4 April 2002

LITIGATION IN THE WIND

http://www.biotech-info.net/wind.html
Litigation in the Wind
Phillip B. C. Jones, PhD., J.D.
Seattle, Washington
ISB News Report
April 2002

According to Darwin's theory, change has fueled the engine of evolution. Today, change is the spark that sets off lawsuits. The introduction of genetically modified (GM) crops has kindled its share of litigation, typically in the form of farmers and farm interest groups versus agbiotech companies. However, farmers who grow GM crops may not be immune from a lawsuit.

Farmers vs. Agbiotech Companies

In the fall of 2000, remnants of the GM corn StarLink were found in the human food supply. StarLink expresses Cry9C, an insecticidal protein that had not been approved for human consumption by the US Environmental Protection Agency and by various agencies outside the US. The discovery of StarLink "contamination" severely affected domestic and foreign markets for US corn products, which, in turn, spawned at least nine class action lawsuits in six states against Aventis CropScience USA LP (Research Triangle Park, North Carolina), the company that commercialized StarLink.

Last year, for example, a class action suit was filed in a Wisconsin federal district court on behalf of farmers who claim that they have lost money due to the depression in prices after StarLink was found to have entered the food supply (Southview Farms v. Aventis CropScience USA Holding, Inc.). Another class action suit, Mulholland v. Aventis Crop Science USA, was filed on behalf of farmers who did not grow StarLink. Here, the plaintiffs claimed that Aventis failed to take the appropriate measures to prevent the GM corn from entering the human food supply, and that, as a result, the plaintiffs lost significant domestic and foreign markets. The Mulholland complaint includes allegations of public nuisance, consumer fraud, deceptive business practices, and negligence. In Mudd v. Aventis Crop Science USA, non-StarLink growers filed a class action suit based on negligence and strict liability claims.

Concerns about GM crops also provoked the recent filing of a class action lawsuit against agbiotech companies in Canada. In this case, two farmers who specialize in organic produce initiated the lawsuit to recover compensatory damages for revenue lost by contamination of organic canola crops. The plaintiffs also requested an injunction to stop field trials of Monsanto's Roundup Ready wheat.

Larry Hoffman and Dale Beaudoin, two organic farmers in Saskatchewan, filed a statement of claim in the Court of Queen's Bench, seeking the class action lawsuit against Monsanto Canada, Inc. (Misssissauga, Ontario) and Aventis CropScience Canada Holding Inc. (Regina, Saskatchewan). They assert that the companies have ruined the province's organic canola market and must be prevented from doing the same to the organic wheat market. According to the complaint, Monsanto's Roundup Ready canola or Aventis CropScience's Liberty Link canola has been found growing on land for which it was not intended, and consequently, few, if any, seed suppliers will certify their seeds as organic. The farmers allege that the two companies are responsible for any GM contamination on the grounds of negligence, nuisance, trespass, pollution under the Saskatchewan Environmental Management Protection Act, and failure to conduct an environmental assessment. Estimates run to millions of dollars in damages for the loss of canola as an organic crop in Saskatchewan.

And what about the farmers who decide to produce GM crops designed by an agbiotech company?

Farmer vs. Farmer

Farmers who grow GM crops might find themselves as defendants in a lawsuit filed by neighbors who complain about crop contamination. For instance, plaintiffs might allege that pollen from the defendant's GM crops drifted over a property line (via wind, insects, etc.) and contaminated their non-GM crops.

Commentators have suggested that the plaintiffs of such lawsuits might assert claims of trespass to land, private nuisance, negligence, or strict liability. A claim of trespass to land can arise when someone crosses the legal boundary of another's land or causes something to
cross that boundary. A private nuisance is often described as something that decreases the value of an individual's property or interferes with their use or enjoyment of the property. For a claim of negligence, a plaintiff must establish the existence of a duty owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately resulting from the breach of duty. In contrast, strict liability is a type of liability without fault in which a person engages in an "abnormally dangerous" activity.

