Organic on the Offensive: Nation’s Farmers Sue Big Ag

Few corporate brands raise the hackles of environmentalists like Monsanto, the erstwhile chemical giant once responsible for infamous contaminants such as PCBs, DDT, and Agent Orange. These days, Monsanto operates under the more benign-sounding banner of agricultural biotechnology, or the genetic engineering of crops. And, just as it once dominated the chemical industry, Monsanto now monopolizes the country’s food production system: it has snapped up dozens of independent seed companies over the last several years, and controls 95% of America’s soybeans and over 80% of its corn.

Monsanto’s dominance over the nation’s agriculture, however, is now being assailed by a class-action lawsuit from thousands of farmers who are seeking to keep the company’s crops out of their fields. The suit, Organic Seed Growers and Trade Association (OSGATA), et. al v. Monsanto, represents a preemptive strike: the coalition of farmers is suing to earn the right not to be sued by Monsanto if the company’s genetically modified plants accidentally wind up on organic farms.

Although the suit was dismissed from a federal court last month, it’s likely to reappear shortly within the Court of Appeals. If, or when, it does, its potential ramifications are immense: at stake is nothing less than the way America grows its food.

Genetically-modified organisms (GMOs), Monsanto’s stock and trade, have quietly become ubiquitous in the U.S., as over 90% of soybeans, cotton, corn, and sugar beets are now altered. And they’re generally altered in one very specific way: to be resistant to Monsanto’s famous weed-killer, Roundup. This resistance allows farmers to dump vast quantities of herbicide on their fields without killing their crops, thereby obviating the need to till fields and theoretically saving growers time, money, and topsoil.

Despite these purported benefits, however, not all farmers use Roundup or the company’s patented Roundup Ready seeds. Organic farmers are the staunchest holdouts: according to FDA rules, GM foods cannot be labeled as organic; and, since organic food represents a lucrative and growing market, such growers are eager to keep their fields clean of GM plants.

Organic, unmodified carrots grown by the farm at Hell's Backbone Grill, Utah. (Photo by Benjamin Goldfarb.)

Preventing GM seeds from entering a field, however, is a lot harder than it sounds. Given the prevalence of engineered crops, it’s nearly inevitable that some GM seeds will drift into places where they’re not wanted. Unavoidably, organic farmers with neighbors contracted to Monsanto are going to wind up with the company’s plants in their fields.

That’s where the trouble arises. Monsanto aggressively seeks to prevent unauthorized farmers from possessing its seeds – since 1997, the company has filed 145 patent infringement lawsuits against farmers, and settled another 700 cases out of court. While it mostly pursues these suits against farmers who are caught saving its patent-protected Roundup Ready seed from season to season, Monsanto has also prosecuted farmers whose fields are contaminated by pesky wind-blown seeds. In 1997, the company sued, and defeated, Percy Schmeiser, a Canadian canola farmer accused of collecting Roundup Ready seeds that had blown onto his property. Saving seed is standard practice for organic farmers (and has been for about 10,000 years), yet in Monsanto Canada Inc. v. Schmeiser, the court found that Monsanto’s patent overrode Schmeiser’s property rights – even though he hadn’t meant to plant the seeds in the first place. Schmeiser ultimately destroyed his entire canola crop and claimed $400,000 in losses. Today, canola is virtually extinct in its natural state, overwhelmed by windblown transgenic chimeras.

Furthermore, as Donald Bartlett and James Steele revealed in their Vanity Fair article “Monsanto’s Harvest of Fear,” the court battles represent only the tip of Monsanto’s patent-enforcement iceberg. According to that piece, Monsanto employs a so-called “Seed Police,” a “shadowy army of private investigators and agents in the American heartland to strike fear into farm country.”  The Seed Police’s job is to ferret out farmers suspected of possessing unlicensed Roundup Ready seed, and menace them into giving it up. Farmers across the country report run-ins with these enforcers, who are apparently fond of uttering the sort of cryptic threats – “Monsanto is big. You can’t win. We will get you. You will pay” – that don’t normally exist outside of bad espionage thrillers.

***

Two years ago, a man named Daniel Ravicher went to Virginia to give a lecture. Ravicher is the Executive Director of the Public Patent Foundation (PUBPAT), a New York-based non-profit legal organization that advocates for patent freedom, and he was back in his home state to speak about PUBPAT’s role in a breast cancer gene case. After the talk, a farmer approached him at the lectern. “He stood out like a sore thumb,” Ravicher recalls. “Everyone else was a 20-something-year-old law student, and here’s this 60-year-old farmer wearing his baseball hat and coveralls.”

The farmer asked if Ravicher was aware of Monsanto’s aggressive patent-enforcement tactics, which were causing problems for growers in Virginia. Fortuitously, PUBPAT had been challenging Monsanto’s patents for years, but hadn’t been able to find a plaintiff to represent in a lawsuit. Ravicher urged the man to direct more farmers his way, and from this germ the suit began to grow. “This gentleman introduced me to quite a few people, and everybody we talked to had five more people we should see,” Ravicher says. Farmers from Maine to California added their names to the growing list of litigants. By the time the snowball stopped rolling, PUBPAT found itself representing 83 different plaintiffs, from large organic seed companies to food safety advocacy groups to regional farmers’ cooperatives to individual family farms.

