By Lily Wan
Florida Organic Growers joins defensive lawsuit against biotech empire
For the vast majority of Americans, food is food. And corn is corn. And a soybean is a soybean. And a seed of either of these vegetables is, well, a seed.
Or is it? To the corporate eye of Monsanto, that seed looks more like one of its transgenic creations, and if they can fish a lawsuit out of it, possibly millions of dollars.
Transgenic seeds are simply Genetically Modified Organisms (GMOs). Many crops and foods are genetically altered nowadays. Corn, alfalfa sprouts, soybeans, cotton, sugar beets and rapeseed are just a few of many GMOs being specifically engineered with Monsanto-manipulated herbicide-resistant DNA.
Taking into account all the products derived from GM crops, experts estimate 60 to 70 percent of all processed foods sold in the U.S. contain at least one GM ingredient. GMOs are omnipresent in the modern diet and lifestyle. Omnipresent; however, not omni-wanted.
Organic farmers are trying their hardest to retain at least some portion of our food in its natural state, with DNA unmutilated. This isn’t the fight many are familiar with, or at least expecting.
In a way, this is the stereotypical “little guy vs. massive corporation” fight. But the “little guy” here includes more than just the “crunchy granola” organic farmers. Plaintiffs in Organic Seed Growers & Trade Association, et al. v. Monsanto also include non-organic farmers who simply don’t want to produce GM crops.
March 2011 marked the beginning of a preemptive lawsuit, with 83 plaintiffs joining forces against corporate giant Monsanto. Florida Organic Growers, a nonprofit organic certification and sustainable farming outreach group based in Gainesville, joined the fight in July.
The 83 plaintiffs, representing a coalition of more than 270,000 farmers, united together as the Organic Seed Growers & Trade Association (OSGATA), represented by the Public Patent Foundation (PUBPAT), are filing this lawsuit against Monsanto out of fear.
Some of these farmers have forgone growing certain crops they feared could have the possibility of being cross-contaminated with Monsanto’s seed. They would rather lose money from under-production than subject themselves to the risk of being sued by Monsanto and potentially losing their farms.
Tom Helscher, director of corporate affairs, made sure to clarify that Monsanto would, has and will take legal action if farmers retain or replant seed obtained from the original seed purchased from Monsanto. By buying Roundup Ready seed, farmers are entering into an agreement with Monsanto to not save, reproduce or redistribute purchased seed.
This agreement forces farmers to buy new seed every planting season, guaranteeing Monsanto’s sales will stay strong.
Sometimes a contract isn’t good enough, though. In 2007, Monsanto acquired ownership of Delta & Pine Land Company and thus, ownership of its extremely controversial patent, co-owned by the USDA, for Terminator seeds. Yes, like the Arnold Schwarzenegger terminator.
Terminator seeds only live once, unlike natural seeds that may be saved, cleaned and recycled for the next growing season. After the first round of harvesting, the suicidal seed self-exterminates. This is an especially concerning issue for farmers in developing countries who typically cannot afford to buy new seed every year. Many farmers are also concerned about cross-pollination and potential infection of traditional and organic seed by the terminator gene.
In the eyes of Monsanto, terminator seeds seem like a reliable method to stop biopiracy, but widespread public opposition and uproar has quelled the use of these seeds for now. Monsanto made a legal commitment not to produce, distribute, or sell Terminator seeds, but skeptics believe Monsanto is still furthering research into this technology.
Clearly, Monsanto is willing to go to great lengths to maintain domination of the seed market and safety of its patents from what it sees as intentional theft, even though it is common agricultural and sustainable practice to recycle seed. However, what if this patented genetically modified seed is unintentionally replanted, grown, harvested and sold?
Many of the plaintiffs in this case are modest family-owned farms; their entire life, savings and future is invested in their farms. With commercial farms occupying tracts of farmland saturated in Monsanto’s transgenic seed, the much smaller neighboring farms fear that cross-contamination is inevitable.
Monsanto has suggested farmers create a buffer zone to avoid inadvertent seed drift, which is just one of many ways crop contamination can occur. This is an expensive suggestion; small-scale organic farmers typically are not sitting on wads of cash. And this suggested buffer zone wouldn’t even guarantee their crops’ safety from Roundup Ready.
For farmers like Noah Shitama, co-founder and owner of the small organic farm, Swallowtail, in Alachua, a patent infringement lawsuit from Monsanto would mean complete extermination and death of his farm.
The farmers in this case just want assurance and the promise that Monsanto won’t sue them for patent infringement in the case of accidental cross-contamination by Roundup Ready.
After all, organic farmers don’t want to produce and sell Monsanto’s Roundup Ready seeds. Such contamination would strip the farmers of their organic certifications that they worked so hard to be granted, following a strict set of regulations set forth by the USDA. Organic crops are more difficult to grow and sell, but the profit the farmers gain is significant enough to encourage them to keep up their efforts. This monetary incentive is, of course, complementary to the farmers’ concern for providing healthy foods to the public.
“I want clean food that’s not going to poison me,” Noah said. “Some non-organic commercial farmers won’t even eat their own crops; how are we expected to be able to eat it?”
These non-organic commercial farmers, “the big guys,” who choose to buy Monsanto’s Roundup Ready seeds do so for the convenience herbicide immunity affords them. This convenience factor makes theft tempting, so It’s understandable why Monsanto worries.
