One More Reason to Love Vermont (Biotech Crop Edition)

The Vermont House of Representatives has rejected the misnamed "Farmer Protection Act" that would have imposed strict liability for "contamination" on biotech seed companies. The idea is that organic farmers would be able to sue seed companies for "contaminating" their crops if pollen blew over onto their fields from a neighbor who was growing biotech crops. Under strict liability organic farmers would be required to show only that their crops had been contaminated by biotech seed pollen and that he suffered economic losses as a result. A farmer who prevailed on both points could collect economic damages. This bill was clearly a backdoor attempt by anti-biotech activists to essentially ban biotech crops in Vermont.

Why should the concerns of organic farmers trump the rights of other farmers to grow safe and productive crops? Short answer: they shouldn't. My longer answer is in my column "Organic Law." The central argument is below:

So does [organic farmer] Robert Quinn have a right to fields uncontaminated by pollen from genetically enhanced crops? Drew Kershen, a law professor at the University of Oklahoma, has been thinking about issues like this one for years, and he concludes that Quinn has no such right.

First, Kershen points out that organic standards are process standards, not product standards. Organic crops receive certification because of the way they are produced: no chemical fertilizers, no synthetic pesticides, and so forth. Saying a product is organic does not mean it is totally free of chemical fertilizers and synthetic pesticides. Organic farmers already experience accidental pesticide drift and the admixture of conventional seeds. They can still obtain organic certification, provided they conscientiously follow all the rules specified by the National Organic Program. The same standard could easily apply to organic farmers whose crops have experienced minor interbreeding with transgenic crops.

Second, Kershen notes that U.S. law generally does not allow those with special sensitivity to an activity to declare that they have been harmed by it. It is their responsibility to protect themselves from the activities they dislike. "You do not have a claim based on your assertion of increased sensitivity," Kershen explains. "If you don't like to hear rock music, you can't prohibit your neighbors from playing it at reasonable levels. You have to protect yourself. Stay away from concerts. Soundproof your home." Similarly, organic farmers could perhaps grow borders that would insulate their crops from their neighbors' pollen flow.

Robert Quinn's most persuasive argument is that he will lose money because his customers will reject his product if they think it is "contaminated" with genes from genetically enhanced crops. Kershen says that argument won't wash either. He offers an example in which a tattoo parlor legally opens between a florist and a Christian bookstore, advertising a special on satanic tattoos. Customers offended by the tattoo shop begin avoiding the florist and bookstore. Under American common law, the florist and the bookstore do not have a cause of action, because "economic expectation is not recoverable." (Of course, Coase would say the bookshop and florist might want to buy the tattoo owner out.) Similarly, an organic farmer who expected to sell his crop at a premium would nevertheless be able to sell it at market rates as a conventional crop; he loses only the premium he expected to gain.

Kershen makes the further point that those who have created a niche market should be the ones responsible for protecting it. "After all, they are the ones trying to differentiate their products in order to obtain higher profits," he notes. "Therefore, the rest of us who don't care shouldn't be saddled with the costs of defending their self-imposed standards and labeling." That would be akin to forcing conventional meat packers to carry "non-kosher" labels on all their meats for the benefit of kosher meat producers.

One method of dealing with the problem faced by Quinn and other organic farmers is to set reasonable tolerances. Many activists and organic farmers advocate "zero tolerance" standards that in effect would outlaw genetically enhanced crops. Since every scientific body that has ever looked into the safety of biotech crops has found them safe, this would be an absurd requirement.

Crops have exchanged pollen for millennia, and they will continue to do so. Seed breeders have decades of experience in setting tolerances for seed purity. As Mark Condon, vice president for international marketing at the American Seed Trade Association, recently explained, "seed purity certification standards were commonly set at 98 percent to 99 percent varietal purity levels or a standard of 1 percent to 2 percent adventitious genetic impurity." It should be possible to maintain similar standards for organic crops. Since organic farmers set their own standards, they could easily adopt these tolerances and save themselves and conventional farmers a lot of trouble.

Comments

[kgsam]

and it can work both ways...what if pollen from the organic crops contaminated the GM crops?

[JSFan]

I have long thought that you somehow stick-out as odd, with relation to the rest of the Reason staff, but I was unsure as to why?

Now I know.

Any REASONable person would understand the economics of externalities, and know that the market functions best when everyone has to bear the true costs of their business. That applies to high-tech bio-engineering types as well.

By opposing this legislation, you have effectively declared it OK to provide these bio-engineered-seed-using-companies with a get-out-of-litigation-free card, handing them what is in effect, a governmentally sanctioned subsidy.

Just cause you love 'em cool bio-thingies, dunnut mean that they should be exempt from the laws of *market* economics. If their business causes harm, they should pay, and the cost of their product should reflect that true cost. Any other result, is simply not REASONable.

[Native NYer]

"Second, Kershen notes that U.S. law generally does not allow those with special sensitivity to an activity to declare that they have been harmed by it. It is their responsibility to protect themselves from the activities they dislike. "You do not have a claim based on your assertion of increased sensitivity," Kershen explains. "If you don't like to hear rock music, you can't prohibit your neighbors from playing it at reasonable levels. You have to protect yourself. Stay away from concerts. Soundproof your home." Similarly, organic farmers could perhaps grow borders that would insulate their crops from their neighbors' pollen flow."

Could this be used to legally block smoking bans?

[kgsam]

But what is REASONABLE? The advent of autos put buggy manufacturers (the the famous buggy whip makers) into dire economic straits.
Would organic farmers be willing to accept liability if their crops contaminated GM crops?
Or do they just want to prevent the emergence of potent competition?
If damages occur in either direction, then it should be addessable in courts without creating specific legislation targeting specific competition.
Why single out GM crops as opposed to crossbreedable varieties?
As the argument points out, organic makes no claim as to the genetic component.

[rafuzo]

Just cause you love 'em cool bio-thingies, dunnut mean that they should be exempt from the laws of *market* economics. If their business causes harm, they should pay, and the cost of their product should reflect that true cost.

That's a pretty weak straw-man, JSFan. Read this again:

Kershen notes that U.S. law generally does not allow those with special sensitivity to an activity to declare that they have been harmed by it. It is their responsibility to protect themselves from the activities they dislike.

And most REASONers will agree with that point of view. You can't really sue a river for flooding its banks and destroying your home, nor can you sue the Army Corps of Engineers for flood control projects that didn't work. If farmers don't like cross-pollenation from other crops, well, they shouldn't be farmers.

[kgsam]

pardon, that should be: (AND the famous buggy whip makers)

[R C Dean]

What you are missing, JSFan, like so many who try to justify regulation on economic grounds, is that businesses created both external costs that they do not bear, and second-order benefits that they do not profit from. We as a society make a rough judgment that, beyond a certain point, these externalities and benefits are a wash.

Attempting to force every externality back onto business will put all but the most profitable out of business, depriving society of the benefits that the business created. Bad deal for everyone.

Second, as alluded to above, not everything that happens because a business exists is an "externality", even if the neighbors don't like it, and even if it costs the neighbors money.

[Dave W.]

Where is the crop contamination compensation to come from then? I don't mind it coming from farmers in the first instance, but dangerous instrumentalities require some kind of compensation. If the game is that the farmers are basically bankrupt and the seed companies are making big profits, then you can see why the Vermont legislature would want to nip this lil liability shell game in the bud.

To me, it would make more sense to require that the seeds be sold with contamination insurance. This allows the private actuaries to handle risks and benefits in a less centralized, market responsive way. However, insurance is complicated (and not much of a Smithean market)

Strict liability works pretty well for lions and dynamite. Don't see why it won't work with dangerous seeds, too.

How is yer ADM stock doin', R.?

[Ron Bailey]

JSFan: Please read "The Problem of Social Cost" article by Ronald Coase that I linked to. It is one of the more profound insights on how to divvy "externalities."

