Vermont House Passes Bill To Allow Lawsuits Against Biotech Crops

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The Vermont House of Representatves passed a bill that would allow organic and conventional farmers to sue biotech seed companies for "contaminating" their crops. For example, if pollen from biotech enhanced crops drifts over an organic or conventional farmer's field, the companies that sold the seed to the biotech farmer can be sued if the organic or conventional farmer can prove that he lost more than $3500 in value as a result.

University of Oklahoma law professor Drew Kershen rejects the argument that an organic farmer should be able to recover his losses because his customers think his crops are "contaminated" with genes from genetically enhanced crops. Kershen 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." 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.

I discussed the Kershen argument and others in an earlier column opposing similar claims for establishing novel causes of action against biotech "contamination." If you haven't already made up your mind, take a look here.

In any case, one sensible Vermont representative made the best argument against the bill:

Rep. William Johnson, R-Canaan, also a dairy farmer, argued that all the bill would do was erroneously call into question the safety of genetically modified organisms. "It's based on a false premise," he said. "It's based on the premise that there's something wrong with genetically engineered seeds or biotechnology."

Disclosure: I do NOT own any stocks in biotech seed companies. I really believe what I'm arguing without being paid to say it. Of course, that's true for everything I write; so in the future please go bother someone who cares about your stupid suspicions.

NEXT: Finnish Cheerleader Massacre

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  1. Let’s turn this around: Say you’re growing some genetically modified crop. Say that pollen from the neighboring organic farm drifts over and “contaminates” your crop. So next season, instead of getting giant tomatoes that require no pesticide, or whatever it is that your crop is supposed to be, you get smaller tomatoes that were eaten by bugs.

    Can you sue the neighboring organic farmer?

    (And yes, I realize that in practice most (all?) genetically modified crops are designed so that they won’t produce useful seeds and hence the farmers have to buy new seeds every year. That’s why this is only a hypothetical to illustrate a point. And it’s certainly plausible that in the future somebody will make genetically enhanced crops that do indeed produce useful seeds, so it’s a hypothetical with some grounding in reality. Anyway, the point is that when two crops can cross-fertilize and each crop dilutes what made the other crop special, how do you decide whom to sue?)

  2. The point of this lawsuit wasn’t to alleviate any real economic damage; it was to open the door for legal harassment of biotech companies.

    Disclosure: I don’t own any biotech stocks (at least that I know of) nor did Ron pay me any money to agree with him (although I would be willing to receive to a modest stipend).

  3. Best. Disclosure. Ever.

  4. Organic crops are a scam in any case. It’s similar to drug companies hawking all manner of drugs to healthy adults. It’s too bad the government can’t tax gullibility. Tax revenues would be so high, it wouldn’t have to tax anything else.

  5. It’s too bad the government can’t tax gullibility.

    It’s called the lottery.

  6. Thoreau:

    The morons who buy lottery tickets are paragons of rationality compared to the health food/supplement crowd.

  7. The other problem here is that the biotech firms are being sued instead of the farmers. If there is a cause of action here it should be against the farmers who neglegently plant their crops where the pollen will affect organic farms. This is as bizzare as suing a gun maker for crime or food makers for obseity or….oh, where the fuck is my propeller hat?

  8. Gawd. I’m so embarrassed to have grown up in the hippy kingdom of Vermont.

    Of course, in the vision of the “progressives” who moved in and took over the place, the whole damned state should just be some sort of agricultural theme park.

    “Ooh, Mommy, look, a real, live cow!!”

    “Shhh, darling, it’s not polite to point at an enslaved bovine-American.”

    Meanwhile, the real Vermonters, the ones who are busy trying to raise a crop instead of trying make some sort of damned socially-consciuous point, are being driven right out of business by this sort of silly season crap.

  9. Kershen 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.”

    i’m not sure this analogy really plays out because the tattoo parlor does not alter the products which the florists or the bookstores are selling – an organic crop altered by gmo crops is no longer an organic crop.

    so is the problem really the economic expectation of selling organic crops or the fact that because of the neighboring business, the farmer can no longer sell organic crops at all?

  10. I’m not sure I agree with the “economic expectation” argument. If the customers believe that the crop is “contaminated,” then, from an economic standpoint, it *is*.

    Consider two cases:

    1. Dan is a pig farmer. Bob is producing Kosher beef, which costs more to produce than regular beef. Through Bob’s carelessness, dandruff from Dan’s pigs blows onto Bob’s cows. As a result, Bob can no longer market his beef as Kosher, and loses money, because the going price for non-Kosher beef can’t cover his expenses.

    2. GM makes Cadillacs. Down the street, Harry makes chemicals. Some of Harry’s chemicals blow onto GM’s new Cadillacs and discolor the paint. GM can’t sell the Cadillacs at full price, even though the paint is just as durable, just a funny color.

    I think everyone would agree that Harry is liable to GM in the second case, and many of us would agree that Dan should be liable in the first case. So why should the farmer be any different?
    The principle of “economic expectation” applies equally to all three.

    I think a better reason to refuse the organic farmer’s claim is that having pollen from neighboring farmers cross property lines is a normal effect of farming, and that, therefore, the onus should be on the Organic farmer to take precautions — by growing in a greenhouse, for instance.

    Alternatively, you could argue that “damage” caused by the pollen is completely imaginary, and the desires of consumers for produce that has not touched pollen from genetically-engineered plants is not worth anything. (This could be the same argument the courts would use if the KKK wouldn’t buy a farmer’s fruit because NAACP members snuck onto the farm and touched it. It’s hard to see the NAACP being liable for this kind of damages.)

    However, it’s harder to reconcile that with the Kosher example. Why should tampering with a product to make it unkosher to Jews be worse than tampering with a product to make it unkosher to environmentalists? I think a case can be made, but it’s not obvious.

