Coexistence and Legal Coexistence and Legal LiabilityLiability

forfor

USDA-AC21USDA-AC21December 14, 2006December 14, 2006

Drew L. KershenDrew L. KershenEarl Sneed Centennial Professor of LawEarl Sneed Centennial Professor of Law

University of OklahomaUniversity of OklahomaCopyright 2006 Drew L. Kershen, all rights reservedCopyright 2006 Drew L. Kershen, all rights reserved

Adventitious PresenceAdventitious Presence

Unintended presence of something other than the Unintended presence of something other than the desired cropdesired crop Weed seeds, seeds from other crops, chemicals, dirt, dust, Weed seeds, seeds from other crops, chemicals, dirt, dust,

insects, foreign materials (e.g. plastic, wood)insects, foreign materials (e.g. plastic, wood) In context of chemicals, spray drift of pesticides, In context of chemicals, spray drift of pesticides,

herbicides, fumigants, and fertilizersherbicides, fumigants, and fertilizers In context of transgenic crops, presence of transgenic In context of transgenic crops, presence of transgenic

materials (seed, parts, pollen)materials (seed, parts, pollen) Historical and Wide-SpreadHistorical and Wide-Spread

Assoc. of American Pesticide Control Officials (AAPCO)Assoc. of American Pesticide Control Officials (AAPCO) Assoc. of Official Seed Certifying Agencies (AOSCA)Assoc. of Official Seed Certifying Agencies (AOSCA)

CoexistenceCoexistence

Three themesThree themes Good HusbandryGood Husbandry

Good agronomic practices; best management practicesGood agronomic practices; best management practices Appropriate technologyAppropriate technology Equipment – proper maintenance and useEquipment – proper maintenance and use

Neighborly cooperationNeighborly cooperation CommunicationCommunication Friendly attitude – understanding, toleranceFriendly attitude – understanding, tolerance Apology and prompt responseApology and prompt response

Farmer Choice: conventional, organic, or transgenicFarmer Choice: conventional, organic, or transgenic Coexistence issues are not unique to biotech cropsCoexistence issues are not unique to biotech crops

CoexistenceCoexistence

Spray Drift – 1999 AAPCO studySpray Drift – 1999 AAPCO study 1996-1998 1996-1998

7595 complaints7595 complaints 2518 regulatory/enforcement action2518 regulatory/enforcement action

Written warnings equals 57% of actionsWritten warnings equals 57% of actions Administrative Penalty equals 28.5% of actionsAdministrative Penalty equals 28.5% of actions Civil Penalty (court imposed) equals 2.1% of actionsCivil Penalty (court imposed) equals 2.1% of actions All other administrative actions equal 12.4% of actionsAll other administrative actions equal 12.4% of actions

Agriculture is largest source of complaintsAgriculture is largest source of complaints Miniscule number of neighbor v neighbor lawsuitsMiniscule number of neighbor v neighbor lawsuits

Since 1946, about 71 reported cases (i.e. published judicial Since 1946, about 71 reported cases (i.e. published judicial opinions) = 1.18 cases per year over the past 60 yearsopinions) = 1.18 cases per year over the past 60 years

CoexistenceCoexistence On-going non-biotech coexistence disputes On-going non-biotech coexistence disputes

California – seedless v seeded mandarin grovesCalifornia – seedless v seeded mandarin groves Oregon – brassica seed growers v canola growersOregon – brassica seed growers v canola growers

Recent spray drift caseRecent spray drift case Minnesota -- Foraging bees onto timberlandMinnesota -- Foraging bees onto timberland

Anderson v. State Dept. of Natural Resources, 693 N.W.2d 181 Anderson v. State Dept. of Natural Resources, 693 N.W.2d 181 (Minn. 2005)(Minn. 2005)

Klass, Bees, Trees, Preemption, and Nuisance: A New Path to Klass, Bees, Trees, Preemption, and Nuisance: A New Path to Resolving Pesticide Land Use Disputes, 32 Ecology L. Q. 763 Resolving Pesticide Land Use Disputes, 32 Ecology L. Q. 763 (2005)(2005)

Note, 39 Hamline L. Rev 338 (2006); Note, 32 Wm. Mitchell L. Note, 39 Hamline L. Rev 338 (2006); Note, 32 Wm. Mitchell L. Rev. 1489 (2006).Rev. 1489 (2006).

