H. B. 2178
(By Delegates Manypenny and Guthrie)
[Introduced January 12, 2011; referred to the
Committee on Agriculture then Finance.]
A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §19-2H-1, §19-2H-2, §19-2H-3, §19-2H-4, §19-2H-5 and §19-2H-6, all relating to creating the “Genetically Engineered Food Right to Know Act”; making legislative findings; setting forth labeling requirements regarding the sale of foods containing genetically engineered materials and foods produced with genetically engineered materials; providing exceptions; requiring testing; providing civil penalties; providing for civil suits by the Commissioner of Agriculture and suits by citizens; defining terms; and providing rulemaking authority.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §19-2H-1, §19-2H-2, §19-2H-3, §19-2H-4, §19-2H-5 and §19-2H-6, all to read as follows:
ARTICLE 2H. GENETICALLY ENGINEERED FOOD RIGHT TO KNOW ACT.
§19-2H-1. Short title.
This article may be cited as the “Genetically Engineered Food Right to Know Act.”
The Legislature finds as follows:
(1) The process of genetically engineering foods results in the material change of such foods.
(2) The United States Congress has previously required that all foods bear labels that reveal material facts to consumers.
(3) Federal agencies have failed to uphold congressional intent by allowing genetically engineered foods to be marketed, sold and otherwise used without labeling that reveals material facts to the public.
(4) Consumers wish to know whether the food they purchase and consume contains or is produced with a genetically engineered material for a variety of reasons, including the potential transfer of allergens into food and other health risks, concerns about potential environmental risks associated with the genetic engineering of crops, and religiously and ethically based dietary restrictions.
(5) Consumers have a right to know whether the food they purchase contains or was produced with genetically engineered material.
(6) Labels voluntarily placed on foods are insufficient to provide consumers with adequate information on whether or not all the food they are purchasing contains or was produced with genetically engineered material.
(7) Mandatory labeling provides a critical scientific method necessary for the continual postmarket surveillance to study long-term health impacts and enforcement of food safety laws preventing adulterated foods from reaching consumers.
(8) Many of the United States' key trading partners, including countries in the European Union, Japan, and the People's Republic of China, have established, or are in the process of implementing, mandatory labeling requirements for genetically engineered food.
(9) Adoption and implementation of mandatory labeling requirements for genetically engineered food produced in this state would facilitate international trade by allowing West Virginia farmers and companies to export and appropriately market their products, both genetically engineered and nongenetically engineered, to foreign customers.
§19-2H-3. Labeling regarding genetically engineered material.
(a) No food may be sold in this state if it contains a genetically engineered material, or was produced with a genetically engineered material, unless it bears a label (or labeling, in the case of a raw agricultural commodity, other than the sale of such a commodity at retail) that provides notices in accordance with the following:
(1) A notice as follows: “GENETICALLY ENGINEERED”;
(2) A notice as follows: “THIS PRODUCT CONTAINS A GENETICALLY ENGINEERED MATERIAL, OR WAS PRODUCED WITH A GENETICALLY ENGINEERED MATERIAL”;
(3) The notice required in subdivision (1) of this subsection must immediately precede the notice required in subdivision (2) of this subsection and must not be less than twice the size of the notice required in subdivision (2).
(4) The notice required in subdivision (2) of this subsection must be of the same size as would apply if the notice provided nutrition information that is required by Section 403 of the Federal Food, Drug and Cosmetic Act, 21 U.S.C. §343.
(5) The notices required in subdivisions (1) and (2) of this subsection must be clearly legible and conspicuous.
(b) For purposes of subsection (a) of this section:
(1) The term “genetically engineered material” means material derived from any part of a genetically engineered organism, without regard to whether the altered molecular or cellular characteristics of the organism are detectable in the material;
(2) The term “genetically engineered organism” means:
(A) An organism that has been altered at the molecular or cellular level by means that are not possible under natural conditions or processes (including, but not limited to, recombinant DNA and RNA techniques, cell fusion, microencapsulation, macroencapsulation, gene deletion and doubling, introducing a foreign gene, and changing the positions of genes), other than a means consisting exclusively of breeding, conjugation, fermentation, hybridization, in vitro fertilization, tissue culture, or mutagenesis; or
(B) An organism made through sexual or asexual reproduction (or both) involving an organism described in paragraph (A) of this subdivision, if possessing any of the altered molecular or cellular characteristics of the organism so described.
(3) A food shall be considered to have been produced with a genetically engineered material if:
(A) The organism from which the food is derived has been injected or otherwise treated with a genetically engineered material (except that the use of manure as a fertilizer for raw agricultural commodities may not be construed to mean that such commodities are produced with a genetically engineered material);
(B) The animal from which the food is derived has been fed genetically engineered material; or
(C) The food contains an ingredient that is a food to which paragraph (A) or (B) of this subdivision applies.
(c) This section does not apply to food that:
(1) Is served in restaurants or other establishments in which food is served for immediate human consumption;
(2) Is processed and prepared primarily in a retail establishment, is ready for human consumption, which is of the type described in subdivision (1) of this subsection, and is offered for sale to consumers but not for immediate human consumption in such establishment and is not offered for sale outside such establishment; or
(3) Is a medical food as defined in Section 5(b) of the federal Orphan Drug Act.