    Phil

  11. To be fair, I do understand why organic farmers care about the purity of their crop. That purity increases the market value. Yes, yes, I know, it’s only because their customers are dumb, etc. etc. Still, it increases the market value.

    That doesn’t mean that lawsuits are the solution, but I do understand the concern. A smarter move would be to do like other industries and work in clusters. You find a lot of software firms in the Bay Area, a lot of investment firms in NYC, a lot of pharma companies in NJ, etc. Organic farmers should cluster together, and perhaps sign contracts with each other where they agree, under financial penalty, not to use genetically modified seeds. That way they have a place where they can farm without worrying about contamination, and they can take advantage of the opportunities that exist when similar farms cluster together: Suppliers and customers flock to the area and reduce shipping costs, they can recruit from a specialized pool of talent, etc.

  12. I don’t think pig dandruff–if pigs even have dandruff–touching cows renders them traif. We need a rabbinic ruling.

  13. hil, I think you’re right on when you compare the envirowhackos belief system to other religions.

    Kosher farmers and meatpackers take all sorts of measures to ensure that their product meets the strict requirements of their religious beliefs, overseen by (private) inspectors who certify their adherence to the Kosher laws.

    To my knowledge, they do NOT insist that their neighbors take steps to ensure that the Kosher products are not contaminated. Instead, where there is a perceived risk of such contamination, they take ownership of the problem themselves, and take any additional steps necessary to eliminate any possible contaminants.

    The envirowhackos should likewise take ownership of their peculiar religious food laws, instead of trying to impose the costs of compliance with them on everyone.

  14. So what is the recourse of the “organic” farmer?” Really, folks. The air is common. If you pollute it and that pollution affects someone else, should you not be liable?

    I don’t get you guys sometimes.

    JMJ

  15. Aight, you want to tackle a legal ish, science lad. First, let’s fix your hypothetical to make it more analogous. Instead of merely doing tatoo’s, lets say the new tattoo parlor creates a strong odor that some people find pleasant and others find repulsive. Because of the odor, the neighboring business believe that they can show a sharp decline in business that is correlated with the emergence of the odor. this hypothetical is better than yours because, as with the pollen, it actually involves tiny particles that blow from the tattoo parlor, over the property lines, and into the parcels occupied by the neighboring businesses. Similar to the pollen in a way that the tattoo parlor customers are not similar to the pollen.

    So the hypo is that the neighbors bring a case. What result, scientist? WAIT. Don’t answer yet — we have a Wiki entry that may enlighten you to some common law causes of action tat you may not have read about in scientist skewl:

    “Nuisance is a common law tort. It is one of the oldest causes of action known to the common law, with cases framed in nuisance going back almost to the beginning of recorded case decisions.

    Under the common law, persons in possession of real property (either land owners or tenants) are entitled to the quiet enjoyment of their lands. If a neighbour interferes with that quiet enjoyment, either by creating smells, sounds, pollution or any other hazard that extends past the boundaries of the property, the affected party may make a claim in nuisance. Under the common law, the only remedy for a nuisance was the payment of damages. However, with the development of the courts of equity, the remedy of an injunction became available to prevent a defendant from repeating the activity that caused the nuisance, and specifying punishment for contempt if the defendant is in breach of such an injunction.

    To be a nuisance, the level of interference must rise above the merely aesthetic. For example, if your neighbour paints their house purple, it may offend you, but it does not rise to the level of nuisance. In most cases, normal uses of a property that can constitute quiet enjoyment cannot be restrained in nuisance either. For example, the sound of a crying baby may be annoying, but it is an expected part of quiet enjoyment of property and does not constitute a nuisance.

    In the USA, existing uses of a property are generally not considered a nuisance if a new neighbour finds them objectionable. For example, if you move next door to a pig farm, you cannot claim that the normal operation of the pig farm constitutes a nuisance. However, if a pig farmer moves into a property that was formerly held by a flower nursery, their activities may constitute a nuisance. However, under English law, the situation is different: the 1879 case of Sturges v Bridgman is still good law, and a new owner can bring a claim in nuisance for the existing activities of a neighbour.”

    In other words, Ron: “novel” cause of action my foot! To me the question is why did the legislature have to pass a suit to allow the suits to go forward? That is the only real novelty here.

  16. Clean Hands,
    The envirowhackos should likewise take ownership of their peculiar religious food laws, instead of trying to impose the costs of compliance with them on everyone

    there is another way to see this as well (do i really need a disclaimer that states that this may or may not be my official position, etc.?) – as growing crops in the most natural state possible is less of a strict adherence to a process than it is a lack of a process (such as genetically modifying crops).

    consequently, it is the gm crop farmer’s adherence to specific processes which produce byproducts which affect his neighbors.

    while the flow of pollen through the air is indeed a natural phenomenon – gm pollen is by definition not natural. so why should the organic farmer take special precaution to shield himself from the gm farmer’s unnatural by-products?

    in short, it can be viewed more like pollution from industry – and surely polluters are responsible for the mess they create.

  17. Thank you downstater – now, what the heck would be the “organic” farmer’s recourse according to the Libers here, besides the courts and law?

    JMJ

  18. Clean Hands: Actually, I am definitely not a “progressive”, but I moved to Vermont precisely because it has the best chance of being preserved as an agricultural/historical theme park (lifestyle choice–sorry, I came from a place with lousy scenery). New Hampshire would have been a lot cheaper tax-wise, but that place is going to be one big suburb (like the entire state of Connecticut) in 20 more years. Should I feel guilty about this? If I were Ted Turner, I could have just bought my own park (or state). Shouldn’t he feel guilty for taking land out of productive use for his own amusement (what would John Locke say about that)?

