Off-Target Movement of Ag-inputs: Legal Considerations Drew L. Kershen Earl Sneed Centennial Professor of Law University of Oklahoma Copyright 2006 Drew.

Off-Target Movement of Ag-inputs: Legal Considerations

Drew L. KershenEarl Sneed Centennial Professor of LawUniversity of OklahomaCopyright 2006 Drew L. Kershen, all rights reserved

Adventitious Presence

Unintended presence of something other than the desired crop

– Weed seeds, seeds from other crops, chemicals, dirt, dust, insects, foreign materials (e.g. plastic, wood)

In context of chemicals, spray drift of pesticides, herbicides, fumigants, and fertilizers

In context of transgenic crops, presence of transgenic materials (seed, parts, pollen)

Historical and Wide-Spread– Assoc. of American Pesticide Control Officials (AAPCO)– Assoc. of Official Seed Certifying Agencies (AOSCA)

Coexistence

Three themes– Farmer choice– Good Husbandry

Good agronomic practices; best management practices Appropriate technology Equipment – proper maintenance and use

– Neighborly cooperation Communication Friendly attitude – understanding, tolerance Apology and prompt response

Coexistence

Spray Drift – 1999 AAPCO study 1996-1998

– 7595 complaints– 2518 regulatory/enforcement action

Written warnings equals 57% of actions Administrative Penalty equals 28.5% of actions Civil Penalty (court imposed) equals 2.1% of actions All other administrative actions equal 12.4% of actions

– Agriculture is largest source of complaints– Miniscule number of neighbor v neighbor lawsuits

Coexistence

Transgenic Crops– Pollen Drift depends on species

Corn – 20-30 meters means AP below 0.9% EU label Corn – 50-60 meters means AP below EU proposed seed

standards of either 0.3% or 0.5% Other crops similar – distance, buffer rows, offset planting

– As of July 2006, I know of only one lawsuit of farmer v farmer (Germany, unsuccessful); none in US and Canada

One successful lawsuit (StarLink) against the seed developer for an unapproved crop

Other lawsuits against seed developers have not been successful

– High compliance by farmers with management programs

Coexistence: Conclusion

Zero tolerance is not achievable without a ban on chemical or transgenic agriculture.

By following reasonable agronomic practices, conventional, organic, and transgenic agriculture can easily coexist.

Stricter standards than those established by law should be contractual obligations voluntarily accepted by farmer and processor

Legal Issues:Organic Certification and Spray Drift

Residue testing “when there is reason to believe that … products … to be sold or labeled as organically produced may have come into contact with prohibited substances … The cost of such testing will be borne by the applicable certifying agent and is considered a cost of doing buisness.” NOP Final Rules at p. 311, www.ams.usda/gov/nop/NOP/standards

Legal Issues:Organic Certification and Spray Drift

“[C]ommenters recommended that the NOP incorporate the National Organic Standards Board’s (NOSB) recommendation and current industry practice of using 5 percent of the EPA tolerances as a maximum level of pesticide residue on organic agricultural products. Commenters argued that using 5 percent of the EPA tolerance provides a sense of confidence to the consumers of organic agricultural products.” NOP Final Rules at pp. 320, www.ams.usda/gov/nop/NOP/standards

Legal Issues:Organic Certification & Pollen Drift

Adventitious presence does not affect organic certification for organic farms or organic products.

NOP Final Rules at pp. 33-35, www.ams.usda/gov/nop/NOP/standards

– “The presence of a 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 … excluded methods … the unintentional presence of … excluded methods should not affect the status of an organic product or operation.”

Legal Issues:Organic certification and transgenics

Organic Farming Research Foundation, 4th National Organic Farmer’s Survey (2002)

– 92% (938 respondents) had no direct costs related to transgenic crops

– 4% had payments for testing seeds and inputs. Probably not an additional cost because organic producers must take precautions to assure the use of organic seed and inputs.

– 2% (19 respondents) reported positive tests for transgenic materials – assuredly trace amounts

– 4% claimed some type of market loss – assuredly voluntarily accepted contract risk through product specifications

Law Suits and Legal Theories:Likelihood of recovery

Adventitious Presence alone almost assuredly not a compensable claim – de minimis spray drift or commingling unavoidable

Must prove adverse effect (i.e. significant damages) – unlikely on most fact patterns– Spray drift more likely to cause significant

damages than transgenic crops Must identify the responsible party

Law Suits and Legal Theories:Likelihood of success

Strict Liability – ultra-hazardous activity– Some states use strict liability for spray drift (aerial)– Unlikely for approved transgenic crops

Negligence – failure to use reasonable care– Most states use negligence for spray drift– Possible for transgenic crops– Not a new or different obligation for farmers

Trespass Nuisance

– Courts will insist on reasonable accommodation

Legal Issues:Contractual Obligations

Depending on the contract specifications, adventitious presence can affect premiums and market access for both conventional and organic producers.

IFOAM guidelines on transgenic crops– “Organic certification shall not imply it is a ‘GE-free’ certification.

Rather it shall be presented as guaranteeing ‘production without GE/GMOs’. As there is no guarantee that organic products are 100% free … Organic producers and associations shall actively inform the consumers of this fact to insure fair marketing claims and to avoid future debates about consumer deception.”

Farmers must pay attention to their contractual obligations– Farmers must know the contract specifications– Farmers should not make promises that they cannot control

References

D. Kershen & A. McHughen, Adventitious Presence: Inadvertent Commingling and Coexistence Among Farming Methods, CAST Commentary QTA2005-1 (July 2005).

W. Weber & T. Bringezu, Test of coexistence under German field conditions – results from the “Erprobungsanblau” 2004 with Bt-maize, Proc. 2nd Int’l Conf. on Co-Existence between GM and non-GM based agricultural supply chains 327, 329 (Montpellier, Nov 2005)

Davide Ederle, Agricultural Biotechnologist, Italy provided the photos of pollen flow between yellow corn and colored corn.

References

Anon, Co-existence at 20 meters claims study, Cedab Agrobiotechnologie (Cremona, Italy, Jan. 27, 2006) (press release about the Ederle et al. study)

International Federation of Organic Agricultural Movements (IFOAM), Position on Genetic Engineering and Genetically Modified Organisms (adopted by IFOAM World Board, Canada, May 2002), www.ifoam.com

References

R. Blomquist, Applying Pesticides: Towards reconceptualizing Liability to Neighbors for Crop, Livestock, and Personal Damages from Agricultural Chemical Drift, 48 OKLA. L. Rev. 393-416 (1995)

D. Kershen, Legal Liability Issues in Agricultural Biotechnology, National AgLaw Center Publications, http://www.nationalaglawcenter.org/assets/article_kershen_biotech.pdf

S. Smyth & D. Kershen, Agricultural Biotechnology: Legal Liability Regimes from Comparative and International Perspectives (manuscript under consideration for publication; available from author)

Thank you.

I look forward to answering questions.

I will be available after adjournment for questions.