[Ron Bailey]

Dave W.: What "dangerous instrumentalities" are you talking about? Biotech seeds are not dangerous.

Secondly, if you promise to completely stop your tiresome implications that I'm shilling for corporations, I will tell you how much ADM stock I own (which by the way doesn't produce biotech seeds).

[Eric the .5b]

So, who was the dipstick blogger who linked to this post and exhorted his readers to go explain to us how to be "REASONable"?

[Dave W.]

If biotech seeds do great economic damage then they are indeed dangerous instrumentalities. You don't think ppl will die from genetically modified food, but some people do think that. If they are correct then we sure are in classic dangerous instrumentalities territory.

I will stop the insinuations when you come clean about all your economic dealings with people who make money off genes. It has been clear for some time that you have an extremely favorable opionion of genetic research and little skepticism in this area. Not a good tude for a science writer. I can't prove for a fact that you are somehow making money off all the rosy and exculpatory postings about genes. Now I didn't used to call jouranlists on stuf like this, but after Armstrong and Judy and all the rest, I decided to get a new tude of my own. That tude is this:

hwen a writer's posts make him appear a shill, you just keep insinuating unless and until full disclosure happens. Like Mr. Sullum said: "if that means some of them adopt stupid, unfair policies. . . . They have to bear the consequences of those policies, which might include public criticism."

I don't just want to know about ADM. I want to know about all relevant financial transactions, past, present and contemplated. So that we can all trust you that much more.

[Dave W.]

And Jack! How could I forget him. He was in the papers this morning. Maybe the next Bailey post can be about how we should stick it to Jack to set a good zample.

[joe]

Automobile manufacturers didn't actually alter the buggy whips. Tattoo parlors don't actually make flowers uglier, or Chirstian books hedonistic. If the tatoo parlour was doing something that actually altered the products in the other two shops, you bet they would have legal recourse.

Pollen drift actually does change the genetic makeup of organic crops. And, contrary to the repeated assertion in the excerpt, organic producers do label their product as being non-GM, and the buyers of this product (whether you happen to like their choice or not) do look for this label.

In addition, unlike the drift of pesticides, pollen drift actually changes the crop, and every subsequent crop that comes from the same stem line. And changes it into something less valuable at that.

The "special sensitivity" issue is an interesting one. How common does a sensitivity have to be to make it "special?" If the pollen from your giant, milk-producing GM tomatoes makes my organic broccoli taste like dog crap, you clearly owe me some money. But isn't that just as much of a personal, aesthetic complaint as Bailey claims the preference for organic veggies is? (To Native NYer, the smoking bans are based not on the special sensitivity of a few, but the common sensitivity of the many. People who don't want to breath second hand smoke are no longer a "special" few, but the public at large.)

The comments about "zero tolerance" are so wrong-headed as to make me question the author's integrety. Altering .005% of an organism's genetic code can have huge impacts - in fact, most miraculous, big money GMOs contain only one or two altered genes, and look at all the effort put forth to denounce efforts to forbid such tiny changes.

Finally, as far as "crops have traded genetic material for millenia": not with GM crops, they haven't. You don't get to go claiming tradition here: this is entirely novel.

I think the only valid argument here is that "those who seek to differentiate their product have a duty to protect it." Similarly, if you let your award winning poodle outside, and she get knocked up by a mutt and you miss the income from a whole breeding season, too bad. You should have kept her indoors, or fenced in.

Following this analogy, what if your neighbor's mutt burrows under your fence to get at your poodle? Isn't it his job to prevent tresspass and damage to your property? Isn't the drift of horny boy dogs to horny girl dogs just as natural as the drift of pollen across fields? In that case, the "special sensitivity" of the dog breeder, based on the expectation of income, would serve to make what would otherwise be a common occurance into an actionable offense.

[Phil]

I still want to know where every single penny Mr. Sue-'Em-All One-Trick-Pony makes comes from.

You don't think ppl will die from genetically modified food, but some people do think that. If they are correct then we sure are in classic dangerous instrumentalities territory.

And if my grandmother had balls, she'd be my grandfather.

One-Trick Pony, are you a subscriber yet? If not, then why the fuck should Ron Bailey owe you one cent's worth of explanation concerning his financial transactions?

[Farmer Bob]

"If farmers don't like cross-pollenation from other crops, well, they shouldn't be farmers."

By the same token, if the seed companies don't like cross-pollinating other crops, they shouldn't be selling seed. Current practice is to bring suit for patent infringement, and one of the aims of this bill was to protect farmers from that injustice.

[Ron Bailey]

Dave W.:

Well, I will just have to endure (or eventually ignore) your absurd insinuations. If you don't like my reporting, if you think it's too favorable toward certain technologies, why don't you point out my errors rather than broadly insinuate shilling? Or you could just stop reading my articles.

Another aspect of my reporting is that I work for an opinion journal and I don't just report scientific results but also policy debates and policy implications of sci-tech discoveries. And yes, my general "tude" is that sci-tech has been "bery bery good" to humanity and I believe that sci-tech is vital to the continued flourishing of human beings. So yes, I've got a general favorable sci-tech "tude." If you gotta problem with that dude, go hang out over with Greenpeacers, they hate technology.

And second, you write: "You don't think ppl will die from genetically modified food, but some people do think that. If they are correct then we sure are in classic dangerous instrumentalities territory."

I don't just think that people will not die from gentically enhanced foods, but every independent scientific body that's ever looked into it thinks that too. "They" are not correct (and have no evidence for their claims) which is why strict liability in this case is stupid. In any case, we cannot run our society on the basis on the speculative and fanciful claims of most the most paranoid in our midst.

I think you could also benefit mightily from reading Coase's "The Theory of Social Cost" as well.

Finally, I don't own any shares of ADM.

BTW, since you didn't deign to answer the last time you unwarantedly impugned my ethics, you are you subscriber, aren't you?

[joe]

Hold on there, buddy.

"I don't just think that people will not die from gentically enhanced foods, but every independent scientific body that's ever looked into it thinks that too. "They" are not correct (and have no evidence for their claims)"

If I successfully spread a rumor that the third grade teacher at Our Lord's Own Elemtary School is a lesbian whose students will catch Teh Gay, and she gets fired as a result, I'm going to get my ass sued off. That she isn't actually going to spread Teh Gay to her students is irrelevant.

[Dave W.]

I have been a subscriber since about the time I started posting here. I honestly love Reason, which is why I set higher standards for it than I do for other publications (save Harper's).

I never have been involved in a tort case. It has pretty much all been patents and trademarks and copyrights (both plaintiffs and defendants sides, about evenly). Maybe in the future I will be a tort lawyer, but it is unlikely. The only stocks I own are the ones in my IRA and I have no idea what they are (its a package deal). It is unlikely that any of my future employers will have a significant tort law caseload, but who knows. Of my past employers, two of my ex-employers were patent boutiques and two were general business (gigantic client mostly) with sizeable insurance defense components (which I was not ever directly involved in). I bear no will toward my ex-employers. Even the one that I had the drug testing dispute with is fine and I would work there again (if I were looking, I'm not) now that drug testing is not an issue. My current employer has no tort suits that I know of and not a lot of grounds for worrying about them (even if all my advice here on HnR were followed). My concerns about the genetics industry stem from genuine concern about my health, my family's health and the health of humankind. If genetic research is curtailed or outlawed, I do not stand to make any money from that.

Okay, so that's all the relevant stuf I can think of about me. Now everyone else.

[Phil]

Er . . . joe, whose point were you trying to make w/that last post? Because it looks, unless I'm misreading, that you made Ron's point for him.

[Zubon]

In all fairness, definition of property rights apparently does need to go down as finely as what pollens you can emit from your property. This is a textbook example of Coase, but someone must own the relevant property right before it can be resolved. In Vermont, the right to emit pollen from genetically modified plants apparently will reside in the owners of those plants, rather than others' having a right to be free from that pollen. On that basis, organic farmers can buy them out if theirs is the more valuable product.

