A Hawaii federal court has ruled that a Maui ban on genetically modified
organisms (GMOs) is preempted by the Plant Protection Act and
therefore invalid. Robert Ito Farm, Inc. v. Cty. of Maui, No. 14-0582
(D. Haw., order entered June 30, 2015). The decision begins with an
introduction clarifying that the court recognizes the importance of the
questions of whether GMOs pose risks, noting, “This order is not an
attempt by this court to pass judgment on any benefit or detriment
posted by [genetic engineering (GE)] activities or GMOs.”

The Maui prohibition on GMO cultivation or propagation passed in
November 2014 and supporters of the initiative filed a lawsuit for a
declaratory judgment shortly thereafter. Detractors then filed a lawsuit
the following day seeking to invalidate the ban. After disposing with
preliminary motions filed by a supporter organization, Shaka Movement,
the court turned to the issue of preemption. The federal Plant Protection
Act governs “noxious weeds” that can damage crops, the court found, and
the GMO ban’s purpose is to prevent “transgenic contamination” and
to protect the integrity of organic and non-GE markets. “The Ordinance
seeks to regulate GE crops, such as genetically engineered papayas and
bananas, to prevent those crops from ‘contaminating’ or damaging
non-GE papaya and banana crops,” the court said. “In other words, the
Ordinance inherently considers GE organisms to be ‘noxious weeds’ and/
or ‘plant pests’” as defined in the Plant Protection Act.

“Even if preemption were not express,” the court noted, “the Ordinance
would still be preempted because it frustrates the purpose of the Plant
Protection Act. The ban on GE organisms, some of which are plant pests,
causes the Ordinance to run afoul of the Plant Protection Act’s purpose
of setting a national standard governing the movement of plant pests and
noxious weeds in interstate commerce based on sound science.”

The court then refused to certify the question of state law preemption
to the Hawaii Supreme Court, finding that state law did preempt the
ordinance. “In its Noxious Weed Rules, the Hawaii Department of
Agriculture has established criteria for noxious weeds based on, among
other things, plant reproduction, growth characteristics, detrimental
effects, and distribution and spread,” the court said. “These statutes and
regulations create a comprehensive scheme addressing the same subject
matter as the Maui Ordinance. The statutes and regulations reflect the
authority of state agencies over the introduction, propagation, inspection,
destruction, and control of plants that may harm agriculture, the
environment, or the public.”

Accordingly, the court held that the GMO ban exceeded Maui County’s
authority to impose fines and granted summary judgment for the
detractor plaintiffs, repeating again that “[n]o portion of this ruling says
anything about whether GE organisms are good or bad or about whether
the court thinks the substance of the Ordinance would be beneficial to the


Issue 571

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For decades, manufacturers, distributors and retailers at every link in the food chain have come to Shook, Hardy & Bacon to partner with a legal team that understands the issues they face in today's evolving food production industry. Shook attorneys work with some of the world's largest food, beverage and agribusiness companies to establish preventative measures, conduct internal audits, develop public relations strategies, and advance tort reform initiatives.