Genetically modified soybeans, for example, have been engineered to host an herbicide resistant gene. This allows farmers to douse their farmland in herbicide without worrying about its effects on the health of their crops, stripping the land of everything save their desired crop.
But, since the Roundup Ready seeds are entirely undesirable to the plaintiffs in this case, it would seemingly make just as much sense for the plaintiffs to sue Monsanto for having their seed “trespass” onto their farms.
However, “trespass” as a legal term implies that some sort of monetary or physical damage was inflicted upon the victim of the trespassing. And, since this is a preemptive lawsuit, OSGATA is merely taking a defensive stance. The organic farmers are not looking to collect money or damages from Monsanto — they’re just asking for a written promise.
“Right now, Monsanto says they don’t have plans to sue, but they refuse to make a written legally binding promise. So, they could just wake up tomorrow and decide to sue,” Daniel Ravicher, Executive Director of PUBPAT and patent attorney on the OSGATA v. Monsanto case said, explaining the plaintiffs’ worries.
It may seem difficult to imagine how small organic and family-owned farms can show up on such a large corporation’s radar. If a neighboring farmer suspects any seed sharing, intentional or unintentional, he may call Monsanto’s anonymous tip line and report his suspicion. Then, Monsanto may send an investigator to the accused farmer’s land to take samples for lab testing.
Monsanto has made a promise to the farmers; however the confusion resides in Monsanto’s actual intentions and meanings behind its words.
“Monsanto policy never has been, nor will be, to exercise its patent rights where trace amounts of its patented seeds or traits are present in a farmer’s fields as a result of inadvertent means.” Helscher made this perfectly clear. So did Monsanto’s website, their motion to dismiss, and a letter to the USDA signed by Monsanto Vice President Jerry Steiner.
Yet, despite how confidently Monsanto espouses this promise, plaintiffs feel the corporation’s words are legally insignificant.
To some degree, this case hinges on simple semantics. Marty Mesh, director of FOG, along with the 82 other plaintiffs is skeptical of Monsanto’s vague definition of “trace.”
“What if you get more pollen from your neighbor this year, and that adds onto the “trace” amounts from last year?” Marty said, voicing the concerns of many small farms.
After seed drift, accidental cross-pollination, contamination via harvest and processing equipment, traces upon traces start to become a drawing. And Monsanto may interpret this drawing as a patent infringement.
However, according to Helscher, “defining ‘trace’ doesn’t seem to be particularly relevant.”
“Of course it’s relevant if you’re the one being sued,” Mesh said.
Despite Helscher dismissing many farmers’ worries of this vague definition, the organic farmers are not set at ease.
In mid-July, Monsanto responded to OSGATA’s request by motioning for a dismissal of the case. Monsanto fears granting the plaintiffs the explicit and immutable promise they are requesting would be diminishing the significance of its patents. This preemptive commitment may just be too open-ended. Monsanto worries farmers with intention for patent infringement may join one of the plaintiff organizations and thus be legally protected if Monsanto is forced to issue the promise the plaintiffs are demanding.
The corporation’s motion for dismissal isn’t enough to snuff out OSGATA, though. OSGATA objected to Monsanto’s request for dismissal and is pressing on. As of now, both parties are awaiting the Southern District Court of New York’s decision. Ravicher says if the objection is denied, OSGATA will still push through to the Court of Appeals, unrelenting in this drawn-out legal battle, which has the potential to be an extremely influential case for the agricultural underdog. Although Monsanto would only be legally committed to presenting a written promise to the 83 plaintiffs, this case would set a precedent to any case that may arise in the future.
A documented and unequivocal promise would be nice, and necessary, for the life of organic farms, but there’s also a possibility that the court could deliver a harsher ruling against Monsanto.
This further verdict would potentially deem Monsanto’s transgenic seed patents invalid because of their being “injurious to the well–being, good policy, or sound morals of society,” as presented in OSGATA’s documented complaint.
If the court rules Monsanto’s GM seed patents invalid, “the precedent from such a decision,” Ravicher explained, “may also indirectly call into question the validity of other similar GMO patents.”
“The only real advantage Monsanto has is their deeper pockets,” Ravicher said. “They don’t have the truth on their side.” Monsanto’s seemingly infinite cash flow is intimidating to the organic and smaller-scale farms involved in this case. If the 270,000 farmers prevail and win this case, the final verdict would ripple through not only the United States, but the world.
Remember, Monsanto domineers the world in terms of GMO seed distribution. If organic or non-GMO conventional farmers overseas have their crops contaminated with Roundup Ready and then want to turn around and trade their products in the U.S. market, they will have crossed back into Monsanto’s more familiar territory and onto their radar, giving Monsanto a better opportunity to press charges for patent infringement. Again, these overseas farmers are no different than many of America’s small-scale farmers–their farm is their life and they cannot afford a battle with a mammoth corporation.
“They just lie and lie and lie, and try to keep up the con for as long as they can so they can make as much money as they can,” Ravicher said, likening Monsanto to the tobacco companies in America. “That’s what corporate America is about.”
Ravicher says he feels really good about this case, representing “the best people who are just trying to give back the best foods. They’re not greedy and not corrupt.”
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