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What is "GM"? |
Copy of technology user agreement Seeds, weeds and greed - Full report (rtf 136KB) LAW:The law surrounding inevitable contamination of non-GM crops is a minefield. In just a short time since its introduction, GM crops have caused lawyers to re-evaluate legislation worldwide due to the complex legal implications. We have seen Agbiotech companies successfully suing farmers under patent law, farmers lodging lawsuits against the Agbiotech companies, concerns of consumers challenging wholesalers under the labeling legislation of the Trade Practices Act (who will pass this liability onto farmers due to the identity preservation and quality assurance programs), threats of farmers suing farmers and even farmers suing governments. It is of concern to the average farmer that in order to claim damages for compensation for contamination, they must outlay huge sums of money to challenge a multinational corporation or go against the fabric of the agricultural community to consider legal action against their neighbor. The Network of Concerned farmers would like to see legislative protection to ensure the Agbiotech companies are liable for all costs and liabilities involved in contamination issues. Agbiotech Companies vs. Farmers Farmers may be sued for getting contamination and possessing a patented gene. Wherever the patented gene lands, the owner of the patented gene has rights over that property. A farmer may be vulnerable as soon as they realise they have contamination in their crop. www.afaa.com.au Agrifood Awareness "GM seeds of doubt tour" background info. pg 7 Monsanto’s statement regarding Patent infringement for Australian farmers is: "Monsanto Australia has indicated that they will only pursue individuals who deliberately or knowingly infringe patent rights – that is knowingly grow GM crops without a licence to do so."
In his ruling, Judge MacKay stated: "(92) Thus a farmer whose field is contaminated by seed or plants originating from seed spilled into them, or blown as seed, in swaths from a neighbour’s land or even growing from germination by pollen carried into his field from elsewhere by insects, birds, or by the wind, may own the seed or plants on his land even if he did not set about to plant them. He does not, however, own the right to the use of the patented gene, or of the seed or plant containing the patented gene or cell." Judge MacKay when considering the fact that Mr Schmeiser did not use the product for its patented advantages (did not spray the Roundup resistant crop with Roundup) concluded "(123)… In my opinion, whether or not that crop was sprayed with Roundup during its growing period is not important. Growth of the seed, reproducing the patented gene and cell, and sale of the harvested crop constitutes taking the essence of the plaintiffs’ invention, using it, without permission. In so doing the defendants infringed upon the patent interests of the plaintiffs." He also concluded while considering an injunction "(130)… to restrain the growing of Roundup Ready canola, would be impossible to comply with in light of the uncontrollable spread of the patented gene." Percy was sued for the $15.00/acre (Canadian) technology user fee and for the entire profits of his crop "(135)… It is the profit from sale of that crop that plaintiffs may claim, not the difference between sale of that crop and sale of an alternative crop that was not grown." In September, 2002, a three judge panel unanimously decided in favour of Monsanto in Percy Schmeiser’s appeal. Appeal http://decisions.fct-cf.gc.ca/fct/2002/2002fca309.html The Implications of the Schmeiser Decision, E.Ann Clark, Plant Agriculture, University of Guelph (eaclark@uoguelph.ca) "Put yourself in the position of a farmer. To appreciate the gravity of the choice on offer, you need to appreciate how Monsanto’s hired investigators operate. They come to the door, advise you that you’re suspected of brownbagging, and offer you a letter stipulating what you must pay to avoid being formally prosecuted. Should you choose to pay the fee, you are also obliged to sign a letter which states that signing obliges you to remain silent and tell no one about what has happened, or face further prosecution." "What if it was canola you were intending to plant in the contaminated field? You know that you will not be able to distinguish volunteer HT canola from whatever canola you’ve planted. You know that volunteer HT canola will set seed and shatter, just like your sown canola, re-contaminating the land with patent-infringing seed. By definition, if you grow canola on land known to have HT canola in the seed bank, your problems will necessarily amplify over time. Where you had one HT plant this year, you could have dozens next year. So – do you abstain from growing canola entirely? For how long, given that contamination can occur annually? Or do you take responsibility yourself for eliminating the proprietary plants? Do you adjust your crop rotation, your herbicide expenditures – and your bottom line – to cope with