Testimony of the Maine Organic Farmers and Gardeners Association
In Support of L.D. 1266,

"An Act to Protect Against Contamination of Crops and Wild Plant Populations by Genetically Engineered Plants"

MOFGA is a non-profit organization with over 3,400 members, who include farmers, gardeners, and consumers dedicated to ensuring the availability of healthful food, to sustaining rural economies and to protecting the environment. Organic farmers represent one of the fastest growing sectors of Maine agriculture. In 2000, we certified crops or products on over 240 farms, representing 3.5% of Maine farms and 8% of Maine dairy farms. This is nearly triple the number of farms certified in Maine five years ago, a 26% increase over 1999, and represents more than 11,000 acres of Maine farmland cultivated in the time-honored traditions of ecologically sensitive agriculture.

MOFGA strongly supports this legislation, which is, in the first instance, a "farmers’ rights" proposal, recognizing the right of farmers to grow the crops they choose, without facing the risk of accidental cross contamination. Equally importantly, the proposal addresses the risk of ecological harm presented by genetically engineered plants, and puts a system in place designed to detect in advance and prevent such harm.

L.D. 1266 is conservative legislation that imposes no bans or prohibitions, mandates no particular cultivation techniques, but does much to encourage forward-looking thinking, risk assessment, and risk prevention by manufacturers and growers of genetically engineered plants. The legislation applies only to genetically engineered crops that present a risk of cross-contamination. It places the burden squarely where it belongs – on the manufacturer, which is the only party in possession of all data regarding development and research on a particular product -- to determine whether a product presents a risk of cross-contamination. If it does, then the manufacturer must prepare instructions telling the grower how to avoid cross-contamination. The manufacturer must provide those instructions to all growers. Copies of the instructions must be filed with the Commissioner of Agriculture in advance of sales in this state. Additionally, the manufacturer or the manufacturer’s representative must maintain, for at least two years after the date of sale, a list of the name and address of all growers of its genetically engineered plants (excepting sales of individual seed packets to home gardeners), and turn over that list to the Commissioner when requested to facilitate an investigation into a claim of cross-contamination.

The legislation does not impose any liability on growers of GE plants, although if cross contamination occurs, common law liability principles such as trespass and negligence may result in liability. The point of L.D. 1266 is to protect both the farmer choosing to grow genetically engineered crops and his neighboring farmer by preventing cross-contamination and consequent damages BEFORE they occur.

The legislation provides for fines and/or loss of license for violations of the instructions and record-keeping provisions, and further provides that manufacturers of GE plants are strictly liable, under Maine’s product liability statute, 14 M.R.S.A. sec. 221, for damages due to cross-contamination. The enforcement and liability provisions help ensure that manufacturers will take adequate steps to prevent cross-contamination.

Over seven years ago, a ground-breaking report by the Union of Concerned Scientists entitled "Perils Amidst the Promise: Ecological Risks of Transgenic Crops in a Global Market" (1993) underscored the risks of gene transfer from genetically engineered crops to conventional crops, and to wild plants:

Broadly speaking, the risks from the engineered plants themselves are that the new traits will enable them to become weeds in agricultural ecosystems, or move out of the field to disturb unmanaged ecosystems.

An example is a crop that is engineered to resist insect pests. Such a crop may become better able to survive in unmanaged ecosystems; …in rare circumstances, the modification may enable the crop to become a weed like kudzu – expensive to control and impossible to eradicate.

The second category of risks concerns the transfer of the trangenes to crop relatives. It is important to note that novel genes added to crops will not necessarily stay put. Where crops are grown in proximity to wild relatives, the novel genes can be transferred into wild plants. An example is the transfer of a gene for salt tolerance to a wild relative of rice. That newly salt-tolerant relative might then be able to invade a salt marsh habitat, displacing native plants. If the displaced plants offered a better habitat for nesting birds, the harmful effect could ripple beyond the marsh.

(Id. p. 10-11)

The UCS report went on to explain why the risks of gene transfer were of greater concern for genetically engineered crops than for conventional crops:

[S]ince genetic engineering can draw on an enormous pool of new genes, it can add more genes with harmful potential than can traditional breeding. Ecological risk depends on complex and difficult-to-predict interactions between new genes, crops, and their environment. In general, the greater the variety of genes that can be added, the greater the likelihood of something going awry. …

Finally, the combination of genes from biologically unrelated sources is genuinely new on earth. Such combinations are not found in either nature or in traditionally bred organisms, which may contain new genes but only from related organisms. We simply have no experience with the use and behavior of organisms with the novel genetic makeup of transgenics. (p. 12)

Those early warnings issued by the UCS were this past year confirmed by a blue-ribbon panel convened by the most prestigious scientific organization in the United States, the National Academy of Scientists. In its April, 2000 report, "Genetically Modified Pest Protected Plants: Science and Regulation," (http://www.nap.edu) this panel, well represented by biotech industry scientists as well as academics and representatives of environmental organizations, confirmed that gene transfer to both crops and wild species was a serious, and as of yet inadequately researched issue. The panel issued strong recommendations for additional research in a number of areas, including:

--- "Monitoring for pleiotropic [secondary] changes in plant physiology and biochemistry during the development of [GE] plants"

--- "Assess gene flow and its potential consequences: develop a list of plants with wild or weedy relatives in the United States; identify key factors that regulate weed populations; assess rates at which pest resistance genes from the crop would be likely to spread among weed populations; and evaluate the impact of specific, novel resistance traits on the weed abundance."

