DEPARTMENT OF AGRICULTURE - DEPARTMENT OF HEALTH - AGRICULTURE - HEALTH - AUTHORITY TO EMBARGO FOOD GROWN IN A 'FOOD CONTROL AREA'

DEPARTMENT OF AGRICULTURE - DEPARTMENT OF HEALTH - AGRICULTURE - HEALTH - AUTHORITY TO EMBARGO FOOD GROWN IN A "FOOD CONTROL AREA"

Neither the Department of Agriculture nor the Department of Health has authority to administratively designate a "food control area" (such as the area surrounding the site of a chemical or nuclear accident) and embargo all food grown within the area without some particularized determination of the products which are contaminated or are likely to pose a threat to human health.

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                                                                 January 18, 1995

James Jesernig
Director
Department of Agriculture
P.O. Box 42560
Olympia,  WA   98504-2560

Bruce A. Miyahara
Secretary                                                                                                                                                      
Department of Health
P.O. Box 47890
Olympia,  WA   98504-7890

                                                                                                Cite as:  AGO 1995 No. 1

Dear Messrs. Jesernig and Miyahara:

            By letters previously acknowledged, you jointly have asked whether the Department of Agriculture or the Department of Health may establish "food control areas", embargo all agricultural products produced within such areas, and take certain steps to monitor and enforce such embargoes.  You also ask under what circumstances the state may face liability for engaging these actions.

            Your correspondence provides background information that we note at the outset.  You ask these questions as part of emergency preparedness planning.  You are concerned with the power of your respective agencies to embargo food and enforce its embargo in the event of an accident at a nuclear power plant or radioactive waste storage facility.  You explain that "food control areas" would be areas "identified by field measurements and computer modeling to have been probably subjected to deposition of radioactive, toxic or otherwise hazardous substances from an aerial plume produced during an accident or emergency at a nuclear power plant or radioactive waste storage facility".

            We have paraphrased your questions as follows:

            Question 1

            Does the Washington State Department of Agriculture under RCW 69.04.110 and .210, or the Department of Health under RCW 43.70.180 and .190, have legal authority (a) to embargo all agricultural products produced within a "food control area", (b) to stop and inspect all vehicles leaving a "food control area" to determine whether agricultural products are being removed in violation of the embargo, and (c) if it is determined that the vehicle is carrying embargoed agricultural products, to seize the products, take samples for testing, and if found contaminated, impound or destroy them?

            Question 2

            Under what conditions might state agencies or their officers be liable for the value of agricultural products seized and destroyed pursuant to these procedures?

            Before considering your specific inquiries, we note several assumptions that we draw from your correspondence concerning the plan about which you inquire.  First, as we understand your explanation, identifying an area as a "food control area" does not mean that all agricultural products produced within that area are contaminated or otherwise pose a threat to public health.  Rather, as your letter states, identification of a "food control area" simply means that the area itself probably was subject to some deposit of radioactive, toxic, or otherwise hazardous substances from an aerial plume.[1]

            Second, your questions lead us to assume that the embargo about which you inquire would be based solely on the production of agricultural products within a designated "food control area".  In other words, your questions do not suggest an individualized or particularized determination prior to embargo that a given agricultural product or lot of products within the "food control area" is or likely is contaminated or otherwise poses a threat to human health.

            Third, your inquiries indicate to us that you contemplate an emergency embargo enforced administratively, without resort to judicial process.  The activities that you describe do not include instituting legal proceedings.

                                                      SUMMARY OF RESPONSE

            Although the Department of Agriculture and the Department of Health have authority to prohibit temporarily the sale or other disposition of food that poses a threat to public health under the statutes about which you inquire, neither department presently has authority by virtue of those statutes to undertake the activities you describe.

