Vermont Plows Ahead on GE Seed Liability Law

ANDREW BARKER / Vermont Guardian 11mar2005

And then there was one. Bills in the Montana and North Dakota legislatures that would have held seed manufacturing companies liable for injuries caused by the cultivation of genetically engineered wheat were defeated last month. That leaves Vermont as the only state in the nation with GE seed liability legislation still alive in the state capital.

A range of farm advocacy groups have argued that the bills are necessary to protect farmers and food processors from potential losses arising from the use of genetically engineered seeds. For example, all three bills called for allowing organic or conventional growers whose crops were inadvertently contaminated by pollen drift from GE plants to sue biotech companies for damages. That could include the loss of a price premium for organic or non-GMO crops, or the cost of transporting and re-marketing crops rejected by a potential buyer.

Currently, when farmers sign a technology agreement to grow GE seeds – or even open the seed bag – they must agree to take on all liability for the products, according to Bill Wenzel, the national director of the Farmer to Farmer Campaign on Genetic Engineering in Staughton, WI, who supports liability legislation. “We just don’t think that’s reasonable,” he said.

Some biotech seed technology agreements also grant seed companies free access to farmers’ records, require the settlement of all legal disputes in companies’ home jurisdictions, and limit farmers’ remedies from damages to the price of the seed, Wenzel added. “We just believe it’s a totally one-sided contract, and there needs to be some protection for the farmer built in,” he said. Vermont’s proposed law would prevent biotech companies from suing farmers who were found to be unknowingly or unintentionally growing patented GE crops.

To date, St. Louis, MO-based Monsanto Corp. has filed more than 90 lawsuits against farmers for patent infringement, winning judgments totaling over $15 million, according to a new study by the Center for Food Safety, a Washington, DC-based nonprofit group that opposes the use of GMOs. But many of the defendants claim that the crops with patented genes appeared on their fields through no fault of their own, due to pollen drift and cross-pollination from neighboring farms, the study said.

Amy Shollenberger, policy director at Rural Vermont, a nonprofit farm advocacy group based in Montpelier, played a role in drafting the model legislation for all three bills. Testifying before the Vermont Senate Agriculture Committee last month, she said, “This bill will protect all Vermont farmers, whether they grow genetically engineered crops, or they do not grow genetically engineered crops. It does not judge the technology. It simply says that the manufacturer should assume the liability ... [I]f the technology is all that the manufacturers say that it is, there should be no problem with this bill because they should be happy to say that we stand behind our product.”

The Vermont bill appears to have substantial support in the Legislature. Seventeen of 30 senators and 54 of 150 representatives signed on as co-sponsors, and the Senate Agriculture Committee gave it a favorable recommendation. The bill is currently in the Judiciary Committee, where most of the discussion has focused on making sure the bill’s language is internally consistent, according to Sen. John Campbell, D-Windsor, vice chairman of the Agriculture Committee. “The major aim is to have a very clean bill that both sides can live with,” he said.

Margaret Laggis, a lobbyist for the biotech industry association CropLife America, said the Vermont bill is misguided because it “contemplates a zero tolerance level for pollen drift. A company selling a seed will be held liable for the fact that the product is just following its life cycle.” She also noted that pollen drift from GE crops does not threaten a grower’s organic certification or prevent a crop from being labeled and sold as organic, according to USDA organic standards. “Purity has never been a standard attempted to be achieved in agriculture,” she said.

The industry has argued before the Legislature that the “strict liability” standard that the bill would place on biotech seed manufacturers is not reasonable. “That kind of standard is usually used for things like explosives which are inherently dangerous,” Laggis said in a separate interview. “It’s hard to believe we’re going to have that kind of standard for corn seed, which is not an inherently dangerous product.”

“I look at it as a backdoor way of imposing a moratorium on [GE] seeds in the state,” said Rep. William F. Johnson, R-Canaan, who has used GE corn varieties on his 1,200-acre farm in the Connecticut River Valley with good results. “I am sure the [biotech] companies aren’t going to be interested in selling seeds in the state if this legislation passes,” he added, saying such a move would be a loss to Vermont farmers.

“These crops are profitable, they can reduce herbicide use, and they can enhance water quality. We embrace technology in every aspect of our lives. It’s strange we would like to restrict it for farmers,” Johnson said.

The Western debate The Montana and North Dakota bills only addressed the liability issues related to GE wheat varieties. No such varieties are commercially available yet, but Monsanto has developed an herbicide-resistant product known as RoundUp Ready wheat and grown it in test plots in several states and Canadian provinces. The company withdrew its application for federal regulatory approval of the crop last year, and has since said it has no schedule for bringing the crop to market. Still, many observers say they expect GE wheat varieties to be available for sale within five years or so.

Some farm groups are worried about losses that farmers in the upper Midwest could suffer if and when GE wheat is introduced. “We export mainly to the Pacific Rim countries, who have said they don’t want GE crops,” said Cody Ferguson, an organizer for the Northern Plains Resource Council in Billings, MT. If GE wheat varieties contaminate conventional or organic wheat – through pollen drift or commingling of grain – the value of the Montana wheat harvest in export markets could drop precipitously, he said.

Consideration of the Montana bill was indefinitely postponed on Feb. 19 after the full Senate deadlocked 25 to 25 on the measure, effectively killing it. Sen. Jon Tester, D-Big Sandy, the Montana bill’s lead sponsor and an organic farmer, was disappointed about the defeat. “A lot of the arguments against it to my way of thinking weren’t that good, but they must have been better than mine, because they won,” he said. “Ultimately, the Montana Legislature said we’d rather have farmers suing each other than getting recourse from the companies that produce the seed.”

The North Dakota bill was defeated in the Senate by a vote of 30 to 14. Todd Leake, a wheat farmer in Emerado, ND, and a member of the Dakota Resource Council, was disappointed. “It’s still the attitude of the legislature that, well, it’s only farmers. They’ll just have to take it like they do the weather and everything else,” Leake said. He said wheat farmers have to buy new “foundation seed” every five years or so as a part of their regular practices because the crop readily cross-pollinates with other varieties. The same cross-pollination would undoubtedly occur with GE varieties, he said.

Leake pointed out that farm insurance companies in the region are adding exclusions to some of their policies for damages related to GE crops. “Everywhere you turn, everybody is getting off the liability hook — insurance companies, biotech companies — and it’s the farmers who are left with all the liability from these crops.”

The legislation comes at a time when GE crops are becoming increasingly prevalent on the nation’s farms. Almost half of all corn, 75 percent of cotton, and 85 percent of soybeans grown in the United States in 2004 was genetically engineered, according to the U.S. Department of Agriculture. In Vermont, 19 percent of all field corn was genetically engineered in 2004, the only crop for which the Agency of Agriculture has released statistics.

source: http://www.vermontguardian.com/local/0105/GMOSeedBill.shtml 18mar2004