CoexistenceCoexistence Transgenic CropsTransgenic Crops

Pollen Drift depends on speciesPollen Drift depends on species Corn – 20-30 meters means AP below 0.9% EU labelCorn – 20-30 meters means AP below 0.9% EU label Corn – 50-60 meters means AP below EU proposed seed standards of Corn – 50-60 meters means AP below EU proposed seed standards of

either 0.3% or 0.5%either 0.3% or 0.5% Other crops similar – distance, buffer rows, offset plantingOther crops similar – distance, buffer rows, offset planting

As of July 2006, I know of only one lawsuit of farmer v farmer As of July 2006, I know of only one lawsuit of farmer v farmer (Germany, unsuccessful); none in US and Canada(Germany, unsuccessful); none in US and Canada

One successful lawsuit (StarLink) against the seed developer for an One successful lawsuit (StarLink) against the seed developer for an unapproved cropunapproved crop

Other lawsuits against seed developers have not been successful – Sample Other lawsuits against seed developers have not been successful – Sample v. Monsanto (U.S.); Hoffman v. Monsanto Canada (Can.) [on appeal]v. Monsanto (U.S.); Hoffman v. Monsanto Canada (Can.) [on appeal]

High compliance by farmers with management programs High compliance by farmers with management programs

Coexistence: ConclusionCoexistence: Conclusion

Zero tolerance is not achievable without a ban Zero tolerance is not achievable without a ban on chemical or transgenic agriculture.on chemical or transgenic agriculture.

By following reasonable agronomic practices, By following reasonable agronomic practices, conventional, organic, and transgenic conventional, organic, and transgenic agriculture can easily coexist.agriculture can easily coexist.

Stricter standards than those established by Stricter standards than those established by law should be contractual obligations law should be contractual obligations voluntarily accepted by farmer and processorvoluntarily accepted by farmer and processor

Legal Liability Issues:Legal Liability Issues:Markets and ExportsMarkets and Exports

Bayer Crop Science and LLRice601Bayer Crop Science and LLRice601 Geeridge Farm, Inc. and Kenneth Bell – class actionGeeridge Farm, Inc. and Kenneth Bell – class action

““Given the structure and operation of the U.S. grain production Given the structure and operation of the U.S. grain production and handling system, Bayer’s testing, growing, storing, and handling system, Bayer’s testing, growing, storing, transporting, and disposing of LLRice601 was improper.”transporting, and disposing of LLRice601 was improper.”

Pure Economic Loss (i.e. market fluctuation; loss of export Pure Economic Loss (i.e. market fluctuation; loss of export market)market)

Without physical damage, pure economic loss is not Without physical damage, pure economic loss is not compensable under American, Canadian, and most lawcompensable under American, Canadian, and most law

Damages too legally remote, indirect, speculative, and/or Damages too legally remote, indirect, speculative, and/or the result of stigma the result of stigma

LLRice601 is now an approved commodity in USLLRice601 is now an approved commodity in US

Legal Issues:Legal Issues:Organic Certification and Spray Organic Certification and Spray

DriftDrift Residue testing “when there is reason to Residue testing “when there is reason to

believe that … products … to be sold or believe that … products … to be sold or labeled as organically produced may have labeled as organically produced may have come into contact with prohibited substances come into contact with prohibited substances … The cost of such testing will be borne by … The cost of such testing will be borne by the applicable certifying agent and is the applicable certifying agent and is considered a cost of doing business.” NOP considered a cost of doing business.” NOP Final Rules at p. 311, Final Rules at p. 311, www.ams.usda/gov/nop/NOP/standardswww.ams.usda/gov/nop/NOP/standards

Legal Issues:Legal Issues:Organic Certification and Spray Organic Certification and Spray

DriftDrift ““[C]ommenters recommended that the NOP [C]ommenters recommended that the NOP

incorporate the National Organic Standards Board’s incorporate the National Organic Standards Board’s (NOSB) recommendation and current industry (NOSB) recommendation and current industry practice of using 5 percent of the EPA tolerances as a practice of using 5 percent of the EPA tolerances as a maximum level of pesticide residue on organic maximum level of pesticide residue on organic agricultural products. Commenters argued that using agricultural products. Commenters argued that using 5 percent of the EPA tolerance provides a sense of 5 percent of the EPA tolerance provides a sense of confidence to the consumers of organic agricultural confidence to the consumers of organic agricultural products.” NOP Final Rules at pp. 320, products.” NOP Final Rules at pp. 320, www.ams.usda/gov/nop/NOP/standardswww.ams.usda/gov/nop/NOP/standards

Legal Issues:Legal Issues:Organic Certification & Pollen DriftOrganic Certification & Pollen Drift

Adventitious presence does not affect organic Adventitious presence does not affect organic certification for organic farms or organic products.certification for organic farms or organic products.

