Case Law Update: Court Approves Settlement of Lawsuit Challenging Oregon County’s GMO Ban

Written by M. Sean High – Staff Attorney

On December 22, 2015, Capital Press announced that U.S. Magistrate Judge Mark Clarke had approved a legal settlement reached between Oregon’s Jackson County and the owners of two alfalfa farms located in within the county.  The lawsuit in question involved the farmers’ challenge to Jackson County’s ban on genetically engineered (GMO) crops. 

In 2013, the Oregon legislature approved S.B. 863 which prohibited counties from banning GMO crops.  Included in S.B. 863 was a provision that exempted counties where proposed initiative petitions banning GMO crops had already qualified for placement on the 2014 ballot.  Jackson County’s measure 15-119 met this exemption, and in May 2014, county residents passed into law a ban on GMO crops.

Accordingly, Jackson County alfalfa farmers Bruce Schulz, and James and Marilyn Frink filed suit, alleging that the GMO ban was: 1) a violation of Oregon’s right to farm law; 2) would cause their operations financial hardship; and 3) the removal of existing GMO plants would in result in $4.2 million in damages.  While Judge Clarke dismissed the first two arguments involving Oregon right to farm law and financial hardship, at the time of settlement, the claim involving the $4.2 million in damages was still up for consideration.

As per the approved settlement, the alfalfa farmers agreed not to appeal a previous court ruling upholding the ban; to stop seeking the $4.2 million in damages; to not plant any more GMO alfalfa; to harvest all GMO alfalfa before it reaches 10% bloom (so as to reduce the chance of cross- pollination); and to remove all GMO alfalfa within eight years.  Additionally, the alfalfa farmers agreed to submit “field data to attorneys representing biotech critics” under an “attorneys eyes only” protective order.

In exchange, Jackson County agreed to allow the alfalfa farmers up to eight years (the normal lifespan of the perennial alfalfa) to harvest those GMO crops that have already been planted.  Significantly, other Jackson County GMO alfalfa growers “can ‘opt in’ to the settlement by submitting sworn documents identifying where their crops are grown, either with satellite data or geographic information, within 30 days of the deal’s approval.”

US Urges China to Lift Poultry Import Ban

Written by Tyler R. Etter

U.S. Agriculture Secretary Tom Vilsack attended a United States and China Joint Commission on Commerce and Trade to raise the issue of China’s ongoing ban on imports of US poultry. The ban was enacted in response to the outbreak of highly pathogenic avian influenza. The meeting ran from November 21 to 23.

Since no new cases of HPAI have been detected since June 17, Vilsack hoped for China to lower the restrictions on the importation of poultry. Rather than a nationwide ban, Vilsack hoped for restrictions to only be maintained from states or regions where actual infection had occurred. Vilsack commented on the proposal, saying that “International rules suggest a regional approach would be appropriate.”

Before the Joint Commission took place, Vilsack stated that he did not expect the ban to be lifted during the course of the Commission. At the time of this writing, the Commission meeting has concluded, but no information has been released regarding the status of China’s import ban.

West Virginia Lifts Ban on Poultry Exhibits

Written by Tyler R. Etter

On November 10, 2015, West Virginia Commissioner of Agriculture Walt Helmick announced that he was
lifting the ban on gatherings of live poultry. West Virginia is the first state to lift its ban on these
gatherings.

The ban has been in place since May of 2015 in response to the outbreak of avian influenza. Ohio and
Pennsylvania enacted similar bans, which are still in place. Spokesperson at the Pennsylvania
Department of Agriculture stated that the ban will be re-evaluated next year, and the Ohio Department
of Agriculture has also stated that it will potentially reevaluate the ban at the beginning of the next year.

The West Virginia Ag Director is continuing to urge the exercise of caution and biosecurity habits, due to
the possibility of reappearance due to exposure from wild birds. Poultry is West Virginia’s most valuable
agricultural sector, valued at $355 million.

EPA Prepares to Ban Chlorpyrifos

Written by Tyler R. Etter

On October 30, 2015, the Environmental Protection Agency (EPA) opened for commenting a proposal to revoke all tolerances for the insecticide chlorpyrifos. The proposal is being issued pursuant to a court order from August of 2015.

Originally, the EPA planned to issue the proposed rule by April of 2016, but the 9^th Circuit ordered the Agency to deny the petition issued for a safety evaluation, issue a proposal, or issue a final rule by October 31, 2015. Due to the Agency being unable to make a safety finding, and questions in scientific assessment still being open, the EPA has issued the proposal.

