Throughout the year, this space has periodically re-visited the topic of regulating the manufacture and labeling of foods with genetically modified ingredients (GMOs) at the state and federal level. This week, a lawsuit out of Kauai, Hawaii shed light on the fate of these regulations at the county level.
A federal judge ruled Monday that a Kauai County ordinance requiring large-scale agricultural operations to disclose any GMOs in their possession, as well as the presence and use of pesticides in the growth of GMO crops, such as corn and papaya, was preempted by state law. The ordinance also established "buffer zones" near "sensitive areas" such as dwellings, parks, roads, shorelines, and waterways, where crop growing would have been prohibited.
A lawsuit filed against Kauai County by a number of agricultural companies argued, among other things, that the ordinance was invalid because it was preempted by state and federal regulatory schemes regarding pesticides and GMOs. U.S. Magistrate Judge Barry Kurren agreed in part and concluded that, although the Hawaii Pesticide Law does not contain provisions that expressly conflict with Kauai's GMO ordinance, the state law's broad scope implied that the Hawaii legislature intended that only the state government had the authority to regulate pesticides and the planting of GMO crops.
The Court further ruled that federal laws do not preempt the ordinance, leaving open the possibility that Hawaii could amend its laws to regulate GMOs in this manner without running afoul of federal law. So, while crop growers and manufacturers may be able to steer clear of county-level regulations of GMO crops, they may still have to deal with a growing patchwork of state-level regulations of same. This would present the same set of practical and constitutional issues--including Commerce Clause issues arising out of placing burdens on interstate commerce--that have formed in the arena of state-level GMO labeling regulations. Ultimately, until the federal government decides what it wants to do with the manufacture, distribution, and labeling of GMOs, there will be no end in sight to these battles over regulatory authority in federal courts...