Judicially Modified Democracy

Barnett-Rose-Macro (Do Not Delete)
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JUDICIALLY MODIFIED DEMOCRACY:

COURT AND STATE PRE-EMPTION OF LOCAL
GMO REGULATION IN HAWAII AND BEYOND
RITA BARNETT-ROSE
INTRODUCTION
The federal framework for regulating genetically modified
organisms (GMOs) has long been criticized as fragmented and
inadequate to protect against various health, environmental, and
1
economic concerns.
Yet, despite having the legal authority to
augment the federal framework, the overwhelming majority of states
have failed to enact any substantive legislation governing GMOs at
2
the state level. In the wake of this regulatory vacuum, a small but
growing number of local governments have attempted to regulate
3
GMOs locally. However, local GMO regulations face significant
challenges by the GMO industry, which has sought to undo local
regulatory authority both through the courts and through industry
4
lobbying of state legislators to expressly pre-empt local regulation.
Today, roughly seventeen states have now expressly pre-empted local
authority to regulate GMOs, largely due to industry influence.
Hawaii is a high-stakes battleground in the genetically
5
modified debate. In addition to being the worlds top producer of
Copyright 2015 Rita Barnett-Rose.
Rita Barnett-Rose is a Professor of Legal Analysis, Writing and Research at the Dale
E. Fowler School of Law at Chapman University. The author wishes to thank Professor
Deborah S. Gordon, Professor Wendy Shea, Professor Shalini Ray, and Mr. Paul Achitoff for
their thoughtful reviews of this Article.
1. See discussion infra pt. II.A.
2. See discussion infra pt. II.B.
3. See, e.g., Geri Edens & Peter Whitfield, BakerHostetler, The State and Local
Regulatory Landscape for Bioengineered Plants, ENVIRONMENTAL LAW STRATEGY (Oct. 31,
2014),
http://www.environmentallawstrategy.com/2014/10/the-state-and-local-regulatorylandscape-for-bioengineered-plants/ (providing examples of local laws and ordinances enacted
to regulate cultivation, use, and labeling of GMOs); see also discussion infra pt. II.C and III.
4. See Matthew Porter, State Pre-emption Law: The Battle for Local Control of
Democracy, 33 PESTICIDES & YOU 13, 15 (2013); see also discussion infra pt. II.C.
5. Heather Hosmer, Outgrowing Agency Oversight: Genetically Modified Crops and the
Regulatory Commons Theory, 25 GEO. INTL ENVTL. L. REV. 647, 648 (2013); see also DaylinRose Gibson, Remembering the Big Five: Hawaiis Constitutional Obligation to Regulate the
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DUKE ENVIRONMENTAL LAW & POLICY FORUM
genetically-modified seed corn, Hawaii has had more outdoor field

6
tests of GMOs than any other state in the nation. Due to its small
size, field tests are also located closer to residential areas than any
7
other state. While some local citizens have welcomed the agricultural
biotech industry and its significant contribution to state revenue,
others have opposed GMO cultivation and testing on health,
8
environmental, and economic grounds. Because Hawaii does not
expressly pre-empt local GMO regulation, those opposing GMO
cultivation and testing believe that Hawaiian counties have a legal
9
right to address GMO concerns locally. In 2013-2014, three local
counties Hawaii County, Kauai County, and Maui County all
10
attempted to place certain restrictions on the growing of GMOs.
Generally, these local efforts sought to: (1) impose greater
notification and disclosure requirements regarding GMO production
and restricted pesticide use; (3) establish sufficient buffer zones to
protect residential areas from the hazards of pesticide drift; (3)
require adequate public health and environmental impact studies
prior to further GMO testing and cultivation; and/or (4) restrict GMO
testing and cultivation to contained areas, such as greenhouses, to
protect non-genetically modified food crops from transgenic
11
contamination.
Nevertheless, despite the counties conservation obligations
under the Hawaii Constitution and broad statutory authority to
regulate in order to protect local health, life, and property, all three
Genetic Engineering Industry, 15 ASIAN-PAC. L. & POLY J. 213, 216 (2014) (The Genetically
Modified Organism . . . debate [in Hawaii] has become so contentious that there is little room
for productive conversation.); Amici Curiae Center for Food Safety, et al.s Memorandum in
Opposition to Plaintiffs Motion for Summary Judgment on Counts One and Two of Plaintiffs
Complaint at *9, Haw. Floriculture & Nursery Assn v. Cty. of Haw., No. 00267-BMK, 2014 WL
5359758 (D. Haw. Sept. 18, 2014) (Hawaii has been the epicenter of controversial GE
organism commercial development for nearly two decades, and its lawfulness has been the
subject of litigation in this Court going back more than a decade.).
6. Gibson, supra note 5, at 21415, 23132; see also HAWAII CENTER FOR FOOD SAFETY,
PESTICIDES IN PARADISE: HAWAIIS HEALTH & ENVIRONMENT AT RISK, at 5 (2015), available
at http://www.centerforfoodsafety.org/reports/3901/pesticides-in-paradise-hawaiis-health-andenvironment-at-risk (Hawaii leads the nation in GE crop field trials, with tests on 1,141 sites in
2014 alone, representing a far higher density of field tests than on larger mainland states . . . .)
[hereinafter HAWAII REPORT].
7. HAWAII REPORT, supra note 6, at 2223.
8. See Gibson, supra note 5, at 215 (Many residents oppose the [genetic engineering]
industrys presence in Hawaii . . . .); discussion infra pt. III.
10. See discussion infra pt. III.
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local ordinances were immediately challenged by the GMO industry

and swiftly invalidated by the federal district court of Hawaii on state
12
and federal pre-emption grounds.
The Hawaii pre-emption
decisions were the first in the country to invalidate local GMO
13
If
regulations on implied and express pre-emption grounds.
permitted to stand, the decisions will likely have a significant adverse
impact on the ability of other local governments throughout the U.S.
14
to regulate GMOs locally. If they stand, the decisions will also be
another devastating blow to local governments home rule
15
authority to regulate on issues of significant local concern.
This article argues that state and federal pre-emption of the
Kauai County, Hawaii County, and Maui County GMO ordinances
16
was not justified by existing federal and Hawaii state law. It further
argues that in the absence of comprehensive regulatory schemes
sufficient to address local health, environmental, and economic
concerns, courts and states should refrain from denying authority to
regulate GMOs at the local level. Permitting local regulation of
GMOs will not only support legitimate democracy on an issue of
significant impact to local communities, but it may also prove to be
exactly what is needed to find innovative solutions to acknowledged
GMO risks and realities.
Part I of this article briefly describes the general health,
environmental, and economic concerns surrounding the field-testing,
12. See Robert Ito Farm, Inc. v. Cty. of Maui, No. 14-00511 SOM/BMK, 2015 WL 4041480,
at *12 (D. Haw. June 30, 2015) (holding that a Maui ban on genetically engineered organisms
permitted by federal regulation is expressly pre-empted by federal law and impliedly preempted
by state law); Haw. Floriculture & Nursery Assn v. Cty. of Haw., No. 14-00267 BMK, 2014 WL
6685817, at *9 (D. Haw. Nov. 26, 2014) (holding that a county ban on the dissemination of
genetically engineered plants that are regulated by the Secretary of Agriculture is expressly preempted by federal law and impliedly preempted by state law); Syngenta Seeds, Inc. v. Cty. of
Kauai, No. 14-00014 BMK, 2014 WL 4216022, at *9 (D. Haw. Aug. 25, 2014) (holding that a
local ordinance imposing reporting requirements on GMOs was impliedly pre-empted by state
law).
13. Peter Whitfield, Baker Hostetler Maui GMO Ban Overturned; Federal Court Remains
Consistent on Pre-emption Analysis, ENVIRONMENTAL LAW STRATEGY (July 2, 2015),
http://www.environmentallawstrategy.com/2015/07/maui-gmo-ban-overturned-federal-courtremains-consistent-on-pre-emption-analysis/.
14. See Peter Whitfield, Baker Hostetler Federal District Court Doubles Down, Vacates
Hawaii County GMO Ban, ENVIRONMENTAL LAW STRATEGY (Dec. 4, 2014),
http://www.environmentallawstrategy.com/2014/12/federal-district-court-doubles-down-vacateshawaii-county-gmo-ban/ (discussing the Hawaii county case and similar laws that may be
impacted by pre-emption rulings) [hereinafter Whitfield, Court Doubles Down].
15. See discussion infra pt. V.
16. See discussion infra pt. IV.
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cultivation, and release of GMOs into the environment and food

supply. Part II reviews the current federal framework regulating
GMOs, and assesses the legal authority of states and local
governments to enact their own regulations. Part III addresses the
local concerns about GMO field-testing and cultivation in Hawaii in
particular, and thereafter focuses on the efforts by Kauai County,
Hawaii County, and Maui County to regulate GMOs locally. Part IV
argues that the Hawaii district courts determinations of state and
federal pre-emption of the local GMO ordinances were not supported
by existing state and federal law. Part V explains why courts and
states should allow local regulation of GMOs, both to foster
innovative solutions to legitimate GMO concerns and enable local
democracy.
I. HEALTH, ENVIRONMENTAL, AND ECONOMIC RISKS OF GMOS
Genetic modification (GM) or genetic engineering (GE) involves
the splicing of foreign genes from one organism into the genes of
17
another to generate new traits in the host organism. With genetic
modification, DNA combinations that are not possible in nature can
18
be developed. Foreign genes are introduced into a host organism in
a number of ways, including (a) particle gun blasting of tiny particles
of alien DNA into the host cells; (b) infecting the host with a
bacterium modified to carry the donor into the host cells; (c)
microinjecting the DNA into plant cells directly; and (d) chemical or
electrical treatments designed to trigger the hosts direct intake of
19
foreign DNA. In all cases, the original plant/organism is forced to
20
adapt to alien genes inserted into its DNA structure.
17. See Thomas O. McGarity, Seeds of Distrust: Federal Regulation of Genetically Modified
Foods, 35 U. MICH. J. L. REFORM 403, 40607 (2002) (describing technology used to introduce
genes from one organism into another for genetic modification). The terms genetically
modified, genetically engineered, GM, GMO, and agricultural biotechnology will all
be used in this article to refer to crops or plants that have genetic characteristics not normally
occurring in nature and introduced through human intervention.
18. See, e.g., Gibson, supra note 5, at 21819 (noting that genetic engineering could include
creating: tomatoes with fish genes, potatoes with mouse genes, apples with chicken genes, and
even pigs with human genes.).
19. McGarity, supra note 17, at 406; see also NATL RESEARCH COUNCIL, GENETICALLY
MODIFIED PEST-PROTECTED PLANTS: SCIENCE AND REGULATION, 2425 (2000) (discussing
emergence of different methods of introducing foreign genes into an organism).
20. See Debra M. Strauss, Defying Nature: The Ethical Implications of Genetically
Modified Plants, 3 J. FOOD L. & POLY 1, 2 (2007) (Genetically Modified Organisms . . . are
created when the genes of one organism are inserted into the DNA of another organism,
causing the target trait to be expressed in that non-related species.).
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The end-products of genetic modification are essentially

21
The first
characterized as falling into one of three generations.
generation of GM products is primarily focused on single-gene,
single-trait modification of the host organism, such as insect
22
resistance, pest resistance, or virus resistance in food crop plants.
The second generation of genetic modification is focused on efforts to
improve output features of the host organism, such as improved
nutritional value, faster growth of plants or animals, or crops designed
23
to withstand heat or drought.
The third generation of genetic
modification extends beyond GM food crops into the world of
biopharming, where GM plants, animals, or microorganisms are
engineered so that they might produce pharmaceuticals, remediate
environmental hazards, or even produce organs for human
24
transplant.
Although biotechnology has enormous potential for good, critics
have raised a number of legitimate health, environmental, and
25
economic concerns.
A. Potential Health Impacts of GM Food Consumption
Originally touted as a way to make foods better-tasting, longerlasting, and more nutritious, the majority of GM crops grown
commercially for food today only have one or both of two alien traits:
26
the plant is either made to be herbicide-resistant or insect-resistant.
21. Maria R. Lee-Muramoto, Reforming the Uncoordinated Framework for Regulation

of Biotechnology, 17 DRAKE J. AGRIC. L. 311, 350 (2012).
22. Id.
23. See id. at 351 (providing examples of technological advances in agriculture through
genetic modification).
24. Id. at 35152.
25. See generally McGarity, supra note 17 (evaluating federal regulations designed to
protect public from health risks posed by genetically modified foods); Muramoto, supra note 21
(proposing legislative reform of the regulatory system for agricultural biotechnology in the
United States); see also STEVEN M. DRUKER, ALTERED GENES, TWISTED TRUTH: HOW THE
VENTURE TO GENETICALLY ENGINEER OUR FOOD HAS SUBVERTED SCIENCE, CORRUPTED
GOVERNMENT, AND SYSTEMATICALLY DECEIVED THE PUBLIC 17 (2015) (describing the
development of a lawsuit against the FDA filed in objection to FDA policy on genetically
modified foods).
26. See INSTITUTE FOR RESPONSIBLE TECHNOLOGY, STATE OF THE SCIENCE ON THE
HEALTH RISKS OF GM FOODS 1 (Jan. 24, 2013), available at http://responsibletechnology.org/
State-of-Science-Health-Risks.pdf [hereinafter IRT REPORT] (describing initial claims that
genetic engineering would resolve hunger problems but observing that the only two traits that
are found in nearly all commercialized GM plants are herbicide tolerance and/or pesticide
production.); see also Gibson, supra note 5, at 221 (Two traits dominate the crop varieties that
have succeeded on the market thus far: herbicide tolerance and insect resistance.). In addition
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Herbicide-resistant GMOs are designed to survive direct

27
application of certain herbicides that would otherwise kill them.
Because of the enormous amount of herbicides used to test and grow
herbicide-resistant GM crops, one of the primary human health
28
concerns is the increased use and consumption of pesticides. Indeed,
despite claims that the use of GM crops would reduce pesticide usage
overall, since 2010, pesticide usage in the United States has increased
29
by more than 500 million pounds. Adding to the concern is the fact
that glyphosate, the herbicide most frequently used on GM crops and
originally touted as non-toxic, was recently found to be a probable
30
human carcinogen by the World Health Organization.
Insect-resistant GMOs contain a gene from the soil bacterium
Bacillus thuringiensis (Bt) that produces a protein toxic to certain
31
known crop pests. While insect-resistant GM crops have been found
to decrease the overall use of sprayed pesticides, the amount of toxins
now incorporated within the plants themselves is far greater than the
to insect and herbicide resistance, approximately 1% of current GE food crops in the United
States are engineered to be virus resistant, such as the GE Hawaiian Papaya, and certain
zucchini and crook neck squash. Gibson, supra note 5, at 221.
27. HAWAII REPORT, supra note 6 at 2122; IRT REPORT, supra note 26, at 1.
28. See, e.g., McGarity, supra note 17, at 41718. Note that this article uses the word
pesticides to refer to both insecticides (bug killers) and herbicides (weed killers) collectively.
29. RAMON J. SEIDLER, PESTICIDE USE ON GENETICALLY ENGINEERED CROPS 3 (Sept.
2014),
available
at
http://static.ewg.org/agmag/pdfs/pesticide_use_on_genetically_
engineered_crops.pdf (noting that the USDA itself has indicated that since 1996, glyphosate
use has increased some 12-fold during the GE crop era, with overall herbicide usage increasing
by more than 500 million pounds.); see also, IRT REPORT, supra note 26, at 34 (describing
steady increase in herbicide usage between 1996 and 2011).
30. Daniel Cressey, Widely Used Herbicide Linked to Cancer, SCIENTIFIC AMERICAN,
(Mar. 25, 2015), available at http://www.scientificamerican.com/article/widely-used-herbicidelinked-to-cancer/. Glyphosate has also been linked to a number of other significant health
issues. See, e.g., Michael Antoniou et al., Roundup and Birth Defects: Is the Public Being Left in
the Dark?, EARTH OPEN SOURCE (June 2011), http://earthopensource.org/wpcontent/uploads/RoundupandBirthDefectsv5.pdf (discussing various glyphosate studies
suggesting serious risks of human health harm); Leah Schinasi & Maria Leon, Non-Hodgkin
Lymphoma and Occupational Exposure to Agricultural Pesticide Chemical Groups and Active
Ingredients: A Systematic Review and Meta-Analysis, 11 INTL J. ENVTL. RES. PUB. HEALTH
4449 (2014) (analyzing studies which suggest a link between an increase in non-Hodgkins
lymphoma and pesticide use); see generally Anthony Samsel & Stephanie Seneff, Glyphosate,
Pathways to Modern Diseases III: Manganese, Neurological Diseases, and Associated
Pathologies, 6 SURG. NEUROL. INTL 45 (2015) (investigating a link between Roundup pesticide
and manganese deficiency which may lead to more serious health problems).
31. JORGE FERNANDEZ-CORNEJO ET AL., U.S. DEPT OF AGRIC. ECON. RESEARCH
SERV., GENETICALLY ENGINEERED CROPS IN THE UNITED STATES 1 (Feb. 2014), available at
http://www.ers.usda.gov/media/1282246/err162.pdf [hereinafter USDA REPORT].
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32
amount of the displaced spray. This means that humans consuming