contamination that you did not want and could not stop, and that will re-occur annually so long as neighbours choose to grow HT canola?" Percy Schmeiser’s case set a legal precedent and Monsanto has since threatened many farmers that they considered were knowingly growing contaminated crops. One of these involved farmers Roger, Rodney and Greg Nelson who farm more than 8,000 acres of soybeans, wheat and sugar beets near Amenia, ND. They tried growing Roundup Ready soybeans but found reduced economic returns and decided to return to conventional soybeans. The following year, Monsanto investigators took seed samples from their property and declared they were violating patent rights and the Nelsons were faced with huge costs in legal fees to defend their innocence. It cost them hundreds of thousands of dollars, the health of Roger (required heart bypass surgery due to stress) and years of their lives to defend their reputations and fight for rights of farmers. An out of court settlement was awarded to the Nelsons when they finally proved that almost half of the GPS readings of sample sites were not taken from their land. http://www.nelsonfarm.net Other references: Canadian TV Documents Monsanto Bullying of Farmers CBC TV Jan 10,2002 http://organicconsumers.org/monsanto/rodneynelson011402.cfm Monsanto continues Persecuting Farmers Cropchoice (21.5.01) http://organicconsumers.org/monsanto/seedsuits.cfm "Attorney Ronald E. Osman is defending Illinois farmer Eugene Stratemeyer against the company." "Monsanto didn’t have what it needed to take its case to court – a document stating that he knew better than to save the seeds. So, company agents forged his signature – even misspelling his name in the process – on a technology agreement." "… they say that it’s common knowledge that Monsanto doesn’t allow redemption from stating that Stratemeyer had received free pesticide spraying on 50 acres. Problem was, it too was forged." "Stratemeyer’s counterclaim against Monsanto has turned into a class-action lawsuit on behalf of farmers throughout Illinois who purchased Roundup Ready soybeans and whose names Monsanto forged on its technology agreements, he says. The suit is filed under the Illinois Consumer Fraud Act. Colorado wheat grower sees transgenic threats to family farmers Monsanto’s is going after growers who reuse its seeds’ technology. http://www.corpwatch.org/news/PND.jsp?articleid=1831 Monsanto’s Biotech Bullying Continues ISIS Report, 4 Oct, 2001 http://www.purefood.org/monsanto/serfdom100801.cfm ABC, 22.7.02 "Beverley Shire Council moved to alleviate concerns that it could be held liable if GMO’s spread from council controlled land to neighbouring farmland. Monsanto was asked to sign a statement indemnifying the local council from legal action from the spread of GMO’s. "If, for instance, a genetically modified organism got off a road reserve into an adjoining landowners paddock, you could say it will never happen, but if it does and the shire was considered liable we would be sued and the amount that we would be sued would put further pressure on our insurance premiums." Shire President, Fred Bremner said." Monsanto would not comment. Consumer vs. Processor vs. Farmers Under the Trade Practices Act the GM-free labeling requirements must be met. If a product is reported and led to recall of that product, the liability may be traced back to the farmer who shows contamination in his retained samples. The whole plan of the proposed stringent quality assurance programs and identity preservation will enable the buyers to determine who is responsible for the contamination. The implications of this is very serious. Rather than the farmer being liable for his contaminated truckload delivered worth $thousands, he may be liable for a rejection of a shipment worth $millions or even the recall of a product worth $billions. (The recall of Starlink corn apparently cost over $3 billion.) This concern is intensified when insurance companies are unlikely to insure GM crops under existing liability policies (if at all). Farmers vs. Agbiotech Companies If farmers are contaminated, there may be redress under the existing law but it will be expensive and time consuming to take on a multinational company like Monsanto. In the fall of 2000, remnants of the GM corn StarLink were found in the human food supply. StarLink expresses Cry9C, an insecticidal protein that had not been approved for human consumption by the US Environmental Protection Agency and by various agencies outside the US. The discovery of StarLink "contamination" severely affected domestic and foreign markets for US corn products, which, in turn, spawned at least nine class action lawsuits in six states against Aventis CropScience USA LP (Research Triangle Park, North Carolina), the company that commercialised StarLink. Last year, for example, a class action suit was filed in a Wisconsin federal district court on behalf of farmers who claim that they have lost money due to the depression in prices after StarLink was found to have entered the food supply (Southview Farms v. Aventis CropScience