American fig-leaf 'regulations'

October 2011

Round hay bales of alfalfa in a Montana field, USA
Photo from Wikimedia Commons
America has no regulations with which its authorities can control GM plants. Neither the consuming public, nor the environment, nor farmers are protected from any harmful consequences of the novel plants.

You'll have heard repeated industry claims that its GM crops have been approved. This is true, but they refer to a purely voluntary process described by GM-critics as a “fig-leaf”. The only purpose of the voluntary GM approval system is to give an illusion of regulation: it suggests the government is doing its job, and lets the industry demonstrate how safety-conscious it is. It will also let industry well and truly off the hook when GM goes wrong.

How did the US administration achieve this industry-friendly, every-one-else-unfriendly set up?

The guiding premise was that the oversight of GMOs needed no new laws, but could be effectively regulated under existing codes.

Thus, Bt plants became insecticides, and fast-growing fish became drugs. Herbicide tolerant crops proved more challenging to bend into an existing legal framework, but two existing codes were judged applicable to deal with them. The first is a 50s-era law called the 'Plant Pest Act' which gave the US Department of Agriculture (USDA) the power to restrict the introduction of any organisms that might harm plants. This law was extended in 2000 when Congress passed the 'Plant Protection Act' which expanded the earlier Act to include plants with “noxious weed status” i.e. plants which might go rogue in the field and become a hard-to-control weed. Secondly, the National Environment Protection Act requires that the USDA conduct an environmental impact study on all the crops it deregulates. Note that neither human nor livestock safety figure in any of the these regulations.

Most GMOs to date have fallen within the scope of these Acts, giving the USDA the power to say 'no', even if its didn't actually ever use the power. The way it works is that any GMO which has incorporated recognised plant-pest material can be regulated under these laws: this includes all GM plants created using Agrobacterium (a plant tumour-causing pathogen) to insert the artificial DNA, and all GM plants with artificial genes driven by plant-viral promoter DNA.

Just where this blinkered use of inappropriate regulations to 'oversee' unpredictable novel organisms has led has been made clear by the GM alfalfa story and the GM Kentucky bluegrass story. Between them, they have “poked yet more holes in an already porous regime for overseeing GM crops essentially to the point of regulatory collapse” (Philpott).

Roundup Ready alfalfa (genetically transformed to withstand Roundup herbicide) was deregulated in 2006 without any pretense of following the due procedure which required that an environmental impact assessment be carried out. NGOs then tried to pull the USDA into line with a court order demanding that the Agency suspend the de-regulation of the GM grass until it had obeyed the law.

The required impact assessment was a huge “sprawling” document finally released in 2010. It stated starkly that gene flow between GM and non-GM alfalfa is “probable” and threatens both organic dairy producers and non-GM alfalfa, and that there is a strong potential for the creation of Roundup-resistance “super-weeds” leading to ever-higher doses of Roundup and the application of more toxic herbicides. The report noted that two million acres of US farmland already harbour problematic Roundup-resistant weeds caused by GM crops.

Having done what the law required it to do (an Environmental Impact Assessment), the USDA then deregulated GM alfalfa regardless of the clear problems identified. Critics noted that this decision was made during the 'sleepy' week between Christmas and new year, the best time to bury bad news.

The USDA's brushing aside of both acknowledged GMO concerns and the feeble GMO laws was explained by an “open letter to stakeholders” from Agriculture Secretary, Tom Vilsack, explaining the Agency was moving towards a “new paradigm based on co-existence and co-operation” between GM and non-GM players. 

(COMMENT Laws, safety assessments, science, the precautionary principle, and the consumer have no role in this new paradigm)

Then GM Kentucky bluegrass came along, and things got worse.

Roundup Ready bluegrass is intended for use in lawns, sports fields and parks. It's not a food, it's not intended for pasture, it's not been created using Agrobacterium, and it doesn't contain viral DNA promoters. In short the USDA has no jurisdiction to regulate it.

Since Roundup Ready blue grass can't be regulated, it can't be de-regulated.

Since Roundup Ready blue grass hasn't been de-regulated, a pre-deregulatory Environmental Impact Assessment can't be required.

