By CR Lawn
In recent years both the USDA and Maine Department of Agriculture have openly pushed a program of coexistence between organic farmers and farmers who choose to use transgenic technology (genetically engineered crops – also called GE crops or GMOs). In 2011 the USDA reconvened the Advisory Committee on Biotechnology and 21st Century Agriculture (AC21) following its highly controversial approval of GE alfalfa. It charged AC21 with considering compensation mechanisms for farmers damaged by the unintended presence of transgenes in their crops and asked the committee what other actions would bolster or facilitate coexistence among different agricultural production systems. AC21 met five times in 2011 and 2012, and on Nov. 19, 2012, issued its report, “Enhancing Coexistence: A Report of the USDA Advisory Committee on Biotechnology and 21st Century Agriculture (AC21) to the Secretary of Agriculture” (www.cotton.org/tech/biotech/ac21report.cfm).
The USDA has asked for public comments by March 4 on the recommendations in the AC21 report. Comments may be submitted at https://www.regulations.gov/#%21documentDetail;D=APHIS-2013-0047-0001 or
by mail: Docket No. APHIS–2013–0047 Regulatory Analysis and Development PPD, APHIS, Station 3A–03.8, 4700 River Road, Unit 118, Riverdale, MD 20737–1238.
Following are my slightly abridged comments.
The USDA solicits comments to identify ways to foster communication and collaboration among farmers of diverse production systems in order to further agricultural coexistence. However, a close reading of the report and especially of comments of several signatories indicates that AC21 participants were not even in fundamental agreement on a definition of agricultural coexistence. Given the wide divergence in viewpoints expressed in the AC21 report, the USDA’s request is clearly premature.
It is premature because
• it fails to address significant disagreements in regard to compensation mechanisms for those damaged by transgenic contamination
• it assumes that coexistence is possible absent satisfactory compensation mechanisms
• it assumes that coexistence has been historically successful and is even desirable (while offering little evidence beyond mere assertion in support) or even if so, that the same conditions that made coexistence possible in the past still apply in the transgenic era
• the report of AC21 erroneously states that “GE products in the marketplace … have been determined to be as safe for humans and the environment as conventional crops.” In fact, scientific consensus and corroborating experimental evidence is lacking for any such assertion. As Charles Benbrook of AC21 stated in his comments, “Neither the FDA nor any other US government agency conducts an independent evaluation of the nutritional quality or safety of GE foods.” The FDA merely accepts the safety assertions by the technology providers without independently verifying or analyzing their data. Given continuing substantial uncertainties surrounding the safety of transgenic foods, the reluctance of some farmers to grow them and of some markets to accept them is quite understandable.
Whereas the AC21 report is weakest in its economic considerations, its research recommendations (Recommendation IV, page 22) and seed quality recommendations (Recommendation V, pages 24-5) are its strongest features and should be implemented. Monitoring and maintaining the purity of publicly held germplasm is particularly important. However, the recommendations under the general category of Stewardship and Outreach (Recommendations II and III, pages 19-20) are educational but exclusively voluntary. So, while necessary, they are clearly insufficient to create or ensure any true system of coexistence.
By all means implement the AC21 recommendation that the USDA evaluate the data gathered to assess actual economic losses by farmers who grow crops for identity protected (IP) markets (report, page 14) and gather on an ongoing basis data from seed companies on unintended GE presence in commercial non-GE seed supplies (report, page 22). Beyond that take proactive steps to broaden these evaluations by seeking more such data. And beyond that also measure the additional expenses taken by IP farmers and agricultural businesses such as Fedco Seeds to prevent the further spread of contamination; estimate potential losses to such farmers from their reasonable reluctance even to grow for market crops that are vulnerable to transgenic contamination; and estimate potential losses to such farmers from barriers to entry to markets that are more sensitive than our domestic markets to genetic contamination.
Organic farmers aren’t the only growers who don’t want transgenic seed. Fedco’s seed market is only 38 percent certified organic, yet more than 80 percent of customers polled asked Fedco to drop or phase out its Seminis seed line when Monsanto bought Seminis. These seeds weren’t even transgenic – they were simply produced by Monsanto, which at the time had a near-monopoly on the transgenic seed market. Fedco’s business grew demonstrably by honoring customers’ stated wishes, and Fedco received hundreds of supportive customer comments.
Since initiating random testing of Zea mays and Beta vulgaris, Fedco has had 10 incidents of contaminated seed, despite strict grower isolation protocols. Fedco has experienced quantifiable losses in sales from withholding these compromised lots from catalog offerings and removing them from order-pulling lines. Fedco spends an average of $2,000 annually in random testing for transgenic contamination. It is particularly difficult to source corn seed that is free from transgenic pollution. In fact, the largest contracted production of corn seed in Fedco’s history turned out to have such contamination.
Given this history, I am beyond baffled how some members of AC21 could deny that the problem of systemic GE contamination needs to be addressed. One can only hope that the findings of the added research recommended by the report will be sufficient to convince them. I am equally baffled how others on the committee could regard the mere acknowledgment that contamination might even be a potential economic problem, surely obvious to any aware observer, as sufficient evidence of progress to be willing to sign on to a report that offers no constructive solutions beyond purely voluntary mechanisms that cannot work by themselves.
