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GENETIC DRIFT: THE SPREAD OF GMOS, WHY THEY MATTER, AND AN

OUTLINE FOR LIABILITY

‘Eating is an agricultural act,’ as Wendell Berry famously said. It

is also an ecological act, and a political act, too. Though much has

been done to obscure this simple fact, how and what we eat

determines to a great extent the use we make of the world - and

what is to become of it. To eat with a fuller consciousness of all

that is at stake might sound like a burden, but in practice few

things in life can afford quite as much satisfaction. Michael

Pollan, The Omnivore’s Dilemma

The works of authors such as Michael Pollan (In Defense of Food, The

Omnivore’s Dilemma, The Botany of Desire), Eric Schlosser (Fast Food

Nation), Rachel Carson (Silent Spring), and Upton Sinclair (The Jungle)

illustrate in very large-scale terms how what you do not know can, in fact,

hurt you. The other approach these authors share is their unveiling of eating

and foodways as complex issues informed not only by taste, but also by

political preference, ecology, tradition, and health.

In this paper, I will explore the world of GMOs and why they are a

meaningful issue. I will not argue that GMOs are bad and should disappear,

although I do think that they should give pause to decision-makers; rather, I

propose that we be allowed to make informed choices about what we use to

sustain our lives on a very basic level – the food we eat that fuels our

biological processes and our health. Section One gives a history of why

GMOs exist. Section Two will define what GMOs are and discuss their

advantages and disadvantages. Section Three will review the domestic and

international laws that govern GMOs and the interactions of those laws.

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Section Four will outline a theory of liability for GMO contamination based

on trespass.

I. History

Humans have been cultivating seeds since societies transitioned from

hunting and gathering to growing their own foods.1 Seed and plant diversity

thrived as they traveled and had to adapt to an ever-changing environment of

new pests, soil types, and weather conditions.2

Crop diversity has changed markedly in recent history, however.

Throughout history up until the 1970s, plant genetic resources3 were

considered “the common heritage of mankind” and were open and available to

everyone.4 In fact, public policy for most of the 19th century was focused on

ensuring open and unrestricted access to plant genetic resources.5

In the late 1800’s European countries took advantage of their colonial

powers by transporting plant genetic resources to Europe.6 Tobacco, cocoa,

quinine, sisal, rubber, bananas, tea, coffee, sugar, nutmeg clove, and indigo

were all appropriated from their native countries by European powers.7

Some countries attempted to prevent the appropriation of their native plant

1 KEITH AOKI, SEED WARS: CONTROVERSIES AND CASES ON PLANT GENETIC

RESOURCES AND INTELLECTUAL PROPERTY 9 (2008) [hereinafter SEED WARS]. 2 SEED WARS, supra note 1, at 9. Even today, plant breeders still call upon

this natural diversity to learn how to adapt a crop to a specific environment.

Id. 3 Seeds, or PGRs. SEED WARS, supra note 1, at 9. 4 Id. 5 Id. at 10. 6 Id. at 11-12. 7 Id. at 11.

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resources by prohibiting the export of plant germplasm, but they were

unsuccessful.8

The author of Seed Wars points out the irony that, “nations once

treated plant germplasm as a strategic resource waiting to be exploited freely

by any party who managed to appropriate a sample of that resource, given

that multinational corporations looking to national patent law today view

their patented seeds as legally protected from free appropriation.”9 Today,

corporations own patents on specific gene variations in plants and use the

patent to profit off of the plants’ genetic expression. The building blocks of

genetically modified plants are the plants (and their genetic makeup) honed

by nature, indigenous populations, and subsistence farmers to exhibit certain

characteristics that made the plants most viable in a specific environment.10

In the past, the free availability and exchange of seed were integral to this

progress. The contradiction between the past custom of free exchange and

time to develop plant genetics and the present one where profit can be made

and the use of seeds restricted spurs the idea that companies seeking to build

on the past successes of plant genetic development owe compensation to the

subsistence farmers and indigenous populations for evolving commodity crops

8 Id. at 12. Brazil, for example, held 95 percent of the world rubber trade in

the late 1800s and prohibited the export of rubber germplasm, but the British

smuggled it out anyway. Today, British and U.S. companies dominate the

rubber market. Id. 9 Id. at 12. 10 See SEED WARS, supra note 1, at 40.