insect-resistant GM crops are likely ingesting more pesticides than
before genetic modification, since the spray residue can presumably
be washed off prior to consumption, while a pesticide built into crops
33
cannot.
Despite these concerns about increased pesticide consumption,
the Environmental Protection Agency (EPA), the agency charged
with setting the pesticide tolerance limits in foods, has elected to
increase the tolerance levels for glyphosate in foods in order to
accommodate the known levels found in herbicide-resistant GM
34
crops. The EPA has also elected not to set any tolerance level for
35
insect-resistant GM crops containing the Bt toxin.
Beyond pesticides, GM crops and foods themselves also present
36
a number of allergenicity and toxicity concerns. Allergic reactions
can be triggered by the insertion of foreign genes from a source not
typically consumed by humans or by the insertion of foreign genes
from a known allergen into a food crop that is not known to be
37
allergenic. Insertion of foreign genes might also add new toxins to a
formerly safe food crop or increase the level of existing toxins beyond
38
levels considered safe for human consumption.
32. IRT REPORT, supra note 26, at 4; see generally Angelika Hilbeck et al., No Scientific
Consensus on GMO Safety, 27 ENVTL. SCI. EUR. 1 (2015) (discussing a lack of conclusive
evidence regarding the safety of genetically modified foods in the human diet).
33. See McGarity, supra note 17 (Unlike Bt microorganisms, which rapidly break down in
the environment, human consumption of the Bt toxin in GM plants is virtually assured.).
34. BRIAN TOKAR, INST. FOR SOC. ECOLOGY BIOTECHNOLOGY PROJECT, DEFICIENCIES
IN FEDERAL REGULATORY OVERSIGHT OF GENETICALLY ENGINEERED CROPS, at *6 (2006),
available at http://environmentalcommons.org/RegulatoryDeficiencies.html; see also Krystle B.
Blanchard, The Hazards of GMOs: Scientific Reasons Why They Should Be Regulated, Political
Reasons Why They Are Not, and Legal Answers to What Should Be Done, 27 REGENT U. L.
REV. 133, 140 (2014) ([T]he EPA recently increased the legal limit for glyphosate in
corn . . . .).
35. See TOKAR, supra note 34, at 6 (Meanwhile, the EPA has used its authority under
the Federal Food, Drug, and Cosmetic Act to exempt the pesticides currently produced by GE
plants from any limit on human exposure.); Blanchard, supra note 34, at 140 (B.t.s natural
occurrence is one reason the FDA presumes both that there can be no material difference
between GM plants and natural plants and that this GM technology is safe; thus, the FDA
requires no independent studies of the effects of the B.t. bacterium when used by GM
technologies.).
36. IRT REPORT, supra note 26, at 310; Emily Montgomery, Genetically Modified Plants
and Regulatory Loopholes and Weaknesses Under the Plant Protection Act, 37 VT. L. REV. 351,
357 (2012).
37. Montgomery, supra note 36, at 357.
38. Id.
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While GM proponents often minimize these human health

concerns, in nearly every independent animal consumption study,
GMOs have been found to be materially different from their non39
GMO counterparts. A number of these studies have found that
animals consuming GM foods experienced: (1) toxic reactions in their
digestive tracts; (2) liver and organ damage; (3) higher death rates; (4)
allergic responses; (5) reproductive failures; and (6) greater infant
40
mortality. Although not necessarily dispositive as to human health,
adverse animal studies do raise legitimate concerns about similar
41
allergic or toxic effects in humans. There also appears to be at least
42
For
some evidence suggesting that these concerns are justified.
example, soon after GM soy was introduced into the U.K. market,
researchers reported that allergies to soy had skyrocketed by fifty
43
percent in a single year. Other scientists have suggested a link
between the dramatic rise in celiac disease in North America and
44
Europe with the dramatic increase in human exposure to glyphosate.
In another study, GM corn containing Bt toxin was exposed to human
cells, causing fluid to leak through the cell walls, and leading the
researchers to conclude that modified Bt toxins [from GM plants]
45
are not inert on human cells, but can exert toxicity.
Despite evidence and preliminary research suggesting legitimate
toxicity and allergenicity concerns, it is nearly impossible to
determine the true extent to which GMOs are contributing adversely
46
to human health.
This is exacerbated by Food and Drug
39. See generally IRT REPORT, supra note 26 (describing various studies on animal
consumption of genetically altered foods and noting that [n]early every independent animal
feeding safety study shows adverse or unexplained effects.); see also JOHN FAGAN, MICHAEL
ANTONIOU & CLAIRE ROBINSON, GMO MYTHS AND TRUTHS 12744 (2014), available at
http://earthopensource.org/wp-content/uploads/2014/11/GMO-Myths-and-Truths-edition2.pdf.
40. IRT REPORT, supra note 26, at 310; see generally Gilles-Eric Serallini et al.,
Republished study: long-term toxicity of a Roundup herbicide and a Roundup-tolerant genetically
modified maize, 26 ENVTL. SCI. EUR. 14 (2014) (liver and kidney damage in rats); FAGAN,
ANTONIOU & ROBINSON, supra note 39, at 14757.
41. See IRT REPORT, supra note 26, at 10.
42. See id.
43. Id. at 8.
44. See generally Anthony Samsel & Stephanie Seneff, Glyphosate, Pathways To Modern
Diseases II: Celiac Sprue and Gluten Intolerance, 6 INTERDISP. TOXICOL. 159 (2013).
45. IRT REPORT, supra note 26, at *9. Other studies have indicated that Bt toxin is not
fully destroyed in the human stomach during digestion, and that a section of its amino acid
sequence is identical to a known allergen (egg yolk). Id.; see also Blanchard, supra note 34, at
13940 (describing health effects observed in humans exposed to Bt).
46. See IRT REPORT, supra note 26, at 34 (stating that the unpredictability of genetic
mutations in genetically altered foods can lead to unforeseen effects on health).
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Administration (FDA) regulatory policy, which leaves all GM food

safety testing in the hands of the GMO producers themselves,
providing little incentive for the GMO industry to conduct any
47
legitimate long-term human health studies.
Independent human
health research is also scarce, primarily due to the lack of available
funding for independent studies and independent researchers
difficulty gaining access to the genetic materials used by the biotech
48
industry. In addition, again due to FDA policy, GM producers are
neither required to disclose to the public when new GMO food
49
products are placed into the market, nor to label them accordingly.
Thus, [i]f a consumer becomes ill, it is impossible for him to connect
his symptoms to specific GE foods in order to report the suspected
50
impact to a health care provider.
However, even without definitive evidence of human health
harm, there remains enormous disagreement in the relevant scientific
community worldwide over whether GMOs are safe for
51
consumption. Specifically, although GMO proponents often claim a
scientific consensus over GM food safety, a recent statement
published in the scientific journal Environmental Sciences Europe,
and signed by over 300 scientists with relevant expertise, strongly
refutes this claim, declaring it an artificial construct created by an
52
internal circle of stakeholders. The statement further asserts that
any claim to scientific consensus not only misrepresents or outright
ignores the currently available scientific evidence, but also
encourages a climate of complacency that could lead to a lack of
regulatory and scientific rigour and appropriate caution, potentially
47. DRUKER, supra note 25, at 130 (The industrys priority was to get the new products
marketed as quickly as possible, not to minimize the attendant risks . . .); FAGAN, ANTONIOU
& ROBINSON, supra note 39, at 89.
48. FAGAN, ANTONIOU & ROBINSON, supra note 39, at 89; Hilbeck, supra note 32, at 1
(noting that independent researchers wanting access to industry GE materials have been denied
access unless willing to sign contractual agreements with the GMO developers, which would
confer unacceptable control over publication of the results); Muramoto, supra note 21, at 325
(noting public statement to the EPA by 26 scientists complaining that Monsanto and other GE
companies were restricting them from engaging in independent research by using restrictive
technology agreements that would require company approval of the research and results).
49. Muramoto supra note 21, at 321.
50. Id. at 328.
51. Hilbeck, supra note 32, at 12.
52. Id.; but see Commonly Asked Questions about the Food Safety of GMOs,
MONSANTO.COM, http://www.monsanto.com/newsviews/pages/food-safety.aspx (claiming that
governmental regulatory agencies, scientific organizations, and leading health associations
worldwide agree that food grown from GM crops is safe to eat.) (last visited Sept. 6, 2015).
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endangering the health of humans, animals, and the environment.

Given the proliferation of GMOs in the American food supply
over the last three decades, the continuing lack of scientific consensus
54
on GMO safety is alarming. Today, more than ninety percent of all
U.S. produced corn and ninety-three percent of U.S. produced soy is
55
genetically engineered. The result of this takeover of two major
U.S. crops is that nearly every processed food within the United
States contains GM materials, although the majority of U.S.
56
consumers are largely unaware of this fact.
Consumer ignorance of (and lack of informed consent to) GMO
consumption is also primarily due to the FDAs unwillingness to
require GMO producers to notify the FDA whenever new GM foods
are put into the market, or to require them to label GM foods
57
accordingly. Yet, this lack of GMO disclosure has led to consumer
confusion, activist anger, and a growing mistrust over the
governments purported interest in putting consumer health and
58
environmental safety before biotech industry advancement.
53. Hilbeck, supra note 32, at 2.

54. See, e.g., DRUKER, supra note 25, at 165 (noting that over 90% of processed food today
contains genetically modified organisms). The very first genetically engineered food introduced
into the U.S. market was the Flavr Savr tomato in 1994, released despite significant scientific
controversy over its safety. Id. at 26983.
55. Debra M. Strauss, The Role of Courts, Agencies, and Congress in GMOs: A
Multilateral Approach to Ensuring the Safety of the Food Supply, 48 IDAHO L. REV. 267, 269
(2012); USDA REPORT, supra note 31, at 910.
56. See USDA REPORT, supra note 31, at 2 (U.S. consumers eat many products derived
from these cropsincluding cornmeal, oils, and sugarslargely unaware of their GE origins.).
57. See Tara B. Ratanun, Genetically Modified Organisms and Environmental Justice:
Should Labeling Be Mandatory on Products Containing Genetically Engineered Ingredients?, 42
W. ST. L. REV. 111, 122 (2014) ([A] vast majority of U.S. citizens support GM food ingredient
labeling . . . [but] there has been no proposal by the FDA to establish labeling regulations.)
(citation omitted); Strauss, Defying Nature, supra note 20, at 19 ([G]enetically altered foods
are not labeled, segregated, or monitored in the United States.). Meanwhile, the biotech
industry has lobbied quite successfully to prevent any GMO labeling requirements at the state
or local level. See generally Ross H. Pifer, Mandatory Labeling Laws: What Do Recent State
Enactments Portend for the Future of GMOs?, 118 PENN. ST. L. REV. 789, 799806 (2014).
58. See Blanchard, supra note 34, at 13334 (discussing efforts to impose labeling
requirements on genetically modified foods and resistance to those efforts). The impetus for
industry opposition to mandatory labeling appears clear: recent polls indicate that over 55% of
U.S. consumers say they would avoid consuming GM foods altogether if aware that the food
was genetically modified. Strauss, The Role of Courts, supra note 55, at 270; see Allison Kopicki,
Strong Support for Labeling Modified Foods, N.Y. TIMES (July 27, 2013),
http://www.nytimes.com/2013/07/28/science/strong-support-for-labeling-modifiedfoods.html?_r=0; see also Morgan Anderson Helme, Genetically Modified Food Fight: The FDA
Should Step Up to the Regulatory Plate so States Do Not Cross the Constitutional Line, 98 MINN.
L. REV. 356, 374 (2013) (indicating that once GM labeling became mandatory in EU and Japan,
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B. Environmental and Economic Risks of GMO Cultivation

Beyond the potential health risks of GMO consumption, the
field-testing and cultivation of GM crops also raises significant
environmental and economic concerns.
First, the overuse of glyphosate and the presence of Bt toxin in
every cell of insect-resistant GM crop plants has resulted in the
creation of superweeds and superbugs weeds and insects that
are particularly difficult to control because they are resistant to
59
glyphosate and Bt toxin. Surveys have indicated that at least twentyfour species of superweeds are now resistant to glyphosate, and as of
2012, over 14 million acres of cotton, soybean, and corn have already
60
been invaded by resistant weeds.
That number is expected to
61
double by 2015. Unfortunately, the biotech industry has responded
to the emergence of superweeds and superbugs by engineering crops
stacked with additional foreign traits designed to resist even more
62
toxic pesticides. This creates the potential for additional superweeds
and superbugs that will also eventually need to be addressed by even
deadlier pesticides, creating what many GMO critics have termed the
63
chemical treadmill.
In addition to the increased pesticide
spraying, GM growers have also resorted to using systemic
64
insecticides to fight off resistant crop pests. Systemic insecticides,
which coat the entire GM seed so that the insecticide is subsequently
expressed throughout the entire GM plant, are believed to be largely
responsible for the collapse of bee colonies and the deaths of other
65
non-target species.
Beyond damage to the environment and non-target species by
the increased pesticide applications, GM crops can also become
superweeds themselves, eventually overtaking less biologically66
GM crops may also
advantaged versions of their own species.
contaminate non-GM crops through gene drift and cross-pollination,
GM products virtually disappeared).
59. USDA REPORT, supra note 31, 3133; Muramoto, supra note 21, at 32526.
60. Muramoto, supra note 21, at 326.
61. Id.
62. Seidler, supra note 29, at 23; Muramoto, supra note 21, at 32627. These more toxic
pesticides include Dicamba, and 2,4-D, a pesticide used in the Vietnam-era chemical cocktail
known as Agent Orange. Muramoto, supra note 21, at 32627.
63. Seidler, supra note 29, at 23; FAGAN, ANTONIOU & ROBINSON, supra note 39, at 235
40.
64. Seidler, supra note 29, at 34.
65. Id. at 58, and Addendum; DRUKER, supra note 25, at 204.
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67
which is no longer a risk but a reality. In Mexico, for example,

nearly all traditional varieties of corn have been found to have at least
68
some GMO contamination. In Canada, organic farmers have sued
GMO producers because cross-pollination has made it virtually
69
impossible for them to grow non-contaminated organic canola.
Contamination by genetically engineered non-food pharmacrops is
70
also a significant concern. One of the more alarming examples of
contamination through GM gene drift was a case where pollen from a
corn crop genetically engineered to produce a pharmaceutical that
would prevent diarrhea in pigs contaminated nearby soybean fields
71
meant for human consumption. In another case, GM corn intended
only for animal consumption due to its known allergenic properties,
was mixed, post-cultivation, with corn meant for human
72
consumption. Although GMO proponents argue that contamination
in both cases was either caught prior to human consumption or that
no adverse health effects were reported, critics have pointed to these
incidents of contamination and containment failure as evidence of
73
insufficient federal regulatory oversight.
67. See Gibson, supra note 5, at 24953 (describing processes of gene flow and instances
in which gene flow was a concern); Margaret Rosso Grossman, Biotechnology, Property Rights
and the Environment, 50 AM. J. COMP. L. 215, 216 (2002) ([W]ind blown pollen, commingled
seeds and black-market plantings mean that GM products extend beyond the acres officially
planted to GM crops. (quoting David Barboza, As Biotech Crops Multiply, Consumers Get
Little Choice, N.Y. TIMES (June 10, 2001), http://www.nytimes.com/2001/06/10/us/as-biotechcrops-multiply-consumers-get-little-choice.html)).
68. Institute for
Responsible
Technology, Dangers to
the Environment,
http://www.responsibletechnology.org/gmo-dangers/dangers-to-the-environment (last visited
Nov. 4, 2015).
69. Id.
70. See, e.g., Ctr. for Food Safety v. Johanns, 451 F. Supp. 2d 1165, 1170 (D. Haw. 2006)
(Because these crops produce experimental pharmaceutical products . . . their effect on
Hawaiis ecosystem (especially Hawaiis 329 endangered and threatened species) is unclear. . . .
[T]hese experimental crops could cross-pollinate with existing food crops, thus contaminating
the food supply.).
71. Muramoto, supra note 21, at 345 (discussing the ProdiGene case); MICHAEL R.
TAYLOR, JODY S. TICK & DIANE M. SHERMAN, PEW INITIATIVE, TENDING THE FIELDS: STATE
& FEDERAL ROLES IN THE OVERSIGHT OF GENETICALLY MODIFIED CROPS 27 (2004).
72. Muramoto, supra note 21, at 344 (discussing the StarLink corn episode); TAYLOR,
TICK & SHERMAN, supra note 71 (also discussing StarLink).
73. See Muramoto, supra note 21, at 34344 (noting that repeated incidents of cross
contamination all illustrate significant and glaring defects in the regulatory framework for
agricultural biotechnology including: (1) a lack of systematic risk assessment prior to the release
or marketing of the GE product in question, (2) a lack of surveillance or monitoring of the GE
product after it has been released into the environment or marketplace, and (3) a lack of
coordination between the agencies during all stages of the risk management process); Gibson,
supra note 5, at 24647 (discussing insufficiency of the Federal Coordinated Framework to meet
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83
Contamination by GM crops can also have a devastating

74
Organic
economic impact on organic and traditional farmers.
farmers in particular must meet stringent organic certification
75
standards and satisfy consumer demand for organic purity.
Measures to prevent or detect contamination are costly, but once
their crops are impermissibly contaminated with GMOs, organic
growers cannot meet these standards, and consumers looking for
76
GMO-free options will also no longer buy their products.
Contamination by GM crops also presents significant risks to entire
sectors that want to sell their non-GM crops internationally, since
many countries are reluctant or even unwilling to purchase GM food
77
crops.
Despite these real and potential impacts to public health, the
environment, and the viability of non-GM agriculture, GM crops
have been widely adopted by U.S. commercial agricultural
operations. Today, millions of acres of U.S. farmland are devoted to
78
GM crop cultivation. Indeed, even as first generation GM crops
continue to generate significant criticism and calls for a return to the
precautionary principle, the agricultural biotech industry has
proceeded to launch second and even third generation GM crops and
products, arguably unfettered by meaningful or effective regulatory
79
oversight.
either the needs of the GE Industry or the publics concerns).

