SB2576.DOC

SECTION 1. The legislature finds that, in the past few decades, food-safety experts have identified several potential problems that may arise as a result of engineering food crops. Genetically engineered food may introduce new toxins or allergens into previously safe foods, increase toxins to dangerous levels in foods that typically produce harmless amounts, or diminish a food's nutritional value. These problems would have to occur at very high levels within the United States population to attract the attention of regulators.

The legislature further finds that two events within the last decade confirm researchers' concerns about allergens and toxins. First, a paper published in the New England Journal of Medicine in 1996 confirmed predictions that genetic engineering could transfer an allergen from a known allergenic food to another food. Scientists at Pioneer Hi-Bred seed company successfully transferred a gene from Brazil nut into soybean to improve the grain crop's nutritional quality. Subsequent experiments showed that people allergic to Brazil nuts were similarly allergic to the transgenic soybean. Animal and human tests confirmed the peril and, fortunately, the product was removed from the market before any fatalities occurred. Unlike safety evaluations for drugs, however, there are no required human clinical trials for genetically engineered foods.

In the 1980s, a contaminated brand of a food supplement called L-tryptophan killed about one hundred Americans and caused sickness and disability in another five to ten thousand people. The contaminant arose from the genetic engineering process used in its production. The disease took years to discover and was only identified because the symptoms were unique, acute, and fast-acting. If all three characteristics were not in place, the deadly genetically engineered supplement may have not been identified or timely removed from store shelves.

In 1993, the Food and Drug Administration approved Monsanto's genetically-modified rBGH, a genetically-altered growth hormone that is injected into dairy cows. Even though scientists warned that genetically-modified rBGH caused a significant increase of IGF-1, a chemical hormone that is linked to a 2.5 to four times increased risk of human colorectal and breast cancer, and a 2.8 to four times increased risk of prostate cancer.

The legislature finds that Hawaii consumers have the right to know whether the foods they purchase are produced with genetic engineering so they can make informed purchasing decisions. Accordingly, the purpose of this Act is to establish a consistent and enforceable standard for labeling all foods produced using genetic engineering.

SECTION 2. Chapter 328, Hawaii Revised Statutes, is amended by adding a new part to be appropriately designated and to read as follows:

"Part . GENETICALLY ENGINEERED FOOD

§328‑ Short title. This part shall be known and may be cited as the "Genetically Engineered Food Labeling Act".

§328‑ Purpose. The legislature finds that the Genetically Engineered Food Labeling Act would result in establishing a consistent and enforceable standard for labeling all foods produced using genetic engineering and thus provide citizens of Hawaii with knowledge of how their food is produced.

The purpose of this part is to facilitate the exercise of the fundamental right of the people of Hawaii to be fully informed about whether the food they purchase and eat is produced with genetic engineering so that they can choose for themselves whether to purchase and eat such foods. Identifying foods produced through genetic engineering will also help to protect our State's agricultural economy and environment. This part shall be liberally construed to fulfill the purposes of this part.

§328‑ Definitions. As used in this part:

"Agriculture" means the science, art, or practice of cultivating the soil, producing crops, and raising livestock or fish and in varying degrees the preparation and marketing of the resulting products.

"Cultivated commercially" means agricultural commodities grown or raised in the course of business or trade and sold within the United States.

"Department" means the department of health.

"Enzyme" means a protein that catalyzes chemical reactions of other substances without itself being destroyed or altered upon completion of the reactions.

"Food" means any articles used to feed or nourish humans or other animals, chewing gum, and articles used for components, including food additives, of any such article.

"Genetically engineered" means produced from an organism or organisms of which the genetic material has been changed through the application of:

(1) In vitro nucleic acid techniques, including recombinant deoxyribonucleic acid techniques and the direct injection of nucleic acid into cells or organelles, encapsulation, gene deletion, and doubling; or

(2) Methods of fusing cells beyond the taxonomic family that overcome natural physiological reproductive or recombinant barriers, and that are not techniques used in traditional breeding and selection such as conjugation, transduction, and hybridization.

For purposes of this definition:

"In vitro nucleic acid techniques" includes but is not limited to recombinant deoxyribonucleic or ribonucleic acid techniques that use vector systems and techniques involving the direct introduction into the organisms of hereditary materials prepared outside the organisms such as microinjection, macro-injection, chemoporation, electroporation, microencapsulation, and liposomefusion.

An animal that has not itself been genetically engineered, regardless of whether such animal has been fed or injected with any food or any drug that has been produced through means of genetic engineering, shall not be considered "genetically engineered" for purposes of this part.

"Label" means a display of written, printed, or graphic matter upon or connected to the immediate container or surface of any article.

"Labeling" means any written, printed, or graphic matter that is present on the label, accompanies the food, or is displayed near the food, including that for the purpose of promoting its sale or disposal.

"Manufacturer" means the person or business that makes, processes, combines, or packages food ingredients into a finished food product.

"Organism" means any biological entity capable of replication, reproduction, or transferring genetic material.

"Processed food" means any food other than a raw agricultural commodity, including any food produced from a raw agricultural commodity that has been subject to processing such as canning, smoking, pressing, cooking, freezing, dehydration, fermentation, or milling.

"Processing aid" means:

(1) A substance that is added to a food during the processing of the food but is removed in some manner from the food before it is packaged in its final form;

(2) A substance that is added to a food during processing, is converted into constituents normally present in the food, and does not significantly increase the amount of the constituents found in the food; or

(3) A substance that is added to a food for its technical or functional effects in the processing but is present in the finished food at insignificant levels and does not have any technical or functional effect in that finished food.