At present, I do not know of any jurisdiction that restricts pollen. Plant owners of all shades are welcome to emit pollen freely. I have yet to see a coalition of allergy sufferers attempt to pass legislation or make a Coasean buyout of pollen-producing plants. The organic farmer is free to pollute the genetically modified crops next door with his pollen. The farmer using genetically modified crops is free to buy him out to protect his plants from that pollen.

[thoreau]

I am not sure how I feel about this, but I think joe makes the strongest case when he acknowledges the counter-argument:

think the only valid argument here is that "those who seek to differentiate their product have a duty to protect it." Similarly, if you let your award winning poodle outside, and she get knocked up by a mutt and you miss the income from a whole breeding season, too bad. You should have kept her indoors, or fenced in.

Following this analogy, what if your neighbor's mutt burrows under your fence to get at your poodle? Isn't it his job to prevent tresspass and damage to your property? Isn't the drift of horny boy dogs to horny girl dogs just as natural as the drift of pollen across fields? In that case, the "special sensitivity" of the dog breeder, based on the expectation of income, would serve to make what would otherwise be a common occurance into an actionable offense.

The owner of the wandering mutt clearly owes nothing to anybody. The owner of the burrowing mutt, OTOH, is indeed liable for income that's lost because of his dog's trespass.

Drifting pollen can clearly change the price of a crop, just as mating with a mutt lowers the price of the puppies. The question is whether the drifting pollen is a wandering mutt meeting up with an unsupervised poodle or a burrowing mutt molesting a supervised poodle.

Frankly, every farmer knows that pollen could cross his property line, and that pollen might lead to a less desirable crop. For instance, if you grow cherry tomatoes right next to a guy growing giant tomatoes, you both know that cross-pollination could lead to a medium sized crop next year. One cannot sue the other for ruining his business.

(Note: I have no idea if cherry tomatoes can actually cross-pollinate with big tomatoes. But surely there must be some types of distinctive food plants that can cross-pollinate with plants containing totally opposite features.)

So, if somebody growing cherry tomatoes can't sue the neighbor growing big tomatoes (or vice-versa), I don't see why an organic farmer should be able to sue a GM farmer.

[Dave W.]

I don't just think that people will not die from gentically enhanced foods, but every independent scientific body that's ever looked into it thinks that too. "They" are not correct (and have no evidence for their claims) which is why strict liability in this case is stupid. In any case, we cannot run our society on the basis on the speculative and fanciful claims of most the most paranoid in our midst.

Yup, it is hard to prove causation when people die. That is the consumer's right to sue the seed companies is useless. that is why we try to let people sheild themselves from food they consider to be harmful and make it economically practical for them to do so, even if the companies you invest in have to pay for better fences and this cuts into your dividends and stipends and honorariums and plane tix and magueritas and all the rest o'it.

As far as paranoia:

Hwang

global warming

Abrahamoff & his clients

Nope. No paranoia here. Been burned. Smarter now.

[Phil]

Nevermind, joe, I think I see what you're saying: That if an organic farmer's plants are cross-pollinated by GM plants that the organic farmer's customers think are going to kill them, it doesn't matter that the plants won't kill them, it matter that the organic farmer will lose business based on that belief. You also seem to think that the farmer would then have a cause of action against the GM farm, with which I strenuously disagree.

[Phil]

I think another four, maybe five posts and Bailey's gonna have a pretty solid libel case, BTW.

[Dave W.]

Frankly, every farmer knows that pollen could cross his property line, and that pollen might lead to a less desirable crop. For instance, if you grow cherry tomatoes right next to a guy growing giant tomatoes, you both know that cross-pollination could lead to a medium sized crop next year.

Generally good analysis, T., but one variable in the mix should be how dangerous the market perceives your neighbors pollen as being. That was why I mentioned the strict liability treatment of lion ownership (yes, there is strict liability for this).

Perhaps a better analogy is:

the neighbotrs used to own kitties. Sometimes they pooped in out yard and we didn't like it. Then they got lions, but since we didn't complain about the kitties I don't see how we can complain now about the lions.

And of course, the answer is that the law imposes strict liability for lions and not kitties because the potential damage is so much greater.

Now, maybe you and I and the shills don't see gm food as a lion, but some people do and they are willing to pay ppl to avoid the lion. They should be allowed to do this in the practical and not just the theoretical sense. that is what VT's law is about. It is consumer choice. Even tho I don't cleave to organic foods, I respect those who do and want to continue to have this option. Yes, we have been genetically modifying food for thousands of years, but when you speed up that process by what, a million times, a billion times, you might know, T., ten it is possible that bad things will happen.

Bailey talks about the affirmative safety showing his clients. Saccharine, vioxx, red dye no. 5, aspartame. In other words, it is hard to trust here because the affirmative safety showings in the past have been less than perfect. That is bad enough with artificial sweetner. With GM foods the risks are much more pervasive and less reversible. There is no reason that the science writer can't make these points, but somehow he never does. Welch would. I know it.

[Ron Bailey]

Dave W: Obviously, you miss the point that Hwang, and Abramoff are NEWS is because what they did is rare. Just like murder is NEWS because most of us aren't murdered. News is "man bites dog" and "scientist lies" because both are comparatively rare.

As for global warming--it is not something that is by definition, true, but must be based on evidence that accumulates over time. The problem for some of us global warming "skeptics" was the number of times we got "burned" on environmental issues by the likes of Paul Ehrlich, Barry Commoner, Lester Brown, the Club of Rome, Rachel Carson, Stephen Schneider, and so forth. Maybe you'll extend your newfound "skepticism" to activist scientists and groups too.

BTW, are you a subscriber? And for how long?

[Dave W.]

I think another four, maybe five posts and Bailey's gonna have a pretty solid libel case, BTW.

You mean with discovery where I get try to prove the truth of my assertions with Ron's own documents? It ain't gonna happen, no it ain't gonna happen.

[Dave W.]

Like I said, since around the time I started posting, which was also around the time I started reading regularly.

Early this morning I started to order Choice, the best of Reason for my brother, but I realized I don't have his address, but, when I get it. I don't have any of the thongs.

Currently, I imagine I will re-subscribe because I am pretty good at getting ppl to act more reaonably when I set my mind to it. Also, Welch and Sanchez kick. Gillespie would be okay if could bring himself around to outlawing dogsex and dogeating.

[Warren]

Bailey talks about the affirmative safety showing his clients. Saccharine, vioxx, red dye no. 5, aspartame. In other words, it is hard to trust here because the affirmative safety showings in the past have been less than perfect. That is bad enough with artificial sweetner. With GM foods the risks are much more pervasive and less reversible.

Ha ha ha ha. Dude are your serious? You need to come up for air.

[Phil]

So you think it's perfectly reasonable to come online and make dangerous insinuations regarding the investments, financial compensation and business connections of a person, with absolutely no regard for the truth or falsehood of what you're saying, and no proof whatsoever to back up any of your statements?

Where are you a member of the bar again? I want to write them a letter about you.

[Dave]

First of all, when are we going to admit that the whole "GM=bad" argument is just a matter of fashion? How many non-genetically modified crops does your average organic farmer grow? Hmm...haven't seen those tomatos growing in the wild....big fat ears of corn don't exist in the wild....
The fact is almost no food crops exist in the wild in the same form, they were ALL "genetically modified" to produce more, be more disease resistant, etc. Objection to "GM" now is an objection to crops that were modified faster than your other modified crops.
"But what if GM pollen gets on our 'pure' crops!?" Well, what if? Pollen from plants gets on other plants. That is the nature of farming. To act like this is something different now merely because you have some sort of political/aesthetic objection to "Frankenfoods" (as opposed to the crops you grow which have always been that way forever and ever since God/the Nature Fairy made them that way) is to use a bullshit argument to stop something that you happen to not like. Unless you're going to argue that an organic tangerine farmer can sue to cut down his neighbors organic orange trees for fear of altering the genetics of his crop, this is just a matter of forcing the world to follow your personal preferences.
I find it incredibly ironic that it is mainly the Left who support this sort of anti-GM illogic, while railing against the religious right's opposition to stem cell research on the grounds that "it ain't natural and it's not what God wanted". Sound familiar guys?