The proposal will seek to revoke all food residue tolerances for chlorpyrifos. Under current analysis, there does not appear to be a risk from exposure to chlorpyrifos from food. However, the Agency cannot make a conclusion about the aggregate exposure between food residue and exposure from drinking water in affected watersheds.

The comment period is open until January 5, 2016. The EPA expects to release a final rule by December of 2016. The proposed rule can be read and commented on here.

EU Parliament Rejects National Bans on GM Feed

Written by Tyler R. Etter

The European Parliament has rejected a plan by the European Commission that would allow member 
states to ban genetically modified (GM) food or feed on their territories. The rejection was held by 577 
votes to 77, with 38 abstentions. 

Three feed organizations, COCERAL, FEDIOL and FEFAC, said they were relieved at the outcome. The 
organizations conducted an assessment of the impact of switching from GM to non-GM soy, finding that 
such a switch would result in an increase of costs around 10%. According to the report, the resulting 
costs across the EU would consist of 2.8 billion euros. Following the proposal would impair the 
competitiveness of the industry, both domestically and in the import sector.

Giovanni La Via, the leader of the vote, mentioned the concerns about the proposal’s integration with 
the EU’s single market goal, and the overall feasibility, noting that “there was no evaluation of the 
potential consequences or of other available options.” The Commission suggested that the proposal 
should be modeled after the EU law for GMOs intended for cultivation, but the difficulties adapting a 
similar approach for a trade oriented issues will have to be evaluated. 

HPAI Trade Restrictions Still Linger

Written by Tyler R. Etter

Although the United States outbreak of highly pathogenic avian influenza (HPAI) has been controlled,
and clean-up efforts are nearly finished, trade partners are still restricting the imports of U.S. poultry.

Most of the 18 nations that banned all U.S. poultry have maintained these restrictions, causing nearly
$900 million in lost trade. There are yet another 38 nations with regional restrictions, costing a total of
$4.5 billion to the poultry industry, which constituted 69% of trade in 2014.

Dr. Lisa Ferguson of the Animal and Plant Health Inspection Service (APHIS) stated that APHIS is
currently visiting trading partners in Asia, Africa, and the Middle East. APHIS is updating the nations on
the plan to face any potential avian influenza this fall, as well as issues of vaccination. The primary goal is
to emphasize that the outbreak is under control, and to encourage the nations to lift the trade
restrictions.

Initially trading partners were suspicious of the vaccination of birds, as they believed it showed a lack of
control over the outbreak. Dr. Ferguson stated that as the vaccination strategy, of using vaccines only
when the disease is rapidly spreading in high-density areas, such as the impacts in Minnesota and Iowa.

Minnesota and Iowa are reported to be the only states where cleaning and disinfection are still taking
place. The World Organization of Animal Health will require a 90-Day waiting period after these
processes are completed before trade restrictions can be lifted.

EU Member States Continue to Opt-Out of GMO Cultivation

Written by Tyler R. Etter

Luxembourg, Malta, and Slovenia are the most recent EU members to state their intentions to ban the cultivation of GMO crops within their territory. This brings the total to 19 member states that plan to exercise the option.

The so-called “option 1” allows for a member state to tell the European Commission to have a company exclude that member nation or region from the scope of authorization for the specified crops. The company has the right to refuse, but then a member state may then decide to exercise “option 2”, which would be a wider ban on GMO cultivation. So far, only one maize product, MON810, has approval in the EU, but there are 9 new varieties in the pipeline.

EuropaBio has called the recent bans a “stop sign for agricultural innovation.” The biotech group believes that it limits the freedoms of European farmers to choose the technology and products they will employ on their farms. The group says that “this run[s] counter to the idea of a common European market.”

Although there are NGOs welcoming the news of the ban, Bart Staes, a spokesperson for the European Parliament’s Greens group, warned of concerns of the authorizations. He stated that the legal framework is not water-tight, and that member states that opt-out of cultivation may face challenges by biotech companies. 

Local Oregon GMO Ban Faces Legal Challenge

Written by Tyler R. Etter

On September 4, 2015, two local farmers in Oregon’s Josephine County filed a lawsuit to overturn a local ban on the cultivation of genetically modified (GM) crops. The ban was to be enforced beginning on September 5, but officials decided to delay enforcement while the lawsuit is pending.

The ban was originally approved in May of 2014. Farmers would be required to self-report if they were growing GM crops, and then submit a phase-out plan. Robert and Shelley Ann White, the farmers challenging the law, had devoted part of their farm to growing GM crops before the ordinance was passed. They claim that the law poses an immediate threat and irreparable injury due to the ban. They reportedly leased the land specifically to grow GM crops, such as sugar beets, for seed.

The basis of the legal challenges rests on the assertion that the ban is in direct violation of state law. Legislation was approved in October of 2013 that forbade local governments from imposing additional laws or regulations that would regulate farm practices, include GM bans. Only one county was given exemption, Jackson County. The Jackson County ban is also facing an ongoing legal challenge. The presiding judge found the ban wasn't preempted by state law, but has yet to decide if the farmer is entitled to damages for the ban's enactment.

Scotland Bans GMO Crops

By Tyler R. Etter

On August 9, 2015, Scottish Rural Affairs Secretary Richard Lochhead announced that Scotland would exercise the option to ban cultivation of GMO crops. The ban occurs by the Scottish government deciding to opt-out of European Union cultivation licenses, a power that came into effect for member nations in April.

The bans on cultivation are not restricted to a rationalization based on concern for public health or the environment. The list of reasons can include policy objectives, land use, town planning, and even ethical and socioeconomic concerns. Currently, there is only one EU approved GMO product, a corn variation. A second corn variation is expected to be approved soon, as well as five other GM products.

When speaking about the ban, Secretary Lochhead stated that “There is no evidence of significant demand for GM products by Scottish consumers…” Secretary Lochhead is concerned that GM crops would “damage our clean and green brand, thereby gambling with the future of our £14 billion food and drink sector.”

Scottish farmers are troubled by the ban, spearheaded by the National Farmers’ Union. Although they acknowledge that the corn products are not suited for Scottish agriculture, they are concerned about the possible future products that may be beneficial, such as GM potatoes that are resistant to blight. The Union is also disappointed from a science approach, stating that the cultivation ban will prevent the nation’s research centers from analyzing or potentially developing GM products useful for Scotland.

Federal Court Overturns Maui Ban on GMO Cultivation

On June 30, 2015, the United States District Court for the District of Hawaii struck down a Maui County Ordinance that placed a moratorium on the cultivation of GMO crops within the county.

The ordinance was originally enacted in November of 2014 making it unlawful for “any person or entity to knowingly propagate, cultivate, raise, grow or test Genetically Engineered Organisms within the County of Maui…” According the text of the ordinance, the ordinance was meant to protect resources from transgenic contamination, protect the economic integrity of organic and non-GMO markets, protect against “hazardous aspects” of GMO production, preserve the right to reject GMO operations for “health-related, moral, or other concerns”, and to preserve county resources while promoting cultural heritage of the area. The moratorium was meant to remain in effect until Environmental and Public Health Impacts Studies had been conducted on the practices or crops in question.  

The ordinance was challenged as being preempted by federal and state laws, and going beyond the county’s authority. Concerning federal preemption, the court found that the ordinance was expressly preempted by the Plant Protection Act (PPA) by attempting to ban all GMO crops, even those covered by the PPA. According to the court, the ordinance is also implicitly preempted by frustrating the purpose of the PPA via interference with the establishment of a national standard for movement in interstate commerce.

Concerning state preemption, the court found that the ordinance interfered with a preexisting statutory scheme of regulations within the state. Further, the court found that the ordinance is beyond the county’s authority, as violations of the ordinance carry a financial penalty greater than the amount allowed in the adopted Maui charter.

This case is the third of its kind within the state of Hawaii, with other cases occurring with similar ordinances in Hawaii and Kauai counties, with both cases being resolved on preemption claims.

Written by Tyler R. Etter- Research Assistant
July 6, 2015

FDA Finalizes Ban on Artificial Trans Fats in Processed Foods

On June 16, 2015, the Food and Drug Administration (FDA) finalized the determination that partially hydrogenated oils (PHOs) are not “generally recognized as safe or GRAS for use in human food.” PHOs are the primary source of artificial trans fats in processed foods.

After considering public comments and scientific data, the agency finalized the tentative determination made in 2013. Manufacturers will have three years to comply with the new determination by either reformulating products to remove all PHOs or petitioning the FDA for a specific use of PHOs. After the three year period, PHOs can no longer be added to human food without prior FDA approval.

The ban is aimed at improving the overall heart health of Americans. The FDA expects the action to
“reduce coronary heart disease and prevent thousands of fatal heart attacks every year.” However, trans fats won’t be completely eliminated from all foods, as they are naturally occurring in meat and dairy products as well as other edible oils.

During the compliance period, the FDA recommends that consumers continue to check nutrition labels and select items that have the lowest amounts of trans fats, as well as checking the ingredients list to ensure the accuracy of a “0 grams trans fat” label.

The determination is open to public comment, and can be found here.

Written by Tyler R. Etter- Research Assistant

June 17, 2015