H. B. 2153
(By Delegate Manypenny)
[Introduced February 13, 2013; 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 rule-making 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 the 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
_____(5) Consumers have a right to know whether the food they
purchase contains or was produced with genetically engineered
_____(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
_____(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
_____(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. The rules shall require
the use of the best available technology for testing, and shall
identify tests that meet the 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 rules
identified a validated method of testing for the material in the
food; or (3) genetically engineered material contained in a food if
the commissioner has not through rules identified a validated method of testing for the 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 may not be considered to
contain a genetically engineered material if, as indicated by the
_____(1) The food does not contain any genetically engineered
_____(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 the rules:
_____(1) The rules may not require the label to include any
statement indicating that the fact that a food does not contain
genetically engineered material, or was not produced with the
material, has no bearing on the safety of the food for human
_____(2) The rules may not prohibit the 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
§19-2H-4. Civil penalty; exception.
_____(a) Any person engaging in the misbranding or mislabeling of
food within the meaning of this article or making a false guaranty
shall be liable for a civil penalty in an amount not to exceed
$100,000 for each violation.
_____(b) No person is 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 is 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) The contamination is not intended by the agricultural
_____(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 negligent contamination by 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
_____(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. Rule-making authority.
_____The commissioner shall propose rules for legislative approval
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 rule-making authority.
This article is new; therefore, it has been completely