GM pollution - who's liable?

March 2010

After biotech industry pleas that “Realistic thresholds must urgently be established at Community level for the unintended presence of GMOs in non-GM material (be it in seeds or in commodities) including in organic crops”, the European Commission finally caved in. On 1 January 2009, EU regulation No. 023/2007 came into force, effectively setting the threshold in accordance with the wishes of industry. The regulation allows for the marketing of food as organic and unlabelled providing any GM contamination is below 0.9% and “adventitious or technically unavoidable”. “By doing so, it rides roughshod over the wishes of consumers and the burgeoning organic food industry.” (Collins)



The question of how liability for damages arising from gene contamination will be handled in Europe remains open. However, the precedents set by the cases of Schmeiser and of Hoffman in the Canadian system of justice do not bode well.

Percy Schmeiser was a successful farmer in Saskatchewan who grew a 1000 acre crop of canola (oilseed rape). He did not farm organically but kept his use of herbicides to a minimum. Over the years he had developed his own strain of canola by means of selecting seed from his harvest and he had no wish to plant the Monsanto Roundup Ready, GM, variety.

In 1997, Schmeiser's crop was contaminated by the growth of Roundup Ready canola. Initially, Monsanto claimed that he had illicitly procured and planted its product. This claim was subsequently dropped. The most likely source of the intrusion of these plants onto his land was the wind-borne seed carried from vehicles that were bound for neighbouring farms cultivating GM. Following his usual practice, Schmeiser saved seed from his 1997 harvest to plant in 1998. In that year, his crop was found to contain a high proportion of canola of the Roundup Ready strain and, accordingly, he was sued by Monsanto. The Company's claim was for the profits that he had earned from the crop, not from the company's loss of royalties or sales. In summary, Schmeiser was sued for the cultivation ofn his own seed because it had been contaminated by a pollutant which belonged to Monsanto.

When, after some complex legal squirming (seemingly aimed at avoiding rocking Monsanto's boat) the Supreme Court of Canada ruled that the genes and the cells containing them belonged to Monsanto, but the plants didn't. The fact the Schmeiser had not introduced the crop onto his land nor had wished it to be there were deemed irrelevant. So too was the fact that the inserted trait, resistance to Roundup, was of no use to him: the Court likened the benefit of Roundup resistance to a fire extinguisher which can be said to be in use if it is only fixed to a wall in case of an emergency. According to this logic, the farmer had the trait available to him and could have used it had the need arisen.

Note that for a breach of patent to occur, the farmer needn't be aware of the gene pollution in his crop, he needn't have procured nor knowingly planted the GM seeds, and needn't have had any benefit from them.

Monsanto has been getting round the responsibility for its role in genetic pollution by volunteering to decontaminate affected fields. That way, no one can complain: especially since the clean-up is only be carried out if the farmer has agreed to a gagging order.

The case of Hoffman concerned a group of organic farmers who wanted to sue Monsanto and another producer of GM canola for the economic and physical effects of the gene contamination of their crops.

The Supreme Court of Canada ruled there was no case to answer. The fact that the government had approved the GM crop for general release was considered to invalidate the farmers' claim. Significantly, the fact that the European market for canola was no longer accessible to the organic farmer was not of relevance. It was also held that, as the contamination of the non-GM crop was inevitable, the industry had no need to keep track of its product with any kind of 'identification preservation' system. Finally, it was considered that the gene contamination was similar to pesticide spray drift, and therefore it was neighbouring GM-growing farmers who might be liable.

This judgement offers a number of insights which might well be relevant in Europe where it has already been decided that gene contamination is inevitable. Any fault will attach to the regulators who approved the GM cultivation, the foreigners who refuse to buy the GM product, the GM-growing farmers who failed to control the wind, or the non-GM farmer who put his crop where the GM pollen could land on it. The manufacturer of the GM seed has no liability whatsoever.

Happily, the system is not, in practice, totally stacked in the biotech industry's favour.

Law suits against Bayer CropScience for its disruption to the American rice market when experimental GM strain LL601 was found contaminating the entire long-grain rice supply have just begun to move through the US courts.

The first and second cases were heard in the Federal Court in St. Louis. Bayer was forced to admit in court that it had been unable to control the spread of its GMOs despite “the best practices” to prevent contamination. Affected farmers were awarded $2 million in the first judgement and $1.5 million in the second.

The third case was heard in a State Court with farmers on the jury. The farmer's attorney said that Bayer was “negligent or careless” in following USDA testing guidelines and that, once the rice was contaminated, Bayer did not take appropriate steps to mitigate disruptions in the marketplace. The farmer alleged that Bayer did not use tarps nor safe zones to prevent contamination, did not take precautions with equipment, and allowed genetically modified rice to “co-mingle” with non-GM rice in drying facilities. He said “Bayer simply sat back, did nothing, and hoped the (gene) contamination would not surface”. The jury found that Bayer should have known that its actions would result in damage and that it “continued with such conduct with malice or in reckless disregard of the consequences” and “intentionally pursued a course of conduct for the purpose of causing damage”. Very significantly, the farmer was not only awarded half a million dollars in compensation, but another half a million dollars in exemplary, punitive damages.

Some seven thousand similar claims are pending. Europe should pay heed: Greenpeace International has estimated that the global costs incurred as a result of the rice contamination were between £741 million and $1.285 billion.

Note that all these suits are being brought privately. US regulators carried out an investigation, but decline to take legal steps.

In Scotland, we now have some laws in place to deal with gene contamination. Since June 2009 we have regulations on pollution specifying that “remediation requirements for the most significant cases involving the threat or actual damage” to water, biodiversity and land where public health is at risk in accordance with the 'polluter pays' principle. Environmental liability includes GM pollution and can be enforced up to 75 years after the event. The penalty on conviction has been set at up to 2 years imprisonment and an unlimited fine.

OUR COMMENT

Polluters in Scotland can count themselves lucky. The Chinese offenders who contaminated the milk supply (see FOOD ADULTERATION: LESSONS FROM CHINA – News, October 2008), didn't get off so lightly: one milk processor and one farmer have been executed, and others found guilty have received prison sentences of 8 years to life.

Europeans should take note of the cases of Schmeiser and Hoffman. Regulators will evade responsibility by claiming the best science at the time was used, even if they have failed to require appropriate tests to be developed before deciding to approve a GM crop. Farmers, it seems, are the ones most likely to bear the consequences of gene pollution. Their recourse in law is to sue their neighbours on whose goodwill and friendship they often depend.

“There are reports that farmers are reluctant to plant GM because of the opacity of the legal situation with regard to other farmers who might be adversely affected by their crop. It is upon these uncertainties that future campaigns need to focus.” (Collins)

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SOURCES

• Robert Urquhart Collins, GM Crops: The European Context and Legal Precedents from Canada, Alliance for Natural Health. March 2009, www.anhcampaign.org
• Arnaud Apoteker,$2 million US dollar verdict against Bayer confirms company's liability for an uncontrollable technology, Greenpeace International, 7.12.09
• Bayer hit by $1.5 million penalty for their failure to control GM rice, GM Freeze Press Release 9.02.10
• GM contamination, Scottish Government News Release, 23.06.09, www.scotland.gov.uk
• The Environmental Liability (Scotland) Regulations 2009, SS1 2009/266, Scottish Government Environmental Quality Directorate,12 May 2009
• Miles Erwin, Pair executed for roles in tainted milk scandal, Metro 25.11.09
• Alison Sider, Bayer ordered to pay farmer £1 million is tab for modified rice, Arkansas Democrat-Gazette, 10.03.10