NOP Final Rules at pp. 33-35, NOP Final Rules at pp. 33-35, www.ams.usda/gov/nop/NOP/standardswww.ams.usda/gov/nop/NOP/standards ““The presence of a detectable residue of a product of The presence of a detectable residue of a product of

excluded methods alone does not necessarily constitute a excluded methods alone does not necessarily constitute a violation of this regulation. As long as an organic violation of this regulation. As long as an organic operation has not used excluded methods and takes operation has not used excluded methods and takes reasonable steps to avoid contact with … excluded reasonable steps to avoid contact with … excluded methods … the unintentional presence of … excluded methods … the unintentional presence of … excluded methods should not affect the status of an organic product methods should not affect the status of an organic product or operation.”or operation.”

Legal Issues:Legal Issues:Organic certification and biotech Organic certification and biotech

cropscrops Organic Farming Research Foundation, 4Organic Farming Research Foundation, 4 thth National National

Organic Farmer’s Survey (2002)Organic Farmer’s Survey (2002) 92% (938 respondents) had no direct costs related to 92% (938 respondents) had no direct costs related to

transgenic cropstransgenic crops 4% had payments for testing seeds and inputs. Probably 4% had payments for testing seeds and inputs. Probably

not an additional cost because organic producers must take not an additional cost because organic producers must take precautions to assure the use of organic seed and inputs.precautions to assure the use of organic seed and inputs.

2% (19 respondents) reported positive tests for transgenic 2% (19 respondents) reported positive tests for transgenic materials – assuredly trace amountsmaterials – assuredly trace amounts

4% claimed some type of market loss – assuredly 4% claimed some type of market loss – assuredly voluntarily accepted contract risk through product voluntarily accepted contract risk through product specificationsspecifications

Law Suits and Legal Theories:Law Suits and Legal Theories:Likelihood of recoveryLikelihood of recovery

Adventitious Presence alone almost assuredly Adventitious Presence alone almost assuredly not a compensable claim – not a compensable claim – de minimisde minimis spray spray drift or commingling unavoidabledrift or commingling unavoidable

Must prove adverse effect (i.e. significant Must prove adverse effect (i.e. significant damages) – unlikely on most fact patternsdamages) – unlikely on most fact patterns Spray drift more likely to cause significant Spray drift more likely to cause significant

damages than transgenic cropsdamages than transgenic crops Must identify the responsible partyMust identify the responsible party

Law Suits and Legal Theories:Law Suits and Legal Theories:Likelihood of successLikelihood of success

Strict Liability – ultra-hazardous activityStrict Liability – ultra-hazardous activity Some states use strict liability for spray drift (aerial)Some states use strict liability for spray drift (aerial) Unlikely for approved transgenic cropsUnlikely for approved transgenic crops

Negligence – failure to use reasonable careNegligence – failure to use reasonable care Most states use negligence for spray driftMost states use negligence for spray drift Possible for transgenic cropsPossible for transgenic crops Not a new or different obligation for farmersNot a new or different obligation for farmers

Trespass – unlikely damage; pollen like bees?Trespass – unlikely damage; pollen like bees? NuisanceNuisance

Courts will insist on reasonable accommodationCourts will insist on reasonable accommodation Courts will not protect unique sensitivitiesCourts will not protect unique sensitivities

Legal Issues:Legal Issues:Contractual ObligationsContractual Obligations

Depending on the contract specifications, adventitious Depending on the contract specifications, adventitious presence can affect premiums and market access for both presence can affect premiums and market access for both conventional and organic producers.conventional and organic producers.

IFOAM guidelines on transgenic cropsIFOAM guidelines on transgenic crops ““Organic certification shall not imply it is a ‘GE-free’ certification. Organic certification shall not imply it is a ‘GE-free’ certification.

