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6-Regulation: Overview about U.S. State laws preempting the establishment of GM-free zones



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TITLE:  AGRICULTURAL REGULATORY UPDATE: EPA SEEKS CAFO RULE COMMENT AND
        STATES PREEMPT ESTABLISHMENT OF GM-FREE ZONES
SOURCE: Agricultural Management Committee Newsletter Vol 10(2)
        American Bar Association, USA, by A. Bryan Endres & Thomas P. Redick
        http://www.abanet.org/environ/committees/agricult/newsletter/
feb06/agmgmt0206.pdf
DATE:   Feb 2006

------------------ archive:  http://www.genet-info.org/ ------------------


AGRICULTURAL REGULATORY UPDATE: EPA SEEKS CAFO RULE COMMENT AND STATES
PREEMPT ESTABLISHMENT OF GM-FREE ZONES

This regulatory update touches upon the Inspector General's Audit report
of U.S. Department of Agriculture (USDA) field trial oversight, the
federal rule governing Concentrated Animal Feeding Operations (CAFOs)
and the state laws that have been passed to bar the creation of
genetically modified (GM)-free zones.

[...]

States Pass Laws to Preempt GM-Free Zones

A new legislative trend has emerged in reaction to the regulatory moves
of three California counties (Marin, Mendocino and Trinity) to ban the
use of genetically modified (GM) seeds. At least 13 states have passed
(and three others are considering, including California) preemptive
legislation prohibiting local governments from establishing GM-free
zones and preserving a farmer's right to choose GM production methods in
the future. States adopting these statutes often tack the preemptive
language onto existing seed purity laws that regulate the "labeling,
packaging, sale, storage, transportation, distribution, notification of
use, or use of seeds." Most often, the statutes simply prohibit "further
regulation by a county, city, town or other political subdivision of
this state." While the language may vary among the states, the effect is
the same-- counties cannot intrude on the state's authority to regulate
seeds (states, similarly, must operate under parallel provisions of the
Federal Seed Act, 7 U.S.C. 1551-1611).

The probability of counties banning the use of genetically modified
seeds in a heavily agricultural area, however, is slight. For example,
on Nov. 8, 2005, Sonoma County, California, voters rejected (by a 10
point margin) a 10-year "GM-Free" moratorium. This famous wine producing
county borders Marin and Mendocino, two counties that went "GM-Free" in
2004. The central California counties of Butte, Humboldt and San Luis
Obispo, however, all rejected "GM-Free" ballot initiatives in November 2004.

Sonoma is a larger, more agriculturally-oriented county than Marin, with
more typical commercial farming than Mendocino. In addition to a
relatively stronger commodity-agriculture constituency, the Sonoma
County vote may have been influenced by vagueness in the law with
respect to veterinary vaccines produced via genetic engineering and
strong objections raised by the county's livestock producers who want to
feed their animals genetically engineered crops (e.g., B.t. corn, which
is often lower in mycotoxins that damage animal health).

Despite the remote possibility of a predominantly agricultural county
imposing a ban on genetically engineered crops, state legislatures have
acted proactively and sent a clear signal of their continued support of
agricultural biotechnology by foreclosing local government initiatives
and eliminating any local footholds for opponents of genetic
modification. A list of states adopting these statutes, and relevant
statutory language follows:


1. Arizona. SB 1282, codified at ARIZ. REV. STAT.  3-243.

"The provisions of this article and the rules that implement this
article are of statewide concern. The regulation of seeds pursuant to
this article is not subject to further regulation by a county, city,
town or other political subdivision of this state."


2. Florida. HB 1717, codified at FLA. STAT. ANN.  570.07.

"In order to ensure uniform health and safety standards, the adoption of
standards and fines in the subject areas of paragraphs (a)-(n) is
expressly preempted to the state and the Department of Agriculture and
Consumer Services. Any local government enforcing the subject areas of
paragraphs (a)-(n) must use the standards and fines set forth in the
pertinent statutes or any rules adopted by the department pursuant to
those statutes." Note: Paragraph (g) of  570.07 provides the Department
authority over: "Registration, labeling, inspection, germination
testing, and sale of seeds, both common and certified."


3. Georgia. SB 87, codified at GA. CODE ANN.  2-11-35(1).

"No county, municipal corporation, consolidated government, or other
political subdivision of this state shall adopt or continue in effect
any ordinance, rule, regulation, or resolution regulating the labeling,
packaging, sale, storage, transportation, distribution, notification of
use, or use of seeds."


4. Idaho. HB 38, codified at IDAHO CODE  22-413.

"(1) This chapter and its provisions are of statewide concern and occupy
the whole field of regulation regarding the registration, labeling,
sale, storage, transportation, distribution, notification of use, use of
seeds, and planting of seeds to the exclusion of all local ordinances or
regulations. Except as otherwise specifically provided in this chapter,
no ordinance or regulation of any political subdivision may prohibit or
in any way attempt to regulate any matter relating to the registration,
labeling, sale, storage, transportation, distribution, notification of
use, use of seeds, or planting of seeds."