USA Holding, Inc.). Another class action suit, Mulholland v. Aventis Crop Science USA, was filed on behalf of farmers who did not grow StarLink. Here, the plaintiffs claimed that Aventis failed to take the appropriate measures to prevent the GM corn from entering the human food supply, and that, as a result, the plaintiffs lost significant domestic and foreign markets. The Mulholland complaint includes allegations of public nuisance, consumer fraud, deceptive business practices, and negligence. In Mudd v. Aventis Crop Science USA, non-StarLink growers filed a class action suit based on negligence and strict liability claims. Concerns about GM crops also provoked the recent filing of a class action lawsuit against agbiotech companies in Canada. In this case, two farmers who specialize in organic produce initiated the lawsuit to recover compensatory damages for revenue lost by contamination of organic canola crops. The plaintiffs also requested an injunction to stop field trials of Monsanto's Roundup Ready wheat. Larry Hoffman and Dale Beaudoin, two organic farmers in Saskatchewan, filed a statement of claim in the Court of Queen's Bench, seeking the class action lawsuit against Monsanto Canada, Inc. (Misssissauga, Ontario) and Aventis CropScience Canada Holding Inc. (Regina, Saskatchewan). They assert that the companies have ruined the province's organic canola market and must be prevented from doing the same to the organic wheat market. According to the complaint, Monsanto's Roundup Ready canola or Aventis CropScience's Liberty Link canola has been found growing on land for which it was not intended, and consequently, few, if any, seed suppliers will certify their seeds as organic. The farmers allege that the two companies are responsible for any GM contamination on the grounds of negligence, nuisance, trespass, pollution under the Saskatchewan Environmental Management Protection Act, and failure to conduct an environmental assessment. Estimates run to millions of dollars in damages for the loss of canola as an organic crop in Saskatchewan. Hoffman and Beaudoin v. Monsanto Canada, Inc. and Aventis CropScience Canada Holding Inc. (http://www.saskorganic.com ). Key evidence in this case is the certified seed tests of non-GM canola done by Agriculture and Agrifood Canada showing contamination levels up to 7.2%. Only 2 of the 14 non-GM seed varieties were GM-free. "Canadian Organic Farmers Sue Monsanto and Aventis" US News & World Report Jan 28, 2002 Monsanto continues Persecuting Farmers Cropchoice (21.5.01) www.mslawyer.com/mssc/ctapp/20010925/0000137.html N.Z. Law Commission Report on GE Liability Issues: http://www.lifesciencesnetwork.com/Repository/020716_liability.pdf Farmer vs. Farmer Farmers who grow GM crops might find themselves as defendants in a lawsuit filed by neighbours who complain about crop contamination. For instance, plaintiffs might allege that pollen from the defendant's GM crops drifted over a property line (via wind, insects, etc.) and contaminated their non-GM crops. Commentators have suggested that the plaintiffs of such lawsuits might assert claims of trespass to land, private nuisance, negligence, or strict liability. A claim of trespass to land can arise when someone crosses the legal boundary of another's land or causes something to cross that boundary. A private nuisance is often described as something that decreases the value of an individual's property or interferes with their use or enjoyment of the property. For a claim of negligence, a plaintiff must establish the existence of a duty owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately resulting from the breach of duty. In contrast, strict liability is a type of liability without fault in which a person engages in an abnormally dangerous" activity. Factors that a court may consider in determining whether an activity is abnormally dangerous include: whether the activity involves a high degree of risk of harm; whether the gravity of the harm that may result from the activity is likely to be great; whether the activity carries risk that cannot be eliminated by the exercise of reasonable care; whether the activity is a matter of common usage; whether the activity is inappropriate to the place where it is carried out; and the value of the activity to the community. Natural Law Party This of course, has serious financial implications for growers of organic crops. But the implications do not stop there. Following the initial lead given by Iceland Frozen Foods, other big food retailers, including supermarket giants Tesco and Sainsbury, are seeking contracts with suppliers who can guarantee GM-free food. This requirement is driven by consumer demand. Any farm that loses its GM-free status, either because of its cropping history or because of cross-pollination from a neighbour, could be denied access to important markets, and that may lead to legal claims against neighbours for GM contamination and to disputes between landlord and tenant. Although, as yet untested in law, the growing of GM crops may also prove to be a breach of the ‘rules