    That said, this biotech issue is pure politics, but it is causing a big stir here because it pits organic farmers, who are having some economic success, against “traditional” dairy farmers, most of whom wouldn’t even be in business now except for the Dairy Compact. Jack thinks organic products are a “scam”, but I assume if he is a libertarian he doesn’t see anything wrong with that, just opposes their getting a legislative assist. But the truth is that there isn’t anyone in farming who isn’t on the take from the government–been that way since the 1930’s. Given that political reality (as opposed to libertarian nirvana) the only real issue is whether Vermont is going to support farms which are ultimately likely to succeed or farms that are likely to fail. It will, of course, do a little of both, but the biotech issue is more symbolic than real.

  19. Let’s talk about substance…

    Damn! Somebody with actual knowledge about the matter at hand. Spoil sport!

  20. The argument seems to come down to how much choice the individual producer and consumer have in the market place.

    If you assert that the government or a large corporation has the right to limit your purchases, then of course you would be against this law.

    If however, you believe that the marketplace should make these decisions, then you probably side with the law.

    Do I, as a consumer, have the right to choose unmodified food? If I don’t, then all engines ahead.

    If I don’t have that choice, if I instead have to take what I am given, then I of course I have no choice…

    So…do I have that choice? Based on the present evidence, I do not think I have anything to worry about health wise. But…what about choice, even if it is irrational.

    I certainly don’t want the government to ban genetic modification. But what if I don’t want to participate?

    I guess I’m wondering…Vioxx for example. Should people, fully informed of the risks, be allowed to take it if it helps? I think so. But, do I have the option to take Ibuprofen, or one perhaps a different Cox-2 drug instead?

    Should, for instance, all pain relievers just be packaged as “pain relievers” with no further info?

    I am in favor of modified crops. But I am against them as “fiat”. The consumer, if they want to should still be able to choose. (unless we are looking for an Elite run society where only the elites get to choose for the rest of us)

    A government law forcing GM crops to pay would be clearly against consumer choice, but this law seems to be in favor of it. The law only kicks into gear when that choice is abridged.

    The whole thing is further complicated by the fact that, for instance Monsanto, has argued in court, that such contamination cannot occur, in cases where they were seeking damages against farmers that have cross pollination.

    Lastly, the seed. If cross-pollinated crops do not produce viable seeds, isn’t the farmer who would have made use of those seeds damaged as an unwilling third party?

    Pepsi vs. Coke. Even if irrational, why shouldn’t I be allowed to choose for myself?

    Perhaps the “organic” crowd is irrational (90% irrational-10% rational in my regards). Perhaps the Amish are as well, living without so much technology. But I tend to support laws allowing the Amish to choose for themselves, as long as I retain my rights to choose otherwise.

    All this law says is we still have the right to choose.

    I hang out in the western part of the country from time to time. I have found that I like the taste of Free Range cattle, that is feed neither corn nor “feed”. I also get my milk, when I am out there, from a free range dairy farmer, who does not use growth hormones. I like the taste more as well. (Neither rancher nor farmer are “lefty” “organic” just Ted Nugent style crazy/old fashioned, I’ve tried to convince both that they would make more money if they officially went “organic”.)

    Not enough to pay higher prices for it when I am in the “big city”, but I still have that choice, and I would hate to see that choice disparaged. Even if it is irrational.

  21. The discussion shifted before my last post. The proposed law does not create a cause of action, but it does shield the users of GMO’s from liability regardless of whether their negligence in using the seed contributed to contamination that resulted in a nuisance suit–instead, any resulting liability would rest solely with Monsanto (let’s be honest with ourselves about who the target is). Of course, there is no real policy justification for relieving the farmer of liability for his own negligence–the goal is of course to discourage the sale of GMO’s in Vermont. Period.

  22. Ron:

    You mean you don’t believe in the Libertarian nirvana? Have you been baptized?

  23. JMJ,

    The problem is thoreau’s counter-example. The legislature, via this act, has given preference to the organic farmers instead of treating them equally. (hmm…I wonder if this act could survive an Equal Protection challenge?)

  24. while the flow of pollen through the air is indeed a natural phenomenon – gm pollen is by definition not natural. so why should the organic farmer take special precaution to shield himself from the gm farmer’s unnatural by-products?

    in short, it can be viewed more like pollution from industry – and surely polluters are responsible for the mess they create.

    I agree with this point of view… and think the pollution analogy is rather apt.

    I previewed/edited/and ultimately discarded this exact same sentiment, except not nearly as clear or consice.

  25. Jack: Actually, I do believe in libertarian nirvana–it’s a place where I can do whatever I want and no one else can do anything I don’t want them to.

  26. Jack: Actually, I do believe in libertarian nirvana. It’s a place where I can do whatever I want and no one else can do anything I don’t want them to.

  27. That doesn’t mean that lawsuits are the solution, but I do understand the concern. A smarter move would be to do like other industries and work in clusters. You find a lot of software firms in the Bay Area, a lot of investment firms in NYC, a lot of pharma companies in NJ, etc. Organic farmers should cluster together, and perhaps sign contracts with each other where they agree, under financial penalty, not to use genetically modified seeds. That way they have a place where they can farm without worrying about contamination, and they can take advantage of the opportunities that exist when similar farms cluster together: Suppliers and customers flock to the area and reduce shipping costs, they can recruit from a specialized pool of talent, etc.

    It will be a lot easier to carry out this plan if the polluters who cause the problem pay for all the moves that fix the problem. That is what this lawsuit is about, T. If moving the farms is indeed the most cost effective remedy then there will be plenty of litigation settlement negotiations for the non-GM agribusiness companies to put together such a plan and resolve the suit by private contract (ie, settlement).

  28. Lottery tickets are a form of entertainment that appeals to some people. There may be some correlation with gullibility, but I don’t know how much there is.