--- "Develop transgenic or other techniques that decrease potential for the spread of transgenes into wild populations."

----"Monitor ecological impacts of [GE] crops on a long term basis to ensure the detection of impacts that may not be predicted from tests conducted during the regulatory approval process" (p. 10-11)

The study cites a 1989 National Research Council report for the conclusion that "the potential for enhanced weediness is the major environmental risk perceived for introductions of genetically modified plants." (p. 81). The NAS report further observes:

The commercialization of transgenic crops has provided added incentives for studies on crop-to-wild gene flow because some transgenic phenotypes have never occurred in wild relatives of certain crops. Genetic resistance to the herbicide glyphosate (Roundup) has not been found in the germplasm of crop relatives, but this trait could be transmitted to wild or weedy relatives of transgenic, glyphosate-resistant crops. The use of a wider and more effective variety of transgenic methods could increase the rate at which weedy species acquire novel types of strong, single-gene resistance via crop-wild hybridization. (p. 85)

[T]he cumulative effects of beneficial [GE] crop genes could potentially lead to expensive and ecologically damaging problems in weeds that are already difficult to control, such as Johnson grass (Sorghum halepense). In the future, additional phenotypic traits might include broad-spectrum resistance to insects or diseases and greater tolerance of cold, drought, salinity, nutrient scarcity, or acidic soils. Such traits could be more advantageous to wild relatives than those now in use. (p. 90)

Consequences of gene flow other than weediness are also perceived to be detrimental to preserving biodiversity. For example, the spread of transgenes to wild relatives that are rare or endangered is sometimes considered as a potential ecological risk, …[R]esearchers and regulators should be aware of these and other potential unintended consequences of gene flow from transgenic pest-protected plants (for example, the hypothetical spread of a Bt [pesticidal] gene from an ornamental species to the only host plant of a rare beetle). (p. 90)

In another section, the NAS report confirms the potential for crop-to-crop gene flow, and acknowledges that this is a potential problem not just for organic farmers who would lose their certification:

Nonorganic farmers might also face problems with crop-to-crop gene flow and undesirable seed characteristics – for example, if transgenic crops are commercially developed for pharmaceutical or industrial compounds, or when farmers’ fields are inspected in search of the unauthorized use of patented transgenic genotypes. (p. 91)

In conclusion, the April, 2000 National Academy of Sciences report reconfirms the fact that genetically engineered plants present new ecological risks in their ability to transfer novel genetic traits to wild, weedy relatives, making those weeds potentially more likely to survive; that they present a risk of cross contamination of conventional and organic crops, which may result in economic loss for the farmers; and that they present a risk to biodiversity of both plant and insect species.

In each case, the lack of research and understanding of critical facts hamper the ability of scientists to precisely quantify this risk; the NAS accordingly make strong recommendations for further study of gene transfer.

Of particular concern in Maine is the potential for these risks to be presented by genetically engineered trees, which are currently in the development stages for 35 different varieties.

(See http://www.daviesand.com/Perspectives/Forest_Health/Mutant_Trees/index.html)

The conclusions of the NAS study provide ample justification for L.D. 1266.

Why can’t the federal regulators take care of this problem?

The USDA did nothing to prevent the Starlink disaster, and will not be expected to address this problem nationwide anytime soon. On April 11, a USDA official was quoted on National Public Radio as saying that cross-contamination "is not the USDA’s responsibility." The EPA has been equally lax in addressing cross-contamination; change is unlikely given that Linda J. Fisher, Vice President for Government and Public Affairs for Monsanto, has just been nominated to be second in charge at the EPA. The first responsibility to protect its citizens, its farms and its natural resources - in legalese, the "police power" – lies with the states, not the federal government.

L.D. 1266 only affects genetically engineered plants, planting stocks or seed "that present a risk of cross-contamination." Accordingly, the legislation would not affect the "NewLeaf" genetically engineered potato, which does not propagate by pollination, and which has been grown in relatively small acreage for several years in Maine. We have just been advised, however, that Monsanto will not be marketing the NewLeaf potato for the 2001 season. Adele Pelland, Monsanto’s manager of public affairs, reported that Monsanto was instead concentrating in other "strategic areas:" "corn, oilseeds, wheat and cotton." (The Ontario Farmer, 6/3/01) McCain foods advised its farmers last year that it would not accept genetically engineered potatoes for processing. Additional problems were encountered in Maine when the NewLeaf potatoes exhibited an unexpected diversity of size and shape, making them less suited for processing than conventional potatoes. (talk by Cooperative Extension Water Quality Specialist John Jemison, Jan. 4, 2001).

