Introduced Version
House Bill 2145 History
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Key: Green = existing Code. Red = new code to be enacted
H. B. 2145
(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, §19-2H-6, §19-2H-7, §19-2H-8,
§19-2H-9, §19-2H-10, §19-2H-11, §19-2H-12 and §19-2H-13, all
relating to creating the "Genetically Engineered Crop and
Animal Farmer Protection Act"; making legislative findings;
setting forth information requirements regarding the sale of
genetically engineered seeds; plants and animals; identifying
certain contractual provisions to be against public policy;
preventing noncompetitive practices involving technology fees;
establishing measures to be taken to avoid cross pollination
of genetically engineered plants and seeds; requiring
genetically engineered seeds to be so labeled; prohibiting
loan discrimination; providing penalties; providing for civil
and citizen suits; defining terms; and authorizing rule-making.
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, §19-2H-6, §19-2H-7, §19-2H-8,
§19-2H-9, §19-2H-10, §19-2H-11, §19-2H-12 and §19-2H-13, all to
read as follows:
ARTICLE 2H. GENETICALLY ENGINEERED CROP AND ANIMAL FARMER ____
PROTECTION ACT.
§19-2H-1. Short title.
_____This article shall be known as the "Genetically Engineered
Crop and Animal Farmer Protection Act."
§19-2H-2. Findings.
_____The Legislature finds the following:
_____(a) Agribusiness and biotechnology companies have rapidly
consolidated market power at the same time as the average farmer's
profits and viability have significantly declined.
_____(b) Policies promoted by biotech corporations, such as
patenting of seeds, depriving farmers the right to save seed,
unreasonable seed contracts, and intrusion into everyday farm
operations, have systematically acted to remove basic farmer rights
enjoyed since the beginning of agriculture and essential for
agricultural sustainability and the survival of family farms.
_____(c) The introduction of genetically engineered crops has also
created obstacles for farmers, including the loss of markets and
increased liability concerns.
_____(d) To mitigate the abuses upon farmers, a clear set of farmer
rights must be established.
§19-2H-3. Definitions.
_____For the purposes of this article, these definitions are
applicable unless a different meaning clearly appears from the
context:
_____(1) "Genetically engineered animal" means an animal that
contains a genetically engineered material or was produced with a
genetically engineered material. An animal shall be considered to
contain a genetically engineered material or to have been produced
with a genetically engineered material if the animal has been
injected or otherwise treated with a genetically engineered
material or is the offspring of an animal that has been so injected
or treated.
_____(2) "Genetically engineered plant" means a plant that contains
a genetically engineered material or was produced from a
genetically engineered seed. A plant shall be considered to
contain a genetically engineered material if the plant has been
injected or otherwise treated with a genetically engineered
material (except that the use of manure as a fertilizer for the
plant may not be construed to mean that the plant is produced with a genetically engineered material).
_____(3) "Genetically engineered seed" means a seed that contains
a genetically engineered material or was produced with a
genetically engineered material. A seed shall be considered to
contain a genetically engineered material or to have been produced
with a genetically engineered material if the seed (or the plant
from which the seed is derived) has been injected or otherwise
treated with a genetically engineered material (except that the use
of manure as a fertilizer for the plant may not be construed to
mean that any resulting seeds are produced with a genetically
engineered material).
_____(4) "Genetically engineered material" means material that has
been altered at the molecular or cellular level by means that are
not possible under natural conditions or processes (including
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.
_____(5) "Biotech company" means a person engaged in the business
of creating genetically engineered material or obtaining the patent
rights to that material for the purposes of commercial exploitation
of that material. The term does not include the employees of such person.
_____(6) "Commissioner" means the Commissioner of Agriculture.
§19-2H-4. Information requirements regarding sale of genetically
__________ engineered seeds, plants and animals.
_____(a) Full disclosure of risks of use. -- A biotech company that
sells any genetically engineered animal, genetically engineered
plant, or genetically engineered seed that the biotech company
knows, or has reason to believe, will be used by the purchaser in
this state to produce an agricultural commodity shall provide
written notice to the purchaser that fully and clearly discloses
the possible legal and environmental risks that the use of the
genetically engineered animal, genetically engineered plant, or
genetically engineered seed may pose to the purchaser.