    If a person buys one Powerball ticket a week for a year, at the end of the year he’s spent $52, but his expected value is somewhere between $10 and $25, which-in some sense-means he spent $27 to $42 for his lottery entertainment for the year.

    What is lottery entertainment? It includes the suspense and thrill associated with the numbers being read as well as the fun daydreaming about the incredibly unlikely, but not impossible, scenarios involving winning.

    Assuming our lottery player works for minimum wage, he has to work an extra eight or ten hours a year to get his benefit. Some people spend that much time yearly reading and posting to H&R.

    There are some issues associated with the non-linear utility of money, but for many people, they favor the person who plays one lottery ticket a week.

  29. Greetings from the Green Mountain People’s Republic.

    The GMPR’s Politburo’s only purpose with this bill is to foster an environment where genetically modified foods are not grown. The bill itself is a masterpiece. It does nothing except make GM seed vendors think long and hard on whether the small number and volume of sales will be worth the huge legal bills, for if the bill becomes law it is certain that some wacko pseudo-environmentalist group will file a lawsuit on behalf of some farmer, who probably won’t even know it until the reporters start camping out in his contaminated field.

  30. Ron:

    Well, that’s a relief. Your complex argumentation, reliance on actual facts, and curious avoidance of platitudes made me suspect you of heresy. Maybe you should keep your posts shorter. Don’t overdo the reality bit.

  31. Richard: I second, but Douglas will veto the bill, so this is all pretty academic.

  32. I don’t doubt the motivation behind the bill is anti-GM foods, but at the same time this pollen does seem like a type of pollutant. If the organic farmers can show that they are harmed I think they have a case. I think downstarter has it right.

  33. Dear Substance and other interested parties: Take a look at Kershen’s extended treatment of Legal Liability Issues in Agricultural Biotechnology, including arguments about private nuisance.

  34. Matt: That’s not the issue. The organic farmer has a cause of action, it’s just that in any lawsuit Monsanto will likely cross-claim (for negligent use) against the farmer who used their product. Proponents of the legislation claim that they “don’t want to pit the farmers against each other” in any lawsuit, but they are already pitted against each other politically over this legislation. The real goal is to reduce and hopefully eliminate sales of GMO seed in Vermont.

    From a pure long-term policy point of view, that goal may actually make some sense, because traditional dairy farming in Vermont is dying (you can’t compete in Vermont with the 20,000-cow sheds in California and Wisconsin–there’s no room). It is, of course, not very palatable to explain to the 5th and 6th generation dairy farmers here that they are going to go the way of the blacksmith, and we are going to speed them along, so instead we have this proposed legislation.

    Full Disclosure: My neighbor is an organic dairy farmer.

  35. To me the question is why did the legislature have to pass a [sic, law] to allow the suits to go forward? That is the only real novelty here.

    To expand on this point, common law was the province of state courts for a couple of hundred years. Now the legislature has decided to take over this area, both in Vermont and in the US Congress. Specifically, Congress uses the commerce clause to dictate what state tort claims can / can’t be brought.

    Is this development a good thing?

    Does the answer merely depend on who’s ox isliklier to get gored, or are there institutional, governmental checks-n-balances type issues lurking here?

    I will say that I am not happy to the extent that state control is being turned into federal control, although the US Congress doesn’t seem to have chosen to dictate the outcome in this particular case.

  36. Ron Bailey: Did Mr. Kershen get his check from Monsanto before or after he wrote that article? Seriously, I don’t think the Vermont courts or juries would have any problem jumping whatever legal hurdles Mr. Kershen believes may exist if there is even a suspicion that Vermont’s organic “brand” has been threatened by GMO seed. It’s not even going to be close. Monsanto is pulling out all the stops against this legislation purely because they don’t like the precedent, and I don’t blame them. I just wish Vermont would be intellectually honest in the debate.

  37. Ron (not Bailey),

    I’m not necessarily for this legisltation. I neglected to make this clear in my post–entirely my fault. From the little I know of the matter I’m sure you are correct: This is just another anti-GM bill.

    From a broader perspective though, I think the organic farmers have a case. So I guess I am against this bill, but for damages to organic farmers if they can show damage/contamination of their crops.

  38. Well, didn’t I read somewhere that farmers who planted seed from their own crops that had been fertilized by bioengineered crops got sued for copyright infringement or non-authorized use?

    The best defense is a good offense, I say.

  39. while the flow of pollen through the air is indeed a natural phenomenon – gm pollen is by definition not natural.

    How is the pollen from one type of crop more natural than the other? No pollen from any food crop grown today, organic or otherwise, is natural – not a single one existed in nature before humans created them.

  40. Matt: Whether organic farmers have a case or not will depend upon what eventually happens as GMO use becomes more widespread in Vermont. From a public policy perspective, restricting the use of a product that may hurt an important sector of a state’s economy is done all the time (restricted fruit imports into California, for example). The problem here in Vermont is political–there are still more traditional farmers than organic farmers, although the organic sector has the brighter future (at least for the moment).

  41. Eryk Boston:

    How do propose to keep plants from receiveing pollen? Encase them in glass so that no breeze no insects touch them?

    Nature is full of ingenious mechanisms to spread pollen around, not to keep it contained.

    Zero in Biology

  42. Brian Courts,

    No pollen from any food crop grown today, organic or otherwise, is natural – not a single one existed in nature before humans created them.

    you’re going to have to elaborate on that point a bit for me, because i’m just not following.

  43. Well, I’m of mixed opinion on the merits of these actual lawsuits, but they would seem to provide a counterweight to one of the stupidest lawsuits I’ve ever heard of.