To earn immunity from future lawsuits, OSGATA et. al v. Monsanto attacks the very validity of Monsanto’s seed patents. And it is this attack that could have profound implications for the future of genetically modified crops.

Although PUBPAT is contesting Monsanto’s patents on several grounds, the most significant – and most controversial – is the assertion that GMO seeds simply don’t work. According to the U.S. Patent Act, “Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvements thereof, may obtain a patent” (emphasis added). To Ravicher, there’s nothing useful about Monsanto’s seeds. “One of the requirements for a patent is social utility. There’s a very old case which expressly says, ‘An invention to poison people is not patentable,’” Ravicher says, referring to Lowell v. Lewis, 1817. “And although this doctrine hasn’t been used many times, it nonetheless exists, and we believe it will be used successfully in this case.”

Claiming that Monsanto’s seeds are an “invention to poison people” with no social utility are some fighting words. In support of his assertion that Roundup Ready seeds aren’t useful, Ravicher points to several studies, including a 2009 paper called “Failure to Yield: Evaluating the Performance of Genetically Engineered Crops.” That paper, authored by Doug Gurian-Sherman of the Union of Concerned Scientists, found that the development of genetically engineered, herbicide-resistant soybeans and corn haven’t done anything to increase national crop yields. Notably, Gurian-Sherman observes that overall crop yields have indeed increased, “but not as a result of GE (genetic engineering) traits. Rather, they were due to successes in traditional breeding.”

A corn monoculture in Lehigh Township, Pennsylvania. (Photo by Flickr user Nicholas_T, used with permission.)

If genetic modification doesn’t increase yields, why bother creating GMOs? To understand the answer to that question, according to Ravicher, you have to remember Monsanto’s history as a chemical manufacturer. While they might call themselves a biotechnology firm now, their best-selling product is still a chemical: Roundup, ubiquitous not only on croplands but also on lawns, golf courses, and anywhere else grass grows. Foisting GM seeds on farmers addicts them to the corresponding herbicide. “The only purpose of Roundup-Ready GMO seed,” says Ravicher, “is to enhance and encourage expanded use of Roundup.”

Roundup’s key ingredient is a compound called glyphosate – which is where the “poisoning the people” part comes in. A number of studies have suggested that glyphosate may confer health risks on humans and animals, including increased risk of non-Hodgkin’s lymphoma and multiple myeloma. Another study by a Purdue University researcher indicated that Roundup Ready crops may contain a pathogen that causes disease in both plants and animals. Not only that, the overuse of Roundup across the Midwest is fostering the rise of “superweeds,” plants that have developed resistance to herbicides and are forcing some farmers to abandon their fields.

Needless to say, Monsanto disputes most of these findings intensely. On its website, the company claims that its biotechnology increases yields, improves crops’ resistance to disease, reduces greenhouse gas emissions, and promotes consumer health. And, considering that its 30% increase in revenues last quarter (up to $2.44 billion) were driven largely by sales of corn and cotton seeds and traits, plenty of farmers remain devout adherents. When Ravicher spoke at Yale School Law in October, a man in the audience angrily rebutted him, asserting that Roundup had conserved countless tons of topsoil by allowing farmers to kill weeds without tilling their fields. Ravicher, who speaks with the precise, rapid-fire diction of a man used to standing before a judge, snapped back, and the man stormed from the room. Afterwards, Ravicher was diplomatic. “All I said was, ‘I’m not a farmer, you’re not a farmer – let’s ask a farmer.’”

Whether Roundup Ready crops are beneficial or harmful remains an open scientific question, mostly because Monsanto defends its patents so militantly. As a 2009 article in Scientific American put it, “Agritech companies have given themselves veto power over the work of independent researchers.” Monsanto has its own data sets that show great environmental and economic gains from its transgenic crops, but there’s precious little research from sources outside the company, aside from the incriminating “Failure to Yield” study. Until Monsanto permits scientists to investigate its products, it’s difficult to trust anything the company says.

***

OSGATA et. al v. Monsanto experienced a severe setback in late February, when Judge Naomi R. Buchwald dismissed the suit from her federal court in New York. In her ruling, Judge Buchwald expressed skepticism that organic farmers truly have to fear contamination from GM seeds. “The notion that plaintiffs, who are actively attempting to avoid the use of transgenic seed, may nevertheless find themselves unknowingly using it strains credulity,” she wrote. Judge Buchwald also suggested that the lawsuit “overstate[d] the magnitude of [Monsanto's] patent enforcement, stating the Monsanto’s thirteen law suits per year were insignificant compared to the two million farms that exist in the United States.

“Taken together,” Buchwald concluded, “it is clear that these circumstances do not amount to a significant controversy and that there has been no injury traceable to defendants.” Case dismissed.

Both PUBPAT and OSGATA left the court feeling slighted. “[Judge Buchwald's] decision to deny farmers the right to seek legal protection from one of the world’s foremost patent bullies is gravely disappointing,” Ravicher said after the case. “Her decision is flawed on both the facts and the law.” Jim Gerritsen, president of OSGATA and an organic grower himself, was equally critical of the ruling. “We believe in the system,” Gerritsen told Natural News. “But we’re disappointed in the judge.”