of good husbandry’ included in many tenancy agreements. These require land to be kept ‘clean’ and in ‘good condition’. A tenant could end up with a substantial claim for depreciation in the value of the landlord’s freeehold reversionary interest at the end of a tenancy. Both scenarios would be likely to have damaging effects on freehold and rental land values, and in so doing may also be of concern to banks if secured loans based on the collateral value of the land have been made. Just as arable land without IACS eligibility is worth less, so land which has lost GM-free status could suffer substantial capital value depreciation." "Canadian Organic Farmers Sue Monsanto and Aventis" US News & World Report Jan 28, 2002 Risk and Liability Issues Arising from the release of Genetically Modified Crops. (Corrs, Chambers, Westgarth Lawyers January 2002.) "In Australia, the Gene Technology Act 2000 … establishes a licensing scheme for the release of GMOs and it is through this scheme that the risks posed by GMOs are to be managed. However the Act does not address the issue of liability for damage to third parties arising from the licensed release of GMOs." "Rather, those who suffer loss by the escape of pollen from GM crops will need to seek redress through the common law. Actions that may be available to such affected persons include trespass, nuisance and negligence. However a variety of problems would face the prospective litigant. For example, given that GM pollen could drift many miles, if a distant organic crop is contaminated, establishing causation will be a difficult task. This is especially the case where several farms in the district are growing the same GM crop. Such a situation may mean the affected organic farmer is unable to isolate a particular defendant and thus is unable to make out a successful action. Farmers vs Government "Seeds, Weeds and greed: An analysis of the Gene Technology Act 2000 (Cth), its effect on property rights, and the legal and policy dimensions of a CONSTITUTIONAL CHALLENGE." This report establishes the grounds to lodge a constitutional challenge against the government for releasing GM-crops knowing of the implications. **** full report**** Barristers and Solicitors, Priel, Stevenson, Hood & Thornton contacted the Minister of Agriculture and Agri-food Canada on January 10,2002 as representatives for the Saskatchewan Organic Directorate regarding the threat of genetically modified wheat on the organic industry. "Although some aspects of the safety of genetically modified plants are studied, no part of the review process considers the potential impact and harm to crop values or to farmers, such as certified organic farmers, that would result from release into the environment. Such a socio-economic impact would be an integral part of an assessment under the Canadian Environmental Assessment Act (CEAA) or under the Canadian Environmental Protection Act 1999 (CEPA). The regulatory directives under the Seeds Regulations are therefore inconsistent with both CEAA and CEPA. CEPA requires that the Government of Canada "protect the environment, including its biological diversity, and human health, by ensuring the safe and effective use of biotechnology." "Air pollution is defined in the Act as "… a condition of the air, arising wholly or partly from the presence in the air of any substance, that directly or indirectly… (d) causes damage to plant life or to property." Pollen from genetically-modified wheat is an air-borne particle that can cause damage to crops, particularly those intended for the lucrative organic market." "Our clients are prepared, if necessary to apply to the Federal Court of Canada to set aside any decision by CGIA to continue the confined field trials of genetically modified wheat and/or to allow its unconfined release, without requiring a full environmental assessment." "Please let us know at your earliest convenience whether the Government of Canada intends to plow ahead with the introduction of genetically-modified wheat in Canada without conducting a full environmental assessment and consulting with affected groups." Action taken by other countries: Canadian Farmers Union (www.nfu.ca/gmfood-ban.htm) (one of many groups calling for a morotorium on GM crops) include the following policy directives: "8. It is unreasonable to allow genetic modification companies to privately reap profits and not require that they also assume all costs. Genetic pollution is one such cost. Companies producing genetically modified seeds admit that some plants can "outcross" in an uncontrolled fashion. Genetic pollution seriously erodes the incomes of organic farmers and those who do not use GM seeds. Government must hold genetic modification companies accountable for the costs their products create for other farmers and the general public. 