    Some one of the agribiotech corps (Monsanto, I think, but don’t quote me) had been trying, with (last I heard) some success, to check farms which had not been purchasing their GMO oilseed rape for the presence of their patented genes. They then sued the farmers for IP infringement. Of course, the farmers argued that their reproductive crop had been polinated by neighboring farms using the GMOs, through no action of their own, and that A) it wasn’t their fault that the GMOs cross-polinated with their seedstock, and B) Dammit, keep your GMOs out of our natural seedstock, if you wouldn’t mind!

    I believe that /. reported at least one such case in Canada being successful. However, I haven’t followed it.

    I am a big fan of GM in theory, and not afraid of it in practice, I do think that companies suing farmers whose only crime was being downwind of their products is re-damn-tarded.

  44. Downstater: Brian Courts has a valid point here. I am not going to quote exact figures because I do not know them, but in the 10,000 or so years since the advent of agriculture, people have selectively bred and/or cross-bred species of edible plants so much so that it accelerated the development of certain characteristics we see in many of the modern foods we eat – grains, legumes, and the humble apple being three examples I can think of off the top of my head.

    Corn (or zea mays as it is botanically known) is vastly changed from is genus Zea grasses that were native to the southwestern region of what is now the United States. When human settlement occurred and agriculture was tooled with, humans selected the Zea plants with largest and tastiest seeds and bred them with each other, until after perhaps a few hundred or even a thousand years, the “modern” ear of corn as we know it came to be.

    Apples – similar story. They are native to Asia and related to the hawthorne family, which has thorny stems and sweet-sour fruits, like a rose-hip. But you breed one type of plant that has the genetic anomoly for sweetness, with another that has a genetic anomoly for over-sized fruits or thorn-free branches, continue the process for hundreds of years, et voila! A variety of new sub-species that can continue to be cross-bred with similar sub-species and create additional sub-species are born.

    This process may/may not have naturally occurred over many, many millenia, but man has artificially accelerated the process by breeding for selective traits.

    This was done purely at the gamete level before; GM foods do this at the very sub-cellular level via insertion/removal/replacement of specific DNA sequences.

    The end result is still the same. Accelerated development of species selectively bred for their favorable traits. Only now, instead of waiting to see what happens when the breeding occurs, we can pre-select AND pre-determine the outcome based on our knowledge of genetics.

  45. I believe that /. reported at least one such case in Canada being successful. However, I haven’t followed it.

    I didn’t look up this case again, but my recollection is that the farmer was lied about how much he realized that the contamination had taken place and also lied whether he had purposely spread seed from the contamination over most of his fields. The idea was that the farmer was trying to take advantage of some minor contamination in order to get the advantages of RoundUp Ready (or whatever) seed cheep.

    This case is probably better read as don’t f**k around with the truth in court, instead of being read as a meaningful patent law or agriculture law precedent.

  46. Concerning patent issues, read Ron Bailey’s link that he provided in the comments

    http://crop.scijournals.org/cgi/content/full/44/2/456

    It covers the case you folks are talking about.

    It offers this after detailing the Canadian case:
    The court rejected Mr. Schmeiser’s claim as an innocent grower because his actions demonstrated that he was not innocent?i.e., he knew or should have known that he was growing patented seeds. The court left undecided whether Monsanto would have an infringement claim against a truly innocent grower.

    Which raises some interesting issues in relation to the legal issues in Vermont. That issue alone could swing me closer to one side than the other. Although, I am always in favor of the marketplace rather than defacto government choosing, which if you read the link/article, you will notice that it often comes down, not to the marketplace, but merely whether or not the government approves.

  47. “No pollen from any food crop grown today, organic or otherwise, is natural – not a single one existed in nature before humans created them.”

    you’re going to have to elaborate on that point a bit for me, because i’m just not following.

    Every food crop grown today is genetically-modified to some extent: whether in a laboratory setting or through years of cross-breeding, humans have manipulated it somehow. The idea that modern varieties of organically-grown vegetable crops are Just What Nature Intended is ludicrous.

    In fact, in my years of gardening experience most varieties of vegetables/fruit are so wimpy in terms of being able to compete with other plants (ie, weeds) that they are evolutionary freaks, unable to survive without human intervention. If they do happen to grow as “volunteers”, they don’t yield as much and are eventually crowded out by the less-desirable plants.

    Therefore, one could easily call them “man-made”, simply because they have lost the ability to survive in the natural world.

  48. AmyLou,

    your comments approximate what i figured he meant – and i agree that it is a good point about what is considered natural and what is not.
    is it natural when mendel does it, but not monsanto? perhaps, but perhaps not.

    however, i’m not sure that it is material to the larger point that it is the gm crop farmer whose processes’ consequent by-products alter the products of the farmer who chooses not to use gm – regardless of the historical evolution of his current stock.

  49. however, i’m not sure that it is material to the larger point

    downstater, it was simply material to the misuse of the term “natural” as a substantive argument. It isn’t. I didn’t mean to claim that it weighs in on either side of the larger point, simply that throwing out the term “natural” obscures the larger point, rather than illuminating it, as is generally the case whenever the term is used.

  50. Another example that comes to mind: Orange carrots. Invented by the Dutch when they were under the rule of the House of Orange. Maybe or maybe not in tribute of same.

  51. Brian Courts,

    agreed.

    in all honesty, i never considered the possibility for ambiguity around that term.

    sharpening arguments is a great feature of h&r!

  52. DS, the matter of antropogenic acceleration of trait development in plants (and animals, for that matter) are not truly material to the debate at hand. It is an ideological war being waged in terms of economics.

    To an extent, I side with the organic farmer (personally, I am about 60/40 conventional to organic in my own home). They fill a niche market, and although some people might criticize the consumers of organic products as “envirowhackos,” I think the consumers have a right to choose their label, be it organic or GM, because being free is about being free to make choice. The use of the economic argument that organic farmers will lose money because they can no longer label their product as such one it is judged “contaminated” by GM pollen is valid, IMO. The use of scare-mongering to bully otherwise uneducated consumers into not buying GMOs is a side effect that tarnishes the validity of the ecomonic argument.