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and creating the building blocks that today’s companies use to create

resistant plants.11

In the early years of the United States, the importation of plants was

necessary to the survival of the early Americans.12 Farmers saved the seeds

of the best plants from one season to the next.13 The continuous influx of

colonists brought more varieties and cross-pollination between varieties, over

time, provided even more genetic diversity.14 At the time, seed collecting was

the hobby of many upper class men, Thomas Jefferson included.15 They often

belonged to seed exchange societies that traded and distributed seeds among

geographic areas.16

The U.S. government soon became involved in seed collection. In 1819,

the U.S. Treasury directed officials traveling abroad to collect plant

germplasm and bring it back to the United States.17 By 1839, the U.S.

Patent Office had established a plant repository for the samples and by 1857

had established a garden specifically to “propagate and multiply seeds for

widespread public distribution.”18 In the 1840s, a government seed

11 “[Ninety] percent of all plant breeding has been done by nature itself and

9.9 percent by subsistence farmers and our Neolithic ancestors. Should

modern plant breeders doing 0.1 percent of the work reap all the credit and

the rewards?” SEED WARS, supra note 1, at 40. 12 Id. at 12 (quoting JACK KLOPPENBURG, FIRST THE SEED (1988, 2d ed. 2004). 13 SEED WARS, supra note 1, at 13. 14 SEED WARS, supra note 1, at 13. 15 SEED WARS, supra note 1, at 13. 16 SEED WARS, supra note 1, at 13. 17 SEED WARS, supra note 1, at 13. 18 SEED WARS, supra note 1, at 13.

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distribution program, aimed at establishing a broad and stable agricultural

base, distributed seed packets from the Patent Office’s seed supplies to

farmers free of charge.19 As such, American agriculture,

“is the product of thousands of experiments by thousands of farmers

committing millions of hours of labor in thousands of diverse ecological

niches over a period of many decades. Introductions might or might

not be successful, but in any case they had an opportunity to cross

naturally with land races, so that, even when they failed, they might

leave a legacy of genetic variability.”20

There was opposition, however, from the private seed industry.

Private industry argued that the gratuitous distribution of seeds should cease

because private industry could get new varieties to farmers faster than the

government distribution program and that the program was “antagonistic to

the seed as a commodity-form and in direct competition with the private seed

trade.”21 In 1924, Congress bowed to industry pressure and discontinued the

free seed distribution program.22

Private industry was hard at work creating hybrid varieties and

convincing Congress to protect their interests. They were using the work of

Gregor Mendel, an Augustinian monk in the mid-1800s who worked on pea

plants,23 to create high-yielding hybrids of commodity crops.24 This work

supplanted that of the USDA, which, since its creation in 1862 to take over

19 SEED WARS, supra note 1, at 14. 20 SEED WARS, supra note 1, at 14 (quoting Jack Kloppenburg, FIRST THE

SEED 56-7 (1988)). 21 SEED WARS, supra note 1, at 16. 22 SEED WARS, supra note 1, at 18. 23 Mendel is widely considered to be the “father of genetics.” 24 SEED WARS, supra note 1, at 16-18.

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the Patent Office’s Division of Agriculture, had been responsible for creating

and distributing new varieties of plants.25 The USDA had, however, failed to

make significant progress is developing higher-yielding varieties of

commodity crops, in large part because the USDA would not distribute a new

variety unless the variety was superior to existing varieties.26 High crop

yields, though always a measure of agricultural success, were seen as an

answer to world food shortages and a way to sustain population growth.27

The private sector changed the focus of plant breeding. Instead of

focusing on the cultivation of exotic varieties and determining which were

best suited to soil, pest, and weather conditions, they focused on creating

hybrids that combined the desirable characteristics of current varieties with

the desirable traits of exotic varieties.28 All private industry needed, after

eliminating their public competitor (the USDA), was legal protection.

II. What are GMOs?

25 SEED WARS, supra note 1, at 15. The Hatch Act of 1887 established and

funded a network of State Agricultural Experiment Stations (SAEs), which

collected, propagated, evaluated, selected, introduced, and distributed new

plant varieties. Id. 26 SEED WARS, supra note 1, at 16. 27 Greg Easterbrook, Forgotten Benefactor of Humanity, ATLANTIC MAGAZINE

(Jan. 1997), available at

http://www.theatlantic.com/magazine/archive/1997/01/forgotten-benefactor-

of-humanity/6101/. 28 SEED WARS, supra note 1, at 17.