The legislation would currently affect farmers who grow "Roundup Ready" field corn, which has been cultivated in the past two seasons in Maine. Unlike Bacillus thuringiensis (Bt) corn, which incorporates a bacterial pesticide, and is hence regulated as a pesticide by the Board of Pesticides Control (and has thus far not been registered in Maine because its manufacturers failed to provide adequate information regarding environmental risks and need for the product in Maine), Roundup Ready corn is not regulated by any state agency. John Jemison reports that estimates from Agway, a dealer in the Roundup Ready corn, indicate that between 1000 and 1200 acres were planted with this corn in Maine last season. (3/20/01 communication) This field corn clearly presents a risk of genetic contamination, not only of neighboring field corn crops, but also of sweet corn. In 1999 and again in 2000, Cooperative Extension Specialist John Jemison conducted tests to determine whether his small trial plot of Roundup Ready corn had contaminated adjacent conventional corn crops. In both instances, he found contamination; the greatest contamination in 1999 was at 100 ft. distance, and it rapidly diminished after that [the Rogers Farm test field is very small, on flat terrain well buffered with surrounding forests, so clearly does not represent a "worst-cased scenario" for cross-pollination in Maine]. The 2000 report is not yet available, but in a talk on January 4, 2001, Jemison acknowledged that the extent of cross-contamination from his Rogers Farm plot this past summer was "more than I would have expected or wanted to see."

Cross-contamination has already threatened the integrity of our national food system. During the past year, much controversy surrounded the discovery that a variety of field corn, "Starlink" manufactured by Aventis Seeds, had found its way into taco shells and numerous other corn products. Starlink was approved for animal feed but not for human consumption because it was a potential allergen. Originally thought to be just a problem of storage, transportation and processing, Starlink was later discovered to have genetically contaminated conventional corn by cross-pollination. In a December 28, 2000, letter to members of the American Seed Trade Association, Deputy Under Secretary Enrique Figueroa, USDA Marketing and Regulatory Programs, alerted corn dealers that the Starlink protein had been detected in varieties of non-Starlink corn hybrid seed produced during 2000. The USDA recommended testing of all seed lots for the presence of the protein, and instructed retailers not to sell seed corn containing the protein for planting purposes.

The threat of cross-contamination by GE field corn is a particular threat to the burgeoning Maine organic dairy sector, as organic dairy farmers will lose their organic certification, and the consequent premium prices, if they feed their herds field corn that has been contaminated with genetically engineered varieties. Presently, organic farmers have no way of knowing whether their neighbors are growing crops that present a risk of contamination, and there are no Extension "best management practices" in place to address the issue of cross-contamination. The risk of loss of certification is not simply a result of MOFGA’s certification standards. Under the new National Organic Standards promulgated by the USDA, which will come into effect in 2002, use of genetically engineered plants, seeds, or animal feed is also banned.

The Iowa State Extension service recommends a 1000 ft. buffer as necessary to prevent cross-contamination by GE corn (see Charles Hurburgh, "The GMO Controversy," at www.exnet.iastate.edu/Pages/grain/gmo/gmo.html, p. 5). The USDA recommends a 660 ft. isolation distance for producing corn seed to ensure against cross-pollination. (NAS Study, April, 2000, at 83). L.D. 1266 does not mandate any particular buffer zone, but places the obligation on the manufacturer of each particular seed or plant variety to determine what buffer zone is requisite to avoid cross-contamination, and to enter into contractual arrangements with the farmer to establish such zones.

While Maine organic farmers have much to lose from the risks of cross-contamination by GE crops, all farmers have a right to grow the crop of their choice without cross-contamination by GE crops. Many conventional farmers face loss of income as a result of cross-contamination. In markets, particularly overseas, non-genetically engineered crops are commanding a premium. A case in point is the emerging practice by Maine potato farmers of growing rotations of food-grade soybeans, which command premium prices from a Canadian distributor who packs and ships them to China and Japan. (see Maine Organic Farmer and Gardener, Dec.98-Feb.99). The soybean rotations have the added benefit of enriching the soil and reducing chemical fertilizer and pesticide inputs. Because of the deep distrust of genetic engineering among Asian consumers, the Asian buyer for the food grade beans stipulates that they not be genetically engineered. According to Vernon DeLong, Executive Director of the Agricultural Bargaining Council, 1400 acres in Maine were grown with food grade beans last year, and the program has been increasing at the rate of 500 acres per year (March 20, 2001 communication).

The March 20, 2001 issue of the Bismark Tribune, coincidentally, reports the story of Montpelier, N.D. farmer Tom Wiley, whose food-grade soybeans tested at 1.37 percent contamination by genetically engineered varieties, too high for the Japanese distributor that had contracted to buy his crop at a 20 cent premium. "I was stunned and sick to my stomach," Wiley said, "I finally went into the house to tell my wife we had just lost $6,000 because of a neighbor’s planting decision." [http://208.141.36.73/listarchive/index.cfm?list_id=30 (see 3/22 listing)]

Sharon S. Tisher
Chair, MOFGA
Public Policy Committee