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.