Although Judge Buchwald’s dismissal represents a serious impediment to the suit, the courts have likely not seen the last of OSGATA v. Monsanto. Ravicher has already indicated that PUBPAT plans to pursue their case elsewhere. “Thankfully, the plaintiffs have the right to appeal to the Court of Appeals, which will review the matter without deference to [Judge Buchwald's] findings,” Ravicher said in a press release. For its part, OSGATA stated their plans to appeal immediately after Judge Buchwald’s ruling.

In January, Ravicher seemed confident that the courts would ultimately give PUBPAT’s lawsuit a fair shake. “Monsanto’s ability to influence the decision-maker in court is much less than their ability to influence Congress and the administrative agencies,” he said at the time, “which for all intents and purposes are completely captured by industry.” The Court of Appeals is likely to be the next venue in which that conjecture is tested.

Benjamin Goldfarb

Ben Goldfarb is a freelance writer whose work has appeared in The Guardian, OnEarth Magazine, Earth Island Journal, and elsewhere. He is a former Editor-in-Chief of SAGE Magazine. Check out his writing at www.bengoldfarb.com and hit him up at @bengoldfarb13.

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3 Comments

  1. Great article Ben!

  2. Thank you for this article about our lawsuit. It is most important to continue to get the issues raised before the public, so they can become better informed about the health risks and environmental damage resulting from Monsanto’s system of agriculture. Tillage and erosion has been reduced through their system, but the costs have been greater than the gains. These issues are important to fully understand, but it is a longer discussion to illuminate them.

    In the spirit of full accuracy, a couple of corrections may be in order:
    Our lawsuit is not a class action suit, though it will have precedential value affecting others depending in part on the points won (from among all the presented arguments). The suit seeks a “declaratory judgment” under the provisions of the Declaratory Judgment Act. In simple terms that means we are asking the court to tell Monsanto they cannot sue organic and other non-transgenic farmers if they become accidentally contaminated and possess Monsanto’s patented genes without paying a royalty. The case is important, because farmers are effectively prevented from suing for contamination damages as long as Monsanto can countersue for patent infringement.

    Our suit goes beyond the request for a declaratory judgment in stating a variety of associated arguments about Monsanto unjustifiable use of patent law. The first is the argument that the patents should be invalidated because they have adverse public utility. They should also be unenforceable because they have been used to establish a monopoly. Under law, patents are not to be used to form a monopoly. Third, the charge of infringement is perverse, because it is illogical to claim infringement for an act over which farmers have no control, do not want, and costs them money. Fourth, Monsanto should not be entitled to damages because they have suffered no losses as the result of the contamination. This is a short, abbreviated version of the arguments we make in the complaint and will argue when the case can get before a judge. The more detailed arguments can be read in the full complaint at http://www.pubpat.org or http://www.endtransgenictrespass.org.

    At present, we are still arguing in our appeal over a pre-trial motion addressing our fundamental right to bring our lawsuit. At the bottom, we feel it is unbelievably outrageous that the judge in NY should have denied us the right to bring our case while tutoring us as she did about what should comfort us. Without fulfilling the obligation under law to follow the clear precedents on plaintiff standing or to address the underlying facts at issue in the case, the judge committed publicly costly error that I consider nothing short of legally atrocious.

    The judge’s failings strengthen our appeal, as we see it, but the appeal should not have been necessary when health, public safety, and environmental issues are at stake. These issues need to be addressed without delay in the public interest, and it is outrageous for the judge to protect the corporate interest at the expense of the public interest as we believe she did. The people should assess these matters and assign both shame and blame as they find is warranted. The judge’s decision can be read along with our arguments, but our written response to judge’s decision will not be filed or posted for a couple of months.

    Finally, I wish it would have been as easy as Dan Ravicher suggested to gather the 83 original plaintiffs in the lawsuit (now we are 75 appellants). If each farmer talked to had suggested five others, we would have been able to file the lawsuit almost a year earlier. Gathering the plaintiffs would have been no work at all if everyone spoken with suggested five names, and we could have lined a hundred of them in short order. The work could have been done in a few days.

    In fact, most farmers were very concerned about the risks of retaliation resulting from being associated with our lawsuit. Only the most courageous were willing to stand up, and we only began to gather plaintiffs more than minimally after the courts took action on the lawsuits about transgenic alfalfa and sugar beets. That began to give farmers and the leaders of organizations hope that something might be accomplished in the courts. I know about this because I am the person who did the work. Late in the process, help was received, and perhaps only a few people ever offered as many as five names for me to call. The facts need to be distinguished from captivating myth.

    Also, I have never worn overalls since I was a small child (I have worn Levis all my life, and I remember when my father took me to buy my first pair and then sat me in the watering trough to soak them so the sun could then shrink them to fit me) I am 75 years old this year (not 60), and that happened when I was about five.

    Don Patterson

  3. Hear, hear! This could be in the New Yorker but instead it graces Sage. Well done.

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