    I think of it in terms of dog breeders. Say I have a prize Pomeranian female and I want to breed her with a prize Pomeranian male and sell each pup for $1500. But before I get a chance to breed her, another dog, a total mutt, follows his “nature” and crosses into my yard and impregnates my prized female. Now her pups are not going to net me any money, period. I had a niche market of consumers ready for those pups, and now I cannot sell to them. I have a legitimate (private) economic argument with the owner of the mutt. Should I have kept my dog inside? Probably. Should the mutt’s owner have made sure he did not get loose and cross my property lines? Probably. Do I have a legit gripe to take to court for compensation? I need a lawyer to help me with that issue.

    But what I sure as heck don’t percieve as my right is the issuance of a full-scale, all-out onslaught on the mutt-dogs of the world and arguing for their eradication to the utmost extent to be sure that MY economic position is never again endangered.

    It should be up to both parties to mutually protect their crops from cross-contamination. I wonder: if GM pollen contaminates organic foods, can organic pollen contaminate GM foods, and thus negate the effect of the genetic modification in the first place – an interesting argument if it in fact exists.

    Then the parties on both sides of the debate will have to either utterly crush the opponent, or mutually agree to some form of barrier protection – i.e., a 50 ft. swath of trees between GM and non-GM crops to limit cross-pollenation, and harvesting up to the last 10-15 rows of crops that border said barrier.

  53. I have a question: Can the mere presence of furrin’ pollen on a certified organic vegetable render it non-organic under the applicable standards?

    I’m pretty sure the answer is no.

    If not, how is a farmer going to lose organic status because some pollen blows on his fruit ‘n veg?

    Would he only lose his organic status if he took seed that had been crossed with a GMO crop and planted that? But if GMO crops are sterile by design, the pollen can’t cross with his plants.

    So under what possible scenario does the organic farmer suffer any losses at all? Only if a non-sterile GMO crop fertilizes his see crop?

  54. I have a question: Can the mere presence of furrin’ pollen on a certified organic vegetable render it non-organic under the applicable standards?

    I’m pretty sure the answer is no.

    If not, how is a farmer going to lose organic status because some pollen blows on his fruit ‘n veg?

    Would he only lose his organic status if he took seed that had been crossed with a GMO crop and planted that? But if GMO crops are sterile by design, the pollen can’t cross with his plants.

    So under what possible scenario does the organic farmer suffer any losses at all? Only if a non-sterile GMO crop fertilizes his see crop?

  55. RC Dean, it is not the pollen that is sterile (otherwise, how would the fruit, ostensibly the object of debate here) develop?

    The gametes of GM organisms are viable, otherwise they would not produce fruit. Its is the seeds in the fruit that are not viable to grow into new organisms.

    Its like horses, donkeys, and mules. Horses are fertile, donkeys are fertile, and capable of cross-breeding, but the resultant offspring, the mule, cannot be bred to either horses, donkeys, or other mules because it is sterile.

  56. Why don’t the GM farmers sue the organics for polluting their crop with their inferior seed?

  57. Bad squirrels! Bad!

  58. You would think that the issue of pharma crops would put to bed the notion that all gm crops are as safe as regular crops.

  59. Organic certified food is not a product, it a process. The food is certified that it was grown by approved organic methods. (No pesticides or chemical fertilizers for on the field for three years prior to organic certification. No chemical pesticide or fertilizers used while growing the crop.)

    About a third of organic crops have pesticide residue equal to commercially grown crops, the result of wind drift. The contaminated crops are still certified organic.

    Growers and distributors are aware of the chemical contamination on their organic certified products but continue to sell them as organic.

  60. On the subject of organic crops, everyone seems to be arguing that the *only* reason someone would want to buy organics is because of perceived health benefits. But there are a few more reasons:
    – health of farm workers
    http://www.cdc.gov/mmwr/preview/mmwrhtml/00056485.htm
    – health of the environment
    http://www.slh.wisc.edu/ehd/pamphlets/pesticide.php
    – as an extra precaution again gm crops (especially pharma crops)

  61. The tattoo parlour doesn’t actually change the product on offer at the Christian book store.

  62. “It’s based on a false premise,” he said. “It’s based on the premise that there’s something wrong with genetically engineered seeds or biotechnology.”

    No, it’s not. It’s based on the premise that there is a value to farmer in keeping his produce organic and uncontaminated.

    If my tie dye operation caused all the cucumbers in my neighbor’s cucumber farm to turn odd shades of pink and brown, and nobody would buy them, would I be off the hook simply because I could show that the cucumbers did not, in fact, make people sick?

  63. The tattoo parlour doesn’t actually change the product on offer at the Christian book store.

    Is there any evidence that GM pollen actually changes the crop at the organic farm in any meaningful way?

  64. Pink cucumbers, eh? Now those I’d could go for.

    But no way I’d buy those brown cucumbers.

  65. I’ll ask again: If somebody has a GM crop that produces useful seeds (it could happen), and some pollen from an organic farm wafts onto his plants, should he be able to sue and win if next year’s crop isn’t as big and bug resistant as last year’s?

  66. thoreau

    It is my understanding that when one buys GM seed one signs an agreement with the biotech firm to not save seed from your crop. IOW you have to purchase from them every year you want to grow that crop.

    This has led to complaints that the seed companies now control farming. However I believe that such agreements have been common since at least when Henry Wallace sold his first hybrid corn seed.

    But no, I doubt he would have a case. In fact he’d probably be countersued by the seed company.

