Recently, two counties in the State of Hawai‘i passed laws that restrict the growth and cultivation of genetically modified crops (“GMO”).  Kaua‘i County passed Bill 2491 after overriding a mayoral veto on November 16, 2013. Hawai‘i County’s Bill 113 became law when Mayor Kenoi signed it on December 5, 2013. Both of these laws will significantly impact GMO agriculture in these counties.

The Kaua‘i law imposes two main burdens on crop cultivation—public disclosure and exclusionary zones. Under the law, all commercial agricultural entities must disclose the growing of GMOs in an annual public report filed with the State Department of Agriculture and posted online on the Kaua‘i County website. The report is due within 60 days of the end of the calendar year, and the first reports are due the date the ordinance takes effect. The report must include a description of each GMO, a description of the geographic location where the GMO is being grown or developed, and the date each GMO was initially introduced to the land.

For agricultural operations that employ restricted use pesticides, the law imposes buffer zones that prohibit growing any crop within 500 feet of residential care facilities, medical facilities, day care centers, nursing homes, schools, and in certain cases, residential dwellings. There is a 250-foot buffer zone for parks, and a 100-foot buffer zone for public roads, shorelines, and perennial waterways. A violation of any of these provisions can result in a civil fine of $10,000 – $25,000 per day.

The Hawai‘i County law, now designated Ordinance 13-121, generally prohibits the (knowing) open air cultivation, propagation, development, or testing of GMOs. There are three listed exemptions, however. First, the law does not apply to the cultivation of genetically engineered papaya as long as the grower registers with the County. Second, the law allows continued cultivation or development of GMOs only in “specific locations where genetically engineered crops or plants have been customarily open air cultivated, propagated, or developed” prior to the effective date of the Ordinance if the facilities register with the County within 90 days of the law taking effect. Finally, the law contains an “emergency exemption” that allows a non-GMO grower to petition the County for the use of a genetically engineered remedy where a non-GMO crop is being harmed by a plant pestilence and there is no other available alternative solution. A violation of the Ordinance carries a fine of up to $1,000, as well as the associated costs of investigating and testing the violating crops and any court costs (i.e., attorney’s fees, witness fees, and witness expenses).