Monday, November 16, 2009

Pardon the riffing

El Dragon over at Fair Food Fight posted that companies like Monsanto should get ready to face suits from organic farmers whose crops are sullied by GMO seeds. Check out his discussion here.

One major issue, however. The suits from Monsanto against non-GMO-seed-using farmers were patent infringements - Monsanto literally owns the biologic composition of the crops that drifted into neighboring fields. Organic farmers have no such claim, as the organic nature of their crops is not patentable.

Therein lies the fundamental problem. There may not be a cause of action here - at least not one that I can think of. (Fellow legal folk, can you help me out?) We would probably have to look to tort law, but in what form? Negligence? There is not currently a duty of care for GMO farmers to protect the fields of their organic neighbors. Maybe nuisance? Trespass? A Canadian case made the argument for nuisance, negligence, trespass, and pollution under several Canadian statutes. (The case was thrown out for lack of class-action status on the part of the farmers.) I'm not sure if the common law claims would survive, however, or if there's a reasonable statutory provision that can be applied. Barring some form of statutory duty to protect your neighbors crop, or some form of explicit protection for organic farmers the courts may not find the necessary cause of action.

The government is getting tougher on GMOs. In September, the US District Court in San Francisco ruled that the USDA had failed to do the appropriate level of environmental investigation prior to approving Monsanto's Roundup-Ready sugar beets. “The potential elimination of farmers’ choice to grow nongenetically engineered crops, or consumers’ choice to eat nongenetically engineered food … has a significant effect on the human environment,” Judge White noted in the decision (p. 13). A plaintiff in the case, Frank Morton, is an organic sugar beet farmer. He noted that it costs $300 to test his crops for genetic modifications, and if he finds genetic anomalies, his crop becomes worthless. “This industry could be destroying the crop value of organic growers and organic growers would not have the slightest idea they were in danger until their stuff turned up contaminated,” he said. “This is why I made a stink about this.” The sugar beet decision follows a 2007 decision enjoining farmers from planting Roundup Ready alfalfa until complete environmental impact statements are filed. The District Court decision was upheld in the 9th Circuit.

This seems like the more viable route for legal action by organic farmers against GMO contamination. If the USDA begins actually applying NEPA in conducting EIS's of GMOs, including assessments of their potential for crop contamination, organic farmers should get better protection. It may take a few more individual court cases against specific crops under NEPA, however, before widespread EIS requirements are adopted by the USDA.

Tuesday, November 3, 2009

HFCS - natural?

Dave Babcock at Food Safety News wrote a great article about the legal fights over whether or not high fructose corn syrup is "natural" - and if it can be marketed as such. Babcock discusses the New Jersey case against Snapple's "all-natural" claim regarding their drinks. (Snapple has since switched to using sugar in their beverages.) Some might argue that a sweetener produced in a lab with the synthetic enzyme glucose-isomerase hardly seems natural. Since the FDA decided in 2003 to allow HFCS to fall into the "natural basket" - defined as "nothing artificial or synthetic has been added to a food that would not normally be expected to be in the food" (58 Fed. Reg. 2302, 2407) - Snapple claimed federal preemption of the NJ laws against fraud, and the District Court agreed that the FDA had created "field preemption." The 3rd Circuit overturned and remanded to the District Court. Check out the full article here.

Pesticide study controversy at EPA

The EPA has started requiring increased testing and analysis of various pesticides, including testing of the effects on the endocrine system of various chemicals used in herbicides and insecticides. According to Steve Owens, the assistant administrator of the Office of Prevention, Pesticides, and Toxic Substances, “After years of delay, EPA is aggressively moving forward by ordering the testing of a number of pesticide chemicals for hormone effects. These new data will be carefully evaluated to help identify potential hormone disruptor chemicals.”

The human endocrine system regulates hormone production, which impacts growth, metabolism, and reproduction. For all you'll probably ever want to know about it, click here.

The EPA has released a testing schedule for information from manufacturers of 67 chemicals over the next four months. It intends to use this information as a jumping-off point to determine if further testing of these chemicals is necessary. The testing, which will take place through the Endocrine Disruptor Screening Program, will eventually expand to include all pesticide chemicals. Here's the controversy, though - should manufacturer data really be used as the basis for determining if further study is necessary?

The Office of Management and Budget has issued an order allowing for the results of old industry studies to be substituted for new studies on the impacts of pesticide use on the human endocrine system. Over the course of the last decade, more than 1000 studies have been conducted on the impacts of pesticides on the endocrine system, but some scientists fear that this order may undermine the ability of those scientists to get their results into EPA considerations for possible regulation of the industry.

The EPA claims that a good scientist will be able to tell from the structure of the studies whether or not they're credible. The critical issue here, however, is not that the industry studies will be used at all, but the fact that they will be used in lieu of new studies from (presumably) neutral parties.