Activists Oppose FrankenBeets

The pro-organic crops advocacy groups, EarthJustice and the Center for Food Safety are sending around a press release (couldn't find it online yet) in which they announce that

…today that they filed court papers seeking a ban on genetically engineered (GE) sugar beets and sugar beet seeds. The motion was filed in Federal Court on behalf of a coalition of organic seed growers, conservation and food safety groups.  It calls for a moratorium to be set in place on all planting, production and use of the seeds and beets until a federal district court can consider further how to remedy the government's unlawful deregulation of the crop.

The beets in question are enhanced with a gene that resists a herbicide enabling farmers to control weeds without extra plowing which saves top soil and fuel. The particular herbicide is glyphosate (Roundup) which the U.S. Environmental Protection Agency notes:

EPA's worst case risk assessment of glyphosate's many registered food uses concludes that human dietary exposure and risk are minimal…

Based on current data, EPA has determined that the effects of glyphosate on birds, mammals, fish and invertebrates are minimal…

The use of currently registered pesticide products containing the isopropylamine and sodium salts of glyphosate in accordance with the labeling specified in this RED [Registration Eligibility Decision] will not pose unreasonable risks or adverse effects to humans or the environment.

So why do the activists and organic growers want to ban the beets? According to the press release:

The coalition filed the lawsuit charging that the U.S. Department of Agriculture's Animal and Plant Health Inspection Service (APHIS) approved the "Roundup Ready" sugar beets without properly assessing potential environmental and socioeconomic impacts. These impacts include the possibility of genetic contamination of organic and conventional crops, increased weed resistance to Roundup herbicide, limiting of farmers' options to grow conventional and organic beets, and loss of consumer choice to buy products with sugar not derived from GE beets. 

First, let's deal with increased weed resistance to glyphosate. The environmental impact of developing herbicide resistant weeds is well-known. Consequently farmers already adopt and use methods to manage this problem. But what about "genetic contamination?" University of Oklahoma law professor Drew Kershen has been thinking about these alleged liability issues for some time. Kershen has created a handy FAQ where he concludes:

Question 3: What about legal liability to organic farming and about contracts that call for "GMO free" production?

Answer: To the best of the author's knowledge, as of April 2009, not a single organic farmer has lost certification for his or her farm or its organic products due to the low-level presence of transgenic material on the farm or in the product. The reason for this is simple — unintentional, low-level presence of transgenic material does not constitute a violation of an organic producer's organic production plan.

In comments accompanying the National Organic Program Final Rules (2000), the USDA wrote:

"When we are considering drift issues, it is particularly important to remember that organic standards are process based. Certifying agents attest to the ability of organic operations to follow a set of production standards and practices that meet the requirements of the Act and the regulations. This regulation prohibits the use of excluded methods in organic operations. The presence of detectable residue of a product of excluded methods alone does not necessarily constitute a violation of this regulation. As long as an organic operation has not used excluded methods and takes reasonable steps to avoid contact with the products of excluded methods as detailed in their approved organic system plan, the unintentional presence of the products of excluded method should not affect the status of an organic product or operation" NOP Final Rule, http://www.ams.usda.gov/nop/NOP/standards/FullText.pdf at p. 34.

With regard to contracts that call for "GMO free" production, farmers who voluntarily sign contracts containing a "GMO free" clause must make a decision as to whether they can meet that production specification and whether the premium paid for that specification is sufficient to cover the farmer's additional costs in producing a "GMO free" product. In the United States and Canada, the legal rule is that the person who voluntarily signs a contract to meet certain specifications is the person who has the legal obligation to bear the costs to satisfy that contract specification. This legal rule that the person seeking to gain a premium bears the costs and the contractual risks of the contract specification is a widespread legal rule, though it is now being modified in some European countries in light of the controversies about transgenic crops.

In other words, organic farmers who hope to charge more for their crops should bear the costs of meeting their own standards. Conversely, organic farmers should not be allowed to impose the costs of their standards on others, e.g., consumers and non-organic farmers. (Of course, they always could change their standards to something more reasonable.)

On the question of damages, Kershen's FAQ notes:

Question 6: What are the types of damages that a plaintiff may recover in an agricultural biotechnology lawsuit?

Answer: In a lawsuit, plaintiffs allege claims about harms suffered and seek recovery of damages caused by those harms proven. Damages compensate for the actual physical loss or injury that the plaintiff proves occurred due to the defendant's conduct in light of the plaintiff's legal claims. Damages are recoverable for physical loss or injury to person or property proven by the plaintiff.

As a general rule, however, plaintiffs are not entitled to damages for lost opportunities unrelated to physical loss or injury. Examples are if plaintiff seeks damages because the plaintiff lost access to an export market, or plaintiff has a crop rejected by a market based on consumer concerns or preferences, or plaintiff no longer has a market to grow a particular crop. Claims of the types just enumerated are called "pure economic loss." Courts in the United States and Canada, except in limited circumstances, do not allow plaintiffs to recover for "pure economic loss." ….

In my column, "Organic Law," 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." (Of course, [economist Ronald] 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.

As it happens, the folks at the Center for Food Safety had already prevailed in a federal lawsuit against genetically enhanced alfalfa. That case was just picked up for review by the U.S. Supreme Court. Let's hope that the high court puts an end to this nonsense soon.

Disclosure: I sold my Monsanto stock a long time ago. I don't recall how much I sold my shares for, but it certainly was for a lot less than $80. Damn.