"(2) The provisions of subsection (1) of this section shall not preempt
county or city local zoning ordinances governing the physical location
or siting of seed facilities."


5. Indiana. HB 1302, codified at IND. CODE  15-4-1-16.

"(a) Except as provided in subsection (c), a political subdivision (as
defined in IC 36-1-2-13) may not regulate the advertising, labeling,
distribution, sale, transportation, storage, or use of seeds."

"(b) A political subdivision may, by resolution, petition the state seed
commissioner for a hearing to allow a waiver to adopt an ordinance
because of special circumstances relating to the advertising, labeling,
distribution, sale, transportation, storage, or use of seeds. If a
petition is received, the state seed commissioner shall hold a public
hearing to consider granting the waiver requested. The public hearing
must be conducted in an informal manner. IC 4-21.5 does not apply to a
public hearing under this section."

"(c) If the state seed commissioner, after a public hearing under
subsection (b), grants a political subdivision's petition for a waiver,
the political subdivision may regulate the advertising, labeling,
distribution, sale, transportation, storage, or use of seeds to the
extent allowed by the waiver." Note: The Indiana statute appears to
allow for a locality to opt out of the state's control over use of
seeds, including genetically engineered seeds. The statute requires the
commissioner to hold a public hearing to consider the waiver, but offers
no guidance as to what "special circumstances" might warrant granting
the petition. The language in section (b) of HB 1302 was modeled after
similar language in Indiana's fertilizer and pesticide law. No political
subdivision, however, has ever petitioned the state with regards to a
fertilizer, pesticide or seed regulation, and state officials are unsure
how a petition would progress. In theory, a political subdivision would
file a petition for a waiver from the state law and the state would set
a hearing in the locality in which the petition was filed. At the
hearing, the representatives of the political subdivision would present
their arguments. The state has not set specific standards for granting
the petition.


6. Iowa. HF 642, codified at IOWA CODE  199.13A.

"The provisions of this chapter and rules adopted by the department
pursuant to this chapter shall preempt local legislation adopted by a
local governmental entity relating to the production, use, advertising,
sale, distribution, storage, transportation, formulation, packaging,
labeling, certification, or registration of an agricultural seed. A
local governmental entity shall not adopt or continue in effect such
local legislation regardless of whether a statute or a rule adopted by
the department specifically preempts the local legislation. Local
legislation in violation of this section is void and unenforceable."


7. Kansas. HB 2341, to be codified at KAN.STAT. ANN. Ch. 2, Art. 14.

"On and after the effective date of this section, the provisions of the
Kansas seed law, and any rules and regulations promulgated there under
relating to seed sale or use, including, but not limited to, planting,
production, use, advertising, sale, distribution, storage,
transportation, formulation, packaging, labeling, certification or
registration of an agricultural seed within the state of Kansas, shall
be applicable and uniform throughout this state and in all cities,
counties and political subdivisions therein. No local authority shall
enact or enforce any law, ordinance, rule, regulation or resolution in
conflict with, in addition to, or supplemental to, the provisions of the
Kansas seed law unless expressly authorized by law to do so. Any law,
ordinance, rule, regulation or resolution in conflict with, in addition
to, or supplemental to, the provisions of the Kansas seed law is hereby
declared to be invalid and of no effect."


8. North Carolina. HB 671. Conference Committee between House and Senate
appointed Aug. 22, 2005.

"The Board of Agriculture shall have sole authority for the banning of
plants as defined in G.S. 106- 202.12(7)." This was subsequently amended
to include establishment of a Legislative Commission on Genetically
Modified and Genetically Engineered Organisms tasked, among other items,
to study sufficiency of the current regulatory framework and the
potential for harm to organic and other agricultural markets.


9. North Dakota. SB 2277, codified at N.D. CENT. CODE  4-09.

"A political subdivision, including a home rule city or county, may not
adopt or continue in effect any ordinance, resolution, initiative, or
home rule charter regarding the registration, labeling, distribution,
sale, handling, use, application, transportation, or disposal of seed.
This section does not apply to city zoning ordinances."


10.Ohio. HB 66, codified at OHIO REV. CODE ANN.  907.111(B).

"(B) No political subdivision shall do any of the following:

(1) Regulate the registration, labeling, sale, storage, transportation,
distribution, notification of use, use, or planting of seed;

(2) Require a person who has been issued a permit or license under this
chapter to obtain a permit or license to operate in a manner described
in this chapter or to satisfy any other condition except as provided by
a statute or rule of this state or of the United States;

(3) Require a person who has registered a legume innoculant under this
chapter to register that innoculant in a manner described in this
chapter or to satisfy any other condition except as provided by a
statute or rule of this state or of the United States."