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GMO is an acronym for “genetically modified organism.”29 In the

context of agriculture, a GMO is created when recombinant DNA technology

alters a plant’s DNA by inserting a foreign30 section of DNA.31 Once the new

gene has been inserted, the plant is called “transgenic” and the new genetic

trait can be inherited through standard pollination.32

These genetic enhancements are desirable in agricultural for several

reasons. One reason is the increase in genetic diversity this type of breeding

facilitates.33 Genetic engineering allows a scientist to borrow beneficial traits

from one species and add them to another species.34 Another reason is the

ability to create a plant that has the beneficial characteristics without the

risk of the plant also acquiring negative characteristics. Further, the modern

process of DNA manipulation in a lab reduces the time it would otherwise

take for nature to create new varieties of plants.35

29 GMO is most commonly used, but the terms “genetically engineered,”

“transgenic”, and “bioengineered” are arguably more accurate descriptions of

the process; in the context of this paper, I will use them interchangeably. 30 By “foreign” I mean that the inserted DNA sequence was not part of the

plant’s own genetic makeup before human intervention. 31 Transgenic Crops: An Introduction and Resource Guide,

http://cls.casa.colostae.edu/TransgenicCrops/faqpopup.html (last visited

March 3, 2012) [hereinafter Transgenic Crops]. The new genes can come from

the same or a different species of the same plant or a completely different

organism, such as a bacterium or an animal. Id. 32 Id. 33 Id. 34 Id. Scientists can also turn the expression of certain genes on and off. Id. 35 Id.

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In agriculture, GMOs were developed for the most widely36 used

commodity crops.37 In 2011, biotechnology varieties accounted for eighty-

eight percent of the corn, ninety percent of the cotton, and ninety-four

percent of the soybeans planted in the United States.38 These commodity

crops go on to become human consumables: Corn and soybeans are processed

into animal feed and food for human consumption, among other things; cotton

is made into clothing and household goods.39 For perspective, consider this:

You may not think you eat a lot of corn and soybeans, but you do: 75

percent of the vegetable oils in your diet come from soy (representing

20 percent of your daily calories) and more than half of the sweeteners

you consume come from corn (representing around 10 percent of daily

calories).40

In addition, other, less processed foods made from these commodity crops are

also affected; whole corn, corn flour, whole soybeans, tofu, and soy protein are

used extensively in the consumer food market. Though the use of GMOs in

commodity crops may seem far removed from the average American’s

36 From a pessimistic view, “widely-used” is interchangeable with

“government-subsidized.” 37 “With the rise of industrial agriculture, vast monocultures of a tiny group

of plants, most of them cereal grains, have replaced the diversified farms that

used to feed us . . . . The simplification of the agricultural landscape leads

directly to the simplification of the diet, which is now to a remarkable extent

dominated by . . . corn and soybeans.” MICHAEL POLLAN, IN DEFENSE OF FOOD,

116 (2008). 38 National Agricultural Statistics Service, USDA, Acreage 25-7 (2011),

http://usda01.library.cornell.edu/usda/current/Acre/Acre-06-30-2011.pdf (last

visited March 3, 2012). 39 See generally, How Soybeans are Used, NORTH CAROLINA SOYBEAN

PRODUCERS ASSOCIATION, INC. (Apr. 4, 2012), http://www.ncsoy.org/ABOUT-

SOYBEANS/Uses-of-Soybeans.aspx; Products Made From Corn, CORN

REFINERS ASSOCIATION (Apr. 4, 2012), http://www.corn.org/products/. 40 MICHAEL POLLAN, IN DEFENSE OF FOOD 116-7 (2008).

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everyday life, they are in fact, something the average American encounters

several times on a daily basis.

A. Why Use GMOs?

GMOs are arguably the biggest agricultural innovation of the 20th

century.41 Their development allows scientists to breed more plant varieties

than nature would otherwise allow.42 The process of genetic engineering in a

laboratory also expedites the process of plant breeding and trait expression;

essentially, it speeds up the evolution process.43

GMOs were originally developed to feed the world. The goal was to

increase crop yields to increase the food supply. GMOs accomplish this by

making varieties of crops that are, most commonly, tolerant of herbicides,

and insecticides and resistant to disease.44 When a crop is tolerant of an

herbicide, the farmer can spray the specific herbicide to which the crop is

tolerant indiscriminately on crops and weeds with the knowledge that the

crop will be unaffected by the chemicals that will kill the undesirable

41 Challenged only by mechanized farming. See Carolyn Dimitri, Anne

Effland & Neilson Conklon, The 20th Century Transformation of U.S.