  67. Isaac,

    thoreau opened this thread with a hypothetical regarding the issue of organic farmers “polluting” GM farmers. He discounted the actual technicalities of the issue (which you brought up). No one has yet to challenge his theoretical and offer a valid reason why the law should preference the property rights of organic farmers.

  68. isn’t it interesting…..dammit

  69. Isaac-

    Like MP said, I’m offering a hypothetical. Let’s say that a philanthropist takes a common crop and invents a GM variety that requires significantly fewer harmful pesticides, and that can increase the yield per acre. He sees this as a wonderful advance for humankind and the environment, so he puts it in the public domain.

    Hey, it could happen.

    So, somebody grows this. But another farmer is growing an organic version of the same crop. Pollen travels in both directions. Next year, the organic guy is pissed because he can’t sell his crop as certified organic anymore, so he makes less money. The GM farmer is pissed because his yield is lower, so he loses money.

    Which guy should win his lawsuit, and which guy should lose his lawsuit? Or should they both win and cancel out?

  70. Oh, wait, I know what we should do: We should find out in discovery which farmer has more money, and that guy should lose in court.

  71. To me the question is why did the legislature have to pass a suit to allow the suits to go forward? That is the only real novelty here.

    Dave W,

    This was the aspect of the issue that jumped out at me right off as well. I’m not well versed in all the applicable law, but it seems implicit that this is a break with previous law, or else such a legislative action would not be necessary, right? If this law is consistent with what has gone on before, why pass it? (Unless the law is just for show, in which case it simply has no effect and we’re arguing over nothing!) If it’s not consistent, then it creates a special case, right? (I haven’t read much of the intervening posts, so apologies if you’ve already answered these questions.)

  72. Organic certified food is not a product, it a process. The food is certified that it was grown by approved organic methods.

    So in other words, you could buy GM seed, grow it organically, and sell the produce as organic produce.

    I’m still looking for the harm to organic farmers. It sounds like no matter what kind of satanic pollen drifts onto their plants, it won’t affect their ability to sell it as organic.

  73. It may very well be that, for now, the official definition of “organic food” would embrace a GM crop that was grown in an “organic” manner.

    But I’m pretty sure that if a company tried to pull that stunt they’d lose a lot of customers. I doubt that most of the people who care deeply about organic food will be willing to eat GM food of any sort, no matter how it was grown.

  74. RC,

    If you could deign to actually learn something about what people who aren’t like you do, you would see that organic produce is almost almost always cross-labeled as GMO free.

  75. Pigs do get dandruff, and fairly easily. That’s why they wallow. 20 years ago the Bissett-Mao formula (look up the US pat. if interested) for Ivory Dishwashing Liquid tested its ability to smooth out skin by seeing how well it removed dandruff from pigs that were kept dry.

  76. while the flow of pollen through the air is indeed a natural phenomenon – gm pollen is by definition not natural. so why should the organic farmer take special precaution to shield himself from the gm farmer’s unnatural by-products?

    Wrong. All crop are “unnatural.” All are genetic freaks.

  77. Actually, Real Bill, it’s not that all crops are on the unnatural side of the natural/unnatural divide, but that those categories are really messy when you’re talking about agriculture.

  78. thoreau:

    “It may very well be that, for now, the official
    definition of “organic food” would embrace a GM
    crop that was grown in an “organic” manner.”

    Here’s what Wikipedia has to say on the subject:

    http://en.wikipedia.org/wiki/Organic_food#Transgenic_contamination

    “Transgenic contamination
    Certified organic foods are not substantially genetically modified. The health risks surrounding genetically modified foods remain highly contentious. In the USA, a small admixture of a GM variety is compatible with organic certification, as long as it is unintentional. The USDA regulates the organic production process, and does not verify the actual composition of the final product. So as long as the farmer complies with the rules of organic farming, he cannot lose his organic certificate solely because of random presence of transgenic variety.”

  79. Isaac Bartram:

    “Is there any evidence that GM pollen actually changes the crop at the organic farm in any meaningful way?”

    Any GM pollen that blew over to the organic farm could pollinate the organic crop (as long as they were growing the same or similar crop).
    The resultant seeds would be 50% GM, and of course any crops grown from those seeds the following season would be 50% GM.

    http://www.i-sis.org.uk/TCCST.php

  80. On the subject of harm from GM contamination, according to Wikipedia inadvertent contamination would not be enough for a farmer’s organic
    designation to be taken away.

    Well what other kinds of harm could there be?

    Here’s a hypothetical, a Vermont organic farm is next to a pharma crop farm. Some pollen from the pharma crops blow over and contaminate the organic farm. This happens say 2 or 3 years in a row. The result is that a number of the organic corn on the cobs are at least 50% GM. Say the organic farmer adores his corn on the cob and he and his family partake liberally.
    Lets say the pharma crop is producing human growth hormone. Let’s say all this human growth hormone (or monoclonal drugs, or any number of other drugs) that the farmer and his family are ingesting has a deleterious effect.
    Now lets also say that through some miracle, this farmer is somehow able to find out that he and his family have been inadvertently ingesting these hormones. Now, because of this crazy insane new Vermont law he will be able to sue his pharma growing neighbor. What is the world coming to?

  81. As far as the legal issue goes, it’s not really about whether other crops have been genetically modified as well. It’s about whether pollen crossing property lines is really grounds for a lawsuit. You could argue that if a crop’s market value depends on genetic purity (either because of consumer perceptions, or because the enhanced genes give a better product, or whatever) then the responsibility for protecting that genetic purity should rest with the farmer who’s hoping to profit from it. If that means relocating, or buying new seed every year, well, so be it.

    Forget organic in my example. Let’s say that we have a non-organic but also non-GM farm right next to a GM farm. Let’s say that the GM farm grows a public domain variety (created by some philanthropist), so that he can use seeds from last year’s crop rather than buying new seeds every year.