_____(b) Effect of disclosure. -- The provision of written notice
under subsection (a) of this section regarding the risks of using
a genetically engineered animal, genetically engineered plant, or
genetically engineered seed does not relieve the biotech company
from any liability that may result from the release of genetically
engineered material into the environment. The receipt of the
written notice by the purchaser shall not be construed to create
any liability on the purchaser.
§19-2H-5. Contract limitations regrading sale of genetically
engineered seeds, plants and animals.
_____(a) Certain contract terms and limitations unenforceable. --
If a contract for the sale of a genetically engineered animal,
genetically engineered plant, or genetically engineered seed to a
purchaser for use in agricultural production contains a provision
described in subsection (b) of this section, the provision is
hereby declared to be against public policy and therefore void and
unenforceable as a matter of law.
_____(b) Prohibited terms and limitations. -- The provisions
referred to in subsection (a) of this section are any of the
following:
_____(1) In the case of a sale of genetically engineered plants or
genetically engineered seeds, a provision that prohibits the
purchaser from retaining a portion of the harvested crop for future
crop planting by the purchaser or that charges a fee to retain a
portion of the harvested crop for future crop planting;
_____(2) A provision that limits the ability of the purchaser to
recover damages from the biotech company for a genetically
engineered animal, genetically engineered plant, or genetically
engineered seed that does not perform as advertised;
_____(3) A provision that shifts any liability from the biotech
company to the purchaser;
_____(4) A provision that requires the purchaser to grant agents of
the seller access to the purchaser's property;
_____(5) A provision that mandates arbitration of any disputes between the biotech company and the purchaser;
_____(6) A provision that mandates any court of jurisdiction for
settlement of disputes;
_____(7) A provision that mandates that the purchaser pay
liquidated damages of more than a technology fee or similar fee
itself, plus interest; or
_____(8) A provision that imposes any unfair condition upon the
purchaser, as determined by the commissioner or a court.
§19-2H-6. Prevention of noncompetitive practices involving
technology fees.
_____(a) Disclosure of technology fees. -- Any biotech company that
sells a genetically engineered animal, genetically engineered
plant, or genetically engineered seed for use in agricultural
production in this state shall notify the commissioner, at such
times and in such manner as the commissioner shall require, of the
following:
_____(1) The nature and amount of any technology, nonproduction,
royalty, or similar fees collected by the biotech company in each
country where that genetically engineered animal, plant, or seed is
marketed; and
_____(2) In the case of genetically engineered plants or
genetically engineered seeds, the prices charged by the biotech
company for herbicides associated with that genetically engineered
seed or plant.
_____(b) Prohibition on noncompetitive practices. -- A biotech
company that sells a genetically engineered animal, genetically
engineered plant, or genetically engineered seed for use in
agricultural production in this state may not charge higher
technology, nonproduction, royalty, or similar fees for sales of
the genetically engineered animal, plant, or seed in this state
than in other countries in which the genetically engineered animal,
plant, or seed is sold.
_____(c) Publication of data. -- The commissioner shall publish all
data received under subdivision (1), subsection (a) of this section
every six months in an electronic format.
§19-2H-7. Measures to avoid cross pollination involving
genetically engineered seeds or plants.
_____(a) Designation of predominately outcrossed pollinators. --
The commissioner shall determine which plants are predominately
outcrossed pollinators and make such information available to
persons who sell or purchase such plants or the seeds of such
plants for use in agricultural production.
_____(b) Minimizing the negative effects of predominately
outcrossed pollinators. -- The commissioner shall propose rules to
require effective mitigation strategies for any crop that is a
predominately outcrossed pollinator.
_____(c) Providing instructions to avoid cross pollination. -- The seller of any genetically engineered plant or genetically
engineered seed that has been identified as a predominately
outcrossed pollinator shall provide written instructions to each
purchaser of the plants or seeds regarding how to plant and
cultivate the plants or seeds so as to avoid cross contamination.