74. TAYLOR, TICK & SHERMAN, supra note 71, at 27 (No issue involving biotech crops
and foods has received more attention within state governments, the agricultural community,
and from the media, than the technologys potential to hurt market access for conventional and
organic crops.); see also Strauss, The Role of Courts, supra note 55, at 270 (Already, incidents
of contamination have led to numerous lawsuits by traditional and organic farmers for their
economic loss and injury.).
75. Grossman, supra note 67, at 22122.
76. Id. This was precisely the concern of a 2006 federal lawsuit brought by organic farmers
to try to halt the cultivation of GM alfalfa. See DRUKER, supra note 25, at 203.
77. See, e.g., Gibson, supra note 5, at 252 (Because of the GE contamination, Japan
temporarily suspended importation of U.S. wheat for nearly two months.); see also TAYLOR,
TICK & SHERMAN, supra note 71, at 11520 (describing debate in northern plain states over
whether to ban planting of GM wheat in order to protect access to foreign markets in which
biotech wheat was likely to be rejected by consumers); Montgomery, supra note 36, at 35657
(discussing the LibertyLink rice case, where an experimental strain of GM rice cross-bred with
and contaminated over 30 percent of U.S. ricelands, causing futures prices of U.S. rice to fall
significantly).
79. McGarity, supra note 17, at 492 (The precautionary principle suggests regulatory
policy that errs on the side of safety when substantial uncertainties prevent accurate risk
assessments).
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II. THE CURRENT REGULATORY FRAMEWORK GOVERNING GMOS

In the United States, the federal government primarily regulates
GMOs through three of its federal agencies: the United States
80
Department of Agriculture (USDA), the EPA, and the FDA.
However, state and local governments also retain the ability to
regulate GMOs, provided that such state or local regulation is not
81
pre-empted by existing federal or state law.
A. Federal Regulatory Framework
Critics of the federal regulatory framework argue that it is
needlessly fractured and contains glaring gaps in regulatory
82
oversight. Others suggest that the agencies charged with oversight
have grown increasingly dependent upon, and thus improperly
influenced by, the very industries they are supposed to regulate,
leading to policies and procedures that promote industry interests
83
over legitimate public health, safety, and environmental concerns.
However, GMO proponents argue that GMOs are extensively
regulated from initial field-testing to their final distribution in the
84
commercial marketplace.
Much of the criticism of the federal regulatory framework stems
from the fact that there is no one federal agency tasked with
85
regulating biotechnology in the United States. Instead, in 1986, the
White House Office of Science and Technology Policy (OSTP)
created the Coordinated Framework for Regulation of
Biotechnology, which divided the authority to regulate
86
biotechnology among the USDA, the EPA, and the FDA.
The
80. See discussion infra pt. II.A.
81. See discussion infra pt. II.B, II.C.
82. See Muramoto, supra note 21, at 34344; McGarity, supra note 17, at 432; Gibson,
supra note 5, at 246; Montgomery, supra note 36, at 35455.
83. See Hosmer, supra note 5, at 64950 (discussing how agencies overseeing GMOs have
become increasingly dependent on, and influenced by, the very industries they regulate).
84. See, e.g., MONSANTO.COM, Commonly Asked Questions, supra note 52 (declaring that
strong regulatory frameworks ensure the safety of GMO food); but see FAGAN, ANTONIOU &
ROBINSON, supra note 39, at 57 (Claims that GM foods are extensively tested and strictly
regulated are false.).
85. See Strauss, The Role of Courts, supra note 55, at 272 (The existing framework of
power sharing between the USDA, EPA, and FDA yields an incomplete regulatory scheme.);
Muramoto, supra note 21, at 31617; Hosmer, supra note 5, at 649.
86. Office of Science and Technology Policy, Exercise of Federal Oversight Within Scope
of Statutory Authority: Planned Introductions of Biotechnology Products Into the
Environment, 57 Fed. Reg. 6753, 3 (Feb. 27, 1992).
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85
OSTP then determined that existing federal laws would be sufficient

87
to govern this new technology.
1. USDA
GM crops first come under federal regulatory oversight through
the Federal Plant Protection Act (PPA), which gives the Secretary of
Agriculture the ability to prohibit or restrict the importation,
exportation, and interstate movement of plants, plant products,
88
biological control organisms, plant pests, and noxious weeds.
Because the majority of GM crops are considered to be potential
plant pests, the USDA, through its Animal and Plant Health
Inspection Service (APHIS), is responsible for overseeing the field
testing of GM crops and for determining when a GM crop is no
longer a potential plant pest and thus ready for commercial
89
production.
Initial field-testing allows GM growers to evaluate a GM crops
90
performance under normal growing conditions. It also purportedly
allows the GM growers, and APHIS, the time and ability to rule out
91
any plant pest risks. In reality, however, APHIS oversight of most
92
All that is generally required
GM crop field-testing is minimal.
before a GM grower begins field testing a new GM crop is to notify
93
APHIS of its intention to do so. Under the notification process,
APHISs only responsibility is simply to acknowledge its receipt of
94
notification from the grower within thirty days. The GM grower
performs its own risk evaluation to determine whether the GM plant
may be a plant pest, and no other health or environmental assessment
95
is required by APHIS. Approximately ninety-seven to ninety-nine
percent of all field trials take place under this simple notification
96
process.
87. Coordinated Framework for the Regulation of Biotechnology, 51 Fed. Reg. 23302,
23303, 23306 (June 26, 1986) (Existing statutes provide a basic network of agency jurisdiction
over both research and products; this network forms the basis of this coordinated framework
and helps assure reasonable safeguards for the public.).
88. Plant Protection Act, 7 U.S.C. 7714 (2002).
89. Gibson, supra note 5, at 234; USDA REPORT, supra note 31, at 4.
90. TAYLOR, TICK & SHERMAN, supra note 71, at 44.
91. Id.
92. Id.
94. Id.
95. Id.
96. Id.
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For the remaining one to three percent of GM crops, which

consist mainly of those GM crops that: (a) contain DNA from an
animal or human pathogen; (b) contain genes of unknown function;
(c) have toxic, infectious, or pharmaceutical properties; or (d) are
considered too genetically unstable; an APHIS permit may be
97
required. Permit applications are supposed to contain information
about the biology of the GM plant and its potential plant pest
properties, as well as any measures the applicant intends to use to
98
contain the GM crop or dispose of it following the field trial. The
permitting process takes up to 120 days, and containment to prevent
cross-contamination of non-GM species is the primary consideration
99
for APHIS, rather than any other health or environmental risks.
After all field trials have been conducted, a GM grower can
petition APHIS for deregulated status, so that the GM crop can be
100
grown on a commercial scale. The APHIS deregulation process is
also narrowly focused on whether the GM plant itself poses a plant
101
pest risk.
It does not typically require rigorous environmental or
102
health review. Once deregulated, the GM crop is no longer subject
to any further APHIS oversight, and no follow up tests can be
103
required by the agency. There is also no post-market monitoring of
104
the deregulated GM crops by APHIS.
Many have criticized the APHIS review process, including the
105
USDA itself. Criticism has focused around: (a) the lack of rigorous
health and environmental assessments in the notification, permitting,
and deregulation processes; (b) APHIS overreliance on GM
producers own self-interested assessments of any plant pest risks; and
97. Id.
99. Muramoto, supra note 21, at 319; Tokar, supra note 34, at 2.
101. Id. at 367.
102. See id. at 318 (Prior to conducting a field trial of a new transgenic plant, a developer
must perform a risk evaluation on the plant to determine whether [it] may be a plant pest. No
consideration of any other risks, such as other human health or environmental risks is
required.) (internal citations omitted); see also Gibson, supra note 5, at 239 (noting that of the
90 crops that have been deregulated, APHIS has conducted only two Environmental Impact
Statements, both as a result of court orders).
103. Gibson, supra note 5, at 239.
104. Id.
105. See U.S. DEPT OF AGRIC., OFFICE OF THE INSPECTOR GEN., AUDIT REPORT:
ANIMAL AND PLANT HEALTH INSPECTION SERVICE CONTROLS OVER ISSUANCE OF
GENETICALLY MODIFIED ORGANISMS RELEASE PERMITS, AUDIT #50601-8-TE, iiv (Dec.
2005) (discussing the weaknesses in the APHIS regulations and internal management controls).
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87
(c) APHIS inability to monitor GM crops once they have been

deregulated, particularly when health and environmental harms might
106
not become apparent until after commercial planting is initiated.
Other critics have also pointed to a large regulatory gap: plants that
are genetically engineered with genes that are not considered to be
plant pests themselves escape APHIS regulatory oversight
107
altogether.
2.
EPA
GM crops that contain pesticides are also regulated by the

108
EPA. The EPA has the authority to regulate these crops under the
109
Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). The
EPA also has authority to regulate allowable pesticide tolerances in
110
food through the Federal Food, Drug, and Cosmetic Act (FFDCA).
The EPA regulates conventional pesticides via use restrictions
contained on the EPA-approved labels accompanying the pesticides
111
themselves.
However, EPA regulation of GM crops containing
pesticides (known as plant incorporated protectants or PIPs) is
muddled by the EPAs own decision to only regulate the genetic
material inserted into the GM plant and the products the genetic
material expresses (i.e., the Bt gene and the pesticidal substance), not
112
the GM plant itself.
This decision to regulate only the genetic
material and not the GM plant itself creates a confusing regulatory
gap. This is because FIFRA assures safe use of a pesticide only
through the FIFRA labeling requirements, and since the genetic
material the Bt toxin is produced in the tissues of the GM plant
113
itself, there is no labeling requirement. Even the PIP seed bags
114
do not need to comply with FIFRA labeling requirements.
The
EPA does try to exert some regulatory control over PIPs through the
pesticide registration process itself by requiring PIP registrants to
enter into contractual agreements with their GMO growers to comply
106.
107.
108.
109.
110.
111.
112.
113.
114.
Id.; Montgomery, supra note 36, at 36770.

Montgomery, supra note 36, at 35152.
Muramoto, supra note 21, at 322.
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. 136136y (1996).
Federal Food, Drug, and Cosmetic Act, 21 U.S.C. 346a(b)(1) (1960).
TAYLOR, TICK & SHERMAN, supra note 71, at 51.
Muramoto, supra note 21, at 322.
Id.
Id.
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115
with certain PIP planting restrictions.

The EPA also requires
experimental use permits (EUPs) when a GM applicant wishes to
116
field test a PIP that incorporates an experimental pesticide.
Otherwise, however, the EPAs regulatory oversight for pesticide117
containing GM crops is minimal.
3.
FDA
The final link in the GM food crop regulatory chain is by way of

the FDA. The FDA is responsible for the safety of all food products
118
The FDAs
in the United States, other than meat and poultry.
primary regulatory authority is through the Federal Food, Drug, and
Cosmetic Act (FFDCA), which allows the FDA to regulate
119
adulterated foods and food additives.
Unfortunately, due to a controversial 1992 FDA policy, foods
containing GMOs are not generally treated as food additives or
120
adulterated foods and regulated accordingly.
Instead, foods
containing GMOs are presumptively generally recognized as safe
(GRAS), as long as the genetic material found in the GM food
products, such as proteins, carbohydrates, fats, and oils, are already
present at generally comparable levels or greater in currently
121
consumed foods. GM foods that are presumed to be GRAS do not
need to undergo any formal FDA review process or independent
122
safety testing, despite the novelty of their creation process.
GM
producers also make the GRAS determinations themselves;
123
consultation with the FDA is purely voluntary. In addition to not
115. TAYLOR, TICK & SHERMAN, supra note 71, at 51. The primary concern of planting
restrictions is to prevent the development of superbugs resistant to Bt toxin, which would result
in loss of effectiveness for both GM plants and the traditional use of Bt toxin by organic
agriculture. Id.
116. Id.
117. Tokar, supra note 34, at 6.
118. Muramoto, supra note 21, at 32021 (noting that the USDA regulates meat and
poultry).
119. Federal Food, Drug, and Cosmetic Act, 21 U.S.C. 301399d (2006).
120. Food and Drug Administration, Statement of Policy: Foods Derived from New Plant
Varieties, 57 Fed. Reg. 22,984 (May 29, 1992).
121. Id. at 22,990 (When the substance present in the [genetically modified] food is one
that is already present at generally comparable or greater levels in currently consumed foods,
there is unlikely to be a safety question sufficient to call into question the presumed GRAS
status of such naturally occurring substances and thus warrant formal premarket review and
approval by FDA.).
122. Id. at 22,989.
123. Id.
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89
requiring any pre-market safety testing, the FDA also does not
require GM producers to: (a) notify the FDA prior to putting a new
GRAS GM food product into the food supply; or (b) label food
products as containing GMOs, despite widespread consumer desire
124
for this information.
Although the FDA has issued voluntary
labeling guidelines for GMO producers who wish to provide GMO
information to consumers anyway, these voluntary labeling guidelines
have not been followed by a single GM food producer in the roughly
125
fifteen years they have been in place.
GMO critics have long argued that the FDA violated its own
stringent regulations in granting GM food products presumptive
126
GRAS status.
This is because under the terms of the FFDCA, a
GRAS determination must meet two criteria. First, there must be
127
technical evidence of safety, usually in published scientific studies.
Second, the technical evidence must be generally known and accepted
128
A severe conflict among
by the relevant scientific community.
129
experts should preclude a finding of GRAS.
Thus, because there
remains a deep scientific divide as to the safety of GM foods, critics
contend that the FDAs granting of presumptive GRAS status for
130
GM foods has been deeply political and highly irregular.
Nevertheless, the FDA has not elected to amend its controversial
1992 policy, and in Alliance for Bio-Integrity v. Shalala, the federal
district court of the D.C. Circuit determined that the FDAs decision
to grant GM foods the presumption of GRAS status was not
131
arbitrary and capricious.
124. See All. for Bio-Integrity v. Shalala, 116 F. Supp. 166, 176 (D.D.C. 2000) (explaining
lack of requirements for GM producers); Kopicki, Strong Support for Labeling, supra note 58
(identifying a New York Times Poll conducted this year, with 93 percent of respondents saying
that [genetically modified or engineered] foods containing such ingredients should be labeled);
see also Muramoto, supra note 21, at 320 ([I]t is the manufacturer, not the FDA, which makes
the initial determination whether a food or food additive is GRAS.).
125. See Muramoto, supra note 21, at 33839 (noting that, rather than regulating GMO
producers, the FDA focuses its regulatory attention on non-GMO producers who wish to label
their products GMO-free).
126. See generally DRUKER, supra note 25, at 12766.
127. All. for Bio-Integrity, 116 F. Supp. 2d at 177.
128. Id.
129. Id.
130. Id.; see also DRUKER, supra note 25, at 14144.
131. All. for Bio-Integrity, 116 F. Supp. 2d at 177.
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B. State Regulation of GMOs

Obvious gaps in the federal regulatory framework for GMOs
have prompted at least a few states to take supplemental regulatory
132
Several states, such as Idaho, Minnesota, Oklahoma,
action.
Wisconsin, and Washington, have specifically reserved the right to
require separate state-issued permits prior to GMO cultivation, while
other states such as Alaska, Connecticut, Maine, and Vermont have
133
enacted some form of GMO food or seed labeling law. Other than
these limited efforts however, it would appear that a majority of
states are content to rely entirely upon the regulatory oversight of the
134
federal agencies.
Part of this reluctance to regulate the biotech industry is
undoubtedly political. While state legislatures do have an interest in
protecting their citizens against potential harms from GMOs, they
also recognize the significant revenue to be captured from the biotech
135
industry, which understandably favors minimal regulatory intrusion.
Political considerations aside, given the federal regulatory
framework, states may also feel constrained by the U.S. Supremacy
136
Clause and federal pre-emption concerns.
Under the Supremacy
Clause, federal laws governing the same subject matter may pre-empt
state or local laws when: (1) the federal law expressly pre-empts state
or local law; (2) there is a conflict between the federal statute and the
state or local law that would prevent the targeted entities from being
able to comply with both; or (3) the federal statute so clearly and
completely occupies a field that there is no room for supplemental
137
state or local regulation.
However, there is a presumption against
federal pre-emption, and courts reviewing express pre-emption
provisions in a federal statute are required to construe these
132. See TAYLOR, TICK & SHERMAN, supra note 71, at 41 tbl. 1 (listing state biotechspecific regulatory statutes).
133. Id.; see also Eden & Whitfield, supra note 3 (indicating that most of the states
requiring separate state permitting provide an exemption if the federal government has already
issued permits via APHIS).
134. See TAYLOR, TICK, & SHERMAN, supra note 71, at 106 ([M]ost states do not have
biotech-specific regulatory statutes, and there is a general preference among state regulators
and stakeholders to rely on federal regulatory agencies to ensure the safety of biotech crops and
foods for humans, plants, and the environment.).
135. See generally Blanchard supra note 34; Hosmer, supra note 5, at 665 (The
biotechnology industry is a multi-billion dollar per year industry that creates thousands of jobs,
so state and federal policy makers are hesitant to increase regulation of that sector.).
136. Doug Farquhar & Liz Meyer, State Authority to Regulate Biotechnology Under the
Federal Coordinated Framework, 12 DRAKE J. AGRIC. L. 439, 461 72 (2007).
137. Hillsborough Cty., Fla. v. Automated Med. Labs, Inc., 471 U.S. 707, 713 (1985).
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91
138
provisions narrowly.
Moreover, due to the difficulty in determining
Congressional intent, implied pre-emption is even less favored, and
courts considering whether a state statute or local ordinance is
impliedly pre-empted by existing federal law are required to begin
with the presumption that the state statute or local ordinance was a
139
valid exercise of authority.
Of the three primary federal statutes regulating GMOs, only the
140
PPA has an express pre-emption provision. Thus, states and local
governments should have considerable authority to regulate GMOs
141
concurrently with the federal framework.
1.
States Rights to Regulate Plant Pests
States have long held the right to control plant pests and noxious
142
Accordingly, most states have a variety of
weeds intrastate.
agricultural, quarantine, and/or other public health laws that address
or seek to prevent the importation and/or the spread of plant pests
143
and noxious weeds within their borders.
However, because the
federal PPA also attempts to control and prevent the importation,
exportation, and spread of plant pests and noxious weeds interstate,
and because the majority of current GM plants are considered to be
potential plant pests under the PPA, there is uncertainty over
whether the express pre-emption provision of the PPA precludes
wholly intrastate regulation of GM plants considered to be potential
144
plant pests.
138. Bates v. Dow Agrosciences LLC, 544 U.S. 431, 449 (2005).
139. See Wis. Pub. Intervenor v. Mortier, 501 U.S. 597, 61114 (1991) (holding that FIFRA
is not so comprehensive a federal regulation that it impliedly pre-empts state regulation);
Maureen Bessette, Genetic Engineering: The Alternative of Self-Regulation for Local
Governments, 22 SUFFOLK U. L. REV. 1121, 1140 (1988) (stating that there is a presumption that
the Supremacy clause does not pre-empt state or local regulation of matters related to health
and safety).
140. Plant Protection Act, 7 U.S.C. 7756(b)(1) (2006).
141. See generally Farquhar & Meyer, supra note 136, at 473 (concluding that there is no
Congressional intent specific to biotechnology to reference when determining whether a state
statute is pre-empted).
143. Id.
144. Compare Farquhar & Meyer, supra note 136, at 462 (suggesting that the PPA leaves
little room for states to regulate PPA regulated articles once APHIS has acted), with Gibson,
supra note 5, at 24041 (Although the PPA contains a pre-emption provision, states are clearly
free to address local plant pest concerns if no interstate or foreign commerce is involved, and
they can regulate movements in interstate commerce if APHIS has not acted.) (internal
citations omitted); see also Thomas Connor, Genetically Modified Torts: Enlisting the Tort
System to Regulate Agricultural Contamination by Biotech Crops, 75 U. CIN. L. REV. 1187, 1200
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The answer seems fairly straightforward. The express preemption provision of the PPA explicitly states that it seeks to
preclude a state from regulating the movement in interstate
145
commerce of any articles also regulated under the PPA.
This
suggests that wholly intrastate regulation of GM crops, even those
considered to be potential plant pests under the PPA, would not
146
fall within the express pre-emption provision. Recently, however, in
both Hawaii Floriculture v. County of Hawaii and Robert Ito Farm,
Inc. v. County of Maui, the federal district court of Hawaii interpreted
the pre-emption provision of the PPA expansively to include preemption of wholly intrastate plant pest regulation, despite the narrow
147
language of the express pre-emption provision itself.
2.
States Rights to Regulate Pesticide Usage and PIPs
States have an even clearer right to regulate pesticide usage

