Wooley’s gut-and-replace gambit

Representative Jessica Wooley, Chair of the House Agriculture Committee (AGR)—and the governor’s current nomination to head the Office of Environmental Quality Control (OEQC)—strongly supports a GMO-labeling law in Hawaii.

“I first came into the issue as a concerned mother,” she said at the beginning of today’s AGR hearing. “It is a complicated issue, but one that is very important to consumers in the state.”

But with Bio-tech lobbyists and certain legislators blocking efforts to draft a bill on this issue, Wooley turned to an oft-criticized legislative maneuver known as “gut-and-replace” to create a labeling bill out of an agriculture industry subsidy bill (SB2435) that crossed over to her committee from the Senate.

Today, the AGR committee heard Wooley’s version of the bill (the original was introduced by Senators Donovan Dela Cruz, Michelle Kidani, Malama Solomon, J. Kalani English, Ronald Kouchi and Clarence Nishihara).

For the record, Wooley was open about the fact that she had initiated a gut-and-replace, even joking about how Common Cause Hawaii, a good-government group, would be keeping an eye on her. But the very same problems that lead good-government groups and legislators alike to criticize gut-and-replace bills ended up causing the demise of this last-ditch effort to advance GMO-labeling legislation.

“It is a valid issue and—just so everyone knows—I do support labeling,” said Representative James Tokioka at the end of the hearing. “I can’t support this bill, the way it’s drafted right now, but I do agree that the dialog needs to continue.”

Rep. Tokioka and Representative Isaac Choy were the most vocal about their concerns over the bill, pointing out several large technical holes in its language that were a result of the rushed nature of its creation. Gut-and-replace bills are often drafted near the end of the legislative process as last resorts, meaning that—often times—other legislators don’t even have time to thoroughly review the new version. This was exactly the case with Wooley’s proposed House Draft.

Rep. Choy pointed out that he wasn’t even sure which draft of the bill they were supposed to be looking at that day. The representatives from the State Departments of Agriculture (DOA) and of Health (DOH) had not had a chance to look at the newest draft either and were unaware of crucial changes to the language of the bill that removed government responsibility for oversight and enforcement of the proposed law.

“[The bill] does not mandate that [the DOA] do any testing or any kind of regulatory program,” said Wooley.

“So the Department of Agriculture has not seen a copy of this draft?” asked Choy.

“No, I do not think they have,” replied Wooley.

“OK, so they’re testifying on something they haven’t seen yet?” he asked.

“Yes, they are,” she answered.

“OK,” Choy said with a raised eyebrow.

More holes in the language came to light when Gary Gill, the Director of the DOH, tried to answer questions posed by committee members over how labels could be checked for accuracy.

“There is no technology, that we currently have, for us to test for GMO content within food,” said Gill. “There are any number of food products that may have genetically engineered (GE) material in them, but not have the genetic marker we could test for. That marker doesn’t necessarily show up in finished food products.”

Gill used the example of GE soy beans, that would carry such a marker, and oil made from those soy beans, which would not. Gill also pointed out that those markers can be removed by the scientists that create the modified organisms and, without access to the entire genome of the original plant, there would be no way to check that.

“But if we’re talking about labeling GMO the same way we would label Kona Coffee, or something like that—for consumer confidence and information—we have no problem with that as a department. Just please don’t expect us to do testing that isn’t possible and enforcement that wouldn’t be legally defensible,” said Gill.

“I don’t think any of us have a problem with the right to know what’s in our food,” said Choy. “But when we get down to the details of the mechanics, I like to know exactly how this is going to be done.”

Choy asked the Department of Agriculture representative how exactly the DOA would go about checking for mislabeled products in the marketplace. The DOA rep said that he didn’t know how they’d be able to do that.

At this point, Wooley interjected to restate that the newest draft removes the enforcement aspect from the purview of government agencies, like the DOA, and places it under the purview of the private sector.

“OK, so we’re going to pass a law that has no enforcement aspect at all?” asked Choy. “So is this a voluntary labeling bill?”

“You could say that,” answered Wooley.

“Can you point to where it says that in the bill?” asked Choy.

“It doesn’t say that in the bill,” she replied.

“If [the DOA] doesn’t know how to enforce this, then I’m going to assume that if a product was mislabeled, the public’s right to know would not be well served anyway, right?” postulated Choy.

“We’re talking about mandatory labeling, but the enforcement aspect is not going to be mandated by the state,” said Wooley. “The assumption will be that [the companies] will voluntarily comply.”

Gary Hooser, Kauai County Council member, backed up Wooley’s argument, using the county’s own recently passed GMO and pesticide disclosure law as an example of how this could still work.

“If this body believes that labeling is important to the State of Hawaii, and its consumers, then these issues can all be resolved,” said Hooser. “We faced similar questions over our Kauai bill. The compliance responsibility is with the companies that are producing these products.  My assumption would be that the vast majority of these companies would comply with the law. And if they were exposed to citizen’s lawsuits, they would be even more careful. Many other countries have labeling laws that they’ve managed to work out. I encourage this committee to have a will and find a way.”

Vice Chair Richard Onishi asked Hooser about another hole he had discovered. In exempting restaurants from having to label their products, the bill could allow for the same GMO crop that is required to be labeled in supermarkets to be served unlabeled in a restaurant dish.

“How does that serve the people’s right to know?” he asked. “What’s the logic behind that?”

But the real nail in the coffin came when Rep. Tokioka asked Hooser head on if he is for or against gut-and-replace bills.

“I encourage lawmakers to avoid gut-and-replace,” answered Hooser.

“But we’re not doing that now,” said Tokioka.

“I’m not hear to pass judgment on the decision of the chair,” said Hooser. “I’m here to testify on the bill that’s before us.”

Tokioka’s question sparked a brief back-and-forth with Chair Wooley, who said she felt he was attacking her decision on a personal level, before a recess was called.

Although the question was a loaded one, Tokioka did make a fair point in asking it. If we agree that gut-and-replace is usually a bad thing, who gets to decide when it’s not? Should we not be consistent in our policy toward the strategy, and not pick and choose when it’s OK and when it’s not?

By the end of the hearing, Wooley had decided to defer the bill, ending any hopes for a labeling law this year. Tokioka later stated that he did not mean for his remarks to be taken as a personal attack.

“I think this is an issue that we will continue to need to address and discuss,” said Wooley. “I think this hearing was a necessity this session and I want to extend my mahalo to the committee members for being open and for trying to embrace this controversy.

“I think one thing that will make it easier for us to continue this discussion is if we continue to maintain the level of the decorum and respect, even if we disagree,” she continued. “For me, this is about the freedom to choose and about transparency. But, we also need to respect the fact that [the Bio-tech companies] have the right to do businesses. I am 100 percent committed to labeling and this committee has expressed its commitment to labeling as well through it’s support of the Federal initiative. In my opinion, that doesn’t mean that we are finished talking about this as a state issue, but we are finished talking about it for today.”

Rep. Wooley will have to go before the full Senate in order to be confirmed as Director of the OEQC. The senators who originally crafted SB2435, except for Sen. English, all received donations from Bio-tech corporations during the last election cycle. Whether Wooley’s gutting of their subsidy bill, and replacement with a bill those same corporations strongly oppose, will affect her chances for the nomination remains to be seen.