Henry Ford could hardly have foreseen, in the 1890's, that the descendants of the Model T would spur countless lawsuits — plus a new insurance industry to protect drivers and automobile manufacturers against damage claims.
In much the same way, agricultural biotechnology is seeing its share of lawsuits and legalese. Problems that were unforeseen when the genetically modified crop revolution took off a few years ago are turning into full-blown legal issues. Some have landed in court.
The growing legal concerns suggest that farmers must take active roles to insure that they're fairly treated as new ground rules are set to determine who pays when something goes wrong with biotechnology.
“It's always smart to think ahead about any risks you're running and try to make a reasonable assessment of how serious they are,” says Philip Peters. He's a former trial lawyer who now teaches law at the University of Missouri and heads the university's new Biotechnology and Society Program. “Biotechnology is so new that we don't have a comparable experience about how much legal risk there really is.”
In the meantime, there are steps growers can take to minimize their exposure in legal actions.
Check with your insurance company to see whether existing policies will cover your operation if you're sued. Biotechnology is so new that insurance coverage specifically for biotech-related problems apparently is not being offered. However, some problems may be covered by existing policies simply because insurers have not written clauses excluding them from coverage.
“Commercial liability policies cover all claims of bodily injury and property except those explicitly excluded,” says Joe Harrington, spokesman for the American Association of Insurance Services. “Unless it's excluded, it's covered.”
The association, based in suburban Chicago, helps property and casualty insurers formulate insurance policy language. Unfortunately for farmers, it may not be that simple. Many existing policies don't cover pollution-related damages. And insurers might argue that pollen drift constitutes pollution.
“Pollution you create is generally excluded in most standard liability policies,” he says. “It will be a matter of case law (law determined by court rulings) whether pollen from genetically modified plants is considered pollution.”
Prepare to aggressively fight court cases where precedent-setting decisions will be handed down. A lot is at stake. Once precedents have been set, other courts often follow them.
For example, let's say the courts decide that pollen drift constitutes pollution. Growers may find themselves without insurance if organic farmers or others file suit saying that the value of their crops has been damaged by unwanted cross pollination from genetically modified crops.
Ask companies selling biotech seed to indemnity farmers against liability if lawsuits occur. This means the seed companies would be liable for any judgments.
“Whether sellers will agree to those terms will depend on the number of farmers who ask for indemnification and the seed sellers' perceptions of the risk that farmers will stop planting genetically modified crops if they are not indemnified,” says Peters.
Ask the federal government to offer insurance against biotechnology-related problems. “We already have federal flood insurance,” says Peters. “We could have a new insurance program for biotechnology.”
Seek state laws that immunize growers against certain GMO-related lawsuits. For example, says Peters, growers might ask legislatures to immunize them from damages for pollen drift problems if the growers plant certain-sized buffer zones of non-genetically modified crops to minimize pollen drift to neighboring farms.
Institute new measures to prevent GMO-related problems. For example, researchers could try to determine what size buffer zones might prevent pollen drift problems. Or, better grain handling systems could be set up to prevent problems such as the StarLink corn incident, which mixed genetically modified corn intended for animals with human food supply.
So far, the National Resources Conservation Service, which oversees a variety of buffer zone programs, doesn't have a recommendation on buffer zones to prevent pollen drift. But that could change. The service may soon consider tree or shrub buffer strips as a means to curtail both pollen and pesticide drift.
Guard against complacency. For example, don't assume farmers are immune from lawsuits simply because it can't easily be determined who produced a crop responsible for pollen drift or any allergic reaction in food.
The same problem already exists in the pharmaceutical industry when two or more companies make the same generic drug. Some states allow consumers who claim a particular drug made them sick to sue all the drug companies that supply their area, even if it can't be shown which one made the drug. It's possible, says Peters, that the same rules could be applied to farmers who, for instance, grow a genetically modified crop that later causes an allergic reaction.
Three potential legal problems relate to pollen drift from genetically engineered crops.
In some areas, organic farmers have complained that their crops can't command premium organic prices because of GMO cross-pollination. And some conventional farmers say they have lost overseas trade contracts for GMO-free crops for the same reason. Some growers have also been accused by seed companies of planting GMO seed without paying for it. They deny the charge, saying pollen drift cross-pollinated their fields, resulting in genetically modified crops.
Two potential problems stem from possible allergic reactions or other unforeseen problems with genetically modified crops.
If a genetically modified crop produces an allergic reaction, who's liable? Growers, seed companies, or both? Second, should seed companies be liable if fallout from an incident, such as the StarLink corn problem, depresses corn prices? That issue is now in East St. Louis federal court, where growers have filed a lawsuit against Aventis.
For more information on GMO liability, go to www.iatp.org.
Here are capsule views on pollen drift from the National Corn Growers Association (NCGA) and the American Soybean Association (ASA):
“How far will pollen travel? It's hard to tell,” says Tom Slunecka, director of development for NCGA. He suggests growers who are selling on contracts that require certain levels of purity — for example, virtually biotech-free corn for foreign markets — take steps to insure that they can meet those contracts.
Slunecka suggests these growers ask their neighbors if they are planting crops that might impact GMO-free or organic crops. If so, growers should consider pollen drift buffer zones of 660' or more, depending on the purity required, he says. (A buffer zone of 660' is what seed growers use to insure guaranteed levels of seed purity.)
Slunecka also suggests that biotech crop producers talk to neighbors who may be growing organic or GMO-free crops. By talking to one another, he says, producers may come up with voluntary actions that could help prevent pollen drift problems.
With soybeans, the story is much different. Says Kim Nill, technical issues director for ASA: “You don't need a buffer zone for soybeans. It's a self-pollinated crop. Ninety-nine percent of the pollen never leaves the flower it started in. Far less than 1% is likely to get to a neighbor's field.”