Hawaii-2013-HB174-Amended

PART I

SECTION 1. Chapter 328, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§328- Imported genetically engineered produce; labeling requirement. (a) The sale, offering for sale, or distribution of any imported genetically engineered produce intended for human consumption within the State is prohibited unless the fact of genetic engineering is disclosed clearly and conspicuously with a label bearing the words "genetically engineered" directly on the produce offered for retail sale, on the label of the produce's packaging, or, in the case of any such produce that is not separately packaged or labeled, on a clear and conspicuous label appearing on the retail store shelf or bin in which the produce is displayed for sale.

(b) Suppliers shall be responsible for labeling both the imported produce and the container used for the packaging, holding, or transporting of the imported produce that is delivered directly to Hawaii retailers. The imported genetically engineered produce shall be subject to section 150A-5.

(1) Hawaii-grown produce;

(2) Produce grown without the knowing and intentional use of genetically engineered seed or organisms; provided that persons who sell, offer to sell, or distribute such produce shall obtain, from the immediate source of the produce, a sworn statement that the produce has not been knowingly and intentionally genetically engineered, grown from genetically engineered seeds or organisms, or comingled with genetically engineered produce or organisms; or

(3) Produce prepared or served in restaurants or other establishments in which food is served for immediate human consumption.

(d) Produce shall be considered genetically engineered produce if the organism from which the produce is derived has been genetically engineered.

(e) As used in this section, unless the context clearly requires otherwise:

"Genetically engineered" means:

(1) Altered at the molecular or cellular level by means that are not possible under natural conditions or processes, including recombinant deoxyribonucleic acid and ribonucleic acid techniques, cell fusion, microencapsulation, macroencapsulation, gene deletion and doubling, introduction of a foreign gene, and changing the positions of genes, other than by a means consisting exclusively of breeding, conjugation, fermentation, hybridization, in vitro fertilization, tissue culture, or mutagenesis; or

(2) Made through sexual or asexual reproduction, or both, involving an organism described in paragraph (1).

"Produce" means fresh fruits and vegetables for human consumption.

(f) The director of health shall adopt rules, pursuant to chapter 91, necessary to effectuate the purposes of this section, including rules for the testing of produce to determine the presence of genetically engineered produce."

SECTION 2. Section 150A-5, Hawaii Revised Statutes, is amended to read as follows:

"§150A-5 Conditions of importation. The importation into the State of any of the following articles, viz., nursery-stock, tree, shrub, herb, vine, cut-flower, cutting, graft, scion, bud, seed, leaf, root, or rhizome; nut, fruit, or vegetable; grain, cereal, or legume in the natural or raw state; moss, hay, straw, dry-grass, or other forage; unmanufactured log, limb, or timber, or any other plant-growth or plant-product, unprocessed or in the raw state; soil; microorganisms; live bird, reptile, nematode, insect, or any other animal in any stage of development (that is in addition to the so-called domestic animal, the quarantine of which is provided for in chapter 142); genetically engineered produce pursuant to section 328- ; box, vehicle, baggage, or any other container in which such articles have been transported or any packing material used in connection therewith shall be made in the manner hereinafter set forth:

(1) Notification of arrival. Any person who receives for transport or brings or causes to be brought to the State as freight, air freight, baggage, or otherwise, for the purpose of debarkation or entry therein, or as ship's stores, any of the foregoing articles, shall, immediately upon the arrival thereof, notify the department, in writing, of the arrival, giving the waybill number, container number, name and address of the consignor, name and address of the consignee or the consignee's agent in the State, marks, number of packages, description of contents of each package, port at which laden, and any other information that may be necessary to locate or identify the same, and shall hold such articles at the pier, airport, or any other place where they are first received or discharged, in such a manner that they will not spread or be likely to spread any infestation or infection of insects or diseases that may be present until inspection and examination can be made by the inspector to determine whether or not any article, or any portion thereof, is infested or infected with or contains any pest. The department may adopt rules to require identification of specific articles on negotiable and non-negotiable warehouse receipts, bills of lading, or other documents of title for inspection of pests. In addition, the department shall adopt rules to designate restricted articles that shall require:

(A) A permit from the department in advance of importation; or

(B) A department letter of authorization or registration in advance of importation.

The restricted articles shall include but not be limited to certain microorganisms or living insects. Failure to obtain the permit, letter of authorization, or registration in advance is a violation of this section;

(2) Individual passengers, officers, and crew.

(A) It shall be the responsibility of the transportation company to distribute, prior to the debarkation of passengers and baggage, the State of Hawaii plant and animal declaration form to each passenger, officer, and crew member of any aircraft or vessel originating in the continental United States or its possessions or from any other area not under the jurisdiction of the appropriate federal agency in order that the passenger, officer, or crew member can comply with the directions and requirements appearing thereon. All passengers, officers, and crew members, whether or not they are bringing or causing to be brought for entry into the State the articles listed on the form, shall complete the declaration, except that one adult member of a family may complete the declaration for other family members. Any person who defaces the declaration form required under this section, gives false information, fails to declare restricted articles in the person's possession or baggage, or fails to declare in cargo manifests is in violation of this section;

(B) Completed forms shall be collected by the transportation company and be delivered, immediately upon arrival, to the inspector at the first airport or seaport of arrival. Failure to distribute or collect declaration forms or to immediately deliver completed forms is a violation of this section; and

(C) It shall be the responsibility of the officers and crew of an aircraft or vessel originating in the continental United States or its possessions or from any other area not under the jurisdiction of the appropriate federal agency to immediately report all sightings of any plants and animals to the plant quarantine branch. Failure to comply with this requirement is a violation of this section;

(3) Plant and animal declaration form. The form shall include directions for declaring domestic and other animals cited in chapter 142, in addition to the articles enumerated in this chapter;

(4) Labels. Each container in which any of the above-mentioned articles are imported into the State shall be plainly and legibly marked, in a conspicuous manner and place, with the name and address of the shipper or owner forwarding or shipping the same, the name or mark of the person to whom the same is forwarded or shipped or the person's agent, the name of the country, state, or territory and locality therein where the product was grown or produced, and a statement of the contents of the container[.]; provided that all genetically engineered produce pursuant to section 328- shall be explicitly labeled as such. Upon failure to comply with this paragraph, the importer or carrier is in violation of this section;

(5) Authority to inspect. Whenever the inspector has good cause to believe that the provisions of this chapter are being violated, the inspector may:

(A) Enter and inspect any aircraft, vessel, or other carrier at any time after its arrival within the boundaries of the State, whether offshore, at the pier, or at the airport, for the purpose of determining whether any of the articles or pests enumerated in this chapter or rules adopted thereto, is present;

(B) Enter into or upon any pier, warehouse, airport, or any other place in the State where any of the above-mentioned articles are moved or stored, for the purpose of ascertaining, by inspection and examination, whether or not any of the articles is infested or infected with any pest or disease or contaminated with soil or contains prohibited plants or animals; and

(C) Inspect any baggage or personal effects of disembarking passengers, officers, and crew members on aircraft or vessels arriving in the State to ascertain if they contain any of the articles or pests enumerated in this chapter. No baggage or other personal effects of the passengers or crew members shall be released until the baggage or effects have been passed.

Baggage or cargo inspection shall be made at the discretion of the inspector, on the pier, vessel, or aircraft or in any quarantine or inspection area.

Whenever the inspector has good cause to believe that the provisions of this chapter are being violated, the inspector may require that any box, package, suitcase, or any other container carried as ship's stores, cargo, or otherwise by any vessel or aircraft moving between the continental United States and Hawaii or between the Hawaiian Islands, be opened for inspection to determine whether any article or pest prohibited by this chapter or by rules adopted pursuant thereto is present. It is a violation of this section if any prohibited article or any pest or any plant, fruit, or vegetable infested with plant pests is found;

(6) Request for importation and inspection. In addition to requirements of the United States customs authorities concerning invoices or other formalities incident to importations into the State, the importer shall be required to file a written statement with the department, signed by the importer or the importer's agent, setting forth the importer's desire to import certain of the above-mentioned articles into the State and:

(A) Giving the following additional information:

(i) The kind (scientific name), quantity, and description;

(ii) The locality where same were grown or produced;

(iii) Certification that all animals to be imported are the progeny of captive populations or have been held in captivity for a period of one year immediately prior to importation or have been specifically approved for importation by the board;

(iv) Certification that all genetically engineered produce intended for human consumption is properly labeled as "genetically engineered" pursuant to section 328- , and that such produce is not identified as an invasive or threatening species by the invasive species council in accordance with chapter 194;

[~~(iv)~~] (v) The port from which the same were last shipped;

[~~(v)~~] (vi) The name of the shipper; and

[~~(vi)~~] (vii) The name of the consignee; and

(B) Containing:

(i) A request that the department, by its duly authorized agent, examine the articles described;

(ii) An agreement by the importer to be responsible for all costs, charges, or expenses; and

(iii) A waiver of all claims for damages incident to the inspection or the fumigation, disinfection, quarantine, or destruction of the articles, or any of them, as hereinafter provided, if any treatment is deemed necessary.

Failure or refusal to file a statement, including the agreement and waiver, is a violation of this section and may, in the discretion of the department, be sufficient cause for refusing to permit the entry of the articles into the State;

(7) Place of inspection. If, in the judgment of the inspector, it is deemed necessary or advisable to move any of the above-mentioned articles, or any portion thereof, to a place more suitable for inspection than the pier, airport, or any other place where they are first received or discharged, the inspector is authorized to do so. All costs and expenses incident to the movement and transportation of the articles to such place shall be borne by the importer or the importer's agent. If the importer, importer's agent, or transportation company requests inspection of sealed containers of the above-mentioned articles at locations other than where the articles are first received or discharged and the department determines that inspection at such place is appropriate, the department may require payment of costs necessitated by these inspections, including overtime costs;

(8) Disinfection or quarantine. If, upon inspection, any article received or brought into the State for the purpose of debarkation or entry therein is found to be infested or infected or there is reasonable cause to presume that it is infested or infected and the infestation or infection can, in the judgment of the inspector, be eradicated, a treatment shall be given such article. The treatment shall be at the expense of the owner or the owner's agent, and the treatment shall be as prescribed by the department. The article shall be held in quarantine at the expense of the owner or the owner's agent at a satisfactory place approved by the department for a sufficient length of time to determine that eradication has been accomplished. If the infestation or infection is of such nature or extent that it cannot be effectively and completely eradicated, or if it is a potentially destructive pest or it is not widespread in the State, or after treatment it is determined that the infestation or infection is not completely eradicated, or if the owner or the owner's agent refuses to allow the article to be treated or to be responsible for the cost of treatment and quarantine, the article, or any portion thereof, together with all packing and containers, may, at the discretion of the inspector, be destroyed or sent out of the State at the expense of the owner or the owner's agent. Such destruction or exclusion shall not be made the basis of a claim against the department or the inspector for damage or loss incurred;

(9) Disposition. Upon completion of inspection, either at the time of arrival or at any time thereafter should any article be held for inspection, treatment, or quarantine, the inspector shall affix to the article or the container or to the delivery order in a conspicuous place thereon, a tag, label, or stamp to indicate that the article has been inspected and passed. This action shall constitute a permit to bring the article into the State; and

(10) Ports of entry. None of the articles mentioned in this section shall be allowed entry into the State except through the airports and seaports in the State designated and approved by the board."

SECTION 3. Section 150A-6.1, Hawaii Revised Statutes, is amended to read as follows:

"§150A-6.1 Plant import. (a) The board shall maintain a list of restricted plants that require a permit for entry into the State. Restricted plants or any portion thereof shall not be imported into the State without a permit issued pursuant to rules.

(b) The department shall designate, by rule, as restricted plants, specific plants that may be detrimental or potentially harmful to agriculture, horticulture, the environment, or animal or public health, or that spread or may be likely to spread an infestation or infection of an insect, pest, or disease that is detrimental or potentially harmful to agriculture, horticulture, the environment, or animal or public health. In addition, plant species designated by rule as noxious weeds are designated as restricted plants.

(d) Noxious weeds may be imported only for research, by permit, and shall not be offered for sale or sold in the State.

(e) No person shall import, offer for sale, or sell within the State any plant or propagative portion of Salvinia molesta or Salvinia minima and Pistia stratiotes.

(f) No person shall import, offer for sale, or sell within the State any plant, or the produce or any portion of a plant, that constitutes genetically modified produce in violation of section 328- ."

PART II

SECTION 4. The purpose of this part is to authorize the labeling of qualified food sold at retail as "not genetically engineered" or "does not include a genetically engineered ingredient".

The legislature intends that any interested person or public agency have the authority to seek an injunction to prevent or terminate a violation of this part.

SECTION 5. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:

"CHAPTER

LABELING OF NON-GENETICALLY ENGINEERED FOOD

§ -A Definitions. For the purpose of this chapter:

"Food" has the same meaning as defined under section 328-1.

"Genetically engineered" means food or an ingredient produced from an organism in which the genetic material has been changed through the application of:

(1) In vitro nucleic acid techniques, including recombinant deoxyribonucleic acid or ribonucleic acid techniques that use vector systems; techniques involving the direct introduction into the organism of hereditary materials prepared outside the organisms, such as micro-injection, macro-injection, chemoporation, electroporation, micro-encapsulation, and liposome fusion; and the direct injection of nucleic acid into cells or organelles; or

(2) Fusion of cells, including protoplast fusion, or hybridization techniques that overcome natural physiological, reproductive, or recombination barriers, where the donor cells/protoplasts do not fall within the same taxonomic family, in a way that does not occur by natural multiplication or natural recombination.

"Label" means the same as defined under section 328-2.

"Organism" means any biological entity capable of replication, reproduction, or transferring genetic material.

§ -B "Not genetically engineered" or "does not include a genetically engineered ingredient" food; permitted labeling. (a) Food offered for retail sale may have a label stating that the food is "not genetically engineered" or "does not include a genetically engineered ingredient" if the statement is true.

(b) The food label authorized by this section shall be displayed in accordance with section 328-8.

(c) Food offered for retail sale with a label falsely stating that the food is "not genetically engineered" or "does not include a genetically engineered ingredient" shall be a violation of this section.

§ -C Injunctive relief. (a) Any person or public agency may bring a civil action in any circuit court of competent jurisdiction for injunctive relief to prevent or terminate any violation of section -B.

(b) The circuit court, in its discretion, may award, to a prevailing person or public agency, reasonable attorney's fees and costs for investigating and prosecuting the action."

PART III

SECTION 6. If any provision of this Act, or the application thereof to any person or circumstance, is held invalid, the invalidity does not affect other provisions or applications of the Act that can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.

SECTION 7. In codifying the new sections added by section 5 of this Act, the revisor of statutes shall substitute appropriate section numbers for the letters used in designating the new sections in this Act.

SECTION 8. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 9. This Act shall take effect on July 1, 2112.

HOUSE OF REPRESENTATIVES	H.B. NO.	174
TWENTY-SEVENTH LEGISLATURE, 2013		H.D. 2
STATE OF HAWAII