§19-2H-8. Prohibition on labeling certain seeds as nongenetically
engineered.
_____A seed company or other person may not sell, or offer for
sale, seeds for planting that are labeled as nongenetically
engineered or otherwise represented as not containing genetically
engineered material if the commissioner finds that any sample of
the seeds contains genetically engineered material.
§19-2H-9. Prohibition on certain nonfertile plant seeds.
_____Notwithstanding any other provision of law, effective
forty-five days after the date of the enactment of this article, a
person may not manufacture, distribute, sell, plant, or otherwise
use any seed that is genetically engineered to produce a plant
whose seeds are not fertile or are rendered infertile by the
application of an external chemical inducer.
§19-2H-10. Prohibition on loan discrimination.
_____A financial institution may not discriminate against an
agricultural producer that refuses to use genetically engineered
plants or animals or add as condition to a loan the requirement that the producer use genetically engineered plants or animals.
§19-2H-11. Civil penalties for violation.
_____(a) Authority to assess penalties. -- The commissioner may
assess, by written order, a civil penalty against a biotech company
or other person that violates a provision of this article,
including a rule promulgated or order issued under this article.
Each violation, and each day during which a violation continues,
shall be a separate offense.
_____(b) Amount and factors in assessing penalties. -- The maximum
amount that may be assessed under this section for a violation may
not exceed $100,000. In determining the amount of the civil
penalty, the commissioner shall take into account:
_____(1) The gravity of the violation;
_____(2) The degree of culpability;
_____(3) The size and type of the business; and
_____(4) Any history of prior offenses under this article or other
laws administered by the commissioner.
_____(c) The civil penalty is payable to the State of West Virginia
and is collectible in any manner now or hereafter provided for
collection of debt. If any person liable to pay the civil penalty
neglects or refuses to pay the same, the amount of the civil
penalty, together with interest at ten percent, is a lien in favor
of the State of West Virginia upon the property, both real and
personal, of such a person after the same has been entered and docketed to record in the county where such property is situated.
The clerk of the county, upon receipt of the certified copy of
such, shall enter same to record without requiring the payment of
costs as a condition precedent to recording.
§19-2H-12. Citizen suits.
_____(a) General. -- Except as provided in subsection (c) of this
section, any person may commence a civil action in an appropriate
circuit court against:
_____(1) A person who has introduced a genetically engineered
organism into the environment without approval under this article;
_____(2) The commissioner, where there is alleged a failure of the
commissioner to perform any act or duty under this article that is
the responsibility of the commissioner and is not discretionary; or
_____(3) Another state agency, if there is alleged a failure of the
agency to perform any act or duty under this article that is the
responsibility of the agency and is not discretionary.
_____(b) Relief. -- In a civil action under this section, the
circuit court involved may, as the case may be:
_____(1) Enforce the compliance of a person with the applicable
provisions referred to in the complaint; or
_____(2) Order the commissioner or the agency head to perform the
act or duty referred to in the complaint.
_____(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 (1),
subsection (a) of this section against the commissioner if the
commissioner has commenced and is diligently prosecuting a civil or
criminal action in a circuit court to enforce compliance with the
applicable provisions referred to in the complaint.
_____(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) No restrictions. -- This section does not restrict any
right that the commissioner or a person (or class of persons) may
have under any other provision of this code or common law to seek
enforcement of the provisions of this article, or to seek any other
relief (including relief against the commissioner or the head of another state agency).
§19-2H-13. 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 Crop and Animal Farmer Protection Act." The bill makes
legislative findings, sets forth information requirements regarding
the sale of genetically engineered seeds, plants and animals,
identifies certain contractual provisions to be against public
policy and prevents noncompetitive practices involving technology
fees. The bill also sets forth measures to be taken to avoid cross
pollination of genetically engineered plants and seeds and requires
genetically engineered seeds to be so labeled. The bill further
prohibits loan discrimination. Also, the bill provides for civil
and citizen suits. The bill defines terms and provides rule-making
authority.
This article is new; therefore, it has been completely
underscored.