was produced with genetic engineering, and in some cases these labels may be misleading.

     The cultivation of genetically engineered crops can cause serious impacts to the environment.  For example, in 2012 ninety-three per cent of all soy grown in the United States was engineered to be herbicide resistant.  In fact, the vast majority of genetically engineered crops are designed to withstand herbicides and therefore promote indiscriminate herbicide use.  As a result, genetically engineered crops have caused 527,000,000 pounds of additional herbicides to be applied to the nation's farmland.  These toxic herbicides damage the vitality and quality of our soil, contaminate our drinking water, and pose health risks to consumers and farm workers.  Further, because of the consequent massive increase in use of herbicides, herbicide resistant weeds have developed and flourished, infesting farm fields and roadsides, complicating weed control for farmers, and causing farmers to resort to more and increasingly toxic herbicides.

     The legislature finds that the Hawaiian Islands represent a unique and fragile ecosystem, with over three hundred threatened or endangered species.  Pesticides sprayed on crops genetically engineered to resist the effects of pesticides may harm threatened or endangered species and their habitats, and the ingesting of genetically engineered crops by threatened and endangered species has not been proven safe.  The people of Hawaii should have the choice to avoid purchasing foods produced in ways that can lead to such environmental harm.  United States exports to many countries, which includes papayas grown in Hawaii, are already labeled as genetically engineered.  Hawaii residents deserve to have the same information provided to them about the food they buy and consume.  Labeling of foods produced through genetic engineering as provided in this Act can be implemented without substantial burden to either food producers or the government.

     The purpose of this Act is to establish a consistent and enforceable standard for labeling all foods produced using genetic engineering, and thus provide the people of Hawaii with knowledge of how their food is produced.  The further purpose of this Act is to facilitate the exercise of the fundamental right of the people of Hawaii to be fully informed about whether the food they purchase and eat is produced with genetic engineering so that they can choose whether to purchase and eat such foods.  Identifying foods produced through genetic engineering will also help protect our State's agricultural economy and environment.

     SECTION 2.  Chapter 328, Hawaii Revised Statutes, is amended by adding a new part to be appropriately designated and to read as follows:

"Part    .  labeling of genetically engineered foods

     "§328-    Definitions.  As used in this chapter, unless the context clearly requires otherwise:

     "Agriculture" means the science, art, or practice of cultivating the soil, producing crops, and raising livestock or fish and in varying degrees the preparation and marketing of the resulting products.

     "Cultivated commercially" means agricultural commodities grown or raised in the course of business or trade and sold within Hawaii.

     "Enzyme" means a protein that catalyzes chemical reactions of other substances without itself being destroyed or altered upon completion of the reactions.

     "Food" means any articles used to feed or nourish humans or other animals, chewing gum, and articles used for components, including food additives, of any such article.

     "Genetically engineered" means produced from an organism or organisms in which the genetic material has been changed through the application of:

     (1)  In vitro nucleic acid techniques, which include but are not limited to: recombinant deoxyribonucleic acid techniques; direct injection of nucleic acid into cells or organelles; encapsulation; gene deletion; and doubling; or

     (2)  Methods of fusing cells beyond the taxonomic family that overcome natural physiological reproductive or recombinant barriers and that are not techniques used in traditional breeding and selection such as conjugation, transduction, and hybridization.

For purposes of this definition, "in vitro nucleic acid techniques" include but are not limited to recombinant deoxyribonucleic acid or ribonucleic acid techniques that use vector systems and techniques involving the direct introduction into the organisms of hereditary materials prepared outside the organisms such as micro-injection, macro-injection, chemoporation, electroporation, micro-encapsulation, and liposome fusion.

     "Label" means a display of written, printed, or graphic matter upon or connected to the immediate container or surface of any article.

     "Labeling" means any written, printed, or graphic matter that is present on the label, accompanies the food, or is displayed near the food, including for the purpose of promoting its sale or disposal.

     "Manufacturer" means the person or business that makes, processes, combines, or packages food ingredients into a finished food product.

     "Organism" means any biological entity capable of replication, reproduction, or transferring genetic material.

     "Processed food" means any food other than a raw agricultural commodity, including any food produced from a raw agricultural commodity that has been subject to processing such as canning, smoking, pressing, cooking, freezing, dehydration, fermentation, or milling.

     "Processing aid" means:

     (1)  A substance that is added to a food during the processing of the food but is removed in some manner from the food before it is packaged in its final form;

     (2)  A substance that is added to a food during processing, is converted into constituents normally present in the food, and does not significantly increase the amount of the constituents found in the food; or

     (3)  A substance that is added to a food for its technical or functional effects in the processing but is present in the finished food at insignificant levels and does not have any technical or functional effect in that finished food.

     "Raw agricultural commodity" means any plant, animal, or fungi grown or produced for human food use purposes.