Agriculture and Farm Policy, USDA Economic Information Bulletin 6 (June

2005). 42 Transgenic Crops, supra note 31. This is true largely due to the ability of a

scientist to use species traits from outside the resource pool available to a

plant in nature. See note 31. 43 Transgenic Crops, supra note 31. 44 Transgenic Crops, supra note 31.

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weeds.45 A GMO plant thus stands a much better chance of survival than

nature would otherwise give it, which increases crop yields.46

So important to our expanding world, work on GMO development has

been highly lauded. Norman Borlaug received the Nobel Peace Prize in 1970

for his work on creating high-yielding, disease-resistant varieties of wheat.47

He genetically modified wheat seeds to yield more wheat per acre than non-

GMO wheat. Borlaug’s goal was to “feed the hungry people of the world.”48

Indeed, the product of his work – high-yielding wheat – is planted and

harvested all over the world.49

The advent of GMOs has also made mechanized farming possible.

Genetically uniform crops were much more convenient for machines to

harvest than genetically varied crops.50 A field of genetically diverse crops

bore fruit at different places and ripened on different schedules.51

Genetically uniform crops, on the other hand, allowed for efficient

mechanization of farming, which was also necessitated by the world’s

growing population.52

B. What are the negative attributes of GMOs?

45 Id. 46 Up to four-fifths of cultivated crops succumb to crop viruses. SEED WARS,

supra note 1, at 10 n.4. 47 Norman Borlaug Biography, The Nobel Foundation (1970),

http://www.nobelprize.org/nobel_prizes/peace/laureates/1970/borlaug-bio.html. 48 Id. 49 Id. 50 SEED WARS, supra note 1, at 5 n.12. 51 Id. 52 Id.

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Despite the advances in crop genetic engineering, GMOs have not been

the curtailed world hunger on the scale Borlaug had hoped for. GMOs have

environmental, health, and economic impacts that require consideration; as

with any large-scale intervention in a core aspect of societal function, the

issue is multi-faceted and the consequences far-reaching.

Human interference with nature does not always have positive

consequences. We have seen it happen again and again when, for example, a

well-meaning government introduces a non-native species to its lands,

resulting in unintended environmental consequences. We have seen this

with the Asian Beetle, Zebra Mussels, and, most recently, Asian Carp. With

no natural predators, these species have become problems that outweigh

their intended benefits.53 GMOs are much like a non-native species – they

have known benefits (or they would not have been developed or introduced),

but their consequences are largely unknown.

GMOs have human health implications. Beyond the fact that what we

eat affects our health, modern science is still somewhat vague on the issue.

We know, for instance, that we need to eat to live, but beyond that there is

controversy. The Atkins Diet would have us believe that we don’t need many

53 See generally, Invasive Species, EPA,

http://water.epa.gov/type/oceb/habitat/invasive_species_index.cfm. See also,

The Multicolored Asian Lady Beetle, USDA,

http://www.ars.usda.gov/is/br/lbeetle/; Asian Carp, Asian Carp Regional

Coordinating Committee, http://www.asiancarp.us/documents/AsianCarp-

TheProblem.pdf; Invasive Species – Great Lakes, EPA,

http://www.epa.gov/glnpo/invasive/index.html#Animal_Species.

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plant sources of food, while a vegan diet eschews all animal products and

says humans survive best on plants alone.

The mechanisms for how food works in our bodies are still largely

unknown. We have identified three macronutrients (carbohydrates, protein,

and fats), several micronutrients (such as iron, vitamin a, and iodine), and

caloric values present in specific foods. There has been a concurrent

emphasis on ideal proportions of these nutrients in the human diet and the

isolation and addition of individual nutrients to foods: These additions

attempt to make it easier for consumers to consume and receive the benefits

of the specific nutrients. Yet, when specific nutrients are isolated and

consumed, the vitamins fail to produce the same health effects as when

nutrients are consumed as part of a whole food.54 In the development of

GMOs, the nutrient value of the resulting food is not taken in to account –

only disease and pest resistance, yields, and a seed’s ability to reproduce

matter.55 The effect that GMOs have on the nutrient density of food does not

concern their manufacturers, nor are GMO developers required to explore the

issue to introduce their products in to the human food supply.56

54 Supplements: Nutrition in a Pill?, MayoClinic.com (last visited March 9,

2012), http://www.mayoclinic.com/health/supplements/NU00198. 55 Biotechnology, Sidebar: Biotechnology Facts, MONSANTO,

http://www.monsanto.com/products/Pages/biotechnology.aspx (last visited

March 9, 2012). Only traits that allow farmers to “increase their productivity

and maximize profits” matter. Id. 56 See Alison Peck, Leveling the Playing Field in GMO Risk Assessment:

Importers, Exporters and the Limits of Science, 28 B.U. INT’L L.J. 241, § 3

(2010). “Genetically engineered foods pose no special risk to consumers

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A second concern is the environmental impact of GMOs. Again, their

impact is largely unknown. As Monsanto acknowledges, GMOs have been

available for consumer consumption for only ten years,57 making them a

relatively recent addition to the ecosystem.58 As such, no knowledge of the

long-term effects on the environment exists. Environmental experts express

concern that GMOs will themselves become pests (akin to the non-native

species mentioned infra) or could be toxic to insects or create resistant

insects.59

A third concern is that of organic and conventional farmers and

consumers. For those who wish to avoid eating GMOs for whatever the

reason, the very nature of plants makes it difficult to know if one is truly

avoiding GMOs in food. Plant pollen can drift several miles when carried by

the wind.60 This cross-pollination that can occur when the pollen of GMO

simply because they are produced by a new process.” Diahanna Lynch &

David Vogel, The Regulation of GMOs in Europe and the United States,

Council on Foreign Relations (April 5, 2001), available at

http://www.cfr.org/genetically-modified-organisms/regulation-gmos-europe-

united-states-case-study-contemporary-european-regulatory-politics/p8688.

See also, infra § II. 57 MONSANTO, Biotechnology, supra note 55. 58 See infra § 1. 59 Stephanie E. Cox, Genetically Modified Organisms: Who Should Pay the

Price for Pollen Drift Contamination?, 13 DRAKE J. AGRIC. L. 401, 404 (2008).

A study from Cornell University found that pollen from corn that had been

genetically modified to produce the Bacillus thuringiensis (Bt) toxin is fatal to

monarch butterflies. Bryan Endres, “GMO:” Genetically Modified Organism

or Gigantic Monetary Obligation? The Liability Schemes for GMO Damage in

the United States and the European Union, 22 LOY. L.A. INT’L & COMP. L. REV.

453, 454 (2000). 60 Cox, supra note 59, at 405.

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crops mixes with conventional and organic crops affects the genetic purity of

the conventional and organic crop genes.61

A fourth concern is a drop in plant genetic diversity. Conventional

agriculture and plant genetic resources developed over centuries,62 resulting

in a vast array of plant varieties with an almost infinite amount of attributes.

The stronger GMO plants could eliminate native species (again, akin to the

non-native species mentioned infra) and reduce genetic diversity.63 GMOs

reduce genetic diversity by replacing the planting of many different crops (i.e.,

wheat, maize, millets, and oil seeds) with only wheat and rice from

monocultures derived from a very narrow genetic base.64 History tells us that

homogenous genetics are a large risk to take with a nation’s food supply.65

61 Id. 62 See infra § I. 63 Cox, supra note 59, at 404. “Even single genes can diminish genetic

diversity.” Id. See also, Pauline Askin, Alien Invasion a Threat to Antarctic

Ecosystem, Reuters (March 6, 2012), available at

http://news.yahoo.com/alien-invasion-threat-antarctic-ecosystem-

030858080.html (last visited March 11, 2012). 64 SEED WARS, supra note 1, n.81 at 23. Fewer crops are used because of

market pressures – food company preferences, government marketing orders

for specific kinds of fruits and vegetables, and the derivation of plants from

similar strands. JACK DOYLE, ALTERED HARVEST: AGRICULTURE, GENETICS,

AND THE FATE OF THE WORLD’S FOOD SUPPLY 15 (1985); SEED WARS, supra

note 1, at 23. Seed companies started with the base of genes that produced

plants with desirable characteristic (i.e., high-yielding) and developed new

plants with enhanced characteristics (i.e., even higher yields). See CARY

FOWLER & PAT R. MOONEY, SHATTERING: FOOD, POLITICS AND THE LOSS OF

GENETIC DIVERSITY 56 (1990). 65 The Irish potato famine was caused by potato blight. FOWLER, supra note

64 at 45. All of the potatoes in Ireland were descended from one line that had

no resistance to the blight. Id. In the United States in the 1970s the

Southern Corn Leaf Blight was the result of a man-made change to corn

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The increased chemical inputs required by GMOs also affect the ecosystem

and is an environmental concern.66

There are many facets to the debate about GMOs. Next, we will look

at the regulatory scheme that governs GMOs in two different societies: the

United States and the European Union.

