Monsanto vs. Organics
The US Circuit Court of Appeals this morning issued a victory to Monsanto, affirming the decision of a lower court that found organic growers could not seek to block Monsanto from suing for contamination of crops by patented varieties. The more than fifty organic farmers who had joined the suit worried that they could be sued by Monsanto if their organic varieties were contaminated by Monsanto’s patented varieties.
In making its ruling, the Court deferred to Monsanto’s assurances on its website that it would not do so. In its opinion, the Court wrote that “Monsanto’s binding representations remove any risk of suit against the appellants as users or sellers of trace amounts (less than 1 percent) of modified seed. The appellants have alleged no concrete plans or activities to use or sell greater than trace amounts of modified seed, and accordingly fail to show any risk of suit on that basis.” Monsanto’s website states that 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.”
However, as CropLife’s coverage notes, “The [Roundup Ready] crops are widely used in the United States and Latin America. It has proven difficult to keep the genetic alteration from contaminating non-biotech crops, as recently occurred in a wheat field in the U.S. state of Oregon…In its ruling Monday, the court noted that records indicate a large majority of conventional seed samples have become contaminated by Monsanto’s Roundup resistance trait.”
Organic farmers also expressed concern over the high costs paid by organic farmers to avoid crosspollination of their fields by Monsanto’s patented varieties, including by maintaining buffer zones and by testing for transgenic traits. Because the plaintiffs in the case conceded that “a declaratory judgment here would do nothing to eliminate the risk of transgenic seed contamination,” the Court held that “Aside from the risk of suit by Monsanto, none of the alleged harms caused by contamination is traceable to Monsanto’s enforcement of its patents, they could not be remedied by a declaratory judgment, and they cannot serve as a basis for jurisdiction in this case The courts did not directly address this question.”
To me, this is the most interesting component of this decision because it gets back to a point I have made earlier about the cost burden of maintaining organic production. Why is the cost of preventing contamination borne by the organic farmer (who seeks to protect their own property) rather than by the farmer growing the GM corps (whose property is the source of the damage in the first place)? If I fail to prevent my dog from biting my neighbor when he runs on to their property, I am liable for the dog’s behavior because I failed to exercise due diligence in ensuring the dog remained on my property. Why is it different if pollen from my fields contaminates my neighbor’s crops? There is certainly a cost issue (preventing pollen spread would be far more costly than keeping my hypothetical dog from running amok), but the underlying principles seem to me to be the same. Or am I missing something?