9. The federal government must compel companies which own patents on GM seeds or livestock to set up contingency funds to compensate for product liability and legislate efficient and accessible mechanisms to enable liability claims to be effectively pursued." "Europe proposes "Polluter pays’ legislation" eAg News Room 25.01.02 "The new proposal goes to the EU’s Environment Council on March 4th and if ratified, will become binding on Member States within two years." "An organic farmer cannot recover the costs associated with pollution of his crop by GMO’s because he has suffered a purely economic loss which is recoverable through existing legal structures. However, an operator (farmer, contractor, etc) may be held liable for environmental and biodiversity pollution if that operator is found to have breached safe handling procedures and guidelines." "Farmer to farmer campaign calls on US state Attorney’s General to learn from Starlink debacle" Dealing With Uncertainty – How can a farmer who grows GM crops manage the risk of a potential crop contamination lawsuit? Last November, a conference was held in Minneapolis to consider strategies for the co-existence of GM, non-GM, and organic crop production. Participants included representatives of the USDA, agbiotech companies, and academia. One recommendation from the Minneapolis meeting was to define legal responsibilities for compromised crop production. It would be helpful to establish an acceptable standard of behaviour for a farmer who grows GM crops, and to identify the duty owed by that farmer to a neighbour who grows non-GM crops. Setting such a standard should provide more certainty in determining whether crop contamination was due to negligence. Another recommendation was to establish a pilot program for an indemnity fund to reimburse losses caused by genetic contamination of non-GM and organic corn by GM corn. Many existing insurance policies do not cover pollution-related damages, and insurers may argue that pollen drift is a type of pollution. An alternative recommendation of the Minneapolis conference participants was to modify federal crop insurance programs to provide cross-contamination coverage. Farmers could also ask agbiotech companies that sell GM seed to indemnify them against liability in the event of a lawsuit. New state laws might provide relief for certain types of GM crop-related lawsuits. Last year, at least four states considered the liability problem. The Massachusetts legislature, for example, had a bill (1789; "An Act Relative to the Liability for Genetically Engineered Food") that would shift liability to agbiotech companies. According to the legislation, a person (i.e., a natural person or business) who genetically engineers an organism for use as food shall be strictly liable for damages caused by the use of the product on the condition that the harm was not the result of another person violating reasonable safety precautions that were outlined in a signed agreement by both persons. The damages include loss of price due to crop contamination. Taking a different approach, the House and Senate of South Dakota passed a resolution urging Congress to create legislation that places all liability for damages caused by GM seeds on the companies that develop and manufacture the seeds. Currently, however, Congress is not considering this type of legislation. The biotechnology industry was very active in challenging the framework that establishes where liability lies for GM contamination incidents. References include: Iowa State University. 2001. Strategies for the coexistence of GMO, non-GMO, and organic crop production (meeting summary). (December). (http://www.biotech.iastate.edu/publications/IFAFS/coexistence.html ). McInnis D. 2002. As more farmers plant GMO crops, legal issues multiply. (February 1). (http://www.checkbiotech.org). Moeller DR. 2001. GMO liability threats for farmers. (November). Available at the website of The Institute for Agriculture and Trade Policy (http://www.iatp.org ). Kades D. 2001. Lawsuit filed over genetically modified corn. Wisconsin State Journal D12 (February 17). State Legislative Activity in 2001 Related to Agricultural Biotechnology. (2002). (http://pewagbiotech.org ) http://www.soilassociation.org/sa/saweb.nsf, Seeds of doubt North American farmers experiences of GM crops.
Conclusion: www.iatp.org "What’s in it for farmers?" "The potential for GMO products to cause damage to neighbouring farmers and the entire grain handling system is evidenced not only by the StarLink example, but also in the increasing number of questions raised by GMOs including genetic drift distances, insect and weed resistance, and the inability of the current system to segregate GMO and non-GMO crops. Farmers assessing the costs and the benefits of growing GMO crops should base their decisions not only on production costs and expected yields, but also on the legal liability they may incur by planting, growing, and marketing GMO crops. For those farmers who choose not to grow GMO crops, especially organic farmers, caution still needs to be exercised in ensuring that their crops are protected from genetic contamination and that any promises made about the non-GMO crops are accurate representations of factors within the farmers’ control. |
09 November 2009
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