Patently Problematic

In the 16 years since they were introduced, commercial genetically modified crops have radically changed the face of agriculture.

GM crops are grown from seeds that have had their genetic makeup altered to create new traits—for instance, to make them resistant to chemical herbicides and insecticides. In 2011, GM crops accounted for 160 million hectares of the world’s crops, a 94-fold increase from 1996, according to a report by the International Service for the Acquisition of Agri-biotech Applications, a nonprofit that supports agricultural biotechnology.

To ISAAA, such remarkable growth is a sign of progress: “[T]here is one principal and overwhelming reason that underpins the trust and confidence of risk-averse farmers in biotechnology— biotech crops deliver substantial, and sustainable, socio-economic and environmental benefits.”

The U.S. is, by far, the biggest grower of GM crops, with 69 million hectares of GM corn, soybeans, cotton, canola, sugar beets, alfalfa and other crops. U.S. Department of Agriculture figures for this year show that crops modified to withstand herbicides account for 93 percent of total soybean acreage in the U.S., 80 percent of cotton and 73 percent of corn. Given how prevalent ingredients like corn and soy are in processed foods, it’s increasingly difficult, if not virtually impossible, for a consumer to avoid GM foods if he or she wants to.

And there are plenty of reasons to avoid them, argue scientists and researchers who point to studies linking GM foods to allergies, cancer, obesity and reproductive and organ problems. Critics charge that the government has allowed the technology to flood the market without proper precautions and monitoring, putting the interests of large agribusinesses—most notably, the biotechnology giant Monsanto, which dominates the field—ahead of public health and consumer safety.

“One of the most unscientific and dangerous statements made by biotech proponents is that millions of people in the U.S. have been eating GM food for a decade and no one has gotten sick,” Jeffrey Smith, founder of the Institute for Responsible Technology, wrote in his 2007 book Genetic Roulette: The Documented Health Risks of Genetically Engineered Foods. “On the contrary, GM foods might already be contributing to serious, widespread health problems, but since no one is monitoring for this, it could take decades to identify.”

The potential risks of GM crops are of vital concern to the Northeast Organic Farming Association, whose annual summer conference next week in Amherst will include a keynote address by Smith. (See sidebar for information about the conference.)

And it’s not just health risks NOFA is concerned about. The organization is part of a federal lawsuit against Monsanto designed to protect farmers and seed producers from what they call the company’s overzealous efforts to prevent growers from using its patented seeds without permission—an irony, given that organic farmers are determined to avoid GM seeds.


NOFA is one of 75 agricultural organizations, farms and seed companies that are plaintiffs in the suit, Organic Seed Growers and Trade Association (OSGATA) v. Monsanto, filed last year in U.S. District Court in New York. They are represented by Dan Ravicher, an attorney with the Public Patent Foundation, a nonprofit legal services organization at Benjamin Cardozo School of Law in New York.

The plaintiffs say they opt not to use GM seeds but fear their crops are at risk of contamination from neighboring farms that do use the product, via cross pollination, wind-carried seed spread and other means. “Due to the substantial prevalence of Monsanto’s transgenic seed throughout American agriculture today, contamination of Plaintiffs’ property is inevitable,” Ravicher wrote in a court brief. (Indeed, in an acknowledgement that such contamination is unavoidable, the USDA allows foods to be certified as organic even if the crops have been unintentionally exposed—hardly a reassuring concession for consumers who think buying organic protects them from GM foods.)

To determine if their crops have been contaminated, farmers must pay for expensive genetic testing, the suit notes. And if the tests come back positive, they have little choice but to “abandon their field for years before resuming growth of organic or conventional crops.”

Adding insult to injury, the OSGATA plaintiffs argue, farmers whose crops are unintentionally contaminated face an additional risk: that Monsanto will accuse them of “stealing” its patented GM seeds, which are manipulated to withstand treatment by the chemical herbicide glyphosate, which the company produces under the name Roundup. These so-called “Roundup-ready” seeds make weed control easier for farmers, who can use the herbicide without fear that it will kill their crops along with the weeds. Farmers who buy the seeds from Monsanto sign an agreement promising to buy new seed each growing season rather than save and replant seed, and to pay the company an annual fee.

The suit argues that Monsanto has a track record of suing and threatening to sue farmers for unauthorized use of its product, including in cases where the crops were unintentionally contaminated. The best-known case involved Percy Schmeiser, an elderly farmer in Saskatchewan, Canada, whom Monsanto sued in 2001, alleging that he’d violated a patent on its herbicide-resistant canola seed. Schmeiser, who contended that the seed had blown into his fields without his knowledge from neighboring farms or passing trucks, lost the case but did win an out-of-court settlement that required Monsanto to pay to clear his fields of the GM seed.

“Monsanto investigates roughly 500 farmers per year for patent infringement and has filed over 140 patent infringement lawsuits against farmers that it alleged were purposefully using its seed,” according to the plaintiffs’ brief. These cases have been well covered in the media, creating a chilling effect on some farmers, who will avoid crops dominated by GM seeds for fear their own fields will be contaminated from neighboring farms and they’ll find themselves in legal trouble.

In their suit, the plaintiffs are seeking pre-emptive protection, asking for a declaration that farmers will not be held legally liable for patent infringement if their crops are inadvertently exposed to Monsanto’s GM seeds.