[Liz]

They may not have a case for strict liability, but there is still a case for nuisance and trespass, the burden for proof is just higher.

State courts have found all over the country that things like dust from a cement plant and fumes from rubber plants and even the vibrations from noise particles are considered consequential trespass. I don't see why pollen would not be. Also, if it's causing finicial harm, and the farmer can prove the finicial harm, that's nuisance. It's just not strict liability.

[John A]

This may be more complex than just banning GM food. Take this case from Canada:
http://www.percyschmeiser.com/

In that case, the farmer was growing a normal crop. His field was contaminated with a herbicide resistant crop called Roundup Ready that Monsanto has patent protection on and harges for. The Canadian Federal court said that the farmer had to pay for using the GM seed, even though he never did anything to use it, and his field was contaminated! Basically, for companiy's opinon was: I've indirectly messed up your property, and now I want you to pay me for it! It was also upheld in the Appeals Court. Fortunately it was overturned in the Supreme Court.

So, while I don't have an opinion about the Vermont law, you can at least see why someone might want something like it.

I'm not sure the original article is correct. Generally you're supposed to have a right to enjoy your property. However, property is always connected to everything else. If your property sits next to someone else property, and once every few years it rains, and the dry creek bed on you property runs through yours, yes it messed up your property, that 's usually considered natural and normal. However, if the person diverts a river onto your property, or drills a oil well, and pumps it out over your property that would be considered being a bad neighbor, and generally actionable in your local justice system. The dividing line has generally what's been considered natural and normal. Human directed activity is usually on the other side. Creating a new plant or animal and then letting it spread outside your property strikes me as being near the line, if not across.

[Dave W.]

Sorry Phil. I would rather handle it by means of Mr. Bailey's libel suit. I want that discovery, and as a defendant my rights would be clearer in getting those crucial documents from him (hopefully without a protective order).

To clarify: I am merely insinuating that Bailey gets financial benefits from gene related companies because of the substance of what he writes and because of his position with a $2.5M organization that does not seem to give detailed info about their and/or their authors finances (where relevant to what the author is writing about, anyway). Beyond this I have no evidence. This does not prove that Bailey makes more when the gene companies make money. therefore, my insinuations are to be taken to reflect my suspicions, rather than as proof of anything.

[Ron Bailey]

John A: I looked into the Schmeiser case some time ago and it's a bit different than it's been portrayed by anti-biotech activists. Between 95 and 98% of his crop contained the gene for herbicide resistance--that couldn't have happened by pollen merely blowing in the wind. He knew exactly what he was doing and that's why he lost in court.

[thoreau]

Dave W.-

OK, I see your point. I may be drawing a very fine distinction here, but I don't give a crap how dangerous people think GM food is. I'm pretty sure that they're full of shit (not 100% sure, because only mathematical theorems are 100%, but still pretty damn sure). However, that's irrelevant: If people (for whatever reason) like organic food more than GM food, then contamination by GM pollen can substantially decrease the value of the crop. Whether the underlying consumer preferences are rational is irrelevant. It would be like arguing that the owner of a roadside creationist park has no right to sue somebody who vandalizes his property: It doesn't matter that his customers are a bunch of idiots, what matters is that the vandal did something (without the owner's consent) that made the property less valuable.

I don't know anything about the difference between strict liability and other liability, but from what you say it sounds like the sort of thing that applies when the harm is large and obvious. Regardless of how irrational the organic consumers may be, the harm to the organic farmer will be large and obvious if he loses the ability to label his food "GM free".

I don't know enough to say whether that qualifies the pollen for strict liability.

If it doesn't qualify the cross pollination for strict liability, the question, of course, is whether this damage was done by a wandering mutt encountering a wandering poodle, or a burrowing mutt molesting a supervised poodle.

Is there a precedent, one way or the other, on my tomato example? If pollen crossed between two tomato farms, one with cherry tomatoes and one with big (but non-GM) tomatoes, and the next year's crop was (depending on the side of the fence) bigger or smaller, could one farmer sue the other? Or if a farmer was growing the tiny decorate pumpkins, and his neighbor was growing the giant pumpkins that you carve?

[Phil]

Eh, I think I'll still track down your identity and write that letter to the bar association.

[Dave]

John A-

You talk about "creating a new plant or animal and letting it spread outside your property". I understand those concerns, but that is EXACTLY what has always happened in agriculture. If organic farmer #1 buys some heirloom tomato seeds from a nice "Anti-GM" catalog (who found them in the garden of a granny in New Mexico), and then plants them on his Vermont farm, that is a plant which has never existed in that area! Yet nobody worries about the pollen from the new variety getting on their plants. Why not?

[Dave W.]

Liz,

The constant references to strict liabilty are confusing here. Traditionally strict liability was decreed because they did not want disputes about intent, specifically negligent intent. They did not want the lion-keeper to defend against a suit by saying: I kept my lion with reasonable care and you can't prove otherwise or I discharged my dynamite with reasonable care and you can't porove otherwise.

In this case, there are two factors that make this different from a traditional strict liability dispute. The special factors present here are:

1. should the seed company be jointly liable with their farmer-customers; and

2. is genetically modified food a legally cognizable harm?

These questions are probably best dealt with *before* we decide on strict liability versus a negligence regime. If it were decided that the seed companies can be jointly liable and that GM food is a legally cognizable harm, then the debate would move to whether the seed companies could defend on the grounds that they had good reasons to believe that they were selling to responsible customers only. If that defense were available to them, then we would be in a negligence regime. If they could not, then it would strict liability (like w/ lions and dynamite). However, it makes no sense to debate strict liability unless and until we decide that there could possibly be *any* liablity.

[Dave]

Thoreau-

I think your creationist park analogy is a little off. Pollen blowing onto your fields from other areas is a given in farming. That is the nature of planet earth, and unless you farm in a giant plastic bubble, it happens every day. So the vadalism comparison isn't accurate; people don't have to vandalize the place. Wind does necessarily carry pollen from all sorts of plants to all sorts of places.
A more accurate comparison would be if someone built their creationist park in Tornado Alley, and then when a piece of somebody's house fell on the Adam-rides-a-triceretops statue, they sued the owner of the house.

[Ron Bailey]

Dave W: You sound very much like a supporter of the so-called precautionary principle which, in essence, demands that a new technology be proved safe before it can be deployed. There is no way in which to do that until one actually develops and uses a technology. Basically humanity is terrible at foresight and has successfully advanced technologically by trial and error. We make an error and then we correct it as we go along. It's not perfect, but then nothing is. Fortunately, the vast majority of evidence is that our technological progress has produced a much safer world rather than a more dangerous one. I summarize the precautionary principle as: "Never do anything for the first time." If you'd care for my more extensive analysis of the PP, click here.

[thoreau]

Dave (not W)-

Agreed. I was just saying that the rationality of the customers and their fears is not relevant. If the pollen lowers the market value of the crop then the pollen lowers the market value of the crop.

Now, whether the owner of the GM field should be liable for the harm is another matter. I was only saying that the harm is real, even if the underlying fears aren't.

[kgsam]

"If the pollen from your giant, milk-producing GM tomatoes makes my organic broccoli taste like dog crap"

No wonder some people fear GM if they believe such as the above is possible.

[Hakluyt]

Actually, there is very little evidence of the sort of genetic drift that joe appears to be claiming occurs.

John A.,

The court found him liable because his claim that his crop was contaminated via accident was found by the court to be absurd.