Factors that a court may consider in determining whether an activity is abnormally dangerous include: whether the activity involves a high degree of risk of harm; whether the gravity of the harm that may result from the activity is likely to be great; whether the activity carries risk that cannot be eliminated by the exercise of reasonable care; whether the activity is a matter of common usage; whether the activity is inappropriate to the place where it is carried out; and the value of the activity to the community.

With regard to strict liability, commentators suggest that a court may compare a genetic contamination case to a pesticide drift case, such as the 1977 Washington State supreme court case, Langan v. Valicopters, Inc. (88 Wn.2d855). In this case, the State supreme court affirmed an award of damages to an organic farmer who sued a crop duster in strict liability for the crop duster's use of a chemical pesticide on the organic farmer's land. Although this is characterized as a pesticide "drift" case, the Defendant had sprayed pesticide while he was flying over the Plaintiff's land in a helicopter. The pesticide did not simply float from one property to another. Courts will have to decide whether a short-term chemical drift is really analogous to the type of long-term process that would be required for genetic drift, and whether growing GM crops is the type of "abnormally dangerous activity" that is covered by strict liability. Determinations of trespass to land, private nuisance, negligence, and strict liability have nuances that can vary from state to state.

Dealing With Uncertainty

How can a farmer who grows GM crops manage the risk of a potential crop contamination lawsuit? Last November, a conference was held in Minneapolis to consider strategies for the co-existence of GM, non-GM, and organic crop production. Participants included representatives of the USDA, agbiotech companies, and academia. One recommendation from the Minneapolis meeting was to define legal responsibilities for compromised crop production. It would be helpful to establish an acceptable standard of behavior for a farmer who grows GM crops, and to identify the duty owed by that farmer to a neighbor who grows non-GM crops. Setting such a standard should provide more certainty in determining whether crop contamination was due to negligence.

Another recommendation was to establish a pilot program for an indemnity fund to reimburse losses caused by genetic contamination of non-GM and organic corn by GM corn. Many existing insurance policies do not cover pollution-related damages, and insurers may argue that pollen drift is a type of pollution. An alternative recommendation of the Minneapolis conference participants was to modify federal crop insurance programs to provide cross-contamination coverage. Farmers could also ask agbiotech companies that sell GM seed to indemnify them against liability in the event of a lawsuit.

New state laws might provide relief for certain types of GM crop-related lawsuits. Last year, at least four states considered the liability problem. The Massachusetts legislature, for example, had a bill (1789;  "An Act Relative to the Liability for Genetically Engineered Food") that would shift liability to agbiotech companies. According to the legislation, a person (i.e., a natural person or business) who genetically engineers an organism for use as food shall be strictly liable for damages caused by the use of the product on the condition that the harm was not the result of another person violating reasonable safety precautions that were outlined in a signed agreement by both persons. The damages include loss of price due to crop contamination. Taking a different approach, the House and Senate of South Dakota passed a resolution urging Congress to create legislation that places all liability for damages caused by GM seeds on the companies that develop and manufacture the seeds. Currently, however, Congress is not considering this type of legislation.

Selected References

1.Hoffman and Beaudoin v. Monsanto Canada, Inc. and Aventis CropScience Canada Holding Inc. A copy of the Statement of Claim is available at the Saskatchewan Organic Directorate website
(http://www.saskorganic.com ).

2.Iowa State University. 2001. Strategies for the coexistence of GMO, non-GMO, and organic crop production (meeting summary). (December). Available at Iowa State University's Biotechnology Home Page
(http://www.biotech.iastate.edu/publications/IFAFS/coexistence.html ).

3.McInnis D. 2002. As more farmers plant GMO crops, legal issues multiply. (February 1). Available at the Checkbiotech.org website (http://www.checkbiotech.org).

4.Moeller DR. 2001. GMO liability threats for farmers. (November). Available at the website of The Institute for Agriculture and Trade Policy (http://www.iatp.org ).

5.Kades D. 2001. Lawsuit filed over genetically modified corn. Wisconsin State Journal D12 (February 17).

6.State Legislative Activity in 2001 Related to Agricultural Biotechnology. (2002). Available from the website of the Pew Initiative on Food and Biotechnology
(http://pewagbiotech.org )