If indeed “American farmers have the right to make the best choices for their own farm,” as the report states, they can do so only if they have confidence that they will be spared from genetic contamination, or if not spared, at least adequately compensated. Yet, the report asserts that “the unintended presence of such materials in others’ crops should not be a topic for assigning fault or blame.” But how could it not be, when such adventitious presence demonstrably damages farmers who choose to eschew transgenic technology? These organic and IP farms did not invent this technology, do not want it, are damaged by it, yet are held solely responsible for avoiding it and its consequences. The compensation recommendations of AC21 would do nothing to change that; indeed they would merely entrench that status quo.
Dan Ravicher, attorney for plaintiffs in Organic Seed Growers and Trade Association et al. v. Monsanto, states, “Society stands on the precipice of being forever bound to transgenic agriculture and transgenic food. Coexistence between transgenic seed and organic seed is impossible because transgenic seed contaminates and eventually overcomes organic seed. History has already shown this: soon after transgenic seed for canola was introduced, organic canola became virtually extinct as a result of GE contamination. Organic corn, soybean, cotton, sugar beet and alfalfa now face the same fate.”
Biological pollution differs from any other kind because it involves living organisms that reproduce. Imagine you are Percy Schmeiser. A little windblown transgenic pollen comes into your fields where you have spent 40 years refining your crop genetics. Maybe only a trace amount of contamination in the beginning … but the pollen gets in there, crosses with your pure plants, and in the next generation there is more genetic pollution. Then more contaminated plants cross with the remaining pure plants and breed still more contaminated plants. In a few generations your whole field is contaminated and your life’s work with canola ruined. This is the nature of biological pollution. No barrier can stop it. No fence is high enough to keep it out. Who will restrict the bees from flight? Who will stop the wind?
However, potential economic mechanisms exist that can at least slow its inexorable march. As Michael Funk of United Natural Foods points out in his comments about AC21, genetic drift, like pesticide drift, should require the party who is causing the damage to be responsible. The best models are the time-honored laws of trespass and fencing. If your livestock comes onto my land and damages my crops, you are legally responsible. Why should your genetic pollution be treated any differently?
Yet, to the extent that AC21 was able to agree on any compensation mechanism, it based its recommendation on a flawed crop insurance model that gives those farmers growing crops for IP markets the option of purchasing insurance and obtaining compensation if they meet four strict criteria (report, Page 15). As Funk points out, the model set forth by AC21 “would either place most of the burden on the injured parties, or on the taxpayer through subsidies” while “no real responsibility was given to the seed companies/patent holders, who are the logical parties to pay for any damages.” Insurance might be an appropriate compensation method where events outside of any party’s control (such as disastrous weather) result in economic damage, but for genetic pollution originating from human agency that, unlike weather, can be avoided, it is inappropriate. Where is the fairness in the crop insurance model? At the very least, if unwilling to hold the polluters strictly liable, AC21 should have recommended a mechanism that truly shares the economic responsibility for contamination, not through the wishful thinking of voluntary measures but instead from the firm foundation of mandatory contamination prevention measures backed by economic consequences for failure. Absent economic incentives for all parties to avoid contamination, the coexistence model posited by AC21 and the USDA is but a chimera.
As such, AC21 is reminiscent of the so-called “peaceful coexistence” familiar to those of us who grew up in the Cold War between the Soviet Union and the United States. That form of “coexistence” always intended a winner and a loser. Why would any IP farmer or seed company willingly play the part of the Soviet Union that has been designated for it in this coexistence charade? Why would any such farmer or seed company willingly pay blood money to insurance companies for protection against contamination perpetrated by the biotech industry while that same industry is given a free pass with full immunity from the negative consequences of its technology run amok?
The biotech industry, unlike most of the farmers damaged by transgenic contamination, has the economic means and political clout to institute prevention-based mandatory stewardship practices that could go a long way toward constraining biological pollution.
Acting under the precept “Any compensation mechanism that may be put in place that is perceived by one segment of agriculture as placing unfair burdens on that sector will only divide agriculture,” AC21 should recognize that the status quo already has divided agriculture, so it should reconvene and go back to the drawing board to
• develop a program of economic incentives for true coexistence. Mechanisms considered should include but not be limited to mandatory containment practices specific to crops and traits to be included in the technology licenses for use of transgenic seed, mandatory buffer zones for transgenic and conventional/organic farmers on both sides of the fence, mandatory pinning maps identifying locations of GE crops, and mandatory GE-free zones for critical areas of seed production, such as the Willamette Valley
• where prevention mechanisms fail, reach a fairer method of compensation that provides some measure of economic justice for all parties. Otherwise, while American farmers continue to lose opportunities and markets in the rest of the world, there will only be lawsuits, more lawsuits, endless lawsuits until justice at last prevails.
CR Lawn is President of Fedco Seeds, Inc.