III. Governing Law

The safety and consumption of GMOs are by no means a settled issue

in the United States or in the rest of the world. A conflict exists between the

United States and the European Union about the use and regulation of

GMOs.67

A. United States

In the United States, the regulation of GMOs is split between the

Environmental Protection Agency (EPA), the Food and Drug Administration

(FDA), and the United States Department of Agriculture (USDA). The EPA

plants that made the corn high yielding but vulnerable to fungus. DOYLE,

supra note 64, at 13. One billion bushels of corn were lost. SEED WARS,

supra note 1, at 24. “Whatever made one plant susceptible made them all

susceptible.” Id. at 15 (quoting NATIONAL ACADEMY OF SCIENCES, GENETIC

VULNERABILITY OF MAJOR CROPS (1972). 66 “High-input farming techniques . . . [brought] with them their expensive

fertilizers, pesticides, herbicides, and other high-input chemical

interventions. . . .[,] causing widespread environmental degradation due to

extensive agrichemical runoff, with disastrous effects on the preservation of

plant genetic diversity worldwide.” SEED WARS, supra note 1, at 23. “The

increased use of pesticides specifically is significant. Of the 2.5 million tons

of pesticides applied annually worldwide, only 0.3 percent reaches its

intended target. All the remaining tonnage enters the environment as runoff,

seepage into groundwater, volatilization into the air, intake by plants and

soil organisms, or retention in the soil. Id. at n.81. 67 See Lynch, supra note 56.

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oversees pesticidal68 plants and genetically engineered microbial pesticides,

the FDA regulates biotechnology-derived medical products, and the USDA is

responsible for transgenic plants.69 The regulatory framework for GMOs is

rooted in the assumption that biotechnology is not inherently risky and so

can be adequately regulated under existing statutes and existing Federal

agencies without need for legislation specific to GMOs.70 Within this

framework of government agencies, there are several laws that regulate

GMOs.

The EPA’s authority for agricultural uses of GMOs derives from two

federal regulations: The Federal Insecticide, Fungicide, and Rodenticide Act

(FIFRA)71 and the Federal Food, Drug, and Cosmetics Act (FFDCA).72 The

FIFRA applies to pesticides and plants with pesticide-like properties,73 while

the FFDCA applies to pesticide residues in food, which may include food

made from plants with pesticide properties.74 The FIFRA requires pesticides

68 Pesticidal plants have pesticide-like properties that make them harmful to

bugs and insects. 69 Id. 70 MARK A. POLLACK & GREGORY C. SHAFFER, WHEN COOPERATION FAILS: THE

INTERNATIONAL LAW AND POLITICS OF GENETICALLY MODIFIED FOODS 10

(2009). 71 Federal Insecticide, Fungicide, and Rodenticide Act § 6, 7 U.S.C. §§ 136–

136y (2006). 72 Federal Food, Drug, and Cosmetics Act § 9, 21 U.S.C. §§ 301–399d (2009). 73 7 U.S.C. § 136u (2006). See Endres, supra note 59, at 480. 74 21 U.S.C. § 342(a)(2)(B) (2006). See Endres, supra note 59, at 480.

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to be registered with the EPA and requires that a permit be obtained prior to

field testing.75

Under the FFDCA, the FDA must approve all ingredients added to

food, unless the food additive is “generally recognized as safe” (GRAS) by

experts.76 In 1992, the FDA began a policy that presumed most GM products

to be GRAS, excluding most GM products from review as food additives.77

The presumption of GRAS status was novel – the FDA had never before

issued a presumption of GRAS status for new hybrids or other new food

products created using traditional breeding methods.78 In the past, the FDA

had expressly warned food companies against assuming an ingredient was

GRAS simply because it may be present in food in other forms or in other

countries.79 The FDA’s authority is limited to the marketing aspects of

GMOs, but there is currently no labeling requirement for GMOs.80

The USDA regulates GMOs in agricultural research under the Plant

Protection Act (PPA) and the Animal and Plant Health Inspection Service

75 7 U.S.C. §§ 136a, 136c (2006). 76 21 U.S.C. § 342(a)(1) (2006). See Peck, Leveling the Playing Field, supra

note 56, at 252. 77 Statement of Policy: Foods Derived from New Plant Varieties, 57 Fed. Reg.