[Hakluyt]

kgsam,

🙂

[Dave W.]

T.

If people do come out of the woodwork in 10 years and say that, notwithstanding your suredness, they believe they got cancer or diabetes or whatever from GM food, then what will your response be.

Frankly, I have been not-avoiding GM foods because I have always figured that my family would have a tort claim against the food companies if it turned out bad. I trusted that enforcement mechanism more than I trust FDA procedures and the scientists who conduct and interpret them for me.

However, since the Cheeseburger Bill, I am concerned that my family's tort suit would vanish in a cloud of lobbying money. that is why I have a lot more sympathy for what Vermont is doing now than I would have had 3 years ago. Been burned. Smarter now.

Any words of comfort beyond, I-reviewed-the-studies-and-they-look-good-to-me? Care to go on record about how you plan to feel about tort liability if the accelerated genetic manipulations lead us too quickly into a slow motion, but deadly, health risk?

[feek]

Dave W:
You are perpetuating the worst sort of political discourse--ad hominems and insinuations rather than fact-based arguments for your position. Shall I assume that you are in the pay of Greenpeace? Or better yet, Lyndon LaRouche? Just asking. My insinuations are merely reflecting my suspicions.....

[Eric the .5b]

Feek, Dave W's a lawyer. It's really hard to insinuate much worse.

[thoreau]

Dave W.-

It would depend on 3 things:

1) Is the harm real? They can believe whatever they want, but if they have no meaningful data those beliefs don't merit compensation.

2) Did the sellers of GM food know about the danger but keep it secret? I know that this can be learned in discovery, but the process of discovery shouldn't even begin unless the plaintiffs have evidence that they were harmed by the food.

3) This is going to sound bad, but the harm had better be not just real but also significant. Let me explain:

Read a newspaper and you're always hearing that this food increases your (rather small) risk of one disease (by a rather small amount), and that food decreases your (rather small) risk of another disease (by a rather small amount). Lots of small risks, lots of small benefits, lots of foods, lots of diseases. You have to eat something at the end of the day (well, ideally several hours before bedtime, so hurry up and make up your mind! 🙂 No matter what you eat there will be risks and benefits. But you have to eat something.

The mere fact that a food exposes you to risk isn't good enough for me to get upset. I want to know how big the risk is.

[Dave W.]

Thanks, Ron. Fair points indeed. For GM foods at least, I don't like the Precautionary Principle. I don't like the alternative either, which is setting the rules to allow unbridled GM pollen pollution (not as worried about Non-GM pollen pollution because those food products are a lot similarer to what's been around awhile).

Since, I don't like PP for GM and I don't like the alternative, then what to do? My solution is basically states rights. To the extent possible, we decentralize the decisionmaking as far as the extent of liability GM seedmakers will have. If they wanna do business in Vermont, then they follow Vermont's rules. If they don't like Vermont's rules, then they can go to an independent jurisdiction (of which there should be as many as practical) where they find the liability risks more acceptable. This way we get both GM and non-GM food. If GM foods are safe then we will all eventually be on the wave. If we are wrong, then ya better believe that Vermont will be selling its seeds for lots o money.

I don't know that all technology risks can be compromistically "solved" through such a checkerboard morality strategy, but for GM foods it sure does seem like the ticket.

Like I said above, it would be nice if we could clean out the insurance racket somehow because if the risks of GM are as low as you think they are, insurance co's should be chomping at the bit to insure those risks at a fair market rate. You know pay $5 and if your family is ever hurt by GM food, you get compensation for all the suffering (that could never possibly really happen which is why the premium is so low). But the insurance companies ain't jumping to take my money on this somehow and pushing them would just lead to a lobbying game they would win and the consumer would lose, I fear.

All that said, I am open to ideas and would like you to be too, because much should be tried in this new area before we start being so sure that the gene reasearchers have proved a negative here (that no harm occurs).

Final note to T.: Have you considered that GM food risks in the future might be a lot greater than they are now. My understanding is that the degree of gene-splicing and dicing is going up all the time. How can old studies prove that foods that didn't exist yet are safe? C'mon scientist!

[John A]

Dave-
I think the issue is harming/not caring. Traditionally crossbreeding a) hasn't caused much of a problem b) has been really hard to show/prove. I suspect if you dug around, you would find cases where people have alledged harm. So, I think the assertion of nobody caring is wrong. It's just MOST of the time nobody cares.

For example, if you grow a few heirloom tomatos, probably nobody will notice even if the pollen does spread. However, if you do grow the wrong variety of plant and end up spreading some fungus, you will probably get a visit from your state department of agriculture. Similarly, if you spread kudzu, you might also get in trouble. So I think there is a history of people caring.

The boundary is always going to be fuzzy. There are numerous things that bother one person and not another. That's why we try to have robust civil and political systems to work it out before someone whacks someone else over the head with a club. Sometimes those even work.

So, once again, I'm not really saying if I think the Vermont Law is good/bad, just that part of the reason for any support might be for reasons other than GM bigotry.

[Hakluyt]

John A,

There is a significant difference between spreading a fungus (say the variety that wiped out of much of the European vines) and spreading pollen. There has been a heck of a lot of research into the latter and its been demonstrated that cross-pollination is both rare and preventable by very easy defenses like buffer zones and the like. joe, Dave W., etc. and their ilk like to pretend that there are these massive air currents, etc. spreading the pollen hundreds and thousands of miles, when in fact if the pollen moves a 1/4 mile one is rather lucky.

[Dave W.]

Fair answer, T., but lets say that at some point there is a clear, big risk. Will those ppl have tort suits against the seedmakers? I take it from your reply that you think they should, so correct me if that's wrong.

To answer your concerns: "The Tort Of Negligence has four elements, causation being one, injury being another." (download the 1997 DubOnicS song "The Tort Of Negligence" if you want to hear that sung in song form -- its free on Soundclick, I think, and its good law to boot!).

[Dave W.]

More specifically, the tort plaintiff must prove causation by 50.001% at least. So there is some procedural protection for the seedmakers against being held accountable for spreading tiny risks of the type that all food always has, T.

[Tom]

If we can pump raw sewage into the Mississippi River and Boston Harbor, then a little genetic taint, by comparison, ain't shit.

[thoreau]

Dave W.-

If the risk is big, and clear, and the defendants knew about it but kept it a secret, then some sort of compensation would be in order.

What are the other 2 elements of the tort of negligence?

[Hakluyt]

Dave W.,

Fair answer, T., but lets say that at some point there is a clear, big risk.

Let's say at some point that horses fly.

[Heather]

And if my grandmother had balls, she'd be my grandfather.

Not necessarily...

[Dave W.]

the defendants knew about it but kept it a secret

What if the defendants had merely stated that they had determined the food was safe with their rigorous studies? What if the studies weren't that rigorous after all? Should the tort claim come back in these circumstances?

I am not sure you are creating the big loophole here that you think you are.

(maybe it matters whether the plaintiff relied on the false safety claims directly -- for purposes of this query assume she did)

[Dave W.]

oh, and I don't know the other 2 elements because I wrote the lyrics in lawr skool and haven't really dealt with torts since.

IIRC correctly, the number of elements in a tort was a disputed issue because it was thought, for subtle reasons I don't remember, to affect how easily judges could grant judgment in a borderline frivolous claim, without putting everyone thru a jury trial. Can't remember the year of Pfalgraf (or how to spell her name) -- 1928? 1931? Somthing like that.

[thoreau]

Now you get to the hard questions. In general, I'd say that large effects require less effort to uncover than small effects. And consumers do have to assume some amount of risk when we eat. I guess I'd say that GM food sellers should be liable for fraudulent claims, but there's a difference between fraud and spin. "This food is safe! (see website for details of studies)" may not be as accurate as "Within the parameters of certain studies our food doesn't appear to carry any statistically significant risks", but it doesn't seem to be a fraudulent claim either.

