The November election changed the regulatory landscape for genetically modified organisms (“GMO”). Though none of the proposed GMO labeling laws on state ballots succeeded, two counties were successful in passing either a ban or moratorium on the growth or cultivation of bioengineered crops.

Two major GMO labeling laws were presented to voters for consideration in Oregon and Colorado. Each measure failed. In Colorado, the voters defeated the proposed labeling law by a wide margin: approximately 66% of voters rejected the measure. In Oregon, the election results were significantly closer, with the opposition prevailing by less than a 0.5% margin. The election results leave Vermont as the only state with an applicable labeling law that will impose affirmative labeling obligations on food manufacturers and retailers.

Two county measures regulating the growth of GMOs passed this election, one in Maui County, Hawaii, and the other in Humboldt County, California.

The Maui County measure, which passed by a margin of 50.2% in favor to 47.9% against, places a temporary moratorium on cultivation of GMOs. The measure makes it “unlawful for any person or entity to knowingly propagate, cultivate, raise, grow or test Genetically Engineered Organisms within the County of Maui until such time that the terms of the ‘Moratorium Amendment or Repeal’ … have been met.” Maui County Moratorium, § 5. The Moratorium does exempt currently growing GMOs, as well as colleges or universities that grow GMOs indoors for research purposes. Id. Under the Moratorium, Maui County is tasked with conducting an “Environmental and Public Health Impacts Study” (“EPHIS”) to “address key environmental and public health questions related to large-scale commercial agricultural entities that engage in GE Operations and Practices and associated Pesticide use.” Id. § 7(2). The EPHIS is a two-phased process to be funded by “persons or entities” that want a release from the moratorium. In the first phase, research will be conducted evaluating a wide range of issues regarding the growth of genetically engineered plants. Id. § 7(3). In the second phase, recommendations will be made to the county based on the research and analysis conducted and information obtained from a public comment and hearing process. Id. § 7(4). Once the EPHIS is complete, the county may amend or repeal the Moratorium by a two-thirds vote of the County Council. Id. § 6.

The fate of Maui County’s Moratorium currently resides with Magistrate Judge Kurren in the Federal District Court for Hawaii. Last week, a number of parties filed suit against Maui County seeking a declaratory judgment that the Moratorium is illegal and requesting the court to enjoin the law. Currently, the county has agreed to enjoin the law until March 31, 2015. If the Moratorium is held to be valid, which is not likely considering Magistrate Judge Kurren’s previous decision on the Kauai County GMO law, it authorizes significant civil penalties of up to $50,000 per violation and criminal penalties of up to $2,000 and up to one year imprisonment. Id. § 9(2), (3). The law also contains a provision allowing for citizen-suit enforcement of the moratorium. Id. § 9(5).

The Humboldt County, California, measure, which passed by a margin of 59.43% in favor to 40.57% opposed, makes it “unlawful for any person, partnership, corporation, firm or entity of any kind to propagate, cultivate, raise or grow genetically engineered organisms in the County.” Humboldt County Ordinance, § 4. Under the law, a violation of the ordinance constitutes a public nuisance. Similar to the Maui County measure, the Humboldt Ordinance exempts indoor, research-based growing of GMOs, as well as currently growing GMOs (until January 1, 2016). Id. § 5. The law states that it takes place immediately, but the county has indicated it will not begin enforcement until December 12 of this year.

The law authorizes only the Humboldt County Agricultural Commissioner to enforce the Ordinance; there is no citizen-suit provision. The Ordinance does provide a citizen reporting mechanism to alert the Commissioner to potential violations. Id. § 7(b). A person alleged to be in violation of the Ordinance is given 30 days’ notice to respond to the notice of violation and/or correct any violation. Id. § 7(d). A failure to correct a violation can result in a public nuisance and the destruction or removal of any GMOs.