                                                                    ANALYSIS

            We begin by noting several well-settled legal principles.  First, as administrative agencies, the Department of Agriculture and the Department of Health have only that authority provided to them by the Legislature, either expressly or as a matter of necessary implication from authority expressly granted.  Kaiser Aluminum & Chemical Corp. v. Department of Labor & Indus., 121 Wn.2d 776, 854 P.2d 611 (1993).  Second, because protection of public health is an important governmental activity, public health statutes and the authority they provide to public health officers are liberally construed.  Spokane Cy. Health Dist. v. Brockett, 120 Wn.2d 140, 839 P.2d 324 (1992).  However, liberal construction of a statute does not authorize expansion of the authority that it provides.  State v. Spino, 61 Wn.2d 246, 377 P.2d 868 (1963).

Authority of the Department of Health

            You ask whether, by virtue of RCW 43.70.180 or .190, the Department of Health has the authority to embargo all agricultural products produced in a "food control area" and to take the monitoring and enforcement actions described in your question.  These two statutes are part of a series of laws authorizing the Secretary of Health to inspect articles and conditions constituting a threat to public health, to temporarily prohibit sale or disposition of articles subject to investigation, and to commence legal proceedings to prohibit violation of public health laws.

            RCW 43.70.170 states in part:

                        The secretary . . . may investigate, examine, sample or inspect any article or condition constituting a threat to the public health.

RCW 43.70.180, about which you specifically inquire, authorizes the Secretary to enter a temporary order prohibiting the sale or distribution of items subject to investigation under RCW 43.70.170.  It provides:

                        Pending the results of an investigation provided for under RCW 43.70.170, the secretary may issue an order prohibiting the disposition or sale of any food or other item involved in the investigation.  The order of the secretary shall not be effective for more than fifteen days without the commencement of a legal action as provided for under RCW 43.70.190.

            As RCW 43.70.180 states, to extend an order prohibiting the sale or distribution of food, the Secretary must commence legal proceedings.  Under RCW 43.70.190, the Secretary may bring any authorized legal proceeding, including actions to enjoin violation of any public health laws.

            In essence, these statutes allow an embargo of limited duration—15 days—while an investigation is ongoing to determine whether certain articles or conditions constitute a threat to public health.  Thereafter, prohibition on the disposition or sale of such articles must be pursuant to legal proceedings.

            Even when broadly construed, these statutes do not purport to authorize the embargo of items apart from an investigation to determine whether the items actually constitute a threat to public health.  The procedure about which you inquire seems to differ from this circumstance in a critical respect.  As we understand your question, an embargo would be triggered solely on the basis that an agricultural product was produced in an area probably subject to some deposit of a radioactive, toxic, or otherwise hazardous substance, and without investigation as to whether any particular agricultural product or lot of products was thereby contaminated or otherwise poses a threat to public health.  RCW 43.70.180 does not authorize an embargo under these circumstances.  Nor do the statutes about which you inquire explicitly or implicitly sanction administrative stops, searches, or seizures.  Indeed, whether a court would have the authority to do so in a proceeding under RCW 43.70.190 is questionable.  SeeSeattle v. McCready, 123 Wn.2d 260, ___ P.2d ___(1994) (absent an authorizing statute or court rule, a superior court lacks authority to issue a search warrant on less than probable cause); State v. Mesiani, 110 Wn.2d 454, 755 P.2d 775 (1988) (invalidating holiday season sobriety checkpoints where all motorists were stopped and checked for signs of inebriation without individualized suspicion or probable cause).[2]  In short, the above-referenced statutes properly may not be construed to provide the broad authority that we believe is contemplated by your first question.

            This is not to suggest that the Department of Health never could avail itself of RCW 43.70.170 through .190 to respond to contamination of agricultural products caused by a nuclear accident or similar mishap.[3]  Certainly, the Department of Health could investigate such an incident under RCW 43.70.170 and could investigate whether food had become contaminated as a result of such a mishap.  Under such circumstances, RCW 43.70.180 authorizes the Secretary to prohibit the disposition or sale of such food pending the results of his or her investigation.  However, that order would not be effective for more than 15 days, unless the Secretary commenced legal proceedings as provided for under RCW 43.70.190 to deal with articles posing a health hazard.  And even so, the Secretary would not have the authority under these statutes to engage in the stops, searches, and seizures described in your question.

