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.
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.”
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.