"(C) No political subdivision shall enact, adopt, or continue in effect
local legislation relating to the permitting or licensure of any person
who is required to obtain a permit or license under this chapter or to
the registration, labeling, sale, storage, transportation, distribution,
notification of use, use, or planting of seed."


11. Oklahoma. HB 1471, codified at OKLA. STAT. tit. 2  8-26.1.

"(A) The legislature hereby occupies and preempts the entire field of
legislation in this state touching in any way the regulation and
enforcement of the registration, labeling, sale, storage,
transportation, distribution, notification of use, and use of seeds to
the complete exclusion of any order, ordinance or regulation by any
municipality or other political subdivision of this state."

"(B) No political subdivision shall regulate the registration,
packaging, labeling, sale, storage, distribution, use or application of
seeds. No political subdivision shall adopt or continue in effect local
orders, ordinances, or regulations in this field, except for those
relating to taxation relating to registration, packaging, sale, storage,
distribution, use or application of seeds. Local registration in
violation of this section is void and unenforceable."


12.Pennsylvania. HB 2387, codified at 3 PA. CONS. STAT. ANN.  7120.

"(b) Statewide jurisdiction and preemption.--This chapter and its
provisions are of Statewide concern and occupy the whole field of
regulation regarding the registration, labeling, sale, storage,
transportation, distribution, notification of use and use of seeds to
the exclusion of all local regulations. Except as otherwise specifically
provided in this chapter, no ordinance or regulation of any political
subdivision or home rule municipality may prohibit or in any way attempt
to regulate any matter relating to the registration, labeling, sale,
storage, transportation, distribution, notification of use or use of
seeds if any of these ordinances, laws or regulations are in conflict
with this chapter."


13.Texas. HB 2313, codified at TEX. AGRIC. CODE ANN.  71.153.

"A political subdivision may not adopt an ordinance or rule that
restricts the planting, sale, or distribution of noxious or invasive
plant species."


14.West Virginia. SB 580, codified at W. VA. CODE  19-16-4a.

"(a) No political subdivision may regulate the registration, packaging,
labeling, sale, storage, distribution, transportation or any other use
of seeds."

"(b) No political subdivision may adopt or continue in effect any local
laws, ordinances or regulations relating to the regulating,
registration, packaging, labeling, sale, storage, distribution,
transportation or any other use of seeds."

"(c) Local laws, ordinances or regulations in violation of this section
are void and unenforceable."


15. Illinois. 55 ILL. COMP. STAT. 5/5-12001 (Counties Code).

Arguably, counties in Illinois are prohibited from creating districts
that prohibit any agricultural production practice. The legislature
specifically withheld authority for counties to "impose regulations,
eliminate uses, buildings, or structures, or require permits with
respect to land used for agricultural purposes . . . when such
agricultural purposes constitute the principal activity on the land." 55
ILCS 5/5-12001. Accordingly, county boards in Illinois may be powerless
to create GM-free, GM-only or "biopharming" districts. On the other
hand, county boards in Illinois do have authority to "control and
eradicate[e] weeds" within their jurisdictions. 55 ILCS 5/5-1057. The
term "weeds" is not defined in the county enabling statues and could,
conceivably, include genetically engineered crops not approved for
certain export markets or plants engineered to produce pharmaceutical or
industrial compounds. The Illinois Noxious Weed Law, 505 ILCS 100/1-24,
however, may preempt county authority by vesting in the Director of the
Department of Agriculture (among others), the power to determine which
plants are "noxious weeds." Whether "noxious weeds" are a subset of
"weeds" or occupies the entire field of "weeds" is unknown.


16. The California Debate: Assembly Bill 1508/Senate Bill 1056.

California served as ground zero for the GM debate over cultivation of
rice genetically engineered to produce pharmaceutical compounds and
holds the distinction of being the first state to have a major political
subdivision ban the use of genetic engineering technologies in
agriculture. Although hailed as important victories by many
environmental groups, bans on genetic engineering have engendered
significant opposition in the scientific and commodity agribusiness
community. Currently, the California legislature is considering two
bills (AB 1508; SB 1056) that seek to preempt this type of local
regulation of genetic engineering.

As amended, SB 1056 provides as follows: "Except as otherwise
specifically provided in this code, the provisions of this chapter are
of statewide concern and occupy the entire field of regulation regarding
the registration, labeling, sale, storage, transportation, distribution,
notification of use, and use of field crops to the exclusion of all
local regulations. Except as otherwise specifically provided in this
code, no ordinance or regulation of any political subdivision may
prohibit or in any way attempt to regulate any matter relating to the
registration, labeling, sale, storage, transportation, distribution,
notification of use, or use of field crops."




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