"Raw agricultural commodity" means any plant, fungi, or fish grown or produced for human food use purposes.

"Retailer" means an establishment engaged in the business of selling any perishable agricultural commodity or packaged food via a storefront.

"Supplier" means a party that supplies raw agricultural products to retailers.

§328‑ Labeling of genetically engineered foods. (a) Commencing July 1, 2015, any food offered for retail sale in Hawaii is misbranded and shall be prohibited if it is entirely or partially produced with genetic engineering and that fact is not disclosed as follows:

(1) In the case of a raw agricultural commodity, on the package offered for retail sale, the manufacturer shall include the words "genetically engineered" appearing clearly and conspicuously on the label on the front of the package of such commodity or, in the case of any such commodity that is not separately packaged or labeled, the retailer shall include a clear and conspicuous label appearing on the retail store shelf or bin in which such commodity is displayed for sale; and

(2) In the case of processed food containing some products of genetic engineering, the manufacturer shall label the product, in clear and conspicuous language on the front or back of the package of such food, with the words "produced with genetic engineering" or "partially produced with genetic engineering".

(b) This section shall not be construed to require either the listing or identification of any ingredient or ingredients that were genetically engineered, nor that the term "genetically engineered" be placed immediately preceding any common name or primary product descriptor of a food.

(c) For the purposes of this section, a requirement that any word, statement, or other information appearing on the label shall not be considered to be complied with unless such word, statement, or other information also appears on the outside container or wrapper, if any, of the bulk, wholesale, or retail package of such article or is easily legible through the outside container or wrapper.

(d) Until July 31, 2015, any processed food that would be subject to this section solely because it includes one or more materials produced by genetic engineering is not misbranded provided that the engineered materials in the aggregate do not account for more than nine-tenths of one per cent of the total weight of the processed food.

(e) In the case of raw agricultural commodities, including unprocessed whole fish:

(1) The retailer is responsible for point of purchase labeling of any raw agricultural commodity that has been produced using genetic engineering. It is the responsibility of suppliers to label the container used for packaging, holding, or transporting raw genetically engineered agricultural commodities that are delivered directly to Hawaii retailers; and

(2) A retailer shall not be penalized or otherwise held liable for the failure to label pursuant to this section unless:

(A) The retailer is the producer or the manufacturer of the genetically engineered food, seed, or seed stock and sells the genetically engineered food under a brand it owns; or

(B) The retailer's failure to label was knowing and wilful.

In any action in which it is alleged that a retailer has violated the provisions of this section, it shall be a defense that such retailer reasonably relied on any disclosure concerning genetically engineered foods contained in the bill of sale or invoice provided by the wholesaler or distributor; or the lack of any such disclosure.

(f) Subsection (a) does not apply to any of the following:

(1) A raw agricultural commodity or food that has been grown, raised, produced, or derived without the knowing and intentional use of genetically engineered seed or food. To be included within the exclusion under this subsection, the person responsible for complying with subsection (a) with respect to a raw agricultural commodity or food shall obtain, from whoever sold the raw agricultural commodity or food to that person, a sworn statement that the raw agricultural commodity or food:

(A) Has not been knowingly or intentionally genetically engineered; and

(B) Has been segregated from, and has not been knowingly or intentionally commingled with, foods that may have been genetically engineered at any time.

In providing such a sworn statement, a person may rely on a sworn statement from the person's own supplier that contains such an affirmation;

(2) Any processed food that would be subject to this section solely because one or more processing aids or enzymes were produced or derived with genetic engineering;

(3) Any liquor as defined in section 281-1;

(4) Food that has been lawfully certified to be labeled, marketed, and offered for sale as "organic" pursuant to the federal Organic Foods Production Act of 1990, title 7 United States Code section 6501, et seq., and the National Organic Program regulations promulgated by the United States Department of Agriculture;

(5) Food that is not packaged for retail sale and that is:

(A) A processed food prepared and intended for immediate human consumption, including food for sale at the deli or bakery of a retail outlet; or

(B) Served, sold, or otherwise provided in any restaurant or other food service establishment that is primarily engaged in the sale of food prepared and intended for immediate human consumption; or

(6) Medical food as defined in section 346-67.

§328‑ Enforcement. (a) The department shall prescribe, enact, and enforce rules necessary to implement this part; provided that the department shall not create new exemptions beyond those listed in this part.

(b) The department, acting through the attorney general, may bring an action in a court of competent jurisdiction to enjoin any person violating this part.

(c) The department may assess a civil penalty against any person violating this part in an amount not to exceed $500 per violation. Each day of violation is considered a separate violation.

(d) Any injured citizen of Hawaii acting in the public interest may bring an action to enjoin a violation of this part in any court of competent jurisdiction if the action is commenced more than sixty days after the person gives notice of the alleged violation to the department, attorney general, and alleged violator.

(e) Manufacturers or suppliers are the potential defendants for failure to label processed foods and packaged raw agricultural commodities. Retailers are potentially liable only for failure to provide point-of-purchase labeling for unpackaged raw agricultural commodities.

(f) The court may award to a prevailing plaintiff reasonable costs and attorneys' fees incurred in investigating and prosecuting an action to enforce this part. Such an award does not include monetary damages, only fee and cost recovery."

SECTION 3. If any provision of this Act, or the application thereof to any person or circumstance, is held invalid, the invalidity does not affect other provisions or applications of the Act that can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.

SECTION 4. This Act shall take effect upon its approval.

INTRODUCED BY:	_____________________________

THE SENATE	S.B. NO.	2576
TWENTY-SEVENTH LEGISLATURE, 2014
STATE OF HAWAII