Who Sues and Who Gets Sued?
The Risks of Genetically Engineered Seed

This article addresses the legal implications for farmers of the increasing prevalence of genetically engineered (“GE”) seed in the marketplace and environment. It begins by giving an overview of the lawsuits brought the holders of patents on GE seed against farmers for growing such patented seed without proper licensure. It then briefly discusses the issue from both the patent holders’ and the farmers’ viewpoints. The article then discusses one particular Canadian case and concludes with some thoughts about other possible outcomes of such cases and the implications for the future.

The author has relied on the following materials: Articles by Kanina Holmes and E. Ann Clark, posted by the Northeast Resistance Against Genetic Engineering; legal pamphlets written by David R. Moeller and published by the Farmers’ Legal Action Group, an article written by Andrew Burchett posted by agweb.com, and the decisions of the trial and appeals courts in Canada.

I. How Many Lawsuits

Most of the publicity centers on Monsanto and its “Roundup Ready” crops. Monsanto has been filing legal actions against farmers in the United States and Canada alleging that farmers are using patented seed without having the appropriate contract with Monsanto. Hard data about these lawsuits is hard to find, since most of these cases are settled before trial. Such settlements are not reported in traditional legal research materials.

Some information does exist, however, about the volume of this litigation. Although Monsanto did not respond to inquiries from this writer, it did speak with Andrew Burchett for a September 13, 2002 article. Monsanto indicated that, although the number varies, there are about 30 lawsuits against U.S. farmers in progress at any given time. The amount of damages received by Monsanto is not part of the public record. Monsanto did tell Burchett, however, that it is funding an agricultural scholarship program with the money received, after deducting its legal costs. The scholarship program is operated in conjunction with the American Farm Bureau. At the time of Burchett’s article, Monsanto had issued 100 scholarships for $1,500 each in 2002. It has made 350 academic grants since 1998.

II. The General Issues

As with most stories, there is more than one side to this one. Companies holding patents on GE seed are concerned that farmers will save seed from a GE crop and then replant the seed the next year without permission of (or payment to) the patent holder. If this happens, the patent holder is entitled to take legal action against the farmer to protect its patent rights. In fact, if the patent holder fails to protect its patent, then it may waive its rights in the future to do so.

Some farmers probably have saved seed form GE crops and subsequently been “caught” by the patent holder. Other farmers, however, argue that they are not breaking any agreement with the patent holder because they are not using GE seed. Instead, they allege that GE crops contaminate their non-GE crops, through pollen drift, spilled seed, dormant seed, or seed shattering during harvest.

III. The Percy Schmeiser Case

Consider the experience of Percy Schmeiser, a Canadian farmer ordered to pay damages to Monsanto after losing a trial and a subsequent appeal. The case is currently on appeal to the Canadian Supreme Court.

Schmeiser grew canola for 40 years, saving his own seed and cultivating his own varieties. Nevertheless, when Monsanto tested 1,030 acres of Schmeiser’s crop, it found over 95% of it resistant to Roundup. Only GE canola seed is resistant to Roundup.

Schmeiser argued that he didn’t know how the GE plants ended up on his farm. He suggested that his crop became contaminated with the GE seed without his knowledge. Perhaps it arrived on his farm either from cross-pollination or spillage from a passing truck. Incidentally, about 80 percent of Canadian farmers are growing GE canola.

Monsanto argued, given the large amount of GE crop discovered, it was unlikely the seed arrived on Schmeiser’s farm by accident. The trial judge ruled for Monsanto and ordered Schmeiser to pay Monsanto $153,000 Canadian plus the profits from his 1998 canola crop, worth about $20,000 Canadian.

IV. The Specific Lesson from the Schmeiser Case

The Schmeiser case is unusual because it did go to trial. But, by going to trail, it gives us a glimpse of what might be expected in the courts.

The case pits two different areas of property rights against each other. On the one hand, landowners own what grows on their land regardless of how the plants arrive. On the other hand, patent holders have the right to prevent others from using patented products without appropriate licensure. When these two rights collide, as in the Schmeiser case, the patent holders’ right is superior unless the farmer can prove it should not be.

Schmeiser did not win because he knew (or at least should have known based on the evidence) that the GE crops were growing on his land. It did not matter that he derived no additional benefit from the GE crops. Once he knew the GE crops were on his land, he had a duty to notify the patent holder and take appropriate action.