22984(V)(C) (May 29, 1992). “When the substance present in the food is one

that is already present at generally comparable or greater levels in currently

consumed foods, there is unlikely to be a safety question sufficient to call into

question the presumed GRAS status of such naturally occurring substances

and thus warrant formal premarket review and approval by the FDA.” Id. 78 Id. 79 Emily Marden, Risk and Regulation: U.S. Regulatory Policy on Genetically

Modified Food and Agriculture, 44 B.C. L. REV. 733, 749 (2003). 80 Endres, supra note 59, at 480.

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(APHIS).81 The PPA is rooted in several Congressional findings, including

that “the detection, control, eradication, suppression, prevention, or

retardation of the spread of plant pests or noxious weeds is necessary for the

protection of the agriculture, environment, and economy of the United

States.”82 The PPA requires a permit for the import, export, or interstate

movement of any plant pest, plant product, plant, biological control organism,

or noxious weed.83 The PPA also allows for a person to petition to add or

remove a covered plant or organism from regulation.84 APHIS is the agency

of the USDA responsible for any regulating or de-regulating.

In addition to oversight as a food product, GMOs are also subject to

patent law. In contrast to food laws, patent law serves to protect GMOs

instead of potentially limiting their use. The Supreme Court decision in

Diamond v. Chakrabarty opened the door for the lawful patenting of genetic

material.85 Earlier decisions had struck down the idea under the “products of

nature” doctrine, which held that discoveries of natural phenomena were not

patentable.86 Diamond distinguished “products of nature” by categorizing

81 Plant Protection Act § 104, 7 U.S.C. § 7701-7786 (2000). See Endres, supra

note 59, at 481. 82 7 USC § 7701(1). 83 7 USC § 7712(c)(1). 84 7 USC § 7712(f)(2), (g)(2). 85 Diamond v. Chakrabarty, 447 U.S. 303 (1980); Christopher J. Betti,

Diagnostic Genetic Technologies Left Stranded on First Base: A Need to

Unwind the Protection Afforded Gene Patents, 17 DCBA BRIEF 22 (Apr. 2005). 86 Along the same lines as the “common heritage of man” doctrine. Infra § I.

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genetically modified organisms as “new manufacture or composition” under

the Patent Act.87

Patent protections include the right to project against the

unauthorized use of the patented material. As such, the owners of GMO

patents license the use of their genetically modified seed to farmers for one

growing season at a time.88 Furthermore, the patent-holder retains

ownership of the gene material (the seed) and the right to sue infringers for

unauthorized use.89

The laws in the United States that govern the use of GMOs do not

differ greatly from those that regulate conventional foodstuffs. The United

States’ view that GMOs do not warrant oversight beyond that required over

nature-evolved food is unique in international law.

B. European Union

The European Union (EU) has taken a drastically different approach

to regulating GMOs than has the United States. Instead of regulatory

87 Betti, supra note 85, at 23. A “new manufacture or composition” is the

creation of an organism with characteristics not found in nature. Id. 88 See, e.x., Monsanto Grower Agreement (2010), available at

http://www.doeblers.com/08/2010%20Monsanto%20Technology%20Stewardsh

ip%20Agreement%20-%20Downloadable%20version.pdf (last visited March

11, 2012). “Grower may not plant or transfer to others for planting any Seed

that that the Grower has produced containing patented Monsanto

Technologies for crop breeding, research, or generation of herbicide

registration data.” Id. 89 Under the “Grower Receives from Monsanto Company” section: “Monsanto

retains ownership of the Monsanto Technologies including the genes (for

example, the Roundup Ready® gene) and the gene technologies. Grower

receives the right to use the Monsanto Technologies subject to the conditions

specified in this Agreement.” Id.

