January|February 2003
License to Shill By Katherine Marsh
Liberals' Labors Lost By Robert A. Burt Seeds of Discord By Bruce Barcott Vilnius Lost By Paul Jaskunas Seeds of Discord Bruce Barcott on the battle to stop genetically modified seeds from overrunning organic farms. Arnold Taylor farms 3,500 acres near Kenaston, Saskatchewanthe self-described "Blizzard Capital of the World"in the heart of the Canadian prairie. The 59-year-old second-generation farmer takes pride in producing organic wheat, peas, oats, and flax. His crops command a high premium because they're grown from seeds that are certified as organic, which means they're cultivated without the use of harsh insect-fighting chemicals and haven't been genetically altered. Taylor farms with his 30-year-old son, Doug, and if things go well, his 7-year-old grandson Calvin may one day join them. At the moment, though, things are not going well on Taylor's spread, or on many other organic farms in Canada and the United States. It's not that the farmers' products aren't in demand. On the contrary: Organic food sales have grown by 20 percent annually for the past 12 years and now sustain a worldwide market of at least $21 billion. But Taylor is afraid that without legal protection, he will not be able to stay in business as an organic farmer. Many of his neighbors cultivate "GM" crops, which save them money by reducing and simplifying their use of pesticides. So many nearby farmers have gone GM that Taylor can't keep their pollen and seed out of his fields. It falls off passing trucks; gets carried by birds, boots, or bees; floats along in floodwater; or blows in on the wind. The problems began in 1996, several years after Taylor started growing organic canola, the oilseed from which the popular cooking oil is made. In the mid-1990s, St. Louis-based Monsanto and the French pharmaceutical giant Aventis introduced canola seeds called, respectively, Roundup Ready and Liberty Link. The seeds were genetically modified to tolerate the companies' proprietary herbicides. Organic farmers like Taylor fight pests and weeds by carefully rotating their crops and harrowing their fields. Conventional farmers use a variety of specialized herbicides that have to be sprayed and sprayed again. GM farmers, by contrast, can just plant their GM seeds and spray with one weedkiller. According to Ag-West Biotech, a Saskatchewan trade group, farmers using herbicide-tolerant GM canola can expect to reduce their overall pesticide use by nearly 40 percent, which may translate into annual savings of $25 per acreon a farm the size of Taylor's, $87,500 a year. Many conventional growers went for Aventis and Monsanto's seeds because there was little reason not to. GM crops aren't labeled differently from other crops in North American markets. So they cost less to produce while fetching the same wholesale price. In 2000, approximately 20,000 Canadian farmersup from 600 growers four years earliersowed Monsanto's Roundup Ready. They produced nearly 40 percent of the nation's canola. Meanwhile, the farmers' GM seed spread. "Our seed suppliers, who had always certified their seed as GM-free, could no longer guarantee such a thing," Taylor said last fall. As a result, Taylor's canola crop became hard to sell. If even a tiny fraction of GM protein turned up in an oilseed order, European and Japanese purchasers would reject the entire batch. "At that point, your $14-a-bushel organic canola turns into $6-a-bushel GM canola," Taylor said ruefully. GM foods have been largely accepted in the United States; one-quarter of our corn and two-thirds of our soy now come from GM strains. But in Japan, which imports 97 percent of the soybeans used in the country's tofu, soybean paste, and oil, consumers have grown uneasy with the growing influx of GMOs (genetically modified organisms) into their food. And European consumers' longtime distrust of American agribusiness has been magnified by outbreaks of mad cow and foot-and-mouth disease, which some attribute to tinkering with the planet's natural food systems. The year after Monsanto and Aventis introduced their seeds, Taylor switched from canola to flax, a different kind of oilseed. He now harvests his own seed and trades GM-free varieties with other organic farmers. Some of his colleagues stuck with organic canola and are sorry they did. Dale Beaudoin, a 55-year-old organic farmer in Maymont, Saskatchewan, harvested canola in 1999 that tested positive for the presence of GMOs. His crop instantly lost one-third of its value. By 2000, Saskatchewan farmers had all but stopped growing organic canola. "Our European buyers became so concerned about GM cross-contamination that they stopped buying Canadian and went to Eastern Europe," said Kurt Larson, director of trading for Select Agri, an