Rather it shall be presented as guaranteeing ‘production without Rather it shall be presented as guaranteeing ‘production without GE/GMOs’. As there is no guarantee that organic products are 100% GE/GMOs’. As there is no guarantee that organic products are 100% free … Organic producers and associations shall actively inform the free … Organic producers and associations shall actively inform the consumers of this fact to insure fair marketing claims and to avoid consumers of this fact to insure fair marketing claims and to avoid future debates about consumer deception.”future debates about consumer deception.”

Farmers must pay attention to their contractual obligationsFarmers must pay attention to their contractual obligations Farmers must know the contract specificationsFarmers must know the contract specifications Farmers should not make promises that they cannot controlFarmers should not make promises that they cannot control

ReferencesReferences D. Kershen & A. McHughen, Adventitious Presence: D. Kershen & A. McHughen, Adventitious Presence:

Inadvertent Commingling and Coexistence Among Farming Inadvertent Commingling and Coexistence Among Farming Methods, CAST Commentary QTA2005-1 (July 2005).Methods, CAST Commentary QTA2005-1 (July 2005).

W. Weber & T. Bringezu, Test of coexistence under German W. Weber & T. Bringezu, Test of coexistence under German field conditions – results from the “Erprobungsanblau” 2004 field conditions – results from the “Erprobungsanblau” 2004 with Bt-maize, Proc. 2nd Int’l Conf. on Co-Existence between with Bt-maize, Proc. 2nd Int’l Conf. on Co-Existence between GM and non-GM based agricultural supply chains 327, 329 GM and non-GM based agricultural supply chains 327, 329 (Montpellier, Nov 2005)(Montpellier, Nov 2005)

Davide Ederle, Agricultural Biotechnologist, Italy provided Davide Ederle, Agricultural Biotechnologist, Italy provided the photos of pollen flow between yellow corn and colored the photos of pollen flow between yellow corn and colored corn.corn.

ReferencesReferences

Anon, Co-existence at 20 meters claims study, Cedab Anon, Co-existence at 20 meters claims study, Cedab Agrobiotechnologie (Cremona, Italy, Jan. 27, 2006) Agrobiotechnologie (Cremona, Italy, Jan. 27, 2006) (press release about the Ederle et al. study)(press release about the Ederle et al. study)

International Federation of Organic Agricultural International Federation of Organic Agricultural Movements (IFOAM), Position on Genetic Movements (IFOAM), Position on Genetic Engineering and Genetically Modified Organisms Engineering and Genetically Modified Organisms (adopted by IFOAM World Board, Canada, May (adopted by IFOAM World Board, Canada, May 2002), 2002), www.ifoam.comwww.ifoam.com

ReferencesReferences R. Blomquist, Applying Pesticides: Towards R. Blomquist, Applying Pesticides: Towards

Reconceptualizing Liability to Neighbors for Crop, Livestock, Reconceptualizing Liability to Neighbors for Crop, Livestock, and Personal Damages from Agricultural Chemical Drift, 48 and Personal Damages from Agricultural Chemical Drift, 48 OKLA. L. Rev. 393-416 (1995)OKLA. L. Rev. 393-416 (1995)

D. Kershen, Legal Liability Issues in Agricultural D. Kershen, Legal Liability Issues in Agricultural Biotechnology, National AgLaw Center Publications, Biotechnology, National AgLaw Center Publications, http://www.nationalaglawcenter.org/assets/article_kershen_biohttp://www.nationalaglawcenter.org/assets/article_kershen_biotech.pdftech.pdf

S. Smyth & D. Kershen, Agricultural Biotechnology: Legal S. Smyth & D. Kershen, Agricultural Biotechnology: Legal Liability Regimes from Comparative and International Liability Regimes from Comparative and International Perspectives, Perspectives, Global Jurist AdvancesGlobal Jurist Advances, Vol. 6 (2006) No. 2, , Vol. 6 (2006) No. 2, Article 3, Article 3, http://www.bepress.com/gj/advances/vol6/iss2/art3http://www.bepress.com/gj/advances/vol6/iss2/art3

Thank you.Thank you.

I look forward to answering questions.I look forward to answering questions.

I will be available after adjournment for I will be available after adjournment for questions.questions.