[Dave W.]

I like the hard stuf. Okay herz the hypothetical statement:

"Every scientific body that has ever looked into the safety of biotech crops has found them safe."

Let's say the seedmaker (or his agent) said that. Have we got a potential tort claim?

Not forgetting or minimizing your other concerns, but assume for this query that all of the other elements (harm, causation) are in place.

btw, I think one of the elements I forgot was "foreseeability." I am pretty sure that these questions about how much the seedmaker knew or suspected a high risk of potential injury would be resolved in a real tort suit under the foreseeability rubric. Generally, I think that tortious misrepresentations can be technically true and still lead to liability if it was reasonably foreseeable that the statements would be misconstrued or ignored (eg, too tiny warning label on the poison).

[R C Dean]

setting the rules to allow unbridled GM pollen pollution

Well, there's a loaded term. Count me as seriously agnostic about whether any kind of pollen can be a "pollutant" that should be regulated.

not as worried about Non-GM pollen pollution because those food products are a lot similarer to what's been around awhile

Is there any data whatsoever, or even a scientific theory of any kind, that would support the proposition that pollen from a plant that has been genetically modified by certain modern techniques poses any risk or danger not also posed by regular pollen.

Until I hear different, I assume not.

[Hakluyt]

Its fun to watch Dave W. and thoreau hack away at each other based on their own ignorance.

[Phil]

What I can't figure out is just WTF people think is going to happen to them from eating GM foods. Is it going to be like the John Carpenter version of The Thing, where, like, they start growing tentacles and their heads split open and grow extra mouths? Or will it be more like Cronenberg's The Fly?

thoreau, my take is that pollination of an organic farmer's crops by a GM crop, leading to decreased business for the organic farmer because his customers think, "OMFG Frankenfoods we r fuX0red!" shouldn't lead to action against the GM farm. The problem doesn't come from the GM foods, it comes from the fact that the organic farmer's customers are idiots. The GM farm can't do anything to change that.

[Hakluyt]

Phil,

Well, "cancer" is a commonly discussed malady, but things like allergenicity or acute toxicity are also commonly claimed. There are also concerns about "genetic diversity" of the crops and how this will "inevitablity" lead to a disaster once any chink in their armor is found by a pest, etc. Some of the more foolish of these idiots (like the "raw foodies") also argue that GM crops will damage your gametes and this cause birth defects.

[Hakluyt]

The anti-GM movement is a kin to those involved in fighting for the WoD; their ideas are largely based on half-truths, wildly exaggerated fears, a certain amount of puritanism, etc.

[thoreau]

Phil-

It's irrelevant that their customers are idiots. If it brings down the price it brings down the price. I've seen some weird pieces of art in museums and thought that if I splashed paint on them nobody would be able to tell the difference. But if I did it, I'd be liable for (at the very least) the cost of the painting.

The only question is one of responsibility: Everything that you do can potentially affect the price of something else. But not every such action should carry liability. I tentatively come down on the side of the GM farmer, because if the organic farmer's profit depends so sensitively on the purity of his crop then he should be responsible for it. But that's a tentative conclusion.

[thoreau]

I got post #69!

Whoo hoo!

[grylliade]

If people do come out of the woodwork in 10 years and say that, notwithstanding your suredness, they believe they got cancer or diabetes or whatever from GM food, then what will your response be.

See, the thing is, people can't get cancer from GM food. They might be able to get cancer from a specific genetic modification, but the process of genetic engineering cannot do anything to cause cancer. As several people have pointed out, genetic engineering is nothing different from what we've been doing for millenia; it's just faster and potentially more accurate.

For example, let's say that I create a strain of psychopathic flesh-eating corn using genetic engineering. The problem here isn't that the crop is GM; it's that it's a dangerous modification. If people come forward and say that they got cancer from a gene that introduced a carcinogen into a food crop, then they'd have a liability case. If they just said, "Genetically modified foods gave me cancer," then they don't have a case. I'd be open to the possibility if there were some impeccable science behind it, but logically there is no way on God's green earth that, given our present state of knowledge, you can get cancer from GM food.

[Hakluyt]

thoreau,

I've seen some weird pieces of art in museums and thought that if I splashed paint on them nobody would be able to tell the difference. But if I did it, I'd be liable for (at the very least) the cost of the painting.

That's a very poor analogy at best. If the GM farmer deliberately takes his seed and spreads in other farmer's fields that is one thing, if the GM farmer is responsible for some minor "contamination" (and that's all it will ever will be - there has never been a showing of spread past a few barrier rows of say corn) then that falls into a completely different category. Comparing a deliberate act of total destruction to an accidental one of negligible (if any) effect is just silly.

I tentatively come down on the side of the GM farmer, because if the organic farmer's profit depends so sensitively on the purity of his crop then he should be responsible for it. But that's a tentative conclusion.

Thus you have nothing new to add to the subject but your own poorly constructed analogies. For further edification on the subject please see:

Foster v. Preston Mill Co., 44 Wash. 2d (1954) (which concerns excitable minks) and sec. 524 of the Restatement (Second) of Torts.

[The Peanut Gallery]

Yes, thoreau, how dare you enter a discussion and post your thoughts while your opinion evolves in response to what other people wrote! Only experts should join internet discussions.

Take Hakluyt, for instance. He's an expert on everything.

[Sam]

"As several people have pointed out, genetic engineering is nothing different from what we've been doing for millenia; it's just faster and potentially more accurate."
A well mentioned early GM product was a tomato that had been crossed with fish genes to prevent bruising. I have never heard of ancient mesopotamians doing anything like this. Breeding the breedable to be more desireable, sure. But Gm like Fish+Tomato?? Got evidence? Also, treating conventionally bred plant and animal species as intellectual property, was that ever done by the ancients?

I'd like to thank Ron Bailey for reposting the 2001 article; it was very informative. The Biosafety Protocol provides us with a 1% with a labeling standard for GM/not-GM.

I have a question. Delta Pine Land Co.'s Technology Protection System. How reliable is it? Given that millions of seeds are produced, and these are potentially 'weeds', or a patent infringement, to conventional/organic farmers, anything less than six sigma quality control would be absurd.

Personally, I buy organic products because they taste better...which may or may not have no bearing on GM foods if they were processed in the same way. And I recently voted for continuing to allow GM products to be grown in my agricultural California county.

Incidentally, I am allergic to nicotene. So here's a FU! to all you smokers who make my life miserable with your second-hand fumes. 😛

[Dave W.]

I tentatively come down on the side of the GM farmer, because if the organic farmer's profit depends so sensitively on the purity of his crop then he should be responsible for it. But that's a tentative conclusion.

quite persuasive. I just wanted to mention that while I always come on here touting the judiciary and its transparency and relative freedom from lobbying -- I don't think this GM stuf should be left to the commonlaw of tort. (In one of my posts above I do detail my preferred solution here). Regulations and laws should come from the legislative branch and soon. Even if the regulation,* in some states, is just to clarify that GM contamination will not be considered an injury absent a showing of actual, physical harm to people, pets or livestock.

Because of the big consequences here, seedmakers (especially) but also organic and non-organic farmers and foodeaters need to have some idea of the respective responsibilities are -- like now. However, because the technological break is so significant with GM, it is hard to tell what the responsibilities would be under a commonlaw analysis. In other words, looking at all the old nuisance and pollution cases is not going to help the seedmakers, farmers and eaters guide their conduct in a timely manner. Unfortunately, the judiciary develops the law much more slowly and we don't have the luxury of time here.

FOOTNOTE:

* Using "regulation" broadly here, to include regulatory schemes that are favorable to seedmakers, as well as schemes favorable to eaters and/or organic farmers. Perhaps "ground rules" would be a less loaded term here.

[Farmer Bob]

Ron,
"I looked into the Schmeiser case some time ago and it's a bit different than it's been portrayed by anti-biotech activists. Between 95 and 98% of his crop contained the gene for herbicide resistance--that couldn't have happened by pollen merely blowing in the wind."