organic foods buyer in Vancouver, British Columbia. In 2000, when a Canadian seed company began preparing to sell a genetically modified flax seed developed at the University of Saskatchewan, organic flax farmers became worried that their seeds would be contaminated by GM seeds and that the taint would scare European buyers out of their market, too. With the help of the Flax Council of Canada, growers pressured the seed company to stop selling GM flax in early 2001. Then the threat grew considerably: The farmers got word that Monsanto was developing GM wheat in 33 secret test plots in western and central Canada, including Saskatchewan. The Canadian prairie is one of the most productive wheat fields in the world. Nearly 20 million tons of the grain are grown each year, nearly twice the tonnage of barley, the next most abundant Canadian crop, and four times the tonnage of canola. Wheat is also Canada's largest organic export. Monsanto hasn't announced a schedule for the release of GM wheat, but organic farmers fear it could hit the market within two yearsand infect their fields soon after. For the plain-spoken Taylor and his Canadian prairie colleagues, the looming invasion of GM wheat was too much. They hired a lawyer. In January 2002, Taylor and other members of the Saskatchewan Organic Directorate, a farmer's trade group, filed a class-action lawsuit against Monsanto and Aventis. The suit seeks as-yet-unspecified damages for the loss of the organic canola market and asks for a court order to prevent Monsanto from introducing GM wheat in Saskatchewan. "We lost canola, we almost lost flax, and we're looking at losing wheat," said Taylor, who is president of the directorate. "We had to do something." The Saskatchewan farmers are opening a new front in the legal battle over biotech food. Since the first genetically modified foods were approved for human consumption in the mid-1990s, much of the dispute about them has focused on medical and environmental safety. GMO opponents argue that the health effects of the food on humans haven't been sufficiently studied. They also worry that genetically altered plants could escape into wild strains or breed new diseases with disastrous environmental effects. But the organic farmers are worried about something else: their livelihood. Their case concerns the economic risks to farming rather than the potential health or environmental risks to consumers. As a result, their lawyer is relying on arguments that haven't been tested before in the fight over GM food. In their initial court filing, the organic farmers offered several theories to explain why biotech companies should be liable for the crash of the organic canola market. Their claims included negligence (for failing to ensure that the GM seeds they manufactured wouldn't contaminate organic farmland), strict liability (for allowing the escape of something likely to do damage), nuisance (for interfering with the farmers' use of their land), and trespass (for the drift of GM canola onto their farms). The farmers also claim that GM canola is a pollutant that should be regulated under Canada's environmental statutes. "This suit will test the boundaries of all these areas of lawnegligence, nuisance, trespass, traditional property rights, and possibly some environmental law as well," said Terry Zakreski, the Saskatoon-based lawyer who represents the organic farmers. The fight begins with the question of what to call the movement of GM seeds onto Arnold Taylor's fields. The biotech industry favors "adventitious presence," a neutral-sounding term for traces of GMOs in non-GM seeds and crops. The farmers prefer "genetic contamination," or "GMO drift." The linguistics game is about public relations. Pesticides drift. Pollutants contaminate. The biotech industry hates the harsher association because it wants a little GM seed to seem no more troubling than a little dirt on your food. On the other hand, the few consumers who bother to parse adventitious presence are likely to misinterpret it as advantageous presence. Which means good, right? Whatever the scattering of GM seed is called, it's a problem in the United States as well as in Canada. A number of U.S. organic farmers have taken big financial hits because genetically modified proteins have been found in their crops. "The entire organic industry is threatened," said Helge Hellberg, marketing director at California Certified Organic Farmers, which certifies more than 75 percent of the state's organic crop. To the biotech and agriculture industries the fight over organics is a sideshow. The Worldwatch Institute estimates that less than half of 1 percent of American cropland is certified organic. Agribusiness employs some of the most powerful lobbyists on Capitol Hill. Organic farmers don't even