Here’s my question. OK, I have a few questions.
Monsanto can win proprietary infringement lawsuits when Monsanto seeds drift on to a farmer’s land. But what happens when Monsanto GMO seed drifts on to certified organic land? As organic ag expands, this is bound to happen.
Doesn’t this scenario set the stage for a class action suit pitting organic farmers against Monsanto? If Roundup Ready soybeans wind up on a certifed organic soybean farmer’s field — whose organic certification specifically forbids GMO seeds — can’t that farmer claim damages from Monsanto for pollution, now that Monsanto has argued and proven that it owns its Roundup Ready pollen drift?
Sadly, not yet. A suit brought by Saskatchewan canola farmers against Monsanto was dismissed from “class action” status back in 2007 — not a defeat, as much as a “not yet, young organic industry” decision. Monsanto v. Schmeiser in Canada confirmed that these biotech corporations have significant exclusive rights to GMO seed and plants — but the question remains whether they have any corresponding duties to compensate for polluting organic farms.
Which is strange. Apparently, it’s easier for courts to imagine the potential dangers of GMO contamination than the real and present danger that GMO’s pose to the fledgeling organic and sustainable foods market.
That said, I think these two approaches to agriculture — biotech and organic — are inching toward a major fight. And with the organic industry becoming larger and more complex, my crystal ball foresees biotech and sustainability forces getting in the ring on a certified organic commodity farm in the American Midwest some time soon.
I think the critical issue is whether or not there’s a cause of action for organic farmers to claim against Monsanto et.al. (Monsanto’s claim was under patent law, which is a totally different beast.) I posted a longer response here: http://sustainablefoodlaw.blogspot.com/2009/11/pardon-riffing.html
-Sarah
Yeah, this could very quickly lapse into legalese, which I don’t speak. But the cause for action for an organic farmer in this case, in my mind, would bedamages suffered by GMO pollution.
Monsanto successfully proved that even if GMO seed drifted unintentionally onto a farmers land, Monsanto owns that seed and the farmer can’t profit by it if s/he was unlicensed by Monsanto to sell it. From Western Producer magazine regarding the Percy Schmeiser case, a Monsanto lawyer said, “Whether Mr. Schmeiser knew of the matter or not matters not at all.”
My point is that if GMO crops drift onto an organic farm, pollute the crop, and the organic farmer suffers financial damages from that pollution (crop loss, loss of premium organic pricing, loss of organic certification — the recovery of which is a three year-long process), Monsanto is vulnerable to the same logic it argued against Schmeiser: Whether Monsanto knew its patented seed was drifting on to the organic farm or not matters not at all. They own the drift, they should own the responsibility of damages and clean-up.
it’s amazing it hasn’t happened yet. Ill bring the organic popcorn for the front row seat for that bout.
Yeah, when I say “cause of action” I mean whether there’s a specific legal principle that can be applied under which the organic farmers would have recourse to the courts. Trespass usually requires intentional physical invasion – but they may be able to claim negligent trespass – that the GMO farmer had a duty of care to keep his seeds on his fields. This wouldn’t be actionable against Monsanto, though. As for cleanup of pollution, I’m unsure if there’s a statutory provision that could encompass this – as far as I know most of the cleanup requirements apply to hazardous pollutants, which is, again, a specific set of chemicals outlined in the statute.
I’m not trying to be a jerk about this. My point is that law and common sense don’t always walk hand in hand, and even though it might seem like the Monsanto cases would work in reverse, they won’t. Monsanto’s cases were about unlicensed “use” of patented materials. The organic farmers don’t have that same claim, and making a case for them might be more difficult than it seems at first glance.
I see what you’re saying. A lawyer for organic farmers would have to prove that Monsanto’s actions were negligent or hazardous to the organic farm(s)?
Yep.
Great conversation. Thanks for hanging in there with me. Here’s some more information on the Percy Schmeiser saga:
SCHMEISER PLEASED WITH VICTORY OVER MONSANTO
CNW, 19 March 2008.
CALGARY — In an out of court settlement finalized on March 19, 2008, Percy Schmeiser has settled his lawsuit with Monsanto. Monsanto has agreed to pay all the clean-up costs of the Roundup Ready canola that contaminated Schmeiser’s fields.