Authority of the Department of Agriculture

            Similarly, you ask whether RCW 69.04.110 and .210 authorize the Department of Agriculture to embargo all agricultural products produced in a "food control area" and undertake the monitoring and enforcement actions you describe.

            RCW 69.04.110 is part of a statutory system governing intrastate commerce in food, drugs, and cosmetics.  It authorizes the embargo of food as follows:

            Whenever the director shall find, or shall have probable cause to believe, that an article subject to this chapter is in intrastate commerce in violation of this chapter, and that its embargo under this section is required to protect the consuming or purchasing public, due to its being adulterated or misbranded, or to otherwise protect the public from injury, or possible injury, he or she is hereby authorized to affix to such article a notice of its embargo and against its sale in intrastate commerce, without permission given under this chapter.  But if, after such article has been so embargoed, the director shall find that such article does not involve a violation of this chapter, such embargo shall be forthwith removed.

            RCW 69.04.210 defines adulterated food.  For purposes of this discussion, it is sufficient to note that food is deemed adulterated if it bears or contains any poisonous or deleterious substance which may render it injurious to health.

            RCW 69.04.110 thus authorizes the embargo of food when the Director finds or has probable cause to believe that it is adulterated or otherwise injurious to public health.  However, this statute does not stand alone.  It must be read in conjunction with RCW 69.04.120 which provides:

                        When the director has embargoed an article, he or she shall, forthwith and without delay and in no event later than thirty days after the affixing of notice of its embargo, petition the superior court for an order affirming the embargo.  The court then has jurisdiction, for cause shown and after prompt hearing to any claimant of the embargoed article, to issue an order which directs the removal of the embargo or the destruction or the correction and release of the article.

Under these statutes, an embargo must be based on probable cause to believe that food is adulterated or contaminated or otherwise injurious to public health.  Additionally, as is the case with the Department of Health statutes discussed above, this embargo is a temporary measure to be used in advance of a court action to determine the propriety of the embargo.  Absent agreement between the Department and the owner of the embargoed item, the court ultimately determines the appropriate disposition of the embargoed article.

            These statutes do not appear to authorize the kind of broad-based, unilateral administrative enforcement action contemplated by the questions you have posed.  The embargo authority that they provide is temporary, is triggered only by probable cause, and contemplates legal proceedings to determine the propriety of the embargo and the disposition of the embargoed product.  They provide no authority to stop or inspect vehicles or to seize or destroy embargoed articles found in them.[4]

            Again, this is not intended to suggest that the Department of Agriculture never could avail itself of these statutes in responding to contamination or adulteration of food products stemming from a nuclear accident or similar mishap.[5]  It simply is to state that these statutes do not provide authority broad enough to authorize an embargo simply because food is produced in a "food control area", without regard to whether there is probable cause to believe that the food is adulterated, contaminated, or otherwise injurious to public health.  In certain instances, it may well be that a nuclear accident or similar mishap would provide probable cause to believe that certain agricultural products in the vicinity of the mishap have been contaminated or become adulterated.  In such instances, the authority provided by RCW 69.04.110 and .120 would be available to the Director.  Even so, however, these statutes do not provide the broad-based administrative enforcement and monitoring authority contemplated by the questions you pose.

            Your remaining question assumes authority to embargo all agricultural products based on their production in a "food control area" and authority to monitor and enforce the embargo through vehicle stops, searches, and seizures.  It asks under what circumstances such actions would lead to liability for damages.  Because we conclude that neither the Department of Agriculture nor the Department of Health currently has such embargo authority under the statutes about which you inquire, we need not and do not reach your remaining inquiry.

            We trust this opinion will assist you.

                                                                        Very truly yours,

                                                                        CHRISTINE O. GREGOIRE
                                                                        Attorney General

                                                                        MAUREEN HART
                                                                        Senior Assistant Attorney General