    Now, let’s say that some normal, non-enhanced pollen crosses property lines and “contaminates” the GM crop. Next year, the GM farmer discovers that his new crop is far less bug-resistant, or whatever it is that his crop was engineered for.

    Should he be able to win a lawsuit against the normal farmer next door?

    It may be hypothetical, but it’s plausible enough that I think the lessons can apply. If your livelihood depends on controlling the type of pollen that produces your seeds, either buy the seeds (with warranties and contracts and insurance to protect your investment, yadda yadda) or relocate to a place where you won’t have to worry about contamination.

  82. Thoreau, a similar situation would come about if marijuana were legalized. The high potency plants (grown in open field) would be ruined by the pollen from hemp plants. (Marijuana growers probably give money to politicians who oppose legalizing hemp farms for this very reason.)

    The issue of GM contamination is a completely different kettle of fish. Why? because of the widespread existance of pharma crops which pose very real health dangers for those inadvertently eating crops contaminated by drug filled pharma crops.

  83. Why? because of the widespread existance of pharma crops which pose very real health dangers for those inadvertently eating crops contaminated by drug filled pharma crops.

    And here we come full circle…back to false claims of GM being unsafe, thus justifying legal favoritism to organic foods.

  84. Fyodor,

    This was the aspect of the issue that jumped out at me right off as well. I’m not well versed in all the applicable law, but it seems implicit that this is a break with previous law, or else such a legislative action would not be necessary, right?

    I don’t know what the situation in Vermont is. The fact that they need a special law to bring this suit forward somewhat indicates either that the Vermont courts have previously rejected such suits or that the legislature previously limited such suits by a prior law. However, I don’t think either of these things happened.

    My guess: the legislature is pretending that a special law is required and certain parties (including our objective, unbiased, unfinanciallyconflicted HnR correspondent) are going along with this assumption for some reason.

    No matter how this shift of power from tort court to legislature has taken place (or is just now taking place), my point is that this shift makes the tort law both more democratic (eg, majoritarian), but also less libertarian. More democratic because the legislature is more democratic (eg, one dollar one vote) than the judicial (you can’t bribe judges). Less libertarian because I consider state legislatures and Congress to behave in a more centralized manner than the state court judges who used to be in control here.

  85. Well, Rex Rhino, you seem to support property rights forthose who believe as you do. If someone believes something that you do not agree with, then he has no rights?

    That’s an interesting take on rights

    “Liberty to people like us. People not like us should shut up and take it.”

  86. Dave: You guys need to read my comments upthread explaining the proposed Vermont law and what it does (and does not) do. It is simply an indirect way to limit the sale of GMO seed in Vermont without actually saying that’s what it is doing. Typical politics.

  87. Ron,

    Why would the potential for a cross-claim by the GM seedmakers against its GM farmer customers stop the organic farmers from suing right now? Why would the organic farmers be against the crossclaim?

    At commonlaw, my understanding is that a plaintiff can choose which defendant it wants to sue. At commonlaw, the crossclaim you suggest would only lead to joint & several liability for the GM seedmakers and GM farmers. This is not a bad outcome for the organic farmers and should not be blocking their suit. Do things somehow work different than this in the Vermont state courts right now?

  88. I would have to say this comes down to a practical matter. For example, Amylou tried to make an analogy with her purebred dog being impregnated by her neighbor’s mutt. The difference in this case is that it is completely feasible to prevent one’s dog from heading over to the neighbor’s property. Hence, it is a reasonable expectation for someone to live up to this responsibility. The same is not true of pollen. Under the scheme that this proposed law would create, the only way I could grow a biotech crop would be to somehow encase my entire farm indoors and treat it like a clean room (and even that wouldn’t be a guarantee). Obviously, this is a ridiculous expectation to place on a farmer.

    I am sorry. If you have a high necessity for “purity” in your farm products, it is YOUR job to encase your farm in a protective blanket, not your neighbors. This holds whether the purity criteria is rational or otherwise.

  89. The same is not true of pollen. Under the scheme that this proposed law would create, the only way I could grow a biotech crop would be to somehow encase my entire farm indoors and treat it like a clean room (and even that wouldn’t be a guarantee). Obviously, this is a ridiculous expectation to place on a farmer.

    This is not the only thing the farmers could do.

    They could not use the gm seed. Yes, they could do that, silly!

    They could also, as T. suggests, arrange to move around the farms so that there is a sufficient spatial remove between the GM farms and the non-GM farms. Yes, they could do that. The only object is money — you know all that extra stuff they make by going GM in the first place.

  90. The resultant seeds would be 50% GM, and of course any crops grown from those seeds the following season would be 50% GM.

    Actually that occured to me as I was posting.

    However, the “harm” that is done here strikes me as an awful lot like the harm claimed by some Christian fundo when his kid learns about evolution and realizes its correct. 🙂

  91. The more I think about it, the more the organic farmer is SOL. The problem is fundamentally their “zero-tolerance” policy, and nothing more. Let’s compare it to noise pollution. Clearly, my neighbor has a right to complain if I hold an outdoor rock concert at 3am on my little surburban lot. However, what if my neighbor was to try to make his living selling a special variety of grass that wilted every time it was exposed to even moderate noise levels. Would he now have the right to sue me for driving my car in and out of my garage, or mowing my lawn on Saturdays? Absolutely not.

    The current case is much closer to the latter than the former. The problem is the organic farmer’s high demands for purity. A non-organic farmer next to a pharma field will have no problem (pharma crops are usually buffered by fallow fields anyway).

  92. Yes, sonny, back in the ‘oughts, leftist of all types were always flogging off short wind farms, solar energy, the internet, hybrid engines, hydrogen power…

    Except that Henry Wallace actually developed and marketed hybrid seed corn; he didn’t just sit around and talk about it while he wrote grant proposals.

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