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Question

what gives you the right to spread GM pollen on my property either intentionally or not when you know it will happen and cross pollinate with my nongmo crops and then sue me in court for it. Who pushed and financed the litigation and laws to do so and why?

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Answer

Expert response from Professor Drew Kershen

Earl Sneed Centennial Professor of Law (Emeritus), University of Oklahoma, College of Law

Wednesday, 15/06/2016 18:35

Several varieties of law suits likely respond to the questions.

 

Farmers suing other farmers claiming damages due to cross-pollination.

Although cross-pollination between crops in neighbor fields is a biological fact, to my knowledge, there is not a single law suit in the world where one farmer has sued another farmer claiming damages due to cross-pollination between a GM crop and a Non-GM crop.

 

Australian courts have dealt with a fact pattern that resembles a cross-pollination claim. In this Australian case, an organic farmer (Marsh) sued his neighbor GM farmer (Baxter) because GM canola, harvested by swathing and lying in rows, blew onto the organic farmer’s land. The organic farmer brought the lawsuit because his organic certifying agency decertified the Marsh land due to the physical presence of the GM canola.

 

Without going into detail about the facts and the legal claims, the Australian courts, from the trial court to the High Court of Australia, ruled in favor of the GM farmer (Baxter) on all claims. The courts ruled that Baxter was growing a legally authorized crop and that Baxter had not committed negligence, nuisance, or trespass upon the land of Marsh. The court ruled that the decertification of Marsh’s land was a self-imposed decertification because the organic agency had adopted a zero tolerance standard for the presence of any GM crop. The court also implied that it was doubtful that the organic agency had interpreted its own organic standards correctly about the presence of GM as an event of decertification.

 

This one case from Australia, involving wind-blown canola (but not pollen), is the only farmer versus farmer case in the world between an organic or Non-GMO farmer and a GM crop farmer. The case is known as Marsh v. Baxter.

 

Farmers suing Agricultural Biotechnology Companies due the presence of unauthorized GM material.

There are several instances of lawsuits in which farmers and others (such as grain dealers) have sued a developer of an unauthorized GM crop when the GM crop comingled with commodity crops. When the GM crop does not have authorization for commercial release, the presence of the unauthorized GM crop in the commodity crop makes those comingled loads or bins an adulterated product.

 

The most prominent of these law suits involved StarLink corn, LL601 Rice, and Round-up Ready wheat. In each instance, the GM crop had authorization for field trials, but not for commercial release. In each instance, the biotechnology developer had the regulatory obligation to prevent the GM field trial harvests from entering into the commercial crop. In each instance, the farmers suing the biotechnology developer were successful in gaining monetary damages from the developers.

 

Farmers suing Agricultural Biotechnology Companies for presence of GM material in international trade to countries where the GM trait had not gained approval from the importing country.

Farmers and others (such as grain dealers) have sued GM crops developers when a crop that has authorization for commercial release in the United States, but lacks authorization for commercial release in an importing nation, has mingled with the commodity crop destined for the importing nation. Several examples of this fact pattern giving rise to litigation exist and the examples involve a trait grown legally by US famers, harvested, and mingled with a commodity crop being shipped to China. China had not yet authorized the GM trait and rejected the shipment at its ports.

 

As of April 2016, these lawsuits are still in litigation so it is not possible to state what the courts will ultimately rule about legal liability in this fact pattern. It is possible to state, however, that in the initial legal skirmishes, involving this fact pattern, the farmers suing the biotechnology companies have received favorable rulings. However, this factual pattern has a name – the problem of asynchronous approvals between the regulatory systems of various nations.

 

Agricultural Biotechnology Companies suing Farmers who have saved seed, protected by intellectual property rights, and planted that saved seed to grow a second crop in a subsequent crop year.

 

Companies that develop new and improved seed often gain intellectual property rights (IPR) in the seed in order to recoup their research and development costs, their costs associated with gaining regulatory approval for commercial release, and to make a profit on the sale of the new and improved seed. Plant breeding companies use intellectual property to protect their interests regardless of whether the new and improved seed is genetically-engineered seed, conventionally-bred seed, or improved organic seed. Seed companies use IPRs in seed as allowed under the laws of the United States, the European Union, Australia, Brazil and most other countries of the world.

 

In the United States and Canada, agbiotech companies have sued to protect their IPRS against farmers illegally saving seed for planting as a second crop in approximately 150 law suits resulting in a published opinion. On the facts of every law suit, including the most famous – the Canadian case involving Mr. Schmeiser --, the farmer being sued admitted that he had purposefully saved seed protected by IPRs and intentionally planted that saved seed to grow a second crop without the permission of the owner of the IPRs. The most prominent of these cases in the United States is Bowman v. Monsanto Company wherein the United States Supreme Court unanimously ruled in favor of Monsanto Company. Cases involving the protection of IPRs are infringement lawsuits – infringing on the IPRs of the developers of the new and improved seed.

 

None of these cases involved pollen being spread to a field by wind or pollinating insects. Every one of these cases involves farmers who purposefully saved seed in which IPRs are embodied.

 

There is one law suit in which an organic organization and organic farmers sued Monsanto Company claiming that the organic farmers were concerned that Monsanto Company would sue them for infringement when their organic crops showed trace amounts of IPR-protected traits. (The trace amount could exist because of cross-pollination or comingled GM and non-GM seed being planted.) Monsanto Company responded, in part, to this lawsuit by informing the Court that the Company had a policy of not suing to protect IPRs when the facts showed that the non-licensed farmer had only trace amounts of the IPR-protected traits in the farmer’s crops. The Court ruled that the Monsanto policy was equivalent to a judicial admission (estoppel) that would prevent Monsanto Company from suing the organic farmers under the factual pattern (presence of trace amounts) alleged. Hence, the Court dismissed the organic farmers lawsuits as not proving any liability would or could arise in their organic farming operations to Monsanto Company. This case is known as OSGATA v. Monsanto Company.