within their borders, and to enact laws that are more protective of
148
human health than provided by federal law.
In fact, FIFRA
expressly authorizes states and local governments to also regulate
pesticide usage, as long as their pesticide laws are at least as stringent
as the EPAs and do not conflict with FIFRAs labeling and
149
notification requirements. States may therefore: (1) require greater
warnings to the general public of a pesticides use; (2) register
pesticides for additional uses to meet local needs; and (3) establish
their own experimental use permitting procedures that differ from the
150
EPAs EUP program.
Evidence suggests, however, that very few states issue their own
EUPs or require other permitting procedures beyond the EPAs own
n.83 (20062007) (Because the use of biotech crops implicates both national and local
concerns, courts and legislatures should be wary of overly broad federal preemption of state
attempts to regulate distinctly local matters such as land-use and growing procedures . . . .).
145. 7 U.S.C. 7756(b)(1) (2006).
146. Id.
147. Haw. Floriculture & Nursery Assn v. Cty. of Haw., No. 14-00267 BMK, 2014 WL
6685817, at *79 (D. Haw. Nov. 26, 2014); Robert Ito Farm, Inc. v. Cty. of Maui, Nos. 14-00511,
14-00582 SOM/BMK, 2015 WL 4041480, at *914 (D. Haw. June 30, 2015); see discussion infra
pt. IV.
148. See Wis. Pub. Intervenor v. Mortier, 501 U.S. 597, 605 (1991) (When considering preemption, we start with the assumption that the historic police powers of the States were not to
be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.).
149. 7 U.S.C.A. 136v(a)(b) (West 2015).
150. TAYLOR, TICK & SHERMAN, supra note 71, at 53. For example, although FIFRA only
requires EUPs for experimental field testing on 10 acres or more, in Hawaii an EUP is required
for experimental use testing on greater than a quarter acre. Id.
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151
registration and permitting procedures. Nor do most states review

federally-issued EUPs or play any role in federal pesticide
152
registration decisions. In addition, because of the way the EPA has
characterized PIPs (plants genetically engineered to contain
pesticides within their tissues), states have very little involvement in
153
regulating or overseeing PIP crops.
Although states could legally
require that GM producers register PIPs with the state and/or seek
state experimental use permits for PIPs, a 2004 Pew Initiative survey
revealed that the overwhelming majority of states choose not to
154
regulate in this way.
3.
States Rights to Regulate GMO Foods
Finally, states have an interest in food purity and food safety and
all states have regulatory laws that authorize them to remove
155
adulterated or misbranded foods from the market. However, states
generally do not require any pre-market testing of new food products,
156
including any testing of genetically engineered food products.
Still, food safety has long been considered a recognized area of
local concern, and the FFDCA does not contain any express pre157
emption provisions. Thus, states presumably should be permitted to
enact more stringent regulations governing GM food products than
the FFDCA without risk of federal pre-emption, as long as there is no
direct conflict between state law and existing federal regulations, and
as long as the state regulations do not unduly burden interstate
158
commerce.
Because there are no express pre-emption provisions in the
FFDCA, states should also be free to require GMO producers to
label their GM food products within the state. Although the FDA
issued voluntary labeling guidelines for GMO producers back in 2001,
the guidelines are not federal regulations and are not mandatory on
151. Id. at 54.

152. Id.
153. Id. at 5557.
154. Id. at 5657.
155. Fla. Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 144 (1963); TAYLOR, TICK
& SHERMAN, supra note 71, at 61.
157. Fla. Lime & Avocado Growers, 373 U.S. at 144.
158. See Farquhar & Meyer, supra note 136, at 468 (Because food safety is generally a
local concern, courts require either explicit pre-emption or conflict pre-emption in order to preempt a state or local regulation . . . In addition . . . a state must also ensure that its laws do not
impose an unreasonable burden on interstate commerce.).
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159
GMO producers, and therefore should lack any pre-emptive effect.

While the federal Nutritional Labeling and Education Act (NLEA)
does contain express pre-emption provisions prohibiting states from
enacting food labeling requirements that are not identical to
mandatory food labeling requirements of the FFDCA, the lack of any
FFDCA mandatory food labeling requirements for GMO foods
160
should also preclude any NLEA pre-emptive effect.
Indeed, this
was the recent outcome in Grocery Manufacturers Association v.
Sorrell, where a federal district court judge explicitly rejected the
plaintiff GMO manufacturers FFDCA and NLEA labeling preemption challenges to Vermonts newly enacted GMO food labeling
161
162
law. The Vermont law is set to go into effect in 2016.
C. Local Authority to Regulate GMOs
Local governments perhaps have the most pressing interest in
regulating GMOs cultivated or distributed within their borders, as
they are the closest to any direct health, environmental, or economic
163
consequences of under-regulation. In fact, local governments were
the first to respond to the federal governments lax regulatory
164
oversight of GMOs by taking precautions of their own.
For
example, in 1976, the city council in Cambridge, Massachusetts passed
the countrys very first moratorium on GMO research in order to
165
allow a local committee to investigate the risks associated with it.
Then, in 1985, after the EPA issued the very first experimental use
permit that would have allowed field-testing of a genetically
engineered pesticide in Monterey, California, local citizens rallied
166
against it and a local ordinance subsequently prevented its release.
Currently, eleven local governments have exercised their authority to
159. See U.S. FOOD & DRUG ADMIN., HEALTH AND HUMAN SERVS, DRAFT GUIDANCE
VOLUNTARY LABELING INDICATING WHETHER FOODS HAVE OR HAVE NOT
BEEN DEVELOPED USING BIOENGINEERING; AVAILABILITY at 67 (2001).
160. 21 U.S.C.A. 343-1(a)(1)(5) (West 2015).
161. Grocery Mfrs. Assn v. Sorrell, No. 5:14-cv-117, 2015 WL 1931142, at *2425 (D. Vt.
Apr. 27, 2015).
162. Id. at *2.
163. See generally, Charles J. Bussell, As Montville Goes, So Goes Wolcott, Vermont? A
Primer on the Local Regulation of Genetically Modified Crops, 43 SUFFOLK U. L. REV. 727
(2010) (explaining that local government may have increased interest in GMO regulation).
164. Bessette, supra note 139, at 1125.
165. Id. at 1142.
166. Id. at 113536.
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167
regulate GMOs locally.

The majority of these local governments
are located in the Western states of Oregon, Washington, and
168
California.
Most of these local ordinances significantly restrict or
169
outright ban the cultivation and field-testing of GMOs. On the east
170
coast, only one town in Maine has a GMO regulation in effect.
Other east coast communities have been unable to regulate GMOs
because they are restricted by their enabling legislation or are pre171
empted by state law. These communities have resorted to passing
non-binding resolutions to express their distaste for genetically
engineered crops in the hope that the resolutions will spur the state
172
legislature to regulate GMOs at the state level.
Nevertheless, despite these regulatory actions by a small number
of local governments, many local governments may lack the authority
173
to regulate GMOs.
Local governments receive their authority to
regulate either through a constitutional home rule amendment or
174
by specific enabling legislation. Home rule local authority typically
presumes broad local authority to regulate, while enabling legislation
generally restricts local government regulation to areas specified
175
within the enabling legislation.
In either case, however, states
typically retain the right to pre-empt a local governments ability to
regulate when a particular subject matter area is determined to be of
176
statewide concern.
167. See Edens & Whitfield, supra note 3. As of the completion of this article, local
regulations of GMOs were in effect in California (Marin, Medocino, Santa Cruz, and Trinity
counties, and the cities of Arcata and Point Arena), Oregon (Jackson and Josephine counties),
Washington (San Juan county), and Maine (town of Montville). See id.
168. Id.
169. Id. Although outright bans of GMO cultivation and field testing may seem extreme in
the United States, GMO cultivation and field testing is currently banned in numerous countries.
See Walden Bello & Foreign Policy in Focus, Twenty-Six Countries Ban GMOsWhy Wont
the U.S.?, THE NATION (Oct. 29, 2013), http://www.thenation.com/blog/176863/ twenty-sixcountries-ban-gmos-why-wont-us.
170. See generally Bussell, supra note 163 (discussing the regulation of GMOs in effect in
Montville, Maine).
171. Id. at 73839.
172. Id.
173. Id. at 735.
174. Bessette, supra note 139, at 1137.
175. Id. at 113738.
176. See Randall E. Kromm, Town Initiative and State Pre-emption in the Environmental
Area: A Massachusetts Case Study, 22 HARV. ENTL L. REV. 241, 25657 (1998) (listing three
distinct ways in which state law may supersede local initiatives); Paul Diller, Intrastate Preemption, 87 B.U. L. REV. 1113, 1127 (2007) ([I]t is now widely acknowledged that there are
matters of mixed local-statewide concern in which both the state and city may legislate, thus
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One way a state may pre-empt a local governments authority to

regulate is by enacting a comprehensive state regulatory scheme that
177
leaves no room for concurrent local regulation.
When a state
expressly indicates that it intends to occupy an entire field with its
regulatory scheme, the pre-emption analysis would be fairly
178
straightforward.
However, if a state fails to include an express
intention to occupy the regulated field, it would fall to a court to
179
While
determine whether there is an implied pre-emption.
sometimes an intent to occupy an entire field can be easily gleaned
from the comprehensiveness of the state regulation or by express
statements of purpose that clearly indicate an intention for state-wide
uniformity, in many cases, the search for legislative intent is
180
nebulous at best.
Local government scholars have described
implied pre-emption as a problematic shadow that imposes severe
181
constraints on local policy innovation and choice.
Some have
called it the exercise of judicial judgment in the absence of a
182
legislative one.
Another way states can pre-empt local regulation is through
183
denial authority. Denial authority occurs when a state expressly
denies a local government the ability to regulate in a specified area,
184
without actually enacting any substantive legislation of its own.
Denial authority is a particularly restrictive form of state pre-emption
because it runs the risk of producing a regulatory vacuum on issues
185
of considerable importance.
With respect to the local regulation of GMOs, although a
majority of states now purportedly give their local governments some
form of home rule authority, as of 2014, roughly seventeen states
have enacted express pre-emption provisions denying local
186
governments the ability to regulate GMOs. Significantly, California
raising the possibility of pre-emption in the mixed sphere.).

177. Kromm, supra note 176, at 25657.
178. Diller, supra note 176, at 111516.
179. Id.
180. George D. Vaubel, Toward Principles of State Restraint upon the Exercise of Municipal
Power in Home Rule, 22 STETSON L. REV. 643, 684 (1993).
182. Vaubel, supra note 180, at 684.
184. Id. at 256.
185. Id. at 257.
186. See Porter, supra note 4, at 15 (noting that most express pre-emption provisions
precluding local GMO regulations are drafted by way of precluding any local regulation of
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and Oregon recently joined the express pre-emption states, despite

the fact that most of the current local GMO regulations originate in
these states and community interest in local regulation remains
187
high.
Unfortunately, because the exercise of denial authority has
come without the states enacting any comprehensive GMO legislation
of their own, the exercise of denial authority in these states appears to
188
be largely the result of biotech industry influence.
Although a hot zone of GMO cultivation and field-testing for
over twenty years, the state of Hawaii has not yet elected to expressly
189
pre-empt local regulation of GMOs. However, in 20132014, after
three local Hawaii counties enacted local ordinances in response to
citizens concerns, GMO producers immediately challenged the
ordinances in federal court on state and federal pre-emption
190
grounds.
III. GMOS IN HAWAII AND THE LOCAL REGULATORY RESPONSE
GMO activity in Hawaii revolves around two main areas of
operation: (1) cultivation of GM crop seeds for export and
commercial production; and (2) field trials of new GM crops that
191
have not yet been approved for commercial production.
GMO
cultivation and field testing in Hawaii raises similar concerns as those
192
raised in other jurisdictions. However, Hawaii is the worlds top
seed); see also ORGANIC CONSUMERS ASSN, State/Local Efforts to Control GMOs,
https://www.organicconsumers.org/news/statelocal-efforts-control-gmos (last visited Sept. 5,
2015) (indicating that the states pre-empting local GMO regulation include Arizona, Florida,
Georgia, Idaho, Indiana, Iowa, Kansas, North Dakota, Ohio, Oklahoma, Pennsylvania, South
Dakota, Texas, and West Virginia).
187. See Edens & Whitfield, supra note 3 (noting a number of counties in California and
Oregon that have prohibitions against growing bioengineered plants); see also Rick Paulas,
California Cities Cannot Ban GMOs, KCET.ORG, (Dec. 16, 2014, 11:02 AM),
http://www.kcet.org/living/food/food-rant/california-cities-cannot-ban-gmos.html
(discussing
Californias recent pre-emption of local GMO regulation); Rebekah Wilce, Oregons GMO
Sellout, PR WATCH (May 21, 2014, 10:09 AM), http://www.prwatch.org/news/2014/05/12486/
oregons-gmo-sellout (discussing Oregons recent pre-emption of local GMO regulation).
188. Porter, supra note 4, at 1315; Britt Bailey, Preempting Democracy: Consigning
Citizens to Spectator Status through Seed Laws, COUNCIL FOR RESPONSIBLE GENETICS,
http://www.councilforresponsiblegenetics.org/ViewPage.aspx?pageId=89 (noting that beginning
in 2004, the American Farm Bureau, with support from the biotechnology industry, began a
march of pre-emption through state legislatures.). See also Diller, supra note 176, at 1134
([T]he most common opponents of the assertion of local authority for regulatory purposes are
businesses.).
189. See HAWAII REPORT, supra note 6, at 3334.
191. Gibson, supra note 5, at 22930.
192. HAWAII REPORT, supra note 6, at 3; Gibson, supra note 5, at 21415, 232.
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producer of GM seed corn and, despite its small size, has hosted more
193
In 2014 alone, 178
cumulative field trials than any other state.
different GMO field tests were conducted on over 1,381 sites in
194
Hawaii, compared with only 175 sites in all of California.
In
addition, more people live in closer proximity to the GMO fields in
195
Hawaii than residents in any other state.
Most field-testing on Hawaii is conducted by GMO industry
giants Monsanto, Dow-Chemical, Syngenta, DuPont-Pioneer, and
BASF, all of which own or lease prime agricultural land on Oahu,
196
Kauai, Maui, and Molokai. Although the majority of GM field tests
in Hawaii are for corn and soy crops, other crops, including
197
experimental biopharmaceutical crops, have also been field-tested.
Herbicide resistance is the most frequently tested trait in
198
Hawaii.
Data suggests that GMO producers on Hawaii use an
estimated eighteen tons of pesticides on their GM plots each year,
with stacked pesticide formulations containing upwards of sixty
199
active toxic ingredients.
Applications of restricted use pesticides
(RUPs), which are considered the most toxic to human health and
require application by specially trained workers, are also far greater
200
than the national average.
With residents so close to GMO fields, there has been intense
concern over the health impacts of pesticide drift, with anecdotal
evidence suggesting that nearby residents have already been
201
sickened. For example, in 2013, after RUP applications to a nearby