     "Supplier" means a person or entity that engages in the operation of selling or distributing raw agricultural commodities that the person or entity has produced, purchased, or acquired from a processor.

     §328-    Foods produced through genetic engineering; labeling.  (a)  Any genetically engineered food offered for sale within the State of Hawaii and intended for human consumption within the State of Hawaii is misbranded if it is entirely or partially produced with genetic engineering and that fact is not disclosed as follows:

     (1)  In the case of a raw agricultural commodity on the package offered for retail sale, with the words "Genetically Engineered" appearing clearly and conspicuously on the label on the front of the package of such commodity or, in the case of any such commodity that is not separately packaged or labeled, on a clear and conspicuous label appearing on the retail store shelf or bin in which such commodity is displayed for sale;

     (2)  In the case of processed food containing some products of genetic engineering, the manufacturer must label the product, in clear and conspicuous language on the front or back of the package of such food, with the words "Produced with Genetic Engineering" or "Partially Produced with Genetic Engineering";

     (3)  All foods produced through genetic engineering resulting from transfer of animal genes into plants shall be labeled to indicate this fact in a manner that will allow vegetarians and those with religious dietary restrictions to observe their dietary guidelines;

     (4)  In the case of raw agricultural commodities including unprocessed meat and fish, the retailer is responsible for point of purchase labeling of any raw agricultural commodity that has been produced using genetic engineering.  It is the responsibility of suppliers to label the container used for packaging, holding, or transporting raw genetically engineered agricultural commodities that are delivered directly to Hawaii retailers; and

     (5)  Any word, statement, or other information appearing on the label shall not be considered to be in compliance with this section unless such word, statement, or other information also appears on the outside container or wrapper, if any, of the bulk, wholesale, or retail package of such article or is easily legible through the outside container or wrapper.

     (b)  This section shall not be construed to require either the listing or identification of any ingredient or ingredients that were genetically engineered or that the term "genetically engineered" be placed immediately preceding any common name or primary product descriptor of a food.

     (c)  This section shall not apply to any of the following:

     (1)  Any processed food that would be subject to this section solely because it includes one or more materials produced by genetic engineering; provided that the engineered materials in the aggregate do not account for more than nine-tenths of one per cent of the total weight of the processed food;

     (2)  A raw agricultural commodity or food that has been grown, raised, produced, or derived without the knowing and intentional use of genetically engineered seed or food;

     (3)  Any processed food that would be subject to this section solely because one or more processing aids or enzymes were produced or derived with genetic engineering;

     (4)  Any liquor or intoxicating liquor, as defined in section 281-1 and regulated under chapter 281;

     (5)  Food that has been lawfully certified to be labeled, marketed, and offered for sale as "organic" pursuant to the federal Organic Foods Production Act of 1990, 7 U.S.C. 6501, et seq., and the National Organic Program regulations promulgated pursuant thereto by the United States department of agriculture;

     (6)  Food that is not packaged for retail sale and that either:

         (A)  Is a processed food prepared and intended for immediate human consumption; or

         (B)  Is served, sold, or otherwise provided in any restaurant or other food service establishment that is primarily engaged in the sale of food prepared and intended for immediate human consumption;

     (7)  An animal that has not itself been genetically engineered, regardless of whether such animal has been fed or injected with any food or any drug that has been produced through means of genetic engineering; or

     (8)  Medical food, as defined in section 346-67.

     (d)  The department of health shall not adopt any rule expanding the exceptions in this section.

     §328-    Rules and regulations.  The department of health shall:

     (1)  Adopt rules pursuant to chapter 91 to carry out this part; and

     (2)  Perform all functions necessary to effectuate the purposes of this part.

     §328-    Injunctive relief; attorneys' fees.  (a)  The director or any resident of the State of Hawaii may institute a civil action in any court of competent jurisdiction for injunctive relief to prevent any violation of this part or any rule adopted to implement this part.  The court shall have powers to grant relief in accordance with the Hawaii rules of civil procedure.

     (b)  The court shall award to a prevailing plaintiff reasonable costs and attorneys' fees incurred while investigating and prosecuting an action to enforce this chapter.

     §328-    PenaltyAny person who violates this part or rules adopted pursuant to this part shall be fined not more than $500, or imprisoned not more than one year, or both."

     SECTION 3.  If any provision of this Act, or the application thereof to any person or circumstance, is held invalid, the invalidity does not affect other provisions or applications of the Act that can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.

     SECTION 4.  This Act shall take effect upon its approval.

 

INTRODUCED BY:

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Report Title:

Labeling of Genetically Engineered Whole Foods; Private Civil Enforcement

 

 

Description:

Requires labeling of foods that have been genetically engineered.  Provides a penalty for violations and authorizes private civil enforcement of the Act.

 

 

 

The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.