The GM bluegrass, however, clearly poses all the same threats of commercial damage, gene-flow, superweeds, and toxic chemical use as were spelled out for GM alfalfa.

Critic noted that the announcement that the GM bluegrass would be exempt from regulation was made late on a Friday afternoon, a good time to bury bad news.

The Agriculture Secretary's response to NGOs concern was to pull the “new paradigm” out of the hat again: the USDA “strongly encourages Scotts (producers of Roundup Ready bluegrass, see Box) to discuss these concerns with various stakeholders during these early stages of research and development of this GE Kentucky bluegrass variety and thereby develop appropriate and effective stewardship measures to minimize commingling and gene flow between GE and non-GE Kentucky bluegrass.”

Scotts Miracle-Gro

Scotts is a lawn-grass company which, hand-in-hand with Monsanto, is at the forefront of GM grass seed development and marketing.

Back in 2003, Scotts submitted a proposal to deregulate its first GM seed, Roundup Ready creeping bent grass. In 2007, the company was fined $500,000 after its novel bent grass escaped from field test sites in Oregon. More recently, GM bent grass thought to have originated in test sites in Idaho was found in nearby southern Oregon.

USDA administrators have agreed that Scotts' unregulatable Kentucky blue grass has side-stepped regulations.


Grass has light pollen and seed and an outstanding ability to spread itself around. Yet, to justify the ease with which it has been deregulated, blue ryegrass has been absurdly likened to GM petunias and geraniums. Moreover, unlike food-crops whose planting is restricted to a narrow time-frame and location which serve to limit gene-flow, the grass planting will be wide-spread and perennial. Asking the people who are trying to profit from sales of GM grass to take steps to co-operate and co-exist with those who stand to lose everything is a tall order: asking DNA to co-operate and co-exist is fairyland.

The USDA has set the stage for both GM alfalfa (an important forage crop) and GM bluegrass to evolve into “noxious weeds” and it's not against any US law because their non-GM forms which are susceptible to Roundup, are not noxious weeds.

Additional holes in the system are scary. For example:

  • the use of E. coli (potentially a human pathogen, but not a plant pathogen) in the genetic transformation process falls through a gap
  • side-effects of genomic scrambling (notoriously worse when a gene-gun is used instead of Agrobacterium-mediation) fall through a gap
  • antibiotic-resistance genes fall through a gap
  • warnings from scientists to the Agricultural Secretary regarding harmful effects of Roundup on plants and the soil fall through a gap
  • microbes abounding on Roundup-treated plants and suspected of damaging plant-health and animal fertility fall through a gap ...

The USDA, more tellingly, noted “Funding for federal regulatory response for Kentucky bluegrass is unlikely to be available at a time when our noxious weed program is facing funding limitations, and the required response would be beyond the combined federal and state regulatory capacity”. Someone, somewhere, has made sure GM crops are unstoppable in the USA just by making sure there are no funds to oversee them with.

The biotech industry in America can now move forward with confidence using the most damaging, gene-scrambling transformation method, avoiding DNA copied from anything except a known plant pathogen (or not copied from any living thing at all). All it needs to do is say 'please co-operate and co-exist' to non-GM farmers, super-weeds and THE artificial genes.

Don't let the US model become ours: it is dangerous. Your health must never be an afterthought.

  • Andrew Pollack, USDA Ruling on Bluegrass Stirs Cries of Lax Regulation, New York Times, 6.07.11
  • Paul Voosen, In Major Shift, USDA Clears Way for Modified Bluegrass, New York Time 6.07.11
  • Tom Philpott, Wait, Did the USDA Just Deregulate All New Genetically Modified Crops? Mother Jones, 8.07.11
  • Brandon Keim, Genetically Modified Grass could Make Superweed Problem Worse, Wired Science, 11.07.11
  • Tom Philpott, Welcome to the Age of GMO Industry Self-Regulation, Mother Jones, 14.07.11
  • No Free Pass for New Genetically Engineered Crops! Organic Consumers Association, Organic Bytes, #287, 28.07.11
  • Prof. Joe Cummins, USDA/APHIS Creeping towards Regulatory Shutdown, Institute for Science in Society Report, 30.08.11

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