The issue revolves around unwanted Roundup Ready canola plants that arrived on Schmeiser’s fields. Monsanto refused to reimburse or compensate Schmeiser for this contamination unless he signed an agreement to not speak publically on the matter and that he would never sue Monsanto for contamination.
A significant part of the agreement is that there was no gag-order imposed on the settlement and that Monsanto could be sued again if further contamination occurred.
Schmeiser believes this precedent setting agreement ensures that farmers will be entitled to reimbursement when their fields become contaminated with unwanted Roundup Ready canola or any other unwanted GMO plants.
“In an indirect way, Monsanto has acknowledged liability for the contamination of a field by the unwanted appearance of its genetically altered product,” stated Schmeiser in reaction to the settlement.
I’m skeptical how precedent setting an out-of-court settlement can be, especially in the aftermath of 3 decisions against Schmeiser. That said I do think Schmeiser’s basic case in his defense against Monsanto, which was that a farmer does have property rights (quite literally), has more weight when the farmer is the plaintiff, when he’s proactively asking the GMO patent holder to come and clean up the contamination from his land before the Monsanto plants reseed themselves (thereby proving that the farmer is not profiting from the patented plants).
If Schmeiser’s farm had been organic, I think an even stronger case could actually be made for the farm’s property rights being infringed.
I also think it’s foregone conclusion that if a class action “Organic Farmers” vs Monsanto case comes down the pike, the lawyer for the plaintiffs would make it the hallmark of her case to define GMOs as hazardous material when it comes to certified organic farms. If the lawyer can’t prove and define that, then you’re right, the organic farmers would have no case.
Unfortunately, an out-of-court settlement has no precedential value, and probably wouldn’t even be considered relevant in a court.
I think at this point, the scientific community needs to prove the hazardous nature of GMOs – with the current lack of information, it would be hard to make a solid case. Which is also why I think the cases forcing Monsanto to pull Roundup-Ready crops until they prove that they ARE safe is a stronger position.
I see that a lot folks here are suggesting that seed companies are responsible for a few pollen grains or errant seeds ‘ruining’ an organic farm’s certification status. I wanted to point out that this line of reasoning leads to several questions.
First, if a farmer in a location has been growing GE crops for a decade, and someone buys up land next to them to grow organic crops, are they not the ones encroaching on the GE farm? If they knew that GE crops were being grown next door, how could they claim the legal right to tell the other farmers not to grow (or the seed companies not to make) GE crops?
Next, Organic farmers already have to deal with this issue with pesticide drift. Organic crops only have 1/3 the conventional pesticide residues on them because they get pesticide sprays drifting over from neighboring farms, pesticides that they aare not allowed to spray themselves. Yet, they aren’t de-certified. Don’t you think that there should be a threshold (above zero) so that organic farmers aren’t penalized? Note: no organic farms to date have lost their certification due to GE drift.
Finally, the pollen-producer as the aggressor is a potentially dangerous legal argument. You’re only thinking about it in terms of the current state of genetic engineering, and from an anti-GE perspective. What if a farmer grows a field of genetically engineered peanuts that have been engineered to be hypoallergenic, and pollen drifts over from a neighboring (allergenic) organic peanut farm making the crop worthless for their peanut-allergy market? If the rules suggested above are applied, then the organic peanut farmer (or the company that makes the seeds?) would be at fault.
This isn’t a far-fetched situation, a similar thing already happens today. There’s a woman who has developed cotton varieties (without genetic engineering) that have colors in the cotton fibers, and grows them organically. But the white conventional cotton growers don’t want her growing nearby, for fear that she will turn their crop colors of the rainbow and lower the value of their crop.
There are complicated issues involved in genetic engineering in agriculture, and we need to think outside the box. What about the elephant in the room – why can GE crops not be grown organically? I suggest taking a look at Tomorrow’s Table, written by a geneticist and an organic farmer, who argue that these two aspects of agriculture can compliment each other.
I write for a group blog on plant genetics at http://www.biofortified.org, if anyone is interested in reading and discussing more about all this stuff. We’ll be interviewing Michael Pollan pretty soon.
Karl Haro von Mogel
because NOP does not approve of GE anything….