(d) In the case of the transfer of food from manufacturers or producers to distributors, and from distributors to other distributors or to other persons in the chain of distribution, including persons who hold food for sale to consumers, rules under this section shall require periodic testing of foods by the Commissioner of Agriculture for purposes of determining the accuracy of labels under such paragraphs. Such rules shall require the use of the best available technology for such testing, and shall identify tests that meet such requirement. This subsection and subsection (f) of this section do not apply to: (1) Foods that are certified and comply with the federal Organic Foods Production Act and its implementing rules; (2) foods produced with genetically engineered material if the commissioner has not through such rules identified a validated method of testing for such material in the food; or (3) genetically engineered material contained in a food if the commissioner has not through such rules identified a validated method of testing for such material in the food.
(e) For purposes of this subsection and subsection (f) of this section, a food with respect to which a test has been identified under subsection (d) of this section shall not be considered to contain a genetically engineered material if, as indicated by such a test:
(1) The food does not contain any genetically engineered material; or
(2) The food contains an adventitious genetically engineered material and the amount of the material in the food is one percent or less, except that a lower percentage designated by the commissioner shall apply for purposes of this subsection if the commissioner determines that a test identified under subsection (d) of this section can detect a percentage lower than one percent.
(f) If it bears a label indicating that it does not contain a genetically engineered material, or that it was not produced with a genetically engineered material, unless the label is in accordance with rules promulgated by the commissioner. With respect to such rules:
(1) The rules may not require such a label to include any statement indicating that the fact that a food does not contain such material, or was not produced with such material, has no bearing on the safety of the food for human consumption; and
(2) The rules may not prohibit such a label on the basis that, in the case of the type of food involved, there is no version of the food in commercial distribution that does contain a genetically engineered material.
§19-2H-4. Civil penalty; exception.
(a) Any person engaging in the misbranding or mislabeling of food within the meaning of this article or makes a false guaranty shall be liable for a civil penalty in an amount not to exceed $100,000 for each violation.
(b) No person shall be subject to the penalties of this section involving the misbranding or mislabeling of food within the meaning of this article if he or she establishes a guaranty or undertaking signed by, and containing the name and address of, the person or persons residing in the United States from whom the recipient received in good faith the food (including the receipt of seeds to grow raw agricultural commodities), to the effect that the food does not contain a genetically engineered material or was not produced with a genetically engineered material.
(c) If a recipient who with respect to a food establishes a guaranty or undertaking in accordance with subsection (b) of this section, the exclusion under that subsection from being subject to penalties applies to the recipient without regard to the use of the food by the recipient, including:
(1) Processing the food;
(2) Using the food as an ingredient in a food product;
(3) Repacking the food; or
(4) Growing, raising, or otherwise producing the food.
(d)(1) No person shall be subject to the penalties of subsection (a) of this section for a violation of this article involving the misbranding or mislabeling of food if:
(A) Such person is an agricultural producer and the violation occurs because food that is grown, raised, or otherwise produced by such producer, which food does not contain a genetically engineered material and was not produced with a genetically engineered material, is contaminated with a food that contains a genetically engineered material or was produced with a genetically engineered material (including contamination by mingling the two); and
(B) Such contamination is not intended by the agricultural producer.
(2) Subdivision (1) of this subsection does not apply to an agricultural producer to the extent that the contamination occurs as a result of the negligence contamination of the producer.
§19-2H-5. Citizen suits.
(a) General. –- Except as provided in subsection (c) of this section, any person may on his or her behalf commence a civil action in an appropriate circuit court against:
(1) A person who is alleged to have engaged in a violation of this article involving the misbranding or mislabeling of food; or
(2) The commissioner where there is alleged a failure of the commissioner to perform any act or duty under this article that is not discretionary.
(b) Relief. –- In a civil action under subsection (a) of this section, the circuit court may:
(1) Enforce the compliance of a person with respect to the requirements of this article; or
(2) Order the commissioner to perform an act or duty required by this article.
(c) Limitations. -– (1) A civil action may not be commenced under subdivision (1), subsection (a) of this section prior to sixty days after the plaintiff has provided to the commissioner notice of the violation involved; and (2) a civil action may not be commenced under subdivision (2), subsection (a) of this section if the commissioner has commenced and is diligently prosecuting an action in a circuit court to enforce compliance with this article.
(d) Right of commissioner to intervene. -- In any civil action under subdivision (1), subsection (a) of this section, the commissioner, if not a party, may intervene as a matter of right.
(e) Award of costs; filing of bond. -- In a civil action under subsection (a) of this section, the circuit court involved may award costs of litigation (including reasonable attorney and expert witness fees) to any party whenever the court determines such an award is appropriate. The court may, if a temporary restraining order or preliminary injunction is sought, require the filing of a bond or equivalent security in accordance with the West Virginia Rules of Civil Procedure.
(f) Savings provision. -- This section does not restrict any right that a person (or class of persons) may have under any statute or common law to seek enforcement of the provisions referred to subsection (a) of this section, or to seek any other relief, including relief against the commissioner.
§19-2H-6. Rulemaking authority.
The commissioner shall propose rules in accordance with article three, chapter twenty-nine-a of this code to implement and enforce this article.
NOTE: The purpose of this bill is to create the “Genetically Engineered Food Right to Know Act.” The bill makes legislative findings, sets forth labeling requirements regarding the sale of foods containing genetically engineered materials or foods produced with genetically engineered materials. The bill also provides for exceptions, testing, civil penalties and civil suits by the Commissioner of Agriculture and suits by citizens. The bill further defines terms and provides rulemaking authority.
This article is new; therefore, it has been completely underscored.