try to go scuffed-boot-to-Gucci with them. They team up with environmental groups to hold teach-ins, which attract mostly the converted. Biotech spokespeople like to point out that no threat to organics exists in the North American market. The U.S. Department of Agriculture's organic standards, which went into effect in October, protect farmers against losing their organic status because of drifting GMOs. Under USDA rules, farmers are certified organic based on their overall farming methods, not the purity of their crops. Canada adopted a similar, though voluntary, certification program in 1999. In light of these rules, many in the biotech industry don't see what organic farmers have to complain about. The presence of GMOs "does not harm the value of their crop," said Lisa Dry, spokesperson for the Biotechnology Industry Organization, the leading American biotech trade association. Dry is rightas long as the crop is sold in North America. European and Japanese consumers, however, insist on a higher level of purity. Europeans are so suspicious of GMOs that last summer the European Parliament passed a resolution requiring any food found to contain trace amounts of genetically modified materialas little as 0.5 to 1 percentto carry a label alerting consumers to its presence. And in terms of organic buying power, the combined European and Japanese market is slightly bigger than the North American one. According to the United Nations Conference on Trade and Development, Europeans buy $8.5 billion a year in organic food and beverages. The Japanese buy $2 billion. The U.S. market is $9 billion, and the Canadian market is $1 billion. Because of GMO phobia in Europe and Asia, organic farmers often contract with overseas buyers to deliver absolutely pure crops. "Those contracts are difficult to get," said Gail Wiley, who farms 3,000 acres in Montpelier, N.D., with her husband, Tom. "You have to have the right size, weight, color, protein content, and be strictly GMO-free." A European or Japanese buyer paying twice the commodity price for soybeans doesn't care that a GMO-tainted crop is USDA-certified. Any GMOs are too many for his customers. If they turn up in crop tests, the buyer calls off the deal and the farmer loses that season's profit. Two years ago, the Wileys harvested 15,000 bushels of soybeans from the land that has been in Tom's family for more than a century. They had a no-GMOs contract to turn their crops into a high-end Japanese soy drink. But when the buyer's agent tested the crop, he found 1.37 percent contamination and rejected all 15,000 bushels. The Wileys eventually sold the soybeans to a local crushing plant for $10,000 less than the Japanese buyer had offered. Organic growers are a live-and-let-live crowd. They'll tell you they wish nothing but sunshine and adequate rain for their GM-growing neighbors, though they don't care for what they grow. But many of them quit being conventional growers to get away from the pesticide-dependent, biotech-driven techniques of contemporary agribusiness. Now they can't keep the GM seeds out of their fields, or from ruining the niche market to which they retreated. "A lot of conventional farmers have converted to organic hoping to make a living," said Barbara Haumann of the Organic Trade Association. "Now that's being taken away from them." Who's responsible for Gail and Tom Wiley's $10,000 loss? Even the Wileys can't say for sure. "Most of our neighbors grow GM beans around here," Gail Wiley says. "But you can't sue a neighbor because who knows which way the wind blew on a given day. And maybe it didn't even happen that way. When the elevator operator swings the auger over your truck to deliver your beans for planting, he's using the same auger that just delivered a load of GM beans. As for Monsanto, well, you can't sue them because they're well protected." Last spring, Representative Dennis Kucinich, an Ohio Democrat and one of the few politicians willing to take on the biotech industry, introduced legislation in Congress that would make the companies that create GM seeds liable for damage caused by drift. But the bill is expected to die in committee as a result of lobbying by the biotech and agriculture industries. "Special interests in Congress have thwarted efforts to adequately regulate this industry," said Richard Caplan, an environmental lobbyist for the U.S. Public Interest Research Group. In the absence of a federal law, state legislators in North Dakota and Iowa are considering measures to deal with GMO drift. In November, however, Oregon voters voted three to one against the first state law that would have required a label for genetically modified food like the one used in Europe. Stymied at home, American organic farmers are keeping a close eye on the Saskatchewan case. But