195. Id. at 3.
196. Id. at 8 & n.1.
197. Gibson, supra note 5, at 232, 256; see Ctr. for Food Safety v. Johanns, 451 F. Supp. 2d
1165 (D. Haw. 2006) (holding that APHIS violated the Endangered Species Act by failing to
obtain information about listed species and critical habitats from Fish and Wildlife Services and
National Marine Fisheries Service before granting permits for growing of biopharmaceutical
crops in Hawaii).
198. HAWAII REPORT, supra note 6, at 3, 11.
199. See Mike Ludwig, On the Front Lines of Hawaiis GMO War, TRUTHOUT.ORG (Nov.
21, 2013), http://www.truth-out.org/news/item/20170-on-the-front-lines-of-hawaiis-gmo-war (last
visited Sept. 5, 2015) (noting that the GMO seeds produced on Kauai are not considered food
items, so the agricultural companies are allowed to use more pesticides than are traditional
farmers) [hereinafter Front Lines].
200. Paul Koberstein, GMO companies are dousing Hawaiian island with toxic pesticides,
GRIST (June 16, 2014), http://grist.org/business-technology/gmo-companies-are-dousinghawaiian-island-with-toxic-pesticides/.
201. HAWAII REPORT, supra note 6, at 18; Front Lines, supra note 199.
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99
GM seed corn plot on Kauai, approximately sixty school children

experienced headaches, dizziness, nausea and/or vomiting, with some
202
requiring emergency room treatment.
Similar adverse reactions
following pesticide applications were reported on Oahu and in other
203
Kauai physicians have also expressed
communities on Kauai.
concerns that RUP drift might be the cause of various respiratory
204
system problems in patients with no history of respiratory issues.
Some physicians have gone even further, expressing concern that
RUP applications might be behind the suspicious cancer clusters
and an unusually high number of rare birth defects in patients
205
residing close to GMO fields.
Much of the anger local residents feel towards the GMO industry
in Hawaii is the result of the industrys lack of responsiveness to local
206
concerns.
Indeed, the industry has hidden much of its GMO
operations behind claims of confidential business information,
leaving residents in the dark about the types of pesticides being
sprayed, the GMOs being cultivated, or the location of the active test
207
fields.
The industry has also repeatedly disclaimed any
responsibility for local illnesses believed to be RUP-related,
208
suggesting local stinkweed, might be responsible. In addition to
the belief that the GMO industry operates largely unaccountable to
the local populace, locals have also complained that the state agencies
charged with protecting them have been far more concerned with
promoting the agricultural biotech industry than in ensuring citizens
209
Hawaii, unlike many other states, does not require buffer
safety.
203. Id. at 1819.
204. Id.
205. Id. at 20; Front Lines, supra note 199.
206. See generally HAWAII REPORT, supra note 6, at 3337; Mike Ludwig, Hawaiis GMO
War Headed to Honolulu and Federal Court, TRUTHOUT.ORG (Jan. 28, 2014, 2:24 PM),
http://www.truth-out.org/news/item/21506-hawaiis-gmo-war-headed-to-honolulu-and-federalcourt (quoting one local resident-turned-anti-GMO activist who stated: [The GMO
companies] actions prove that they do not value the health and well-being of our community
and are only interested in their corporate profit.) [hereinafter Headed to Honolulu]. See also
Nana Ohkawa, Hundreds March against GMOs in Hawaii, KITV NEWS (March 2, 2013, 4:23
PM),
http://www.kitv.com/news/hawaii/Hundreds-march-against-GMOs-in-Hawaii/19154866
(reporting on various marches against the GMO industry throughout Hawaii).
207. HAWAII REPORT, supra note 6, at 12, 1516.
208. Id. at 18; see also Reply Brief for Intervenor-Defendants-Appellants at 1, Syngenta
Seeds, Inc. v. Cty. of Kauai, Nos. 14-16833, 14-16848, 2015 WL 2265299 (D. Haw. May 11, 2015)
(noting that companies spraying pesticides on fields near Kauai residents have repeatedly
denied responsibility for local illnesses).
209. See generally HAWAII REPORT, supra note 6, at 18, 3337 (stating that, on more than
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zones between GMO fields and nearby residential areas, does not
require any disclosures to the local communities about GMO
activities, and does not have a pesticide poisoning surveillance system
210
in place.
Beyond health concerns, Hawaii citizens have also expressed
concern about the GMO industrys potential impact on biodiversity
211
and the environment. Hawaii is home to nearly 9,500 species found
212
nowhere else on the planet.
It has also been named the
endangered species capital of the world, with roughly 75% of
documented species extinctions in the United States occurring
213
there.
Evidence suggests that the pesticides and pesticide run-off
from the GMO fields have already contributed to coral reef decline,
amphibian malformations, bee colony collapse, and rare bird
214
extinctions.
Another concern is the contamination of non-GM crops by
215
GMOs through gene drift and cross-pollination.
In 2004, for
example, a citizens group investigating nearly 20,000 papaya trees on
the Big Island of Hawaii revealed that fifty percent of the trees were
genetically modified, even though eighty percent of that genetically
216
modified portion were trees from organic farms.
Preservation of
organic agriculture is particularly important in Hawaii County, where
certain types of GMO crops have already been prohibited in order to
217
protect the countys organic coffee and taro industries.
Despite attempts to resolve these various issues through the state
legislature, all bills introduced to require more protective regulation
218
of GMOs at the state level have failed to pass.
Frustrated by the
one occasion, county ordinances enacted to protect residents from pesticide drift were declared
invalid under state law after being challenged by chemical corporations).
210. Id. at 19, 33.
211. Id. at 3, 29.
212. Id. at 29.
213. Id.
214. Id. at 3032 (discussing various studies that have shown the negative effects that
atrazine, chlorpyrifos, synthetic pyrethoids, neonicotinoidsall pesticides used in Hawaiihave
on coral, ambhibians, birds, and bees).
215. See Gibson, supra note 5, at 25053 (noting that cross-pollination already poses
significant threats to Hawaiis non-GM coffee, macadamia, and papaya industries).
216. Strauss, The Role of Courts, supra note 55, at 291.
217. Hawaii Cty. Code 14-92 (prohibiting cultivation and testing of GM taro); Hawaii Cty.
Code 14-93 (prohibiting cultivation and testing of GM coffee).
218. See, e.g., Right to Know GMO Hawaii, RIGHT TO KNOW GMO,
http://www.righttoknow-gmo.org/states/hawaii (last visited Sept. 16, 2015) (discussing various
GMO labeling bills introduced in the state legislature that did not pass); Hosmer, supra note 6,
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101
lack of industry responsiveness or meaningful state regulatory

oversight, Kauai County, Hawaii County, and Maui County all
attempted to respond at the local level in 2013-2014.
A. Kauais Ordinance 960
In November 2013, Kauais County Council passed Ordinance
219
960.
The Ordinance essentially sought to address three local
220
First, the ordinance sought to require commercial
concerns.
agricultural producers to disclose large-scale pesticide applications
221
and any GMOs grown on Kauai.
Second, the law sought to impose
buffer zones between fields where pesticides were sprayed and
sensitive areas such as child care centers, schools, residential care
222
facilities, and hospitals.
Third, the ordinance sought to require
completion of an Environmental and Public Health Impact study
(EPHIS) to address key environmental and public health questions
related to large scale commercial agricultural entities utilizing
223
pesticides and genetically modified organisms.
224
Ordinance 960 was subject to months of divisive public debate.
Those in support of the ordinance included many residents located
close to the GMO fields, who were concerned about the health risks
225
of pesticide drift and the poisoning of the local waterways. Those
opposed to Ordinance 960 generally included commercial agricultural
producers and their employees, as well as local businesses benefitting
226
from their presence on the island. Ordinance 960 eventually passed
227
by a 6-1 County Council vote and survived the mayors veto. Soon
at 672 (The frustration among Hawaiian GM crop opponents is palpable.).

219. Ordinance 960 was later codified as Kauai County Code (KCC) 2223 (2014).
This article shall continue to refer to the ordinance in the text as Ordinance 960.
220. KCC 2223.
221. Id. at 2223.4(a)(b).
222. Id. at 2223.5.
223. Id. at 2223.6.
224. See Front Lines, supra note 199 (noting that earlier versions of the bill included
tougher restrictions that had to be dropped after lengthy public debate).
225. See Gibson, supra note 5, at 24748 & n.264 (stating that many communities located
near seed crop operations and potential field trial sites are speaking out due to concerns
about how the GE Industry and the use of GE crops may harm the states overall ecological
biodiversity, and the Department of Agriculture received a complaint about pesticides being
sprayed next to an elementary school).
226. See Front Lines, supra note 199 (The biotech companies fought the bill tooth and nail,
rallying their workers in protest and framing the bill as an attack on Kauai farmers and their
jobs.).
227. Sophie Cocke, Kauais GMO and Pesticide Bill to Become Law After Veto Override,
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thereafter, DuPont-Pioneer, Syngenta Seeds, Agrigenetics, and BASF

Plant Sciences filed suit in federal court, arguing that Ordinance 960
228
was pre-empted by existing state and federal laws.
On August 25, 2014, in the very first major decision to address
local authority to regulate GMOs, the federal district court of Hawaii
vacated Ordinance 960, finding the Ordinance pre-empted by state,
229
Specifically, the federal district court
but not federal, law.
magistrate found that various state pesticide laws evidenced a
legislative intent to pre-empt the entire field of pesticide regulation
throughout the state, precluding Kauai Countys additional local
230
notification and disclosure requirements.
The district court also
found that various state agricultural laws regulating plant pests and
noxious weeds, and the Hawaii Constitutions provision declaring the
states responsibility to promote [. . .] agriculture, evidenced an
intent to occupy the entire field of potential plant pest regulation,
thereby precluding Kauai County from requiring GMO producers to
provide annual reports on their GMO cultivation and testing
231
activities to the County.
B. Hawaii Countys Ordinance 13-121
Hawaii County also passed a local GMO ordinance in November
232
of 2013.
Rather than seeking to require pesticide and GMO
notification and disclosures, Ordinance 13-121 sought to prohibit all
open air cultivation, propagation, development, or testing of GM
233
plants, other than GM papaya, in Hawaii County.
Ordinance 13121 specifically exempted the cultivation and testing of GMOs in
234
enclosed areas, such as greenhouses. The Ordinances main stated
objectives were to prevent contamination of non-GM crops, plants,
HONOLULU CIV. BEAT (Nov. 16, 2013), http://www.civilbeat.com/2013/11/20426-kauais-gmoand-pesticide-bill-is-set-to-become-law-after-veto-override/.

228. See Syngenta Seeds, Inc. v. Cty. of Kauai, No. 14-00014 BMK, 2014 WL 4216022, at *9
(D. Haw. Aug. 25, 2014) (stating that the plaintiffs argued that Ordinance 960 was pre-empted
by the Federal Insecticide Fungicide and Rodenticide Act, 7 U.S.C. 136i-1(b) and a federal
coordinated framework that comprehensively regulates GMOs).
229. Id. at *1.
230. Id.
231. Id. at *89, *12.
232. Hawaii County Ordinance 13-121, now codified as Hawaii County Code (HCC)
14-12814-134 (2014). This article shall continue to reference this ordinance in the text as
Ordinance 13-121.
233. HCC 14-130.
234. Id. 14-131.
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and lands, and to promote eco-friendly agricultural practices on the

235
island. Ordinance 13-121 also declared the Countys belief that:
[P]olicies relating to agricultural practice are most appropriate to
be determined by each county of the State of Hawaii, given the
island-by-island variation in customary and generally accepted
cultural practices and opportunities, the variation in topography
and land ownership patterns, and in light of the natural geographic
236
ocean barriers that allow for these distinctions.
The Hawaii County Council passed Ordinance 13-121 by a vote

237
Soon thereafter, GMO producers brought suit in federal
of 6-3.
court, claiming that Ordinance 13-121 was pre-empted by both state
238
and federal law.
In this second critical decision impacting the rights of local
governments to regulate GMOs, the same federal district court
magistrate once again struck down the local GMO Ordinance, this
time finding that Ordinance 13-121 was not only pre-empted by
existing Hawaii state agricultural laws, but also by the express pre239
emption provision of the federal Plant Protection Act. Specifically,
the district court found that the same agricultural laws and state
constitutional provision justifying pre-emption of Kauais Ordinance
960 also justified state pre-emption of Hawaii Countys Ordinance 13240
121. In addition, the district court found that the Plant Protection
Acts express pre-emption provision precluded even wholly intrastate
regulation of plants that would be regulated under the PPA because
all regulated articles under the PPA were in or affect interstate
241
commerce.
C. Mauis Ballot Initiative
The third attempt to regulate GMOs locally emerged from a
successful voter initiative, placed on the November 4, 2014 ballot for
235. Id. 14-128(1)(3).

236. Id. 14-128.
237. Chemical Corporations Undermine the Will of the People of Hawaii County, CENTER
FOR FOOD SAFETY (Nov. 26, 2014), http://www.centerforfoodsafety.org/press-releases/3628/
chemical-corporations-undermine-the-will-of-the-people-of-hawaii-county.
238. See id.
6685817, at *1 (D. Haw. Nov. 26, 2014), appeal docketed, No. 14-17538 (9th Cir. Dec. 26, 2014).
240. See id. at *3 (stating that the ordinance is pre-empted under state law, following the
same arguments for state pre-emption that this Court faced in Syngenta Seeds, Inc. v. County of
Kauai).
241. Id. at *8.
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242
Maui County voters (the Maui Initiative).

Unlike Hawaii
Countys complete ban on open air GMO cultivation and testing, the
Maui Initiative sought to impose a temporary moratorium on GMO
production in Maui County until a comprehensive and satisfactory
243
EPHIS could be completed.
The Maui Initiative, which was
opposed by Maui County officials but approved by Maui voters, was
the very first voter initiative attempted in Maui County, despite the
244
fact that the initiative power was granted back in 1983.
Despite its passage, on November 12, 2014, the drafters of the
Maui Initiative filed suit in state court in order to force a recalcitrant
245
Maui County to enforce the initiative.
The next day, GMO
producers Monsanto and Dow Chemical filed suit in federal court to
246
prevent implementation of the initiative. The GMO producers once
247
again claimed state and federal pre-emption.
The district court
promptly granted a preliminary injunction enjoining enforcement of
248
the Maui Initiative. Soon thereafter, the GMO Producers and the
County entered into a stipulation to continue the injunction until
249
March 31, 2015. The injunction was later extended through the end
of June, presumably due to two bills in the state legislature that might
250
have affected the outcome of the lawsuit. In addition, the drafters
of the Maui Initiative were granted the right to intervene as
defendants in the federal lawsuit because County officials were
251
clearly aligning with the GMO producers.
On June 30, 2015, in a third critical decision likely serving as the
242. See Maui County Genetically Modified Organism Moratorium Initiative,
BALLOTPEDIA.ORG
(Nov.
2014),
http://ballotpedia.org/Maui_County_Genetically_
Modified_Organism_Moratorium_Initiative_(November_2014),_full_text (last visited Oct. 29,
2015) (stating that the initiative was approved) [hereinafter Maui Initiative]. Maui County
includes the islands of Maui, Lanai, and Molokai.
243. Id.
244. Id.
245. See Atay v. Cty. of Maui, No. 14-00582 SOM-BMK, 2015 WL 998792, at *39 (D. Haw.
Mar. 5, 2015) (giving history of lawsuit).
246. Id.
247. Id.
248. Id.
249. Id.
250. Robert Ito Farm, Inc. v. Cty. of Maui, No. 14-00511 SOM, 2015 WL 1279422, at *3 (D.
Haw. Mar. 19, 2015).
251. See Order (1) Granting Alika Atay, Lorrin Pang, Mark Sheehan, Bonnie Marsh,
LeiOhu Ryder, and Shaka Movements Motion to Intervene and (2) Denying Moms On A
Mission Hui, Molokai Mahiai, Gerry Ross, and Center for Food Safetys Motion for Leave to
Intervene, Robert Ito Farm, Inc. v. Cty. of Maui, No. 14-00511 BMK, 2014 WL 7148741 (D.
Haw. Dec. 15, 2014).
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final nail in the coffin for local GMO regulation in Hawaii, the same
federal district court determined that the Maui Initiative was
252
pre-empted by state and federal law. Specifically, the court agreed
with the earlier Kauai County and Hawaii County determinations,
namely that various Hawaii state agricultural laws and the states
responsibility to promote agriculture indicated a legislative intent to
253
preclude all local GMO regulation. Thus the court found that the
proposed ordinance was both expressly and impliedly pre-empted by
254
the PPA.
IV. WHY LOCAL DEMOCRACY SHOULD HAVE TRUMPED
PRE-EMPTION CLAIMS IN HAWAII
In its final Hawaii pre-emption decision, the district court in
Robert Ito Farm asserted that its decision to invalidate a voterapproved local GMO ordinance was not about determining whether
GE activities are good, bad, beneficial, or dangerous, or about
255
whether citizens may participate in the democratic process.
However, by finding that the local ordinances were pre-empted by
state and federal law, the district court did make the radical decision
to remove local citizen participation in the democratic process. In
addition, unless reversed, these pre-emption decisions will
undoubtedly have far-reaching consequences for other local
jurisdictions attempting to address GMO concerns through local
256
regulation.
Yet, neither Hawaii state law nor the express
pre-emption provision of the federal Plant Protection Act justified
the district courts expansive findings of pre-emption, and all three
decisions should be reversed.
A. State Pre-Emption of the Local Ordinances
In enacting their local GMO ordinances, all three counties relied
upon their broad police powers granted to them under Hawaii
Revised Statute 46-1.5(13), which provides that:
Each county shall have the power to enact ordinances deemed
necessary to protect the health, life, and property, and to preserve
252. Robert Ito Farm, Inc. v. Cty. of Maui, No. 14-00511 SOM/BMK, 2015 WL 4041480, at
*1 (D. Haw. June 30, 2015).
253. Id. at *1620.
254. Id. at *916.
255. Id. at *1.
256. See, e.g., Whitfield, Court Doubles Down, supra note 14 (predicting that this
interpretation of federal law will likely serve as a harbinger of future cases outside Hawaii).
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the order and security of the county and its inhabitants on any
subject or matter not inconsistent with, or tending to defeat, the
intent of any state statute where the state statute does not disclose
an express or implied intent that the statute shall be exclusive or
257
uniform throughout the State.
Accordingly, under the express terms of this statute, each county

was fully empowered to use its police powers to regulate GMOs in
order to protect against harms to health, life, and property, unless the
local ordinance: (a) was expressly pre-empted by existing state law;
(b) conflicted with existing state law; or (c) was impliedly pre-empted
258
In the Hawaii pre-emption decisions, the
by existing state law.
district court properly noted the lack of any basis to find any express
pre-emption of the local GMO ordinances, or any direct conflict with
259
existing state statutes.
Instead, in its three pre-emption decisions,
the district court determined that the local GMO ordinances were
impliedly pre-empted, based on the existence of comprehensive
regulatory schemes in the same subject matter as the local
ordinances that evidenced an intent to occupy the entire field of the
260
subject matters regulated by the local ordinances. This pre-emption
261
theory is commonly referred to as field pre-emption.
Before proceeding to a substantive analysis of the courts implied
pre-emption determinations, it should be noted that using field-preemption as a basis to pre-empt local ordinances is justifiably criticized
by many as a heavy-handed guessing game tilted in favor of the
262
state. It is a problematic theory on which to rest a finding of pre-
257. HAW. REV. STAT. 46-1.5(13) (2015). Both Hawaii County and Kauai County also
cited to Hawaiis Constitutional Public Trust Doctrine, Hawaii Constitution, Article XI sec. 1, as
further authority to regulate to protect and preserve Hawaiis natural resources. Although the
district court in its Hawaii pre-emption decisions erroneously refers to Hawaii as having a
Dillons Rule relationship with its local counties, which significantly restricts local county
regulatory authority, the Hawaii Supreme Court itself recognizes that Hawaii is a home rule
state, which grants broad powers to its local counties to regulate locally. See Richardson v. City
& Cty. of Honolulu, 868 P.2d 1193, 1213 (Haw. 1994) (acknowledging that Hawaii recognizes
home rule, with certain stipulations).
258. HAW. REV. STAT. 46-1.5(13).
259. See Syngenta Seeds, Inc. v. Cty. of Kauai, No. 14-00014 BMK, 2014 WL 4216022, at *5
(D. Haw. Aug. 25, 2014) (stating that Ordinance 960 does not directly conflict with HRS
149A-31.2 or the Right to Farm Act).
260. See Robert Ito Farm, Inc. v. Cty. of Maui, No. 1400511 SOM/BMK, 1400582, 2015
WL 4041480, at *1620 (D. Haw. June 30, 2015); Haw. Floriculture & Nursery Assn v. Cty. of
Haw., No. 14-00267 BMK, 2014 WL 6685817, at *4 (D. Haw. Nov. 26, 2014); Syngenta Seeds,
Inc. v. Cty. of Kauai, No. 14-00014 BMK, 2014 WL 4216022, at *56 (D. Haw. Aug. 25, 2014).
261. See, e.g., Haw. Floriculture, 2014 WL 6685817, at *9.
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263
emption for a number of reasons.