Schmeiser observed a desirable trait in a small portion of his crop one year and used its seed for the next, as farmers have done for millennia.

Hak,
"joe, Dave W., etc. and their ilk like to pretend that there are these massive air currents, etc. spreading the pollen hundreds and thousands of miles, when in fact if the pollen moves a 1/4 mile one is rather lucky."

The distance depends on the crop and how much contamination one will tolerate. It's a lot easier to achieve 98% segregation of corn than 99.9% segregation of rapeseed.

Phil,
"What I can't figure out is just WTF people think is going to happen to them from eating GM foods. Is it going to be like the John Carpenter version of The Thing, where, like, they start growing tentacles and their heads split open and grow extra mouths? Or will it be more like Cronenberg's The Fly?"

I don't know how many GM food opponents know the biology, but the fact is that a small proportion of the DNA you eat finds its way into bacteria in the GI tract and your own cells. The effects depend on the modification. We can tell pretty quickly if intestinal bacteria are picking up antibiotic resistance from ingested GM foods, but the long-term effects of any particular modification require specific study; we have some amazing genetic tools at our disposal, but we're still plumbing the depths of various genomes. There are people concerned about toxic or allergic sensitivity to chemicals or proteins produced by transgenic crops; people have allergies to natural foods, of course, but those can't be traced to a specific human act. In Libertopia, the market would take care of all this, but here in the US of A most folks think the FDA is and should be looking out for them.

Then there are the people who think all of that's probably overblown, but they don't like a farming practice associated with higher use of chemical herbicides and pesticides, creation of hardier weeds through cross-pollination, patent lawsuits, etc.

grylliade,
"See, the thing is, people can't get cancer from GM food. They might be able to get cancer from a specific genetic modification, but the process of genetic engineering cannot do anything to cause cancer."

This would be more meaningful if we were very good at determining the long-term effects of specific modifications before pushing them to market.

[thoreau]

Dave W-

For once, we fully agree. It would be nice to have some legislation setting down the overall ground rules (I can't believe I just typed that) rather than judges having to work the whole thing out case by case (OK, I feel better now). This is an area where one person's use of his property may be having a significant economic effect on another person's use of his property. Yeah, the economic effect may be due to irrational consumers, but consumer preferences are part of what sets prices.

Even if the law simply gives a somewhat qualified, nuanced version of "tough shit" (my tentative preference) it would be nice if it's codified. So the fact that the VT legislature rejected this law seems like a good thing.

As to health effects, when you add a gene to an organism that gene (usually) codes for a protein. That protein may itself produce a result directly. Or it may regulate some other process, resulting in the accumulation of another substance. You could speculate that this new protein, or a greater concentration of some other substance, might have a bad effect on health.

But that's all speculation, and even if the speculation turns out to be correct (I'm not holding my breath) the increased risk of disease is probably small. You always read in the paper that people who ate such-and-such food had their (already quite small) risk of some disease go up or down (by some small amount). If you check enough foods against enough diseases you're going to find something that affects some segment of the population. But we still have to eat.

Finally, I thought that some GM crops actually required fewer insecticides because they were bug-resistant. Although I do realize that some GM crops are resistant to weed killers, so that more weed killer can be used.

[Hakluyt]

The Peanut Gallery/thoreau,

His/your opinion hasn't evolved at all. Of course copying the conclusion of the write-up is about all we can expect from thoreau.

thoreau,

Finally, I thought that some GM crops actually required fewer insecticides because they were bug-resistant.

That's because they have they insecticide (some of them "natural" I might add) sewed into their DNA.

Farmer Bob,

...but here in the US of A most folks think the FDA is and should be looking out for them.

Ahh yes, the fallacy of majority opinion.

...but they don't like a farming practice associated with higher use of chemical herbicides and pesticides...

Most of them promise less direct use.

...creation of hardier weeds through cross-pollination...

We should have never have started cultivating grain crops in the first place apparently. Back to the neolithic as the EF!ers say. 🙂

...patent lawsuits, etc.

Conjoining this with patent reform is stupid and rather silly. What other technology do we judge based simply on the terms of patent law abuse, eh? Should we shut down the music and movie industries because of copyright abuse? Talk about babies and bathwater.

[thoreau]

I'm just glad that drug dealers don't use genetic modification. With all the unknown risks, you'd have to be high to smoke genetically modified weed!

And I hope they don't start genetically modifying tobacco. Somebody night get cancer!

Thank you, I'm here all week. Don't forget to tip your waitress.

[Dave W.]

T. why just one law for GM foods & contam.? why not 50 (or more) in the US alone? Since there are so many unknowns it seems to me that a less centralized solution would be more robust. It would also maximize consumer choice.

As far as that "tough shit" part, I certainly hope that if some GM product had, let's say, a 5% fatality rate, then there would be some liability when ppl started droping dead. I hope you don't want gnd rules such that there is no liability in this 5% hypo, just so long as the seedmaker was ignorant of the fatal problem somehow. Still, not to press you here -- tough shit is fair shorthand for a layman -- I assume your qualifications would take care of the more egregious situations where liability would be clear, even under a commonlaw analysis.

[thoreau]

Dave W-

First, yes, 50 laws would be better than one.

Second, "tough shit" is my response to people whose only complaint is that contamination reduced the value of the crop. If the price is that sensitive to even small amounts of pollen then plant somewhere else. I recognize that the economic harm is real, but when your product is that sensitive to the environment it's your responsibility to protect it, or farm elsewhere (maybe organic farmers could establish a "cluster", in the same way that similar firms tend to cluster geographically in many industries), or to buy and use uncontaminated seeds every season. Yeah, that might be expensive, but if the purity of your seed is that valuable, then do it instead of suing somebody else over his less pure seed.

Now, if it turned out that GM pollen produced a lethal crop (like I said, I'm not holding my breath, but I'll agree with you in the hypothetical case) then that's different. The law can always be written to say that this won't disallow suits based on demonstrated negative health effects.

Hmm, here's another thought: If the law allowed people to sue just because pollen crossed property lines (we're not talking about demonstrated health effects here, just lower crop value), could a farmer with GM crops sue his organic neighbor? Think about it: He was growing some super enhanced crop that's bigger, better, and pest resistant. He saves seeds for next year's crop, and discovers that his neighbor's pollen has infected his crop. Now he's stuck with tiny tomatoes that the bugs chewed on.

Seen in that light, where each can claim that the other person's pollen harmed his livelihood, the only sensible response is to say that both are adults and responsible for the risks inherent in growing specially bred crops.

This may be moot, since my understanding is that some GM plants are deliberately sterile so that farmers have to buy new seeds every year. But it's still an interesting thought experiment.

[Dave W.]

Good analysis. Good question. Sterility is part of the answer. See my sig link for another part.

It is still a great thought experiment.

[CORRECTION]

The sig link on this post, not the previous one.

[Kevin Carson]

Since Dave hates the agribusiness companies and Ron is a libertarian, surely neither would object to eliminating 1) USDA R&D subsidies, 2) patents on GM varieties, and 3) food libel laws and restrictions on GM-free labelling. Do all that, and the debate over GM seeds will be a moot issue.

[D]

GMO crops are relatively new. Non-GMO crops are millenniums old. Now tell me who is the especially sensitive niche? It's a negative externality borne by the organic farmer. ie. the law is reasonable to restrict the GMO farm from its effusion.

[mediageek]

Dave W. = low rent Jack Thompson

[Dave]

Well, this thread is approaching old age by now, so I dont know how many people are going to be reading this, but....

