A recent effort by two Los Angeles city councilmen to ban the sale and cultivation of genetically modified organisms (GMOs) signals an emerging trend in the attack against crop biotechnology.  Municipalities in a number of states are starting to propose or pass legislation that bans the cultivation or use of genetically engineered crops, or severely limits their development.  Such laws have major implications for the agricultural biotechnology industry.  A few of the new or proposed laws in the States of Hawai’i, Oregon, and California are detailed below.

In Hawai’i, two islands have undertaken legislative efforts to prevent the open-air cultivation of GMOs.  On October 16, the Kaua’i City Council passed Bill 2491 by a 6-1 vote.  On the same day, the Hawai’i County Council (the Big Island of Hawai’i) voted 6-2 to approve Bill 113 after the first reading.  This bill appears to have sufficient momentum to survive a second reading, at which point it will be sent to the mayor to be signed into law.

Bill 2491, which will become law in approximately nine months, imposes a temporary moratorium on experimental use and production of GMOs until Kaua’i completes an environmental impact statement (EIS) on the health, environmental and other effects of production, propagation, or development of GMO within the County.  It also requires commercial agricultural entities to disclose the location of their operations as well as the specific genetically engineered crops that they cultivate.  Bill 113 is even more restrictive.  If passed, this law would ban the open-air cultivation, propagation, development, or testing of genetically engineered crops or plants (genetically engineered papaya is exempted, however).  It would not prohibit indoor cultivation of GMOs, provided that the growers register with the County and pay a $100 annual fee.  This bill contains a provision allowing citizens to bring suit to enforce it, and also includes a penalty provision that could impose fines of $1,000 per day for a violation.  Both bills contain a grandfather clause that allows current operations to continue.  Additionally, the most recent draft of Bill 113 contains an emergency exemption that allows a person cultivating or developing a non-GMO crop that is being harmed by a plant pestilence to apply for an exemption of the law to use a genetically engineered variety.

In Oregon, a number of counties (Jackson, Benton, and Lane) sought to pass legislation that would ban the cultivation of GMOs within their borders.  These efforts created a battle with the State.  In response to these laws, the State of Oregon passed legislation (recently signed into law by the Governor on October 8) that prohibits local regulation of genetically modified plants.  SB 863 effectively preempts the Benton and Lane County legislation.  It does not apply to Jackson County, however.  The Jackson County anti-GMO law, which would ban anyone from cultivating genetically engineered plants in the County (except for scientific research), will be voted on as a ballot initiative in May 2014.

In California, the City Council of Los Angeles has put forth a motion for an ordinance that would prohibit the planting of genetically engineered seeds, as well as the sale of genetically engineered seeds, fruit trees, and plants.  This effort could result in ordinances similar to those in Arcata, Mendocino, and Marin counties, which currently prohibit the cultivation of GMOs.

These laws may prompt more states to follow Oregon’s lead by passing legislation that preempts local law.  Additionally, the laws may become subject to constitutional challenges in litigation.  There is also potential for federal preemption.  Considering the level of controversy and potential impact to agricultural operations across the country, the rise in local legislation efforts banning GMOs is an important trend to monitor.

***UPDATE***

On October 31, 2013, the mayor of Kaua’i vetoed bill 2491 finding it to be in conflict with existing laws. On November 16, 2013, the Kaua’i County Council voted to override the veto.  The bill will become law in approximately nine months.

On November 19, 2013, the Hawai‘i County Council voted 6-3 to approve Bill 113. On December 5, 2013, the mayor signed the bill into law.