The attorney general is cautioning state senators that a House bill requiring genetically modified imported produce to carry labels would likely be struck down by the federal government if it becomes law.
In a memo sent to Senators last week in response to an inquiry regarding the constitutionality of House Bill 174 and whether the state can legally legislate such imports, the attorney general said the bill "will very likely" be ruled unconstitutional on the grounds that federal labeling laws (which don’t require GMO labeling) would pre-empt state laws; the bill seeks to legislate constitutionally protected commercial speech; and a GMO labeling law could violate federal interstate commerce laws.
Sen. Clarence Nishihara (D, Waipahu-Crestview-Pearl City), chairman of the Senate Agriculture Committee, said earlier this month he was not planning on hearing the bill for some of those reasons and that his view is unchanged in light of the memo.
"At this point I think the AG has clearly stated that the way it’s written is unconstitutional," Nishihara said Monday. "Now if that’s the issue, that’s the issue; it’s unconstitutional."
The Senate assigned the bill to be heard jointly by Nishihara’s committee and the Senate Health and Commerce and Consumer Protection committees, so whether it receives an initial hearing will also depend on the leaders of those committees.
Sen. Josh Green (D, Kona-Kau), chairman of the Health Committee, and Sen. Roz Baker (D, West Maui-South Maui), chairwoman of the Commerce and Consumer Protection committee, were unable to be reached Monday for comment.
In the memo, Attorney General David Louie goes into detail about why he thinks the bill as drafted wouldn’t hold up at the national level. Deputy Attorney General Wade H. Hargrove III also signed the five-page memo.
The memo explains, "Congress, in enacting the Federal Food and Drug Cosmetic Act, empowered the FDA with the authority to create a federal scheme for the labeling of food." For that reason, the attorney general presumes 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 (Food and Drug Cosmetic Act) and be expressly pre-empted."
A letter was provided to the Star-Advertiser by Rep. Jessica Wooley (D, Kaneohe-Kahaluu-Haiku), chairwoman of the House Agriculture Committee. The response was written by Paul Achitoff, an attorney with the group Earthjustice. In it he says the FDCA provision to which the attorney general refers can only be applied to nutrition labels on food and claims regarding nutrients in the food, which the GMO labeling bill does not seek to regulate.
"I think there’s no question it could be revised to pass muster," Wooley said of the bill. "We certainly have language that we drafted that would address the concerns that we could share with anybody. It’s not that difficult. The Senate could easily do it."
The attorney general is also concerned that HB 174 does not include information as to why the state has a compelling interest to require the labeling of imported GMO produce.
"Any information that runs counter to conclusions embraced by the Food and Drug Administration will certainly be treated as suspect," the memo reads. "The absence of any statement of purpose at all, which is the case here, precludes a federal court from even considering whether a legitimate state interest exists."
Wooley said she expressed a compelling state interest during a speech on the House floor she made before the bill crossed over to the Senate. In addition to the consumer right to know, those interests included local health and agriculture effects, for which she cited studies; the potential harm GMO food could do to vulnerable populations such as children and pregnant women; and the possibility of alien species being introduced in the state.
"It’s very easy in a preamble to recite the compelling state interest — and then the foundation is there for the courts," Wooley said.
Wooley said a 1996 Vermont case in which the 2nd U.S. Circuit Court of Appeals ruled against a state law requiring dairy producers to label milk from cows treated with growth hormones, which the attorney general cited in his memo as cause for concern, would not apply to Hawaii’s proposed law because the only state interest expressed in that case was the citizen’s right to know.
She also said she believes the bill could address the attorney general’s concerns about interstate commerce by including local produce in addition to imported produce.
Nishihara said the attorney general’s concerns regarding the constitutionality of the bill should give legislators pause.
"My sense is they’re going to back off on it," he said of his Senate colleagues. "The attorney general said what he (said). He got asked for an opinion, he gave one. And that’s where it is."
Attorney General’s opinion letter on GMO labeling bill