V. Implications for the Future

Originally, legal experts thought that it would be the farmers growing GE crops who would face huge legal liabilities. If the GE crop ìescapedî onto neighboring land, then the farmer growing the GE crop could be held liable under such traditional legal theories as trespass to land, nuisance, negligence, or strict liability.

This writer knows of no current case in which a farmer has tried (let alone succeeded) in holding growers of GE crops liable for such crops when they “escape” onto neighboring farm land. Many organizations, such as the American Corn Growers Association, are trying to alert their members to the potential liability faced by farms growing GE crops.

Now the Schmeiser litigation points in a different direction. Once a GE crop ìescapes,î the landowner on whose land it arrives is facing the legal difficulties because of liability to the patent holder.

What we don’t know from the Schmeiser litigation is whether the case would have ended differently if the facts or the legal arguments were different.

For instance, let’s change two major facts. What if Schmeiser had (1) purchased his seed, certified to be non-GE, for the crop in question instead of saving seed, and (2) had never used Roundup elsewhere on his farm for weed control.

If the farmer purchased all the seed planted and this seed was non-GE, it is uncertain whether this difference alone would have changed the result. Certainly, even if GE plants were later found on his land, the farmer could prove that he didn’t plant them because he would have receipts for purchasing non-GE seed. Although Monsanto originally alleged that Schmeiser intentionally planted GE seed without purchasing it, Monsanto dropped these prior to trial. So buying non-GE seed may not be enough to avoid liability.

In the Schmeiser case, it was the fact that Schmeiser knew (or should have known) that the seed he saved was contaminated and then did nothing that resulted in his liability to the patent holder. Schmeiser did know that GE crops were growing on his land. Although he did not spray his crop with Roundup, he did use Roundup to kill weeds around fences and telephone poles. And he did notice that the Roundup did not kill the canola near such spraying. Once he “knew”, he had a duty to notify Monsanto and either remove the GE crop from his field (or presumably pay the licensing fee).

If the farmer bought his seed and never used Roundup, then the farmer would no reason to suspect or know that the seed was contaminated. These facts could make a difference. The appeals court specifically noted that the decision might be different if a farmer did not save seed and had no reason to suspect that a particular crop was contaminated with GE traits.

Schmeiser argued that because the GE crop appeared in his field without his intention, that Monsanto had waived its patent rights because it did not control the dispersal of the seed. The trial judge specifically rejected this argument, citing Monsanto’s efforts to protect its patent, and the lack of evidence proving that the GE seed was uncontrollable.

What if there were research showing that GE crops were really uncontrollable. If 80% of Canada’s canola crop is grown from GE seed, perhaps it is (or will be) impossible to grow non-GE canola within miles of such crops.

Will these cases end differently if farmers one day have this research?

Some farmers may be able to make different legal arguments. For instance, landowners have a right to prevent others from harming their land, or putting harmful things on their land, without their permission. Schmeiser did not consider his crop “contaminated” so as to reduce its value to him. He did not argue that the GE crop in some way polluted his land. Consequently, Schmeiser did not counter sue Monsanto for trespass to his land, for strict liability or bring any other tort actions against Monsanto. We don’t know what would have happened if the presence of GE traits destroyed the marketability of Schmeiser’s crop and he had sought damages from the patent holder (or a neighboring farmer) as a result. For instance what if Schmeiser had been an organic grower and the presence of a GE crop destroyed his organic certification?

The implications are indeed frightening. What if your neighbor is growing a GE crop? What if that crop ìcrossesî with one of yours through pollen drift? Or what if you grew a GE crop one year and then stopped. What happens to the seed that may shatter and fall to the ground during harvest? What happens to any seed that may lay dormant for a year or two and then germinates? When these seeds grow, then you are growing a GE crop without proper authority and may be liable for thousands of dollars in damages to the patent holder.

VI. Conclusion

Of course, the last word has not been written about this issue. The Schmeiser case is only one case ? with its own set of facts. If a farmers wants to grow GE crops, one way to be safe from patent-infringement liability is to buy and grow GE seed every year. What is unknown today, however, if whether this approach will expose these farmers to lawsuits from neighboring landowners if the GE crops “escape”.

It is less clear, however, what your options are if you are a farmer and you don’t want to grow GE crops, now or ever. Will it be possible for such farmers to protect their land and their crops? We are waiting for that answer.

June D. Zellers
12/18/02

Ms. Zellers is an organic gardener in central Maine, a member of the Maine Organic Farmers and Gardeners Association (MOFGA), and the Jefferson Food Co-op. She undertook this research as a volunteer for MOFGA.