First, state statutes and local
ordinances often co-exist in the same or related subject matter areas
264
without any findings of pre-emption.
Consequently, cases where
courts have drawn the line between proper co-existence and field preemption are often contradictory and confusing, providing little
265
precedential insight. Second, in enacting any particular law, a state
legislature often has no intent at all with respect to superseding
266
municipal regulation. Rather, the legislature most likely simply
267
intended to regulate to solve a particular problem. Because the
legislature only had the intent to address a particular problem, a
courts subsequent determination of a legislative intent to preclude
future local regulation is often criticized as the substitution of
judicial judgment for lack of a legislative one or, worse, a
268
reordering of government by judicial mandate. Finally, field preemption is a particularly harsh form of implied pre-emption because
it not only precludes the local ordinance at issue, but it also serves to
preclude all subsequent local regulation in that now-deemed fully
269
occupied field. This pre-emption of an entire field occurs despite
the fact that the state legislature, at the time of passing the statute
that allegedly occupies that field, often has no idea what those future
270
local ordinances will look like.
Because of these inherent
problems, and the impact field pre-emption has on local democracy,
many scholars and critics contend that field pre-emption should be
applied cautiously, and that any doubts as to legislative intent
271
should be resolved in favor of municipal power.
Unfortunately, as discussed below, the district court did not elect
to apply field pre-emption cautiously, nor resolve any doubts as to
263. See, e.g., Richardson v. City & Cty. of Honolulu, 868 P.2d 1193, 121213 (Haw. 1994)
(explaining that co-existence doesnt necessarily equal pre-emption); Diller, supra note 176, at
1116 (noting that courts have applied pre-emption tests inconsistently); Vaubel, supra note 180,
at 684 (stating that states often enact laws without having any intention of superseding
municipal legislation).
264. See, e.g., Richardson, 868 P.2d, at 121213 (stating that the Trustees are mistaken to
argue that the ordinance is in conflict with state law because the two are coextensive).
265. See Diller, supra note 176, at 1116 (noting that courts have applied implied preemption tests inconsistently, sometimes upholding local authority and sometimes constricting
it).
267. Id.
268. See id. at 68485.
270. Id.
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legislative intent in favor of local power in any of the three preemption decisions. Instead, the district court in the Syngenta, Hawaii
Floriculture, and Robert Ito Farm decisions elected to deny all three
counties the authority to regulate GMOs locally by creatively finding
both (1) a comprehensive regulatory scheme and (2) an implied
legislative intent to preclude all local GMO regulation, where neither
existed.
1. There is no comprehensive regulatory scheme fully
embracing the same subject matter as the local GMO
ordinances.
Under Hawaii law, in order to find that a local ordinance is field
pre-empted by existing state law, a court must find that: (1) the local
ordinance attempts to regulate the same subject matter fully
embraced by an existing comprehensive regulatory scheme; and (2)
the comprehensive regulatory scheme evidences a clear legislative
intent to be both uniform and exclusive throughout the state, leaving
272
no room for local regulation.
In all three Hawaii pre-emption decisions, the district court
determined that the local ordinances attempted to regulate in the
273
same subject matter areas as existing state statutes. However, all
three local ordinances attempted to regulate in a subject matter area
for which there are currently no existing state statutes. Specifically, all
three local ordinances concerned the regulation of genetically
modified organisms cultivated and field-tested within their own local
274
counties. For instance, Kauai Countys Ordinance 960 attempted to
impose an annual reporting requirement on GMO producers that
would have provided Kauai County citizens with basic, vital
information relating to the GMO crops grown and the pesticides
275
Additionally, Hawaii Countys
sprayed near local residences.
Ordinance 13-121 would have prohibited the open air testing and
cultivation of most GMOs, in order to promote eco-friendly
276
agriculture in Hawaii County.
Finally, Maui Countys proposed
272. Richardson v. City & Cty. of Honolulu, 868 P.2d 1193, 1209 (Haw. 1994).
273. Robert Ito Farm, Inc. v. Cty. of Maui, Nos. 1400511 SOM/BMK, 1400582
SOM/BMK, 2015 WL 4041480, at *1620 (D. Haw. June 30, 2015); Haw. Floriculture & Nursery
Assn v. Cty. of Haw., 2014 WL 6685817, at *46 (D. Haw. Nov. 26, 2014); Syngenta Seeds, Inc.
v. Kauai, 2014 WL 4216022, at *89 (D. Haw. Aug. 25, 2014).
274. See generally KCC 2223; HCC 14-128; Maui Initiative, supra note 242.
275. See generally KCC 2223.
276. See generally HCC 14-128. Hawaii Countys ban would have allowed closed facility
cultivation and testing of GMOs and also allowed companies to apply for emergency
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ordinance would have imposed a temporary ban on most GMOs

cultivated and field-tested in Maui County until certain health and
environmental impact studies were conducted and the County was
assured that GMO cultivation was safe and beneficial for the County
277
and its inhabitants. All three local ordinances presumably intended
to capture all types of GMOs cultivated and tested in their counties,
including biopharmaceutical crops, pesticide-incorporated-plants, and
GM plants or crops that are not engineered with or considered plant
278
pests and thus not regulated by the federal PPA.
In contrast, there are no Hawaii state laws that address the
279
regulation of GMOs. In fact, there is only one law in Hawaii that
even mentions them, and this law simply requires field-test applicants
to submit a redacted copy of their federal permit application to the
280
state. There are no state laws addressing biopharmaceutical GMOs,
PIPs, unregulated or deregulated crops under the PPA, or any type of
281
There are also no state
GM crop, plant, or organism whatsoever.
laws addressing public disclosure or annual reporting of GMOs,
closed area cultivation of GMOs, or the need to conduct a state
282
EPHIS prior to permitting the cultivation of GMOs.
Because no
state laws address the same subject matters as the local GMO
ordinances, a proper field pre-emption analysis should have ended
283
there.
Nevertheless, in all three Hawaii pre-emption decisions, the
district court found the subject matter prong of the field pre-emption
test satisfied by framing the subject matter of the local ordinances
284
more expansively. Instead of addressing the regulation of GMOs,
the district court determined that the subject matter of Ordinance 960
exemptions to the ordinances prohibition on open air cultivation and testing. Id.
277. Maui Initiative, supra note 242.
278. See Montgomery, supra note 36, at 352 (GM crops engineered with genetic materials
that are not considered to be plant pests themselves are not regulated under the PPA).
279. See TAYLOR, TICK & SHERMAN, supra note 71, at 176; Gibson, supra note 5, at 245,
257 (Hawaii has not enacted any legislation to regulate future GE release of biopharmaceuticals
or open-air field testing).
280. HAW. REV. STAT. 321-11.6 (2003).
281. Gibson, supra note 5, at 24546, 257, 28083.
282. Reply Brief for Intervenor-Defendants-Appellants, supra note 208, at 2628.
283. See, e.g., Richardson v. City & Cty. of Honolulu, 868 P.2d 1193, 1210 (Haw. 1994)
(finding that because a local ordinance had no counterparts in the various state statutes cited for
a pre-emption challenge, the local ordinance could not be said to cover the same subject matter
embraced within an existing statutory scheme).
284. Reply Brief for Intervenor-Defendants-Appellants, supra note 208, at 26.
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285
was more specifically about identifying potentially harmful plants.

Similarly, Ordinance 13-121s subject matter was construed to be
about protecting against plants that may injure or harm agriculture,
286
the environment, or public health.
By generalizing the local ordinances subject matters to be about
general plant pest regulation rather than about GMOs, the district
court was then able to look to existing state agricultural laws to find a
287
comprehensive regulatory scheme. Specifically, in all three preemption decisions, the district court determined that the states
existing noxious weed, plant quarantine, and seed certification laws,
none of which regulate GMOs, established a comprehensive
regulatory scheme meant to be uniform and exclusive as to all plant
288
regulation in the state.
The district courts finding, in all three pre-emption decisions, of
a comprehensive regulatory scheme sufficient to preclude local GMO
regulation based on general agricultural laws and authorizations is
flawed for several reasons. First, as indicated above, none of the
agricultural laws cited by the court in any of the three pre-emption
decisions address or contemplate the regulation of agricultural
biotechnology. Thus, even if there is a regulatory scheme in Hawaii
governing some aspects of plant regulation, the regulatory scheme
can hardly be said to be comprehensive. At the very least, there
remains room for local regulation, particularly in an area so clearly
overripe for substantive legislation. Second, the laws of plant
quarantine, noxious weed, and seed purity are separate laws enacted
at different times by the legislature to address different agricultural
issues, with many enacted before the advent of agricultural
289
biotechnology. Although certainly a state could build upon existing
statutes at different times and still create a comprehensive
regulatory scheme, the loosely related laws governing plant
285. See Syngenta Seeds, Inc. v. Cty. of Kauai, No. 1400014 BMK 2014 WL 4216022, at * 9
(D. Haw. Aug. 25, 2014) (noting that although the provisions relating to the identification of
plants that may be harmful to the environment does not speak directly to reporting
requirements for GMO crops, the statutory scheme is so framed to encapsulate the GMO
notification provision in Ordinance 960 and is thus pre-empted by state law).
286. Haw. Floriculture & Nursery Assn v. Cty. of Haw., No. 1400267 BMK, 2014 WL
6685817, at *5 (D. Haw. Nov. 26, 2014); see also Robert Ito Farm, Inc. v. Cty. of Maui, Nos. 14
00511 SOM/BMK, 1400582 SOM/BMK, 2015 WL 4041480, at *1620 (D. Haw. June 30, 2015).
287. Syngenta, 2014 WL 4216022, at *9; Haw. Floriculture, 2014 WL 6685817, at *5.
288. Syngenta, 2014 WL 4216022, at *9; Haw. Floriculture, 2014 WL 6685817, at *5; Robert
Ito Farm, Inc., 2015 WL 4041480, at *1620.
289. See, e.g., HAW. REV. STAT. 150A-6 (1973) (prohibiting plant importation).
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111
quarantine, noxious weed regulation, and seed certification instead

suggests a factual scenario similar to Richardson v. City and County of
290
Honolulu.
In Richardson, the Hawaii Supreme Court specifically
declined to find field pre-emption of a local ordinance that addressed
condominium conversions based only on the existence of a series of
loosely connected state laws enacted at different times and covering
subject matter areas somewhat related to, but not directly touching
291
upon, the area specifically covered by the challenged ordinance. In
declining pre-emption, the Richardson court distinguished two earlier
292
cases where implied pre-emption was found. In those earlier cases,
the Richardson court indicated that field pre-emption was justified
because the state laws: (1) evidenced a comprehensive universe of
regulation that precisely touched upon the subject matter area of the
local ordinance; and (2) expressly indicated an intent to apply to all
293
aspects of the regulated subject matter(s).
In contrast to those earlier cases where state field pre-emption
was proper, the noxious weed, plant pest, and seed certification laws
of Hawaii do not create a comprehensive universe regulating all
294
aspects of plant regulation, let alone the galaxy of GMOs. Nor is
there any explicit language in any of the loosely connected statutes
indicating a legislative intent to apply to all aspects of plant
regulation, unlike the pre-emptive state statutes clearly distinguished
295
in Richardson.
While it is true that pre-emption may occur even
where the state statute does not expressly pre-empt local authority to
regulate in the precise area sought to be regulated, the state statutory
scheme must nevertheless fully embrace that subject matter in
order to justify field pre-emption under Hawaiis comprehensive
296
Here, none of the various Hawaii state
regulatory scheme test.
noxious weed, plant pest, and seed certification laws fully embrace
290. Richardson v. City & Cty. of Honolulu, 868 P.2d 1193, 120809 (Haw. 1994).
291. Id.
292. Id. (distinguishing In re Application of Anamizu, 481 P.2d 116 (Haw. 1971), which
addresses the statewide licensing of building contractors, and Citizens Util. Co. v. Cty. of Kauai,
814 P.2d 398 (Haw. 1991), which addresses the state-wide regulation of public utilities).
293. Id.
294. See id. at 1209.
295. Compare HAW. REV. STAT. 150A-6, and HAW. REV. STAT. 152-6, with HAW. REV.
STAT. 147-121 (lacking explicit language granting the state regulatory authority), and
Richardson, 868 P.2d at 120809 (finding that explicit language indicated state authority to preempt local law).
296. Richardson, 868 P.2d at 120809.
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297
the regulation of GMOs. Nor does repeating the artificial construct

of an existing comprehensive regulatory scheme in all three preemption decisions make it any more persuasive. Indeed, the fact that
seventeen states have already seen the need to expressly pre-empt
local GMO regulation, rather than rely upon their similarly existing
noxious weed and plant pest laws to impliedly do the job, further
suggests that the district courts findings of a comprehensive
regulatory scheme sufficient to pre-empt all three local GMO
298
ordinances are legally dubious. Because there is no comprehensive
regulatory scheme governing all plant regulation, let alone all GMOs
in Hawaii, the district court should have declined to find state preemption of all three local ordinances.
2. There is no evidence of a legislative intent to preclude local
GMO regulation.
Furthermore, even if there were an existing comprehensive
regulatory scheme governing certain aspects of plant regulation in
Hawaii, a proper field pre-emption analysis requires that a legislative
intent to fully occupy the area and preclude concurrent local
299
regulation also be shown.
In other words, the state regulatory
scheme has to express or imply a legislative intent to not only be
uniform, but also exclusive, leaving no room for concurrent local
300
regulation.
In each Hawaii pre-emption decision, the district court
determined that legislative intent to pre-empt all local regulation of
GMOs was established through (1) existing agricultural laws, (2) the
existence of a state-level agricultural advisory board, and (3) Article
XI section 3 of the Hawaii Constitution, which provides in pertinent
part that:
The State shall conserve and protect agricultural lands, promote
diversified agriculture, increase agricultural self-sufficiency and
assure the availability of agriculturally suitable lands. The
297. See Robert Ito Farm, Inc. v. Cty. of Maui, Nos. 1400511 SOM/BMK, 1400582
SOM/BMK, 2015 WL 4041480, at *19 (D. Haw. June 30, 2015) (asserting that pre-emption was
justified even if the various agricultural laws fail to explicitly mention GMOs because the scope
of those state statutes and regulations reach GE organisms); but see Richardson, 868 P.2d at
1209 (failing to analyze the extent of the reach or whether this constitutes a full embrace of
the local regulation subject matter as required by Hawaii field preemption law).
298. See supra pt. III.C.
299. Id.; see also Pac. Intl Servs. Corp. v. Hurip, 873 P.2d 88, 9394 (Haw. 1994).
300. Richardson, 868 P.2d at 1209.
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113
legislature shall provide standards and criteria to accomplish the

301
foregoing.
Yet, there are a number of problems with the courts reliance

upon these materials to prove a legislative intent to preclude local
GMO regulation. First, the existing agricultural laws, most of which
pre-date the existence of agricultural biotechnology, cannot honestly
evidence a legislative intent to exclude all future local regulation of a
technology the legislature did not even know would exist. Second,
the simple fact that a state-level agricultural advisory board exists to
discuss and advise on agricultural issues does not indicate a legislative
intent to exclude local counties from also participating in local
agricultural decision-making. Indeed, a number of federal advisory
boards on biotechnology and agricultural biotechnology currently
exist and/or have existed since the advent of this technology; this fact
has never been used by any court to indicate an intent to preclude
states from also regulating in these same areas within their own
302
borders.
Finally, although Article XI section 3 of the Hawaii Constitution
does indicate that the state has a general responsibility to preserve
and promote agriculture, and this particular constitutional provision
does not explicitly mention local counties, this silence on local
participation hardly indicates any intent to preclude all local
participation in local agricultural decision-making. In fact, in
Syngenta, the district court readily acknowledged that Hawaiis
Constitution also provides that the state has a responsibility in other
subject matter areas of statewide interest, such as housing and public
health, but that these constitutional expressions of general
responsibility did not serve to remove local authority to also regulate
303
in those areas.
Nevertheless, without sufficiently explaining the
reason for distinguishing agriculture from housing or public health,
the district court concluded that this declaration of general
responsibility, coupled with various agricultural laws, indicated a
legislative intent to be exclusive in the particular area of plant
304
regulation and/or agriculture.
301. Syngenta Seeds, Inc. v. Cty. of Kauai, No. 1400014 BMK, 2014 WL 4216022, at *3 (D.
Haw. Aug. 25, 2014); Haw. Floriculture & Nursery Assn v. Cty. of Haw., No. 1400267 BMK,
2014 WL 6685817, at *36 (D. Haw. Nov. 26, 2014).
st
302. See, e.g., U.S. Dept of Agric., Advisory Committee on Biotechnology & 21 Century
Agriculture,
http://www.usda.gov/wps/portal/usda/usdahome?contentidonly=true&contentid=
AC21Main.xml (last visited Nov. 1, 2015).
303. Syngenta, 2014 WL 4216022, at *4.
304. Id. at *810.
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The district courts determination of exclusivity, however, flies in

the face of a number of other statutory and constitutional provisions
that explicitly or implicitly recognize local county participation in
305
regulating agriculture. Specifically, Hawaii Revised Statute section
205-43 explicitly recognizes local county authority to participate in
agricultural policy and land use decision-making, and Hawaiis
Constitution places an affirmative duty on local counties to preserve
306
Hawaiis natural resources including the air, water, and land. It is
difficult to imagine how a local county could fulfill its obligation to
preserve Hawaiis natural resources if it is not permitted to regulate
on any aspect of agriculture.
In addition to there being no evidence of any general legislative
intent to preclude local counties from participating in local
agricultural decision-making in any of the state agricultural laws,
authorizations, or the general constitutional provision cited by the
district court, extrinsic evidence actually supports a finding of no
legislative intent to pre-empt local GMO regulation in particular.
Specifically, prior to enacting Ordinance 13-121, Hawaii County had
already enacted local ordinances precluding cultivation of GMO taro
307
and GMO coffee.
Presumably aware of these existing Hawaii
County ordinances already regulating GMOs, the state legislature
308
had never acted to pre-empt them. Although the court in Robert Ito
Farm specifically rejected the argument that legislative silence
following enactment of local GMO regulations supported a legislative
intent not to preclude, it is difficult to understand how the district
court ascribed weight to the legislative silence in Article XI section 3
of the Constitution regarding local participation in agricultural
decisions, yet determined that legislative silence following enactment
of specific local GMO regulations did not support any inference of an
305. Id. at *4-10.

