Here’s the stark and frightening reality: even if you choose not to buy genetically-modified (GM) products and go out of your way to ensure they don’t end up on your dinner plate, chances are ever increasing that they will–at least in trace amounts. This is because the winds blow and birds and insects fly.
Monsanto, the biggest manufacturer of GM seeds, has filed hundreds of suits of patent infringement against farmers who have either intentionally or inadvertently used or sold its GM seed.
While within legal rights if seeds were sold illegally and intentionally, the question became what can be done about GM contamination of conventional seed and crops.
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Organic Seed Growers, Farmers, and Non-profit Groups Concerned
In light of this legal history, a class action lawsuit was filed by many seed growers, organic farm associations, dairy producers, and advocacy groups (e.g., Democracy Now! and Weston A. Price Foundation) against Monsanto, asking for a declaration from Monsanto that it would not bring suit for patent infringement if the plaintiffs were found to be using, selling, or growing contaminated seed on the underlying premise that these plaintiffs are specifically in business not to in any way come into contact with GM organisms or the chemical glyphosate that is used in their conjunction.
In 2013, the United States Court of Appeals for the Federal Circuit ruled that Monsanto didn’t have to promise anything of the sort.
The legal story started in 2011 when the plaintiffs in this case sent a letter to Monsanto with their concerns and request for a waiver from Monsanto precluding subsequent legal action. Monsanto’s reply:
“It has never been, nor will it be Monsanto policy to exercise its patent rights where trace amounts of our patented seeds or traits are present in farmer’s fields as a result of inadvertent means. Monsanto is unaware of any circumstances that would give rise to any claim for patent infringement or any lawsuit against your clients. Monsanto therefore does not assert and has no intention of asserting patent-infringement claims against your clients. You represent that ‘none of your clients intend to possess, use or sell any transgenic seed, including any transgenic seed potentially covered by Monsanto’s patents.’ Taking your representation as true, any fear of suit or other action is unreasonable, and any decision not to grow certain crops unjustified.”
Reasonable enough. But the devil is in the details that follow.
Monsanto specifies that it won’t prosecute if inadvertent “trace amounts” are found. Further in the Federal Court’s decision, it is stipulated that:
“While the USDA has not established an upper limit on the amount of trace contamination that is permissible, the appellants argue, and Monsanto does not contest, that ‘trace amounts’ must mean approximately one percent (the level permitted under various seed and product certification standards).”
So there is no quantifiable limit, therefore, there is definite discretion in favor of Monsanto. The ruling further admits that GM contamination of conventional (and organic) crops is unavoidable.
The court wouldn’t step in to require a declaration by Monsanto that it won’t prosecute the plaintiffs specific in the case (excluding any other entity that may wish to bring a similar suit); the reasoning was that if Monsanto were to sue, the judiciary would invoke legal estoppel on the behalf of any subsequent farmer filing a complaint. The court then covers Monsanto’s interests by citing previous rulings and the Patent Act:
“our cases suggest that one who, within the meaning of the Patent Act, uses (replants) or sells even very small quantities of patented transgenic seeds without authorization may infringe any patents covering those seeds.”
Nowhere in the decision are “very small quantities” defined or how it corresponds to “one percent”. Some estimate that one percent contamination is ludicrously low, especially if a farm is surrounded by GM farms. One percent to a fairly large farmer is a lot of GM contamination. As things are now, ninety-four percent of soy and eighty-eight percent of corn grown in the U.S. is GM. There is no intention at this time to change that trend.
It’s Almost Impossible for Farmers to Protect Themselves
One of the farmers’ concerns brought in the suit is the cost of their remedies required to prevent the “trace amount” contamination.
One farmer in particular said he stopped growing organic soybeans because he was afraid a nearby GM soybean farm would push his crops over the limit.
Others cite their efforts to build protective barriers from GM farms and decisions on what crops to grow–dictated by their well-based fear that if, despite all efforts to avoid it, their crops become contaminated due to forces beyond their control like wind and insects carrying pollen.
These concerns are dismissed out of hand by Monsanto and the court, saying Monsanto already said they won’t sue for trace amounts so that should be enough.
The Forgotten Majority
What about the consumer?
Of course, we’re not even mentioned but indirectly implied if seed sellers are selling contaminated seeds and crops. The implications for us are bigger than we may have thought.
Natural rice has been contaminated–up to a third of what’s grown in the U.S. Sugarbeets, alfalfa, and wheat are also known to be compromised. Even if we don’t eat some of these, some of the animals we eat do.
GM food has been linked to gluten disorders. The associated chemicals used in its farming have been linked to respiratory ailments and cancer, autism, liver and kidney problems, and destruction of bee colonies.
The door has been left open for Monsanto and other Big Ag companies to not only control and poison our food, earth, air, and water at their discretion but to benefit from anyone who is affected by it.
They have political power that is beyond comprehension and have no problem asserting it when contested.