It got a final 50-to-1 favorable vote in the Hawaii House, but House Bill (HB) 174 could not have taken a more tumultuous road to today’s public hearing in the Senate. And its future remains very much in doubt.
In between, an outspoken pro-labeling activist used a geographic version of a racial epithet rarely heard in public debate on the islands against the man she believed was blocking the bill from getting a hearing.
Jessica Mitchell recorded a phone message for state Sen. Clarence Nishihara, who chairs the Senate Agriculture Committee, in which the activist said the Senator of Japanese ancestry should “go back to Japan” and “mess things up” there.
When Sen. Nishihara released the recording to the media, Mitchell issued a quick apology. Lobbying for a hearing in the Senate, however, remained intense. On Tuesday, Senate Democrats held a closed door caucus meeting and when they emerged announced three committees (Agriculture, Health and Consumer Affairs) would hold a single hearing on HB 174 today, from 9 to 11 a.m.
Law students working with the advocates of the bill to label genetically modified (GM) food have written a short memorandum saying HB 174 must be amended to make it constitutional before it is adopted in the Senate.
“First, the bill needs to apply to both in-state and out-of-state GMOs,” Richardson Students for Labeling wrote. “Absent this, it is blatantly un-constitutional.”
The bill also needs a statement saying its purpose is to avoid consumer confusion, the Richardson students say. They say that’s enough of a reason to compel commercial speech under Supreme Court precedents. Finally, the law students say the bill needs a clause allowing for a private cause of action for consumers to help with enforcement and be upheld in federal preemption cases.
As originally written, HB 174 would keep unlabeled food off the islands, but not apply to food grown in Hawaii. That caused the Hawaii Attorney General’s office to issue an opinion regarding the bill’s apparent violations of the Commerce Clause of the U.S. Constitution.
In addition to the racial slur, there’s been plenty of rambunctious lobbying occurring on both sides. The pro-HB 174 side has been assisted by interests ranging from local growers to a colorful website known as “Babes Against Biotech.”
Ironically, one of Hawaii’s best known agricultural industries, its papaya crop, was rescued by genetic engineering in the early 1990s when a virus-resistant strain was produced, saving it from being wiped out by the ring spot virus.
The 50-to-1 vote that HB 174 received on final passage in the House is a bit of an overstatement, as 19 representatives voted “aye” with reservations. House Agriculture Commission Chair Jessica Wooley says that, as written, the bill has flaws. She says the Hawaii Legislature needs to hear and pass the bill into law with the necessary and be the first state to help its citizens make informed decisions about GM food
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