Blowing in the Wind. Adjudicating the impact of GM crops on organic farming in the courtroom Professor Michael Blakeney Faculty of Law, University of Western.

Blowing in the Wind. Adjudicating the impact of GM crops on organic farming

in the courtroom

Professor Michael BlakeneyFaculty of Law, University of Western Australia

[email protected]

outline• March v Baxter [2014] WASC 187– Negligence action “farmer v farmer”

• Organic Seed Growers and Trade Association et al v. Monsanto 851 F. Supp. 2d 544 (S.D.N.Y. 2012); 718 F.3d 1350 (2013), cert denied 134 S. Ct. 901 (2014)– Declaration of liability for “inadvertent contamination”

Australia’s GMOs Regime

• release of GMOs regulated by a combination of Federal and State legislation.

• The Gene Technology Act 2000 (Cth) (GTA) and the Gene Technology Regulations 2001 (Cth) is the Federal legislation it establishes the Office of the Gene Technology Regulator to identify and manage the risks posed by gene technology.

• Under the scheme, release of GMOs into the environment for agricultural purposes is prohibited unless authorised under the GTA.

Decision on issuing a licence for commercial release of GM herbicide tolerant canola (Roundup® Ready

Canola) - 19 December 2003

• There has been considerable speculation in the media and other forums, as well as in some submissions from the public, about the possible impact of the uptake of GM canola on conventional agriculture

• Feedback from extensive stakeholder consultation during the development of the Gene Technology Act 2000 made it clear that the community wanted the regulatory system to focus exclusively on the evaluation of risks to human health and safety and the environment.

• Therefore, this [report] does not draw any conclusions about the possible costs or benefits of Monsanto’s Roundup Ready® canola to individual farmers, or on market impacts for the agricultural industry.

State Legislation• Under the GTA it is a matter for individual states and

territories whether to allow GM crop production. • 2003, the West Australian Parliament passed the Genetically

Modified Crop Free Areas Act 2003 (WA) which permitted the West Australian Minister for Agriculture to designate GM crop free areas. The WA Government Gazette, 22 March 2004 carried the Minister for Agriculture's Genetically Modified Crop Free Areas Order 2004 which designated the whole of the state of WA as an area where genetically modified crops could not be cultivated.

• Following a change of government, on 25 January 2010 the Minister for Agriculture issued an exemption order exempting any person from growing GM canola in any part of Western Australia provided that it was licensed under the GTA.

GM Agriculture in Western Australia

• In 2010, the Minister for Agriculture and Food issued an exemption order to permit commercial planting of GM canola in WA, and 317 growers chose to plant around 72,000 hectares of GM canola.

• Since then, the proportion of GM canola grown was 10% in 2011 and 2012; 5% in 2013 and 20% in 2014. In 2014 of the 1.1 Millions ha of canola growing in WA, around 260,000 ha were GM canola.

Marsh -v- Baxter [2014] WASC 187

Steve Marsh from Kojonup alleged that his neighbour, Michael Baxter, was negligent in allowing GM canola to blow onto the Marsh property before harvest, contaminating 70% of his land and causing the loss of its organic status.

Baxter had chosen the swathing mode of harvesting of his GM canola crop which involves exposing the standing windrowed cut canola plants to the elements, in order for the seed pods to ripen more uniformly.

245 swathes were found to have blown into Marsh’s farm

Negligence actions

• Duty of care owed by defendant (neighbour)• Breach of duty• Damage to plaintiff• Damage caused by defendant’s breach of duty• Damage reasonably foreseeable

Marsh -v- Baxter [2014] WASC 187

• The Supreme Court of Western Australia ruled that the damage to Marsh had been caused by the strictness of the organic certifier’s standards and not by Baxter’s harvesting practices.

• [Association of Sustainable Agriculture (Australia) Ltd (NASAA) had decided on 29 December 2010 to withdraw the organic certification status for approximately 70% of Marsh’s land]

Marsh -v- Baxter Appeal on the law 23-25 March 2015

• Former Western Australian governor Malcolm McCusker, appearing for Mr Marsh and his wife Susan, asserted on Monday, the opening day of the appeal, that Mr Baxter was in breach of his duty of reasonable care when he harvested a GM Roundup Ready canola crop by swathing without considering the risk of swathes blowing over the fence.

• “He (Mr Baxter) had a duty to ensure (GM) canola does not go onto a neighbour’s property,” Mr McCusker said.

• “Mr Baxter’s duty was to take reasonable care to ensure his farming practices and GM product did not adversely affect his neighbour’s organic certification.”

Marsh v Baxter – Appeal on costs• The court separately considered the appeal on

costs of $803,989 awarded against Marsh to deal with an order to ascertain whether Mr Baxter’s defence in the trial had been financially supported by GM-seed supplier Monsanto or the Pastoralists and Graziers Association (PGA).

Liability for “Inadvertent contamination”

Monsanto v Schmeiser 2001 FCT 256 Schmeiser held liable for patent infringement for the

cultivation of “volunteer” canola (tests revealed that 95 to 98 percent of his 1,000 acres of canola crop was made up of Monsanto’s patented RuR plants).

Schmeiser claimed that the patented gene had arrived “inadvertantly”.

http://www.monsanto.com/newsviews/pages/saved-seed-farmer-lawsuits.aspx

• “Since 1997, we have only filed suit against farmers 147 times in the United States. This may sound like a lot, but when you consider that we sell seed to more than 325,000 American farmers a year, it’s really a small number. Of these, we’ve proceeded through trial with only eleven farmers. All eleven cases were found in Monsanto’s favor.”

Organic Seed Growers and Trade Association (and 38 others) v. Monsanto Company and Monsanto

Technology LLC (2012-13)

Organic Seed Growers and Trade Association et al v. Monsanto (2012-2013)

• A coalition of farmers, seed sellers, and agricultural organizations, sought declaratory judgments of non-infringement and invalidity with respect to 23 patents owned by Monsanto.

They alleged that they have been forced to “forgo growing corn, cotton, canola, sugar beets, soybeans, and alfalfa, since it is widely known that those crops are currently under severe threat of transgenic seed contamination.”

(alleging that “over 85-90% of all soybeans, corn, cotton, sugar beets, and canola grown in the U.S. contains Monsanto’s patented genes”).

They further alleged that they must take costly precautions to avoid contamination, such as testing seeds for transgenic traits and creating “buffer” zones between their farms and those of neighbors growing modified crops.

The appellants contended that if they do not take these precautions, their crops would be contaminated, and they would be sued for infringement by Monsanto.

Organic Seed Growers & Trade Ass’n v. Monsanto Co., 851 F. Supp. 2d 544 (S.D.N.Y. 2012)

• The district court concluded that there was no justiciable case or controversy and dismissed for lack of jurisdiction.

• Because Monsanto had made binding assurances that “It has never been, nor will it be Monsanto policy to exercise its patent rights where trace amounts of our patented seeds or traits are present in farmer's fields as a result of inadvertent means.”

• The Court of Appeals affirmed the SDNY decision that the plaintiffs did not present a sufficient controversy to warrant adjudication by the courts.

• On January 13, 2013, appeal was denied by the U.S. Supreme Court.–Note: the undertaking by Monsanto not to sue in

cases of inadvertent contamination applies to US litigation.– The undertaking refers to “trace amounts”.–What is the situation in Australia and other

countries?

Organic Seed Growers, 851 F. Supp. 2d at 548.

• ...some unlicensed—and unintended—use of transgenic seeds is inevitable. Like any other seeds, transgenic seeds may contaminate non-transgenic crops through a variety of means, including seed drift or scatter, crosspollination, and commingling via tainted equipment during harvest or postharvest activities, processing, transportation, and storage

Monsanto Co v. Geertson Seed Farms [US Supreme Court] 130 S.Ct. 2743 (2010)

• This case arose out of a decision by the Animal and Plant Health Inspection Service (APHIS) to deregulate a variety of genetically engineered alfalfa.

• The US Supreme Court in holding that conventional farmers had standing to challenge the administrative deregulation of Round Up Ready Alfalfa, recognized that there is a risk of “gene flow” from genetically modified crops into conventional crops

SmithKline Beecham Corp. v. Apotex Corp. 403 F.3d 1331 (Fed. Cir. 2005)

• The Court of Appeals observed that that the use even of “trace amounts” of a patented compound, might “place potential infringers in the untenable position of never knowing whether their product infringes because even a single undetectable [molecule] would infringe.”

• Zero tolerance policies on GMO “contamination” hurt organic and conventional farmers alike Rebecca Randall | February 12, 2015 | Genetic Literacy Project

• Marsh v Baxter would never have been filed in the United States. The USDA Organic program does not have a set threshold for GMO presence in organic food nor is it a zero-tolerance policy for pesticide residue.

• At the heart of the matter in Australia and other countries, is the misleading “contamination” narrative created by zero tolerance policies. If GMOs are found on organic farms in the US, as long as it is not found to be intentional, the certifying agent will simply investigate how the cross-pollination occurred and give suggestions for preventing it in the future.