In February, U.S. District Judge Naomi Buchwald dismissed OSGATA v. Monsanto, saying the plaintiffs had not been harmed by the company and calling the suit “a transparent effort to create a controversy where none exists.” Last month, the plaintiffs announced plans to challenge that decision in the U.S. Court of Appeals for the Federal Circuit in Washington.


Like Judge Buchwald, Monsanto describes the lawsuit as much ado about nothing. Contacted by the Advocate for comment, the company’s director of corporate affairs, Tom Helscher, sent a prepared statement: “Monsanto never has and has committed it never will sue if our patented seed or traits are found in a farmer’s field as a result of inadvertent means.”

When Buchwald dismissed the case, the statement continued, she “[noted] in her ruling that there was neither a history of behavior nor a reasonable likelihood that Monsanto would pursue patent infringement against farmers who have no interest in using the company’s patented seed products. While the plaintiff group has the prerogative to file for appeal, we remain confident about our legal and practical stance.”

Ravicher warns that the devil is in the details of Monsanto’s carefully worded statement: the company says it would never sue a farmer whose crops were exposed to its seed through “inadvertent means,” but that doesn’t mean it won’t sue a farmer who the company maintains stole the seed, despite his or her protests to the contrary. Case in point: Percy Schmeiser, who has become a folk hero to anti-GMO farmers but whom Monsanto has publicly called “a patent infringer who knows how to tell a good story.”

“They say Percy Schmeiser is a dirty, rotten, lying piece of crap who can’t be trusted,” Ravicher said. “Our fear is Monsanto is going to claim our clients are dirty, lying pieces of crap.”

The lawsuit would go away if Monsanto made a legally binding commitment—not a press statement or website comment that can easily be changed—not to sue farmers who say they were unwittingly exposed to the company’s seed, Ravicher continued. “They insist it’s not necessary, but they won’t merely put that in writing,” he said. “They want to hold that card to play later if and when it becomes advantageous for them.”

Continuing to pursue the case carries some risks for his clients, who could be required to pay Monsanto’s legal costs if they lose before the appeals court, Ravicher noted. But, he said, “the risk on the other side is just to be a sitting duck, waiting for the day you get contaminated and get sued by Monsanto.”

The Northeast Organic Farming Association, like its fellow plaintiffs, did not take lightly the decision to pursue the lawsuit to the appeals court, said Jack Kittredge, policy director for NOFA’s Massachusetts chapter and an organic farmer in Barre.

The group’s board voted unanimously to move forward, despite the financial risks they face if they lose the appeal. “I think they felt it was one of those issues that was so important. It’s really a life-or-death issue for organic farmers,” Kittredge said.

The plaintiffs have gone to the courts because numerous efforts to address the problem through the legislative and executive branches have failed, Kittredge noted. He pointed, for instance, to the USDA, which has granted approvals for three new GM crops in the past 18 months. According to the Washington Post, the USDA has approved more than 80 GM crops in total, and has never denied an application.

In 2010, Agriculture Secretary Tom Vilsack had convened a summit of GM proponents and critics with the goal of addressing conflicts over the contamination risk, including, potentially, by placing some restrictions on the industry to allow for “co-existence.” Vilsack was fiercely criticized by Republican lawmakers and also reportedly privately chastised by the White House, which had its own worries about appearing anti-business. (“He was hauled into the woodshed by the president,” as Kittredge put it.) Shortly after, the USDA approved genetically modified alfalfa and corn and gave partial approval to sugar beets, shocking organic groups that had expected a better outcome for their side. (Monsanto waged a legal fight against the sugar beet decision, and last month the USDA granted the seeds full non-regulated status.)

Meanwhile, consumer activists pushing for a requirement that GM foods be labeled as such have had little success. Labeling bills have been introduced in numerous states, including Massachusetts, in recent years, but none has passed. Earlier this session, bills were making their way through the Vermont and Connecticut legislatures; both died after Monsanto lobbyists spoke up in opposition. California voters will weigh in on a labeling ballot question in November; if it passes, California will be the first state with such a requirement.

And at deadline, GM opponents were fighting provisions in the proposed federal Farm Bill that would limit government review of genetically modified crops. Riders to the bill would make the USDA the sole authority for reviewing the effects of GM crops, barring review by environmental and other agencies. The bill would also allow commercial sale of GM seeds awaiting USDA approval if the agency doesn’t rule on them by deadlines that critics say are unreasonably short.

The lawsuit, Kittredge said, represents the plaintiffs’ effort to find legal relief after being “frozen out” at other levels of government. “We’re at a new edge of the law and a new technology, essentially, so we’re having to try to do a lot of things that are cutting-edge,” he said.

The fight, Kittredge added, is made more difficult by the droughts that have plagued much of the country this summer. Biotech proponents, he said, have used the droughts to bolster their case, arguing that the last thing struggling farmers need right now is more government restrictions on their operations.

Of course, he added, a similar deregulation argument was used to push the repeal of the Glass-Steagall Act—with disastrous results for the economy. “They got rid of that with exactly the same arguments, and what happened? The crash,” he said. “And now they’re trying to do it with our food. How many times can you fool people?”


The 2012 summer meeting of the Northeast Organic Farming Association will begin Aug. 10. Click here to learn more about that event.

Author: Maureen Turner

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