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agencies, such as the United States’ FDA, oversight of biotechnology in the

EU is through political avenues such as the European Parliament.90 The EU

has taken a much stricter and more precautionary approach to GMO

legislation.91 The EU approach embodies the idea that unless it’s proven safe,

it’s not safe.92 All GM crops are subject to special authorization procedures

and are then subject to strict labeling laws.93 The approval of new GM

varieties in Europe is a much more involved process with more officials and

more and stricter risk assessments.94 As a result, it takes much longer to

approve new GM varieties in Europe than it does in the United States.95

Once approved on the EU level, GMOs are not in the clear. GMOs can

still be banned by a member state of the EU and are subject to labeling laws

that require consumer notification of the GMO status of food.96 The final

hurdle for GMOs in the EU is public sentiment. Consumers in Europe are

largely reluctant to consume GMOs and so retailers are less receptive to

carrying products containing GMOs in their stores.97

90 POLLACK, supra note 70, at 10. 91 Id. 92 In contrast to the U.S. approach that unless it’s proven unsafe it’s

considered safe. 93 POLLACK, supra note 70, at 10-11. 94 Id. 95 Id. at 11. 96 Id. 97 Id. at 11, 13.

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The Directorate General on the Environment, Consumer Protection,

and Nuclear Safety (DG XI) is the applicable authority for GMO regulation.98

Based on the precautionary guidance offered by DG XI, the European Council

passed Directive 90/220/EEC on the Deliberate Release of Genetically

Modified Organisms.99 The directive required the applicant who wished to

conduct GMO field tests to submit an environmental risk assessment to the

country where the testing was to occur and then to apply to each member

state separately for permission to market the products within their

borders.100 The EU member states have the right to restrict or prohibit the

sale or marketing of a product within their borders, even if approved on the

EU level, if the member has a “justifiable reason” that the product poses “a

risk to human or the environment.”101

The EU’s regulation of GMOs mirrors EU members’ qualms about

GMOs. The objectives of the legislation, to protect health and the

environment, represent the main consumer concerns about GMOs.102 An

98 Lynch, supra note 56. 99 Id. 100 Id. 101 Id. See also, Press Release, GMOs: Member States to be given full

responsibility on cultivation in their territories, EUROPEAN COMMISSION,

HEALTH AND CONSUMERS (July 13, 2010),

http://europa.eu/rapid/pressReleasesAction.do?reference=IP/10/921&format=

HTML&aged=0&language=EN&guiLanguage=en (last visited March 12,

2011). 102 Press Release, Questions and answers on the evaluation of the European

Union's GMO legislation, EUROPEAN COMMISSION, HEALTH AND CONSUMERS

(October 28, 2011),

http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/11/742&for

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evaluation of EU regulation of GMOs103 found that improved implementation

is a growth area, but did not encourage changing the legislation.104 The EU

has taken a much more precautionary, process-based approach to GMO

legislation and approval; whereas the United States has adopted a GRAS

policy for GMOs, the EU has maintained a strict approval process. The

contrast between EU policy and United States policy is significant for the

United States because EU policy limits EU imports of GM foods and crops.

III. Liability

A. Current Theories of GMO Liability

As it stands now, liability for damage due to GMOs in the United

States falls under one of several categories, depending on the identity of the

damaged party. If you are a farmer who does not want GMOs growing in

your field, you can sue your neighbor the GMO grower for a property-related

claim grounded in nuisance, strict liability, or trespass.105 If you are a GMO

manufacturer, you can file a claim against a farmer for using your patent-

protected GMO without your permission.

mat=HTML&aged=0&language=EN&guiLanguage=en (last visited Mar. 12,

2012). 103 Evaluation of the EU legislative framework in the field of food and feed

(July 12, 2010), available at

http://ec.europa.eu/food/food/biotechnology/evaluation/docs/evaluation_gm_re

port_en.pdf (last visited Apr. 5, 2012); Evaluation of the EU legislative

framework in the field of cultivation of GMOs (March 15, 2011), available at

http://ec.europa.eu/food/food/biotechnology/evaluation/docs/gmo_cultivation_r

eport_en.pdf (last visited Apr. 5, 2012). 104 Food and Feed, supra note 103. See Questions, supra note 102. 105 Cox, supra note 59, at 409.

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For the farmer plaintiff damaged by GMO presence in his fields, this is

not a good arrangement. For a nuisance claim, the farmer generally would

have to prove that the GMO invaded the farmer’s interest in the reasonable

use and enjoyment of the farmer’s land.106 In Minnesota, however, as in

many other states, agricultural operations are generally protected against

nuisance claims as long as the agricultural operation complies with all

applicable laws, has existed for at least a specific length of time, usually one

or two years, and operates according to generally accepted agricultural

practices.107

Strict liability is holds the producer of a product liable for any damage

the product does regardless of intent. Strict liability is generally reserved for

“abnormally dangerous activit[ies] . