S.295

Introduced by Senator Rivers of Windsor County, Senator MacDonald of Orange County and Senator Ready of Addison County

Referred to Committee on

Date: 01/05/2000

Subject: Agriculture; genetic engineering; agricultural inputs; seeds

Statement of purpose: This bill proposes to require labeling of agricultural inputs produced with the use of genetic engineering, including seeds.

AN ACT RELATING TO GENETICALLY-ENGINEERED AGRICULTURAL INPUTS

It is hereby enacted by the General Assembly of the State of Vermont:

Sec. 1. 6 V.S.A. chapter 21A is added to read:

CHAPTER 21A. LABELING OF GENETICALLY-ENGINEERED AGRICULTURAL INPUTS

§ 186. SUBSTANTIAL STATE INTEREST

(a) State policy. It is the policy of this state that Vermont farmers who choose to use genetically-engineered seeds, plants, animal feeds or other agricultural inputs should be responsible for following agricultural practices which are designed:

(1) to safeguard, and thus to avoid jeopardizing, the ability of other Vermont farmers to produce agricultural commodities without the use of genetically-engineered material or organisms;

(2) to safeguard, and thus to avoid jeopardizing, the interests of any other property owners who wish to be unaffected by a farmer's choosing to employ genetically-engineered material or organisms; and

(3) to prevent the introduction of genetically-engineered material or organisms into either the natural or domesticated plant or animal life of the state, beyond the direct and immediate agricultural applications concerned.

(b) Substantial state interest. Therefore, the Vermont general assembly:

(1) finds a substantial state interest in ensuring the availability of agricultural input labeling information that is complete and accurate, and in which agricultural producers can place their confidence; and

(2) seeks to serve this public interest through this chapter and through chapter 35 of this title by requiring the labeling of agricultural inputs produced with the aid of genetic engineering, except for recombinant bovine growth hormone (rbST), and, thereby, supplement any labeling required by the U.S. Food and Drug Administration, the U.S. Environmental Protection Agency or the U.S. Department of Agriculture.

§ 187. DEFINITIONS

As used in this chapter:

(1) "Agricultural input" means all material derived from a naturally-occurring or synthetic plant, animal or mineral source, employed in agricultural production.

(2) "Commissioner" means the commissioner of agriculture, food and markets.

(3) "Distributor" means a person registered with the commissioner, pursuant to requirements of this chapter, who distributes, by means of wholesale, retail, direct mail or other type of transaction, an agricultural input for use in agricultural production in this state.

(4) The terms "genetically-engineered material" and "genetically-engineered organism" mean, respectively: a material derived from any part of a genetically-engineered organism, or the progeny of such organism, without regard to whether the altered molecular or cellular characteristic of the organism is detectable in the material; and an organism that has been altered at the molecular or cellular level by means of, but not limited to, recombinant DNA and RNA techniques, cell fusion, macroencapsulation, gene deletion and doubling, introducing a foreign gene, and changing the positions of genes, or the progeny of such organism made through sexual or asexual reproduction, or both. The term "genetically-engineered" does not apply to material or an organism developed exclusively through traditional methods of breeding, such as artificial insemination, embryo transfer, hybridization or nondirected mutagenesis, nor does the term apply to agricultural commodities, animal feed or human food containing extracted products of a genetically-engineered organism with no more than trace amounts of the organism itself or its genetic material.

(5) "Genetically-engineered agricultural input", or "GE" agricultural input, means an agricultural input produced by methods employing genetically-engineered material or organisms.

(6) "Synthetic" means a substance that is formulated or manufactured by a chemical process or by a process that chemically changes a substance extracted from naturally-occurring plant, animal, or mineral sources, except that the term synthetic shall not apply to substances created by naturally-occurring biological processes.

(7) "Vermont producer" means a person registered with the commissioner pursuant to requirements of this chapter, who wishes to produce in this state and offer for commercial distribution and sale in Vermont or out of state, an agricultural commodity produced with the aid of a GE agricultural input.

§ 188. GE AGRICULTURAL INPUTS

(a) Labeling.

(1) A distributor shall label the container or package of a GE agricultural input offered for sale in this state, and shall post a written display at the point of its sale, which states that the production of such agricultural input has employed genetic engineering, and which identifies each such technique concerned, together with its commonly recognized acronym or other abbreviation.

(2) The label shall indicate whether the GE agricultural input is harmful to other plants, insects, or to human or other vertebrate animals. If it is harmful, the statement shall list each possible harmful consequence for each such plant, insect, human or other vertebrate animal. In addition, the statement shall prescribe practices users of the GE agricultural input shall follow to avoid harmful consequences, including but not limited to: locating or segregating plants or animals to avoid unintended intermingling with other plant or animal life through airborne drift, soil hydrology and surface water runoff, or other means; and conditions for planting or feeding, cultivation and management, animal waste management, harvesting, storage and transportation. Such statement shall be obtained by the distributor from the manufacturer of the GE agricultural input.

(b) Liability.

(1) All purchasers of a GE agricultural input are regarded under Vermont law as consumers, as this term is defined by section 2451a of Title 9, and the mislabeling of such a GE agricultural input or the causing of any harmful consequence by use of the GE agricultural input in the manner prescribed by the label is an unfair or deceptive act or practice in commerce and shall be a violation of section 2453 of Title 9. Any disclaimers with regard to contracts involving a GE agricultural input are inherently unconscionable and consequential damages shall be available for economic injury. The attorney general is authorized to make rules, conduct civil investigations, and bring civil actions with respect to such acts and practices of the distributors of a GE agricultural input.

(2) At the request of any party to an action brought pursuant to this subsection, the court may conduct all legal proceedings in such a way as to protect any proprietary or trade secrets of any party.

(c) Compliance. Any Vermont producer using a GE agricultural input shall comply with the practices prescribed pursuant to subsection (a) of this section. Any Vermont producer using a GE agricultural input who is not also the distributor of the resulting agricultural commodity for sale in this state or outside this state, shall provide the distributor with information sufficient for compliance with this section.

(d) The provisions of this section shall not apply to use of rbST, as defined in section 2761 of this title, as an agricultural input.

§ 189. REGISTRATION; FEES; REPORTS; INFORMATION

(a) Registration. No person shall distribute in this state a GE agricultural input, and no Vermont producer shall use a GE agricultural input, who has not registered with the commissioner.

(b) Fees. A fee shall be charged all persons registering under this section, in accordance with a fee schedule reasonably related to the cost of performing the functions required by this chapter, developed pursuant to subchapter 6 of chapter 7 of Title 32. Fee revenues shall be deposited in a special fund established pursuant to subchapter 5 of chapter 7 of Title 32.

(c) Reports. All persons registered under this section shall report annually by January 1 to the commissioner on compliance with this chapter on forms supplied by the commissioner.

(d) Public information; confidentiality. The identity of the distributors and Vermont producers registered under this section shall be public information. The contents of reports required under this section shall be confidential and available only to the commissioner or his or her designee, the attorney general or his or her designee, other law enforcement officers designated by the attorney general, and to the courts as requested by a court in a liability proceeding.

§ 190. ENFORCEMENT; PENALTY

(a) The commissioner is authorized to conduct random inspections of the operations of distributors and Vermont producers registered under this chapter to verify compliance with the labeling provisions of this chapter. The commissioner shall, for the same purpose, review at least annually, the reports of registered distributors and Vermont producers required under this chapter.

(b) If the commissioner determines in any instance that compliance with this chapter cannot be verified, the commissioner shall immediately so notify the attorney general and the distributor or Vermont producer concerned.

(c) A violation under this chapter may give rise to a civil, administrative or criminal enforcement action under Titles 9, 6 or 13.

(d) The commissioner may seek search warrants and accept assurances of discontinuance under sections 1, 12 and 13 of Title 6.

(e) The attorney general or state's attorney may prosecute civil, criminal or administrative actions in accordance with the Vermont Civil and Criminal Rules of Procedure and the Administrative Procedure Act.

(f) The commissioner shall, annually by January 15, report to the general assembly on implementing this section, consistent with the confidentiality requirement of this chapter.

§ 191. LABELING ADVISORY BOARD; RULES

(a) Labeling advisory board. A labeling advisory board is established, consisting of the commissioner, who shall serve as chair, and ten other members appointed by the commissioner after seeking the advice and recommendation of Vermont distributor and agricultural producer associations and of individual distributors and agricultural producers in this state. The board shall meet at the call of the commissioner, but at least twice annually, to advise the commissioner on matters concerning the implementation of this chapter, and to assist the commissioner in devising and reviewing the effectiveness of the rules adopted under this section. The commissioner shall make initial board appointments for staggered terms with none exceeding three years. Thereafter, all appointments shall be for a three-year term each. Members may apply for reappointment at the expiration of their terms. Members not employed in the public sector shall be compensated for service on the committee, pursuant to section 1010 of Title 32.

(b) Academic cooperation. The commissioner and the labeling advisory board shall have the cooperation and assistance of individuals with expert competence in relevant disciplines who are faculty or staff of the University of Vermont and the Vermont state colleges.

(c) Rules. The commissioner shall adopt rules, with the advice of the labeling advisory board, to implement provisions of this chapter, concerning:

(1) Practices required when using GE agricultural inputs to prevent harm to other plant and animal life.

(2) Label design and content of GE agricultural inputs.

(3) Records required of distributors and Vermont producers evidencing compliance with this chapter.

(4) Procedures for registration, fee payments and reports.

(5) Standards and procedures for implementing the enforcement, penalties and other provisions of this chapter.

* * * Seeds * * *

Sec. 2. 6 V.S.A. § 611 is amended to read:

§ 611. SERVICE FOR CERTIFICATION OF SEED; STANDARDS AND

REGULATIONS; SUBSTANTIAL STATE INTEREST

* * *

(e) The general assembly finds, pursuant to section 186 of this title, a substantial state interest in requiring the labeling of agricultural, flower and vegetable seeds produced with the aid of genetic engineering, in addition to the other seed labeling information required by this chapter.

Sec. 3. 6 V.S.A. § 641 is amended to read:

§ 641. DEFINITIONS

As used in this chapter:

* * *

(9) "Genetically-engineered seed" or "GE" seed means an agricultural, flower or vegetable seed produced by methods employing genetically-engineered material or organisms as defined in section 187(4) of this title.

Sec. 4. 6 V.S.A. § 644 is amended to read:

§ 644. LABEL REQUIREMENTS FOR AGRICULTURAL, FLOWER AND

VEGETABLE SEEDS

(a) Each container of agricultural, flower and vegetable seeds which is sold in this state for sowing purposes shall be labeled.

(1) All labels shall include:

(A) the name of the kind of each agricultural, flower, grass and vegetable seed present;

(B) the lot number or other lot identification;

(C) for agricultural and grass seed, the percent by weight of all weed seeds, crop seeds and inert matter;

(D) the percent germination of agricultural and grass seed, exclusive of hard seed, the percentage by weight of hard seed, and the calendar month and year the test was completed;

(E) the name and address of labeler or distributor.

(2) *[For]* Labels for all treated seeds *[that have been treated, the label]*:

(A) shall include a *[word or]* statement indicating that the seed has been treated with the commonly accepted chemical or abbreviated chemical name of the applied substance*[. A caution]*; and

(B) a warning statement shall also be set forth if the substance in the amount present is harmful to human or other vertebrate animals. The caution for toxic substances shall be a poison statement or symbol.

