Expert response from Professor Drew Kershen

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

Thursday, 07/18/2013 16:38

You are likely referring to the “Farmer Assurance Provision” included in the 2013 federal government Appropriations bill that was passed in March 2013. The provision was put in place to minimize some of the potential effects of burdensome litigation that has been used in the past to work around the well-established regulatory process of the U.S. Department of Agriculture and put a significant economic burden on farmers. Ironically, this provision directly protects farmers, not seed companies – but you wouldn’t know it by how it has been renamed in the media and online by anti-GMO groups. Here is how the provision breaks down:

The USDA has well-established review processes for any new GMO to gain the authorizations needed to enable commercialization. Here is a link to specifics on this process:
http://www.aphis.usda.gov/biotechnology/regulations.shtml

Once a GMO is approved by these regulatory bodies (in addition to USDA, FDA and EPA have regulatory review processes for GMOs), it is available to farmers who choose to purchase it. Today, roughly 90 percent of corn, soybeans and cotton grown in the United States are GM varieties.

On two occasions, groups that do not support the use of GMOs sued the Secretary of Agriculture, claiming that USDA regulators didn’t follow the proper procedures when conducting environmental assessments of these crops. These groups also challenged USDA’s issuance of permits to authorize plantings of herbicide tolerant sugarbeet seedlings. The U.S. District Court hearing the case granted an
injunction that ordered the destruction of the seedlings. On appeal, the ruling was overturned and the permits were allowed.

Using authority under existing laws, the Secretary of Agriculture stepped in to allow farmers with crops in the ground to cultivate and harvest them under strict supervision.

For alfalfa, the nation’s fourth largest crop, a court-ordered injunction blocked planting of herbicide tolerant alfalfa while a lengthy and duplicative environmental review was completed. As a result, farmers were barred from planting alfalfa with the trait for nearly four years. Despite the Supreme Court later deciding 7-1 that the injunction was unnecessarily burdensome, the livelihood of farmers was still at the mercy of individual rulings.

The provision in the 2013 Appropriations bill, “Farmer Assurance Provision,” would mandate the Secretary to allow for the cultivation and harvest of a previously assessed and approved GM trait while USDA conducts any additional procedural assessments ordered by the Court.

Without this provision, farmers, not seed companies, would be in jeopardy of losing their crops, their farms and their livelihoods. Several key farm groups support the “Farmer Assurance Provision” including the American Farm Bureau Federation, the American Soybean Association, the American Sugarbeet Growers Association, the National Alfalfa & Forage Alliance, the National Association of Wheat Growers, the National Corn Growers Association and the National Cotton Council of America. It is important to note that the provision does not restrict in any way the agency’s ability to take action against a product shown to pose a food, feed or environmental risk.

Here are links to some additional reporting on the provision:
http://www.agprofessional.com/news/There-is-no-Monsanto-Protection-Act--...
http://www.biotech-now.org/food-and-agriculture/2013/04/dont-misrepresen...

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