Ok all you anti-GMers. I've got a compromise for you. We'll treat GM the way you want it to be treated ("can you prove it isn't doing anything?" precautionary principle attitude) as long as you agree to let us apply the same to NON-GM products. Prove those non-GM vegetables are safe, using the same standards you want applied to GM. Can you prove that the DNA in every piece of produce sold will not interact with the bacteria in our guts in some Frankensteiney way? Prove the consumption of organic wheat grass juice isn't going to cause us problems 50 years from now. Can't? And no, it's not good enough to say that there's no reason to think it should. You don't know for sure. Oh well, we need to ban organic farming.
I'm not sure how it was decided that only GM crops (and as I mentioned before, pretty much all plants and animals in agriculture have been genetically modified from their wild counterparts, be it in a day or in a millenium) should be treated in this manner, but if we were to apply the rules fairly, nothing would be allowed anywhere ever.

[Dave W.]

I don't hate gm foods. I just want clear liability rules if something goes wrong. I don't want some kind of shell game where if something goes wrong, then the liable party is some near -bankrupt, while the companies that made big money are exempt.

Something the ppl on this thread attacking me should consider is this: if you really think that GM is so safe, the the seedmakers should be rather willing to accept liability, so long as harm and causation is proven. You should be confident in making these "concessions" because you really believe the seedmakers when they say the productrs are safe. Instead y'all say you believe the products are safe, but don't want to force anybody to put their money where their mouth is on that. There's some hypocrisy lurking in that stance.

Here is another hypo to get some of you thinking better:

when antibiotics were first discovered in 1928, it was not known that germs would respond to it in such a way that it is bad to prescribe too much. Fortunately, antibiotics developed slowly enuf that we figured out that they need to be limited and controlled as a public safety issue. However, the GM foods stuf is going a lot quicker, and Like Farmer Bob said, every manipulation is a potential risk because of the complexity of what happens to DNA in our intestines. In other words, in the world of GM food, it is 1928, it is the leave me alone, child, and go play with your frayed asbestos toy on the leadpaintsill era. Remember, liability is not a problem for your employers and clients if you are so sure that nothing can go wrong.

[Phil]

Also, treating conventionally bred plant and animal species as intellectual property, was that ever done by the ancients?

The ancients? I don't know, bad recordkeeping. But what exactly do you think the American Kennel Club et al. are for?

. . . if you really think that GM is so safe, the the seedmakers should be rather willing to accept liability . . .

And if you aren't doing anything wrong, why do you care if the NSA taps your phone?

[joe]

BTW, it's spelled "LOVERMONT."

[Dave W.]

. . . if you really think that GM is so safe, the the seedmakers should be rather willing to accept liability . . .

And if you aren't doing anything wrong, why do you care if the NSA taps your phone?

Bad analogy there stalkerboy.

I am willing to accept liability to NSA if I am a spy (which I am not). In the same vein, I want GM seedmakers to accept liability if it turns out that, contrary all the evidence we have so far managed to muster, they are selling poison food.

On the other hand, that doesn't mean I want the NSA tapping my phone. By the same token I promise not to tap the phones of the GM seedmakers, or to have the gov't do it for me.

There's the symmetry, stalkerboy.

[Phil]

Sorry, One-Trick Pony, there's no symmetry. GM foodmakers are not selling anything which, to the extent of our ability to know, is capable of causing harm to anyone; therefore, they have no reason to indulge the paranoia of know-nothings by taking on liability insurance -- which would simply stoke the paranoia of people like you, who would turn it around and say, "Why are they carrying liability if their products are harmless? Huh? Huh?"

When you're dealing with paranoiacs and conspiracy theorists, it's a no-win game.

[thoreau]

Phil hardly counts as a stalker.

Anyway, I'm now firmly convinced that simple leakage of GM pollen should not be enough reason to sue. If regular pollen leaked in the reverse direction, the GM farmer could always complain that his next crop is only 50% as bug resistant as before, or whatever feature his crop was bred for. Each would have an economic loss that he could blame on the adjacent farm, and each would be responsible for sorting it out on his own rather than suing.

And yes, I know, many GM varieties don't produce usable seeds, so the farmers have to buy seeds every year. However, as a thought experiment it shows the point. And the cherry tomato vs. big tomato thought experiment shows the same point. And it is certainly conceivable that some day GM crops may be produced that CAN produce usable seeds, maybe as a sort of "open source" approach.

Now, if somebody proves that GM food is deadly, obviously that's different. But unlike our favorite lawyer, I'm not holding my breath for such a finding to come down the pike.

[Dave W.]

GM foodmakers are not selling anything which, to the extent of our ability to know, is capable of causing harm to anyone,/i>

Now, like I said, I don't like the Precautionary Principle for GM. But, depending upon what our "ability to know" really is probabilistically, seems to go way too far in the other direction. Even Julian Sanchez seems to envision that the FDA should require manufactuers to assess risk (of drugs anyway) and publish that for us libertarians. Your more radical buyer beware approach on GM food is just plain studid.

[Dave W.]

Now, if somebody proves that GM food is deadly, obviously that's different. But unlike our favorite lawyer, I'm not holding my breath for such a finding to come down the pike.

Almost correct. Except for the "unlike our lawyer" part, I fully agree with you on this. Like I said, cogent analyses of late.

[Sam]

"And it is certainly conceivable that some day GM crops may be produced that CAN produce usable seeds, maybe as a sort of "open source" approach."

Sterility is not part and parcel with the GM process. The geneticists must aim to get rid of fertility if they want their IP. And it's not easy, I read something recently about tests of IIRC supposedly sterile GM Canola in Britain spreading and breeding in the wild with similar plants in the countryside generating superweeds.

Conventionally bred crops are already 'Open Source?', and can still benefit from GM technology, but one won't make money selling seed licenses. Though I am not sure if it would still be considered 'Organic?' if there was some tinkering to accelerate the process of activating present hidden traits; as opposed to either waiting numerous generations for a trait to appear, or splicing in some totally new trait.

[Dave W.]

Should accidental GM contamination should be a defense to patent infringement at least?

For how many crop generations?

In other words, should organic farmers have a duty to erect fences to prevent accidental patent infringement?

[Dave W.]

re the previous post: I had a fellow lawyer ask me these questions at work one day several years ago. I don't even remember what opinion I gave other than this question is pretty far, errrr, afeild, of most other patent infringement law and cases.

[Phil]

Your more radical buyer beware approach on GM food is just plain studid.

Where have I proposed a "more radical buyer beware approach?" Exact quotes, please. Lacking those, retraction expected.

[Dave W.]

GM foodmakers are not selling anything which, to the extent of our ability to know, is capable of causing harm to anyone; therefore, they have no reason to indulge the paranoia of know-nothings by taking on liability insurance

Phil,
I interpreted this piece to mean that you believe that GM seedmakers should suffer no liability unless they have actual knowledge of a problem. Maybe I did misinterpret.

Let me ask you in the form of a hypothetical:

several GM seedmakers make a new corn variety which has many genetic differences to all the previous GM varieties. The GM seedmakers don't test the corn because all previous scientific studies have shown GM food to be safe.

10 years go by, and much of the world's population comes to be eating this corn. Unfortunately, it turns out, if you eat the corn for 10 years, then there is a 1% chance you will get a new disease called MadPhil disease. People who get MadPhil disease lose their minds, write nasty letters to people's employers and then die a horrible agonizing death. The GM seedmakers did not know about MadPhil when they released the corn. At the 10 year mark, MadPhil suddenly claims a lot of lives and it comes to be understood that the corn is the culprit.

One of the MadPhil victims families sues the GM seedmaker who made the seeds for the corn that killed the plaintiff. Should the plaintiff recover from the GM seedmaker under these circumstances?

What about organic farmers whose fields have been infected with "the MadPhil Gene" despite considerable efforts to keep their fields clean?

[Sam]

The Consumerist weighs in on recent related news:
http://tinyurl.com/7e563
"The Department of Agriculture has failed to regulate field trials of genetically engineered crops adequately, raising the risk of unintended environmental consequences, according to a stinging report issued by the department?s own auditor."