as Gail Wiley noted, Monsanto's hard-nosed legal reputation is known and feared in the heartland. Farmers who want to grow the company's Roundup Ready canola can't buy the seed outright. Instead, they must purchase a license to grow Monsanto's patented product, typically for about $15 per planted acre. With the license come strict conditions: Growers must promise to use the seed to plant only one crop, and they're not allowed to save any leftover seed from year to year. Monsanto also retains the right to inspect farmers' fields and test their crops. The company's lawyers have hauled into court farmers who don't have licenses or who break the rules. The best-known case involved Percy Schmeiser, a Saskatchewan canola farmer who was sued by Monsanto for using Roundup Ready canola without the company's permission. Schmeiser, a 71-year-old conventional farmer, claimed that Monsanto seed had contaminated his field by drifting in over the winter of 1996-97. The trial judge concluded that regardless of how he first got the seed, Schmeiser continued in 1998 to cultivate Roundup Ready canola from seed saved in 1997, "which he knew or ought to have known was Roundup tolerant." Schmeiser was ordered to pay Monsanto $19,832 in Canadian dollars (about $12,700 U.S.). An appeals court upheld that ruling in September 2002. The farmer recently asked Canada's supreme court to take his case. Schmeiser's loss has become a cause célèbre for the anti-GMO movement. Yet the ruling against himand Monsanto's aggressive protection of the company's patentsmay actually strengthen the claim of Taylor's Saskatchewan group. "If Monsanto is able to claim ownership of genes and plants regardless of where they are and how they got there, then we say they should be responsible for the damage they cause," said Terry Zakreski, who separately represents Schmeiser and the Saskatchewan Organic Directorate. "This is where it gets interesting," agreed University of Saskatchewan law professor Martin Phillipson. "Monsanto's patent was upheld in the two Percy Schmeiser decisions. They're clearly the owner of the genetic material. If you can classify a GMO as a pollutant, the question becomes, Can you then classify the owner of an intellectual property right as the owner of the pollutant?" To some farmers, that question is needlessly complex. They see GMO drift as old-fashioned trespass. "If my bull gets in and breeds your cows, I'm to blame because I've trespassed on your property," a North Dakota organic farmer named Terry Kemmet wrote last year for the agriculture website Cropchoice.com. "The situation is the same for Monsanto. It has all the right in the world to experiment with its GMOs, but it doesn't have the right to breed my plants, nor yours, nor anyone else's." Aventis, which became known as Bayer CropScience in June 2002, won't talk about the Saskatchewan farmers' lawsuit. Monsanto lawyers defend the company by arguing that it's merely following Canadian law. "We have complied with every regulatory requirement in Canada," said Reuben Shelton, Monsanto's assistant general counsel. "In fact we've gone the extra mile in complying with those requirements." Monsanto has a point, concedes E. Ann Clark, a GMO critic who teaches agriculture at the University of Guelph. Since the companies do appear to have met the government's standards, Clark thinks the Saskatchewan farmers chose the wrong defendant. "If their lawsuit doesn't include the government of Canada, they will lose," she said. "It's the Canadian governmentand the American government as wellthat's responsible for setting such a low bar for acceptability for these products in the marketplace." If lawmakers fail to tighten the standards, GMO drift will threaten the profits of organic farmers for as long as the European and Asian markets continue to shun GMOs. The biotech industry thinks that won't be very long; they see overseas consumers as teenagers going through a rebellious phase. Still, in the six years that GM foods have been available, the foreign markets haven't budged. A poll taken in late 2001 by the European Commission, the administrative arm of the European Union, found that 70 percent of European consumers say they don't want genetically modified food. Sixty percent of Japanese consumers responded the same way to a similar poll. Stuck between their governments and their brokers, the organic community is counting on the courts for help. The first ruling for a farmer against Monsanto or a competitor "will be huge," said Helge Hellberg of California Certified Organic Farmers. If the courts don't see things their way, however, the organic farmers may find they can survive only by adopting the biotech line: Hey, it's only a little impurity. No harm done. |
<& /legalaffairscomp/ads_articles.comp &> |
|||||||||