(3) Labels for all GE seed:

(A) shall include a statement indicating that production of such seed has employed genetic engineering, and shall identify each such technique concerned together with its commonly recognized acronym or other abbreviation; and

(B) the label shall indicate whether the GE seed is harmful to other plants, insects, or to human or other vertebrate animals. If it is harmful, the statement shall list each possible harmful consequence for each such plant, insect, human or other vertebrate animal. In addition, the statement shall prescribe practices users of the GE seed shall follow to avoid harmful consequences, including but not limited to: locating or segregating plants to avoid unintended intermingling with other plant life through airborne drift, soil hydrology and surface water runoff, or other means; and conditions for planting or feeding, cultivation and management, waste management, harvesting, storage and transportation. Such statement shall be obtained by the distributor from the manufacturer of the GE seed.

*[(3) For]*(4) Labels for all seed treated with an innoculant*[, the label]* shall state the date of expiration of the innoculant.
(b) The commissioner *[may]* shall develop rules for labeling procedures consistent with the provisions of this section, which take into account: origin, presence of weed seed, mixtures, hermetically sealed containers, coated seed, "crop seeds," hybrids, attributes of GE seeds, germination medium and preplanted containers.

Sec. 5. 6 V.S.A. § 644a is added to read:

§ 644a. GE SEEDS; LIABILITY

(a) All purchasers of GE seeds are regarded under Vermont law as consumers, as this term is defined by section 2451a of Title 9, and the mislabeling of such GE seeds or the causing of any harmful consequence by use of the GE seeds in the manner prescribed by the label is an unfair or deceptive act or practice in commerce, and shall be a violation of section 2453 of Title 9. Any disclaimers with regard to contracts involving GE seeds are inherently unconscionable, and consequential damages shall be available for economic injury. The attorney general is authorized to make rules, conduct civil investigations, and bring civil actions with respect to such acts and practices of the distributors of GE seeds.

(b) At the request of any party to an action brought pursuant to this section, the court may conduct all legal proceedings in such a way as to protect any proprietary or trade secrets of any party.

Sec. 6. 6 V.S.A. § 648 is amended to read:

§ 648. REGISTRATION; FEES FOR INSPECTIONS

(a) Registration. No person shall distribute seed in the state, by means of wholesale, retail, direct mail or other type of transaction, who has not registered with the commissioner.

*[(a)]*(b) Fees. Inspection fees shall be paid to the commissioner by a *[manufacturer or processor which]* person registered under this section and who distributes seed in the state. Fees shall be established as follows:
(1) thirty-five cents per hundredweight for any seed sold in containers of more than ten pounds;

(2) a flat fee of $75.00 per company for any seed sold.

*[(b) The]* (c) Except for GE seeds, the following shall be exempt from the inspection fee requirements:
(1) seed not intended for sowing purposes;

(2) seed in storage in, or consigned to a seed cleaning or processing establishment for cleaning or processing; and

(3) seed grown, sold and delivered by a producer on his or her own premises for seeding purposes to the ultimate consumer, providing such seed has neither been advertised for sale nor been delivered via commercial carrier, and providing the seed contains no prohibited noxious weed seeds or not more than one restricted noxious weed seed per 2,000 of the seeds being sold.

*[(c)]*(d) Reports. For *[those]* all GE seeds, and for other seeds sold in containers of more than ten pounds, a report shall be filed *[semi-annually]* semiannually on August 1 and February 1 on forms supplied by the commissioner which identify each individual sale or each individual distribution in the state, and fees based on the 35 cent per hundredweight rate shall accompany the report. Reporting periods are January 1--June 30 and July 1--December 31. *[(d)]*(e) Small quantity sales. For *[those]* GE-free seeds sold in containers of ten pounds or less, the fee of $75.00 per company shall be paid annually prior to distribution in the state. Fees shall be paid annually on January 1. *[(e)]*(f) Special fund. All fees shall be deposited in the special fund created by section 364(e) of this title and used in accordance with its provisions. *[(f)]*(g) Waiver. The commissioner may waive seed inspection fees under this chapter, based on the number of seed varieties sold, and for the sale of heirloom seed varieties.