306. See HAW. REV. Stat. 205-43 (State and county agricultural policies, tax policies, land
use plans, ordinances, and rules shall promote the long term viability of agricultural use of
important agricultural lands.); HAW. CONST. art. XI 1 provides in pertinent part:
For the benefit of present and future generations, the State and its political
subdivisions shall conserve and protect Hawaiis natural beauty and all natural
resources, including land, water, air, minerals, and energy sources, and shall promote
the development and utilization of these resources in a manner consistent with their
conservation and in furtherance of the self-sufficiency of the State. All public natural
resources are held in trust by the State for the benefit of the people.
307. See Haw. Cty. Code 14-92 (banning cultivation and testing of GMO taro); id. 14-93
(banning cultivation and testing of GMO coffee).
SOM/BMK, 2015 WL 4041480, at *55 (D. Haw. June 30, 2015).
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309
intent not to preclude. Because the state legislature itself declined

to expressly pre-empt prior local GMO regulation, the district courts
findings of intent to preclude suggests that the district court
substituted its own judicial judgment in the absence of a legislative
310
one.
Finally, by determining that the states quarantine, noxious weed,
and seed certification laws, coupled with the states constitutional
responsibility to promote agriculture, evidenced a legislative intent
to occupy the entire field of plant regulation and agriculture, the
district court created enormous uncertainty as to the legality of future
local regulation that might touch on any aspect of plant regulation
and/or agriculture. A judicial determination of occupation of the
field thereafter effectively sets a ceiling beyond which no local
311
regulation can go. If the district court indeed intended to pre-empt
all local regulation of agriculture or plant regulation, its anti-localist
decisions cannot be reconciled with existing laws explicitly
recognizing local participation in agriculture, land-use, and
312
conservation decision-making. Alternatively, if the court intended
only to preclude local regulation of a favored industry, its preemptive carve-out was done without any legitimate basis for field pre313
emption under existing Hawaii law.
309. Id.
310. Vaubel, supra note 180, at 685. In addition to the pre-existing local GMO regulations
in Hawaii County, the district court in Robert Ito Farm also ignored the fact that two GMO bills
that would have precluded local regulation failed to pass in the state legislature just prior to the
courts final pre-emption decision, which also suggests that the legislature, as a whole, had no
intent to preclude local regulation. Id.
312. See HAW. REV. STAT. 205-43; HAW. CONST. art. XI, 1.
313. In the Syngenta decision, the federal district court also found that Kauai Countys
pesticide provisions contained in Ordinance 960 were also preempted by the existence of
various Hawaii state pesticide laws constituting a comprehensive regulatory scheme intending to
be uniform and exclusive throughout the state. See Syngenta Seeds, Inc. v. Cty. of Kauai, No.
1400014 BMK, 2014 WL 4216022, at *58 (Aug. 25, 2014). While there are some out-of-state
cases that support the district courts implied pre-emption decision on this issue, other courts
have declined to find implied pre-emption of local pesticide regulation solely on the basis of
existing state regulation. See, e.g., Porter, supra note 4, at 14 (discussing People v. Cty. of
Mendocino, 683 P.2d 1150 (1984) where the court declined preemption of local pesticide
ordinance despite existence of state statute); but see Town of Wendell v. Atty Gen., 476 N.E.2d
585 (Mass. 1985) (state statute pre-empted local pesticide ordinance). Here, because Ordinance
960 covered subject matter areas not covered by any Hawaii state pesticide law (e.g., the
establishment of buffer zones between pesticide application areas and sensitive areas), the
district court should have required the state of Hawaii to make any legislative intentions to preempt local pesticide regulation explicit. Nonetheless, this article does not address this aspect of
the Syngenta decision because the author believes that Kauai County could have more properly
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B. Federal PPA Pre-emption of Ordinance 13-121 and Maui Countys

proposed GMO ordinance
In the Hawaii Floriculture decision, the district court magistrate
determined that Hawaii Countys Ordinance 13-121 was also
314
expressly pre-empted, in part, by the federal Plant Protection Act.
Seven months later, in Robert Ito Farm, another judge within the
same court determined that Maui Countys proposed ordinance was
not only expressly pre-empted by the PPA, but it was also impliedly
315
pre-empted.
These federal pre-emption determinations may be
even more concerning for future GMO regulation cases because they
would also preclude states from regulating many GMOs wholly
316
intrastate.
1. Express Federal Pre-Emption of Hawaii Countys Ordinance
13-121
In conducting any federal pre-emption analysis, a court must first
317
begin with the presumption that the state or local regulation is valid.
In addition, where Congress enacts an express pre-emption provision,
a court should construe the provision in a way that disfavors preemption. In fact, the courts analysis must be limited to the preemption provision, which defines the pre-emptive reach of the
318
statute.
The express pre-emption provision of the Plant Protection Act
provides that:
Except as provided in paragraph (2), no State or political
subdivisions of a State may regulate the movement in interstate
commerce of any article, means of conveyance, plant, biological
control organism, plant pest, noxious weed, or plant product in
order to control a plant pest or noxious weed, eradicate a plant pest
or noxious weed, or prevent the introduction or dissemination of a
biological control organism, plant pest, or noxious weed, if the
Secretary has issued a regulation or order to prevent the
dissemination of the biological control organism, plant pest, or
addressed the problems of pesticide applications associated with GMO operations by regulating
or banning GMOs directly. See, e.g., Robert Ito Farm, Inc., 2015 WL 4041480, at *21.
314. Haw. Floriculture & Nursery Assn v. Cty. of Haw., No. 1400267 BMK, 2014 WL
6685817, at *79 (D. Haw. Nov. 26, 2014).
315. Robert Ito Farm, Inc., 2015 WL 4041480, at *41.
316. Id.; see also Whitfield, Court Doubles Down, supra note 14.
317. Cippolone v. Liggett Grp., Inc., 505 U.S. 504, 516 (1992).
318. Cippolone, 505 U.S. at 517.
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319
noxious weed within the United States.
A plain reading of this express pre-emption provision suggests

that two requisite elements must be present before federal preemption will occur. First, the state or political subdivision must seek
to regulate a specified articles movement in interstate commerce
(in order to control, eradicate, or prevent the introduction or
dissemination of the specified article). Second, the Secretary of
Agriculture must have already issued a regulation or order to
prevent the dissemination of the same plant pest or noxious weed
within the United States.
As a local ordinance seeking only to prohibit the open air testing
and cultivation of most GMOs in Hawaii County, Ordinance 13-121
should have been beyond the reach of the PPAs express pre-emption
provision. Certainly, Hawaii County was not attempting to regulate
the movement of any federally regulated article in interstate
320
commerce as defined by the PPA.
Nonetheless, in Hawaii
Floriculture, the district court ignored the plain language of the
express pre-emption provision, as well as the PPAs own definitions
of interstate and interstate commerce, which clearly refer to
movement from one State to another, in order to preclude even
321
wholly intrastate regulation.
Indeed, because the PPAs specific
definition of interstate commerce contradicted the district courts
expansive pre-emption interpretation precluding intrastate
regulation, the court referred to the general Findings section of the
322
PPA for support. In the Findings section, the PPA indicates that
all plant pests or noxious weeds regulated under the statute are in or
323
affect interstate commerce. Using this general findings provision,
319. 7 U.S.C. 7756(b)(1) (2006). 7 U.S.C. 7756(b)(2) provides exceptions to the

prohibition on state and local regulation of regulated articles in interstate commerce where the
state or local regulations are consistent with the federal regulations or where the state or local
government can show special need.
320. The Plant Protection Act, 7 U.S.C. 7702(6) (2006), provides that the term
interstate means: (A) from one State into or through any other State; or (B) within the
District of Columbia, Guam, the Virgin Islands of the United States, or any other territory or
possession of the United States. Section 7702(7) provides that the term interstate commerce
means trade, traffic, or other commerce: (A) between a place in a State and a point in another
State, or between points within the same State but through any place outside that State; or (B)
within the District of Columbia, Guam, the Virgin Islands of the United States, or any other
territory or possession of the United States.
6685817, at *79 (D. Haw. Nov. 26, 2014).
322. Id.
323. 7 U.S.C. 7701(9) (2006).
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the district court reasoned that, although the express pre-emption

provision referred only to a prohibition on state or local regulation of
certain federally regulated articles in interstate commerce, because
all plant pests regulated under the PPA also affect commerce,
states and local governments would also be precluded from regulating
PPA-regulated plant pests even where no actual interstate movement
324
is involved.
In addition, although many commentators have assumed that the
second element of the express pre-emption test would require further
action by the Secretary (or a proxy) to affirmatively regulate a
particular article, such as the issuance of an APHIS permit for a
particular GM crop or plant, the district court interpreted this second
element of the express pre-emption provision expansively, finding
that the promulgation of the general administrative regulations of the
PPA itself was the only issuance needed to establish the second
325
element of this test.
The district courts finding that local regulation of GMOs is preempted by an express provision meant, by its own terms, to prohibit
the regulation of movement in interstate commerce should be
rejected. By ignoring precise definitions and relying instead on
general statements within the Findings section of the PPA, the
court disregarded its own obligation to narrowly construe express
pre-emption provisions and to read them in a way that disfavors pre326
emption.
2. Federal Pre-Emption of Maui Countys Proposed GMO
Ordinance
In its final pre-emption decision, the district court in Robert Ito
Farm stretched the boundaries of a legitimate federal pre-emption
analysis even further than the court in Hawaii Floriculture, this time
finding that Maui Countys proposed GMO ordinance was not only
324. Id.
325. Haw. Floriculture, 2014 WL 6685817, at *89 (finding that because the Secretary of
Agriculture issued the regulations in 7 C.F.R 340.0 (2015), which restrict the introduction of
regulated articles generally, the Secretary had issued a regulation preventing the dissemination
of that plant pest or noxious weed, which satisfied the second part of the PPAs express preemption test).
326. See Altria Grp., Inc. v. Good, 555 U.S. 70, 77 (2008) (When the text of a pre-emption
clause is susceptible of more than one plausible reading, courts ordinarily accept the reading
that disfavors pre-emption.); Cippolone v. Liggett Grp., Inc., 505 U.S. 504, 518 (1992) ([W]e
must construe [preemption] provisions in light of the presumption against the preemption of
state police power regulations.).
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expressly pre-empted by the PPAs express pre-emption provision,

but also impliedly pre-empted because: (a) the proposed local
ordinance prohibiting GMO cultivation conflicted with existing PPA
regulations permitting the introduction of GMOs under certain
conditions; and (b) the proposed local GMO ordinance frustrated
the very purpose of the PPA to provide a national standard governing
327
plant pest or noxious weed movement in interstate commerce.
There are a number of problems with the district courts
expansive federal pre-emption analysis. First, as noted earlier, when
conducting a federal pre-emption analysis involving an express preemption provision, a court must first construe the express provision
328
narrowly, in a way that disfavors pre-emption. In addition, where
Congress enacts an express provision defining the reach of express
pre-emption, matters beyond the reach of the express provision are
329
not pre-empted.
In Robert Ito Farm, the court not only read the
express pre-emption provision so expansively so as to remove any
meaning from the provision, it also impermissibly searched for
additional bases on which to find pre-emption, rather than relying
upon the limits contained within the express pre-emption provision
330
itself.
The district court first determined that Maui Countys proposed
local GMO ordinance was expressly pre-empted, not because of the
actual language of the express pre-emption provision itself, which the
court declined to parse, but because the local ordinance purportedly
directly conflicted with federal agency (APHIS) regulations issued in
association with the PPA, which permit introduction of certain
GMOs into the environment (i.e., through the APHIS permitting or
notification procedures), while the local ordinance attempted to ban
331
them.
In essence, the courts determination means that once a
GMO is regulated by APHIS and permitted to be introduced into
the environment, any state or local regulation that prohibits these
same GMOs, even if the prohibition is wholly intrastate (and even if
the local or state regulation is not intended to protect against
potential plant pest risk issues but to address other state or local
issues or concerns), the state or local regulation directly conflicts
327. Robert Ito Farm, Inc. v. Cty. of Maui, Nos. 1400511 SOM/BMK, 1400582
SOM/BMK , 2015 WL 4041480, at *915 (D. Haw. June 30, 2015).
328. Cippolone, 505 U.S. at 518.
329. Id. at 517.
331. Id. at *914.
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332
with the PPA and is thus pre-empted by federal law.

This expansive interpretation of federal express pre-emption
should be rejected for several reasons. First, the court seemed to
outright ignore the language of the express pre-emption provision
itself, which precludes only state or local regulation that involves the
attempted regulation of movement in interstate commerce of PPA333
regulated articles.
By looking only to APHIS-promulgated
regulations for express pre-emption support, the court effectively
removed the very meaning of the PPAs express pre-emption
provision, since the APHIS regulations are not concerned with
defining the permissible limits of state or local authority to regulate
PPA-regulated articles, while the express pre-emption provision was
334
included by Congress for that very purpose. Indeed, by ignoring the
express pre-emption provision and using APHIS regulations to justify
a conflict pre-emption determination, the court in effect gives GMO
growers who receive a federal APHIS permit or who simply notify
APHIS of an intent to grow GMOs a blanket right to grow their
GMO crops wherever they choose, without any state or local
interference, since under the courts interpretation, the state or local
government cannot prohibit what APHIS permits (or even
335
acknowledges). However, if Congress intended to remove all state
or local authority to regulate GMOs regulated by the PPA, it
certainly could have stated its intention to pre-empt all intrastate
regulation much more clearly. The fact that the express pre-emption
provision specifically prohibits state and local regulation of
movement in interstate commerce suggests that Congress only
meant to preclude states and local governments from interfering with
the movement of regulated articles in interstate commerce i.e., from
336
one state to another. Obviously, GMOs that are grown in the local
counties of Hawaii are not in interstate commerce, as clearly
337
defined by the PPA. The mere fact that certain GMOs may at some
point move in interstate commerce does not somehow transform
wholly local regulation into a regulation on movement in interstate
332. Id.
333. 7 U.S.C. 7756(b)(1) (2006).
334. Id.; see Robert Ito Farm, Inc., 2015 WL 4041480, at *11 (If the Ordinance conflicts
with 7 C.F.R. 340.0, then the Ordinances conflicting provisions are pre-empted pursuant to 7
U.S.C. 7756(b).).
335. See id. (If the Ordinance conflicts with 7 C.F.R. 340.0, then the Ordinances
conflicting provisions are pre-empted pursuant to 7 U.S.C. 7756(b).).
336. 7 U.S.C. 7756(b)(1).
337. 7 U.S.C. 7702(6)(7) (2006).
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121
338
commerce.
The district courts finding of express pre-emption should be
reversed because (1) the express pre-emption provision of the PPA
should be interpreted plainly by its own terms; (2) the provision
clearly delineates what state and local governments can and cannot
regulate with respect to PPA-regulated articles; and (3) the proposed
Maui County local GMO ordinance did not attempt to exceed the
permissible scope of intrastate regulation.
In addition, although the court indicates that it had no need to
proceed to an implied pre-emption analysis, it elected to do so
anyway, despite its general obligation not to proceed beyond the
339
confines of the express pre-emption provision itself. Specifically, in
Robert Ito Farm, the court declared that even if there were no express
pre-emption of Maui Countys proposed local ordinance, the local
ordinance would be impliedly pre-empted because it frustrates the
purpose of the PPA, which the court determined to be about setting
a national standard governing the movement of plant pests and
340
noxious weeds in interstate commerce based on sound science.
Yet, in actuality, it appears that a local regulation that is also
concerned, in part, with prohibiting potential plant pests would be
complementary to the PPA, rather than frustrating to its purpose. In
addition, the claim that the PPAs primary purpose is to set a national
standard based on sound science is unpersuasive, given that
determinations of plant pest risks under APHIS regulatory
procedures are not based on sound science but rather on selfinterested determinations by the regulated GMO entities
341
themselves. Most significantly, even if the PPAs purpose was to set
a national standard governing the movement of plant pests and
weeds in interstate commerce, it is difficult to understand how the
local regulation of GMOs in Maui County frustrates this purpose.
For all of these reasons, the district courts implied pre-emption
analysis should also be rejected.
The Hawaii pre-emption decisions are currently on appeal to the
342
Ninth Circuit.
If not reversed, these three pre-emption decisions
338. 7 U.S.C. 7756(b)(1).

339. Cippolone v. Liggett Grp., Inc., 505 U.S. 504, 517 (1992) (Congress enactment of a
provision defining the pre-emptive reach of a statute implies that matters beyond that reach are
not pre-empted.).
341. See supra pt. II.A.
342. See, e.g., Brief for Defendant-Appellant, Syngenta Seeds, Inc. v. Cty of Kauai, No. 14-
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are likely to have a significant adverse impact on all future local and
state GMO regulation. Not surprisingly, the removal of all local
county authority to regulate GMOs by a single district court has
prompted many Hawaii citizens and GMO activists to take their
343
battle to the state legislature.
At the same time, despite preemption victories at the district court level, the GMO industry
continues to lobby the state legislature to expressly pre-empt local
344
authority to regulate GMOs.
At the time of this articles
completion, the Hawaii legislature had not yet enacted any express
pre-emption law, and two bills introduced in the 2014 legislative
session that would have pre-empted GMO local regulation failed to
345
pass.
Still, the Hawaii governors assertion that GMO regulation
should be conducted at the state level and significant industry
influence in the legislature both suggest that Hawaii may soon join
346
the express-pre-emption states.
For the reasons discussed below,
however, Hawaii should decline to exercise its denial authority, unless
it is prepared to enact substantive GMO legislation of its own.
V. WHY LOCAL GOVERNMENTS SHOULD BE ALLOWED TO
REGULATE GMOS ABSENT SUFFICIENT
STATE OR FEDERAL OVERSIGHT
Regardless of the ultimate outcome in the Hawaii pre-emption

decisions, the battle over local GMO regulation throughout the
United States is far from over. Citizens concerned with underregulation of GMOs will continue to seek ways to regulate or even
ban them, and the agricultural biotech industry will continue to lobby
state legislatures to expressly preclude local regulation, or challenge
any exercise of local regulatory authority through the courts.
However, courts should resist finding an implied state intent to
pre-empt local authority absent either: (a) a legitimate state
regulatory scheme explicitly regulating GMOs; or (b) an express preemption provision by the state legislature. First, as should be evident
by the Hawaii pre-emption decisions, a judicial determination of field
pre-emption of local GMO ordinances smacks of judicial
overreaching when there are no comprehensive state schemes
16833, 2014 WL 7498032 (9th Cir. Dec. 31, 2014).
343. See Ludwig, Headed to Honolulu, supra note 206.
344. Id.
345. See Robert Ito Farm, Inc. v. Cty. of Maui, No. 14-00511 SOM/BMK, 2015 WL 1279422,
at *2 (D. Haw. Mar. 19, 2015).
346. Front Lines, supra note 199.
Fall 2015]
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123
governing GMOs. If legislative intent is the true cornerstone of an

implied pre-emption analysis, general agricultural laws governing
plant quarantines and noxious weeds simply do not evidence a
347
legislative intent to preclude all future local GMO regulation.
These state laws often pre-date biotechnology and were likely
enacted to solve a particular problem unrelated to GMOs as they do
not address many of the public health, environmental, and economic
concerns specific to GMOs.
Second, state legislatures are perfectly capable of expressly
denying their political subdivisions the authority to regulate in
specified areas. Courts should therefore require that any intent to
preclude local GMO regulation be explicit. Absent an express intent
to preclude, courts should not be in the business of denying local
authority and choice to regulate GMOs. To do so is an unwarranted
judicial intrusion into the very crux of local home rule authority,
and particularly the authority of a local government to exercise its
police powers to protect its citizens from harm to life, health, and
348
property.
State legislatures should also exercise extreme caution before
denying local governments the authority to regulate, particularly in
349
health and safety areas traditionally reserved to them. Indeed, the
growing trend towards express state pre-emption of issues once
readily acknowledged as areas of local concern has already had a
devastating impact on both local and direct democracy and on state350
local relations. Express state pre-emption has now prevented many
local governments, as well as local communities through the direct
democracy (i.e., direct voter participation) process, from participating
in decisions that unquestionably affect their health, safety, and
351
welfare.
For example, a number of states have now expressly
347. See supra pt. IV; see generally Diller, supra note 176, at 1150 (calling field pre-emption
aggressively anti-localist).
348. See HAW. REV. STAT. 46-1.5 (2015); see also Ludwig, Headed to Honolulu, supra
note 206 (noting a state legislators attempt to strike the words health and life from the
counties current regulatory authority).
349. See Hillsborough Cty. v. Automated Med. Labs, Inc., 471 U.S. 707, 708 (1985) (The
regulation of health and safety matters is primarily and historically a matter of local concern.).
350. See generally Porter, supra note 4. Direct democracy is the process whereby people
participate directly in making binding decisions on public policy by voting on proposed
measures, such as through the ballot initiative, referendum, or recall process. See generally
HENRY S. NOYES, THE LAW OF DIRECT DEMOCRACY 3 (2014).
351. See, e.g., Porter, supra note 4, at 13 (noting that 43 states have some form of state law
that pre-empts local governments ability to regulate pesticides); Rita Barnett-Rose,
Compulsory Water Fluoridation: Justifiable Public Health Benefit or Human Experimental
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denied local and direct public participation on important public

health and environmental issues such as aerial pesticide spraying,
compulsory water fluoridation, permissible smoking area bans, and
352
local hazardous waste cleanups.
Many of these issues are of
significant concern to local communities, who often want their local
governments to impose more stringent standards on the regulated
entities than the state or federal governments require in their higher353
level regulatory schemes.
While denial of local authority through express pre-emption may
be justifiable to avoid duplication or conflict with an existing state
regulatory scheme, the denial of local authority is not justifiable
where there is no comprehensive state regulatory scheme occupying
the entire field of the subject matter sought to be regulated locally. In
those cases, denial authority is often exercised as a result of successful
lobbying by businesses and industries seeking to escape the more
354
stringent oversight of local regulation. The unfortunate result of
express pre-emption solely at the behest of industry may be the
creation of regulatory vacuums where regulatory oversight may in
355
fact be most warranted.
Thanks to three decades of under-regulation and explosive
growth, the agricultural biotech industry has been instrumental in
356
getting various states to pre-empt local GMO regulation.
Pre357
emption is typically achieved through a states regulation of seed.
Specifically, by amending its seed law and declaring the regulation of
seed to be an issue of state-wide concern, a state effectively
removes all authority to regulate GMOs at the local level, without the
358
state having to enact any substantive GMO legislation of its own.
Research Without Informed Consent?, 39 WM. & MARY ENVTL. L. & POLY REV. 201, 20607
(2014) (noting that legislatures and executive branches have maneuvered around public
resistance to fluoridation programs by mandating fluoridation by executive fiat or by enacting
state-wide compulsory water fluoridation schemes that remove any ability to put the issue to a
local public vote).
352. Id.
353. Id.
354. Diller, supra note 176, at 113940 ([E]xamples abound of state legislatures overriding
[local] ordinances at the behest of the business community.); Porter, supra note 4, at 1315.
356. Porter, supra note 4, at 15; Bailey, supra note 188.
357. Porter, supra note 4, at 15; Bailey, supra note 188 (The virtually identical language
used in different states pre-emption bills illustrates a systematic and ordered approach to
stifling community decision-making by passing laws that prevent local governments [from]
regulating genetically modified seeds.).
358. Porter, supra note 4, at 15; Bailey, supra note 188 ([S]tate preemption laws can do
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125
Yet, there are many reasons why states should decline to preempt local GMO regulation in this way. First, allowing local
governments to experiment with local GMO policies may help to
generate innovative solutions that balance citizen and industry
interests and that may ultimately find application on a wider scale.
Second, because many of the actual adverse impacts of GMOs are
first felt locally, allowing local governments (and local communities)
to participate in finding solutions will enhance local democracy,
community diversity, and industry responsiveness to legitimate local
concerns.
A. Permitting Local GMO Regulation Fosters Policy Innovation
Local government scholars have noted that local governments
are often at the forefront of innovative policies that have gone on to
359
spur others to also take action. A regulation instituted by one local
government may end up proving to be so successful that it may end
360
up percolating out to other cities and up to the state level.
Some of the most innovative policies now implemented on a
statewide or even national level were, in fact, the result of local
361
government innovation.
State-wide smoking bans in restaurants,
and domestic partnership benefit laws, for example, were first birthed
362
through local innovation.
Of course, the converse could also be
true: an experimental local regulation or policy could prove to be
unworkable upon implementation. Local experimentation would
allow it to be dismantled far more easily than after a state-wide roll
out. Accordingly, local governments might best be seen as policy
incubators, and given room to experiment with new and interesting
policies that, for whatever reason, the state and federal governments
363
may be unprepared or politically unable to adopt.
Indeed, by
allowing local experimentation, local governments may prove the
value of a particular policy, which may in turn compel state
two things. They can overturn the will of the people in the event an initiative has passed, and
they can prevent the introduction of laws on the same subject from being introduced in the
future.).
359. See, e.g., Diller, supra note 176, at 111819.
360. Id.
361. Id.
362. Id.
363. Id. at 112930 (Cities often lead in setting policy that Congressmen and state
legislators have failed to address, whether due to greater policy risk aversion or fear of
offending entrenched and well-financed interest groups that wield significant interest.).
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364
legislatures (or even Congress) to act as well.

Despite GMO proponents claims to the contrary, evidence is
mounting that GMOs present significant risks to public health, the
365
environment, and non-GM crops. Because federal agencies and
state legislatures as a whole remain unwilling to address these
significant risks and realities, allowing local governments the
authority to enact local GMO regulations may result in innovative
solutions to GMO concerns. For example, a local regulation that
requires a GMO producer to disclose reasonable information about
its GMO activities to local citizens or to establish reasonable buffer
zones between its activities and residential areas may prove to
assuage many local citizen concerns while also allowing the industry
to remain operational. It might also reduce reported incidents of
RUP illnesses or environmental harms. Similarly, a local regulation
requiring GMO closed container cultivation that proves to protect
against non-GM crop contamination might spur the GMO industry to
come up with larger-scale containment facilities. This could in turn
366
address nation-wide concerns about GMO contamination.
Moreover, GMO solutions that are successful in one local community
may also percolate out to other cities, towns, and counties. If that
were to happen, state legislatures or even Congress may recognize the
value of these local solutions and be persuaded to enact solutions on a
wider scale. Until that time, however, local GMO innovation and
regulation should be encouraged, not denied.
B. Permitting Local Regulation of GMOs Fosters Local Democracy,
Diversity, and Industry Responsiveness to Local Concerns
Beyond the benefits of policy innovation, allowing local
governments to regulate on issues of significant local concern
promotes local democracy, community diversity, and industry
responsiveness to community needs.
First, legitimate democracy requires that those bound by a
governmental action have the opportunity to participate in or
367
influence the decision making process. Thus, [t]here should be a
364. Id.
365. See supra pt. I and III; see also Strauss, Defying Nature, supra note 20, at 18 (Many of
these risks have already become a reality both in initial studies and alarming incidents.).
366. See supra pt. I and III.
367. See Richard Briffault, Home Rule for the Twenty-First Century, 36 URB. LAW 253, 260
61 (2004) (Democracy requires that those bound by a local government action have the
opportunity to participate in the local decision making process.).
Fall 2015]
2/9/2016 4:55 PM
127
broad presumption of local power to act on matters that affect the

368
Allowing local governments the
locality or the people within it.
ability to regulate on issues of local concern fosters democracy
because it allows local citizens the ability to participate in important
policy decisions in ways unavailable to them at the state or national
369
level.
Citizens have far more access to their local representatives
than their state or national counterparts, which enables their
370
In addition, citizens
participation in government decision-making.
are able to mobilize at the local level more easily and more cost
effectively than at state or national levels, where they may be easily
371
outspent and outmanned by industry lobbyists.
Local
representatives are also likely to be less influenced by the moneyed
special interests that often dominate state and national politics, and
372
thus are likely to be more responsive to citizen concerns.
Second, permitting local government regulation allows
communities to adopt policies that reflect their particular values,
373
needs, and concerns.
While a statewide regulation in areas of
traditionally local concern might be well-received in some areas, it
might be completely contrary to local preferences or needs in others.
Unless justified by a compelling statewide need for uniformity, states
should not jeopardize state-local relations by denying local
authority to regulate in areas of local concern simply for legislative
374
convenience. Giving local governments the authority to regulate on
issues of local concern, as long as those regulations do not harm
others outside of the local community, increases the likelihood that
375
people will be happy with their government.
As evidenced by the ongoing battle in Hawaii and in other
localities throughout the United States, the cultivation and testing of
GMOs is an issue of immense local concern, with significant impact
376
Removing local autonomy to determine
on local communities.
whether, and on what terms, to permit GMO cultivation and testing
368. Id. at 264.
370. Briffault, supra note 367, at 258.
371. Diller, supra note 176, at 1120; Briffault, supra note 367, at 258.
373. Briffault, supra note 367, at 264 (The essence of home rule is to enable people of
different communities to find different answers to the same questions, to tailor government
action to local needs, circumstances, and preferences.).
375. Briffault, supra note 367, at 259.
376. See supra pt. III.
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in that locality means that those most impacted by the GMO industry
and its under-regulation are least able to participate in the decision377
making process. Without the ability to participate in the decisionmaking process, local citizens become little more than the guinea
378
pigs in a grand experiment without their knowledge and consent.
Allowing local participation in GMO decision-making increases both
379
the effectiveness, and the legitimacy, of governmental action.
Finally, although businesses and industry are often the first to
challenge more stringent local regulation, local oversight is likely to
result in a more responsive and responsible industry. This in turn
could reduce much of the resentment felt by local communities
adversely affected by under-regulated or unregulated industry
operations. Not surprisingly, due to unprecedented under-regulation
of GM foods and crops and the GMO industrys refusal to either label
their GM products or provide local communities with important
information concerning their GMO operations, the GMO industry is
perceived by many to be an industry that is wholly unconcerned with,
380
and unaccountable to, local communities or consumers. There is a
risk that U.S. citizens may eventually reject agricultural
biotechnology altogether if this impression of industry arrogance and
single-minded focus on profits continues to spread among educated
381
citizens. Local GMO regulations that place reasonable restrictions
on the industry and that require industry responsiveness to
community health, environmental, and economic concerns would go a
382
long way towards citizen-industry reconciliation. It might also lead
377. Vaubel, supra note 180, at 652 (Ultimately, authorizing legislative definition of
municipal power fails to recognize the importance of municipal power as the vehicle for
municipal citizens to participate in decisionmaking.).
378. Strauss, Defying Nature, supra note 20, at 19; see also Bailey, supra note 188 (The
legislators introducing these bills concerning [GMO] seeds are not acting on behalf of the
people; they are acting despite the will of the people.).
380. See, e.g., Strauss, Defying Nature, supra note 20, at 29 (In the United States, the
public outrage at being denied a choice [about GMO consumption] has generated a grassroots
political effort to raise consciousness of consumers and alert them as to what they are not being
told, while advocating labeling.); McGarity, supra note 17, at 473 (The U.S. biotechnology
industry entered the GM foods debate with an arrogance reminiscent of the nuclear power
industry in the 1950s.).
381. See, e.g., Strauss, Defying Nature, supra note 20, at 29 (noting that European
opposition to GMOs was based on ethical grounds as a reaction to being denied a choice when
GMO and non-GMO varieties could not be differentiated); Hosmer, supra note 5, at 67172
(Protests such as Occupy Monsanto have increased in regularity and size and activists have
increased coordination with other state and nationwide initiatives.).
382. See McGarity, supra note 17, at 473 (The agricultural biotechnology industry will
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129
to a more ethically, scientifically, and environmentally responsible

industry.
CONCLUSION
The cultivation, field testing, and release of GMOs into the
environment and food supply continues to generate significant
383
concern throughout the United States.
While many other nations
have elected to proceed far more cautiously in incorporating
agricultural biotechnology into their agricultural operations, the U.S.
governments policies remain staunchly supportive of the industry
384
Critics believe that this myopic support
and its various products.
has resulted in a seriously deficient federal regulatory framework that
385
fails to protect human health or the environment.
Because states
have largely failed to fill the regulatory gaps left by the federal
framework, a small but growing number of local governments have
386
attempted to regulate GMOs locally.
However, local regulation
faces significant opposition from the GMO industry, which continues
to challenge local democracy through the courts and through
lobbying efforts aimed at persuading state legislatures to expressly
387
deny local authority. While a number of states have capitulated to
industry by expressly pre-empting local GMO regulation, the recent
federal district court decisions in Hawaii were the very first to
invalidate local GMO ordinances on the basis of implied pre388
emption. These implied pre-emption decisions should be reversed.
succeed only if the public is convinced that the industry and the regulatory agencies that
legislatures have created to protect consumers are trustworthy.).
383. See McGuire Woods, State of the GMO Union: Courts Address Localism, Federalism
Amid New Legislation, MCGUIRE WOODS (Jan. 23, 2015), https://www.mcguirewoods.com/
Client-Resources/Alerts/2015/1/State-of-the-GMO-Union.aspx (last visited Nov. 1, 2015)
(discussing current legislation and lawsuits throughout the U.S. on GMO issues).
384. See Strauss, Defying Nature, supra note 20, at 29 ([T]he European regulatory
approach arose in part as a solution to [the] ethical and practical duty to inform.).
385. Id. at 3031.
386. See State of the GMO Union, supra note 383.
SOM/BMK, 2015 WL 4041480, at *1 (D. Haw. June 30, 2015) (Robert Ito Farm, Inc., Hawaii
Farm Bureau Federation, Maui County, Molokai Chamber of Commerce, Monsanto Company,
Agrigenetics Inc., Concerned Citizens of Molokai and Maui, Friendly Isle Auto Parts &
Supplies, Inc., New Horizon Enterprises, Inc., and Hikiola Cooperative, opponents of the
initiative, sued the County of Maui by filing the Robert Ito Farm action in this court.); State of
the GMO Union, supra note 383 ([A] mandatory-labeling measure on the ballot in Washington
failed after a sustained and expensive campaign by opponents.).
388. See State of the GMO Union, supra note 383 ([T]wo court decisions since August 2014
have delighted opponents of GMO regulation and previewed the challengespre-emption in
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Because the vast majority of states do not have comprehensive

regulatory schemes governing GMOs, implied field pre-emption is a
particularly illegitimate ground on which to deny local authority to
regulate GMOs. Courts should instead require that state legislatures
expressly pre-empt local GMO regulation if the legislature wishes to
do so, and should refuse to engage in a legally dubious search for
legislative intent among general agricultural laws.
Moreover, unless states are prepared to enact substantive GMO
legislation of their own, state legislatures should also decline to preempt local authority to regulate GMOs. Allowing local regulation of
GMOs may turn out to be exactly what is needed to strike a balance
between citizen concerns and industry viability. In addition, by
respecting local authority to regulate in an area clearly affecting local
health, life, and property, states would not risk jeopardizing statelocal relationships simply for legislative convenience or capitulation
to a powerful industry. Permitting local governments and local
citizens to participate in GMO decision-making enables legitimate
democracy. It may also result in creating an industry far more
responsive to the local communities in which the industry operates.
particularlikely to be faced by labeling laws.).

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