A judge in New York sided with Monsanto and against organic farmers in the first case of its kind seeking to protect famers from being accused of patent infringement upon unintentional contamination by Monsanto's GMO seed.

Organic farmers sought a judgment against Monsanto to protect themselves from being sued for patent infringement when their crops are unintentionally contaminated with the company's genetically modified [3] (GMO) seed, was dismissed [4] in federal district court in New York by Judge Naomi Buchwald called the plaintiffs' concern an "intangible worry, unanchored in time."

In fact, Monsanto [5] has already filed "over a hundred lawsuits involving hundreds of farmers for illegally using GMO patented seeds, and there have been judgments as high as a million dollars, with the average judgment being about $170,000," according to Paige Tomaselli, Staff Attorney for the Center for Food Safety (CFS). CFS was a plaintiff in the case and spoke on the subject of GMO contamination at the Midwest Organic and Sustainable Education Service (MOSES) annual conference in Wisconsin on February 25.

That's a pretty tangible worry for farmers that don't intend to grow genetically engineered crops. The plaintiffs collectively represent over 300,000 [6] farmers and eaters.

Farmers' Lawsuit against Monsanto

The lawsuit [7] (PDF), filed last year by the Organic Seed Growers and Trade Association [8] (OSGATA) and the other family farmers, seed businesses and organic agricultural organizations listed in the suit sought a declaratory judgment against Monsanto. They asked the Manhattan federal district court to declare that Monsanto can no longer sue farmers for inadvertent GMO contamination. OSGATA's press release [9] describes the plaintiffs as "increasingly threatened by genetically modified seed contamination despite using their best efforts to avoid it."

Jim Gerritsen, a Maine family farmer and president of OSGATA, said, "Americans have the right to choice in the marketplace -- to decide what kind of food they will feed their families -- and we are taking this action on their behalf to protect that right to choose. Organic farmers have the right to raise our organic crops for our families and our customers on our farms without the threat of invasion by Monsanto's genetic contamination and without harassment by a reckless polluter."

In response to the dismissal, plaintiffs' attorney Daniel Ravicher, President and Executive Director of the Public Patent Foundation at Benjamin N. Cardozo School of Law, told CMD, "While I have great respect for Judge Buchwald, her decision to deny farmers the right to seek legal protection from one of the world's foremost patent bullies is gravely disappointing. Her belief that farmers are acting unreasonable when they stop growing certain crops to avoid being sued by Monsanto for patent infringement should their crops become contaminated maligns the intelligence and integrity of those farmers."

Monsanto's Lawsuits against Farmers

Monsanto's corporate website admits [10] that, since 1997, they have "filed suit against farmers 145 times in the United States." But in 1999, the Washington Post reported [11] that Monsanto already had more than 525 cases pending or settled against farmers in the United States and Canada for patent infringement. The total number now is unknown, but a 2005 CFS report [12] (PDF, p. 4) reviewed evidence suggesting that "the numbers reach into the thousands."

The Washington Post article [11] documented that Monsanto literally calls out Pinkerton detectives into farmers' fields.

According to CFS [12] (PDF, p. 30), Monsanto claimed that between 2000 and 2005, it extracted "millions of dollars in total damages" from farmers. By 2005, the largest recorded judgment made in Monsanto's favor as a result of a farmer lawsuit was over $3 million (p. 5). This used to be a bragging point for Monsanto; now it is downplayed on the website [10].

Dangers of Contamination

Jim Riddle, organic farmer and Organic Outreach Coordinator at the University of Minnesota, told MOSES attendees that genetically engineered traits have created monster weeds: "We have about 20 Roundup Resistant weed species now throughout the U.S., and there's parts of the South that have essentially been abandoned to agriculture because of these herbicide resistant weed populations."

GMOs have also accidentally contaminated food crops. The Starlink™ corn fiasco [13] in 2000 was a well-reported GMO contamination incident, which caused a huge recall of Taco Bell taco shells. CFS' Tomaselli pointed out that Starlink™ corn [14] was only approved for use in animal feed, and it escaped and contaminated human food. Hundreds of thousands of dollars were lost that year by the corn industry because of the recall.

In 2006, "LibertyLink rice [15]," which was not approved for commercial use, escaped a field trial and contaminated the American rice supply. According to CFS' Tomaselli, "It was being grown on very very small acreage... USDA [the U.S. Department of Agriculture] has still not determined ... how the contamination occurred, but it escaped and it cost over a billion dollars to the rice industry that year."

Currently, organic and conventional farmers who do not intentionally grow GMO crops bear the costs of testing for and detecting GMO traits in crops, and of the loss of markets if contamination is found, according to Riddle and Tomaselli. Because the European Union requires labeling of foods containing more than 0.9 percent [16] genetically engineered ingredients, GMO contamination of U.S. crops harms farmers' ability to export overseas.

The labs that perform these GMO tests have close relationships with the biotechnology companies, necessitated by technology patents that keep essential testing information in the hands of the companies. An employee of a GMO testing laboratory could not speak to CMD on the record about GMO contamination because of the lab's agreements with the companies that make their testing possible.

Proposed Solutions

Riddle, Tomaselli and the CFS are calling on the USDA to develop a mechanism to compensate farmers who suffer losses due to GMO contamination. The USDA has created an advisory board on contamination, called the "Advisory Committee on Biotechnology and 21st Century Agriculture [17]," or AC21 committee. The AC21 [18] committee meets on March 5 and 6 in Washington, DC. The meeting agenda is available to download here [19].

CFS is also calling for mandatory labeling of products containing GMO ingredients. The CFS has joined 467 other organizations and groups, including the Organic Consumers Association [20] and Food & Water Watch [21], in a "right to know" campaign called "Just Label It [22]." It is important to note that, if labeling is mandated but compensation funding is not, organic farmers whose crops are contaminated may also be forced to label as a result.

93% of Americans want the FDA to label genetically engineered foods, according to the coalition. A legal petition to the U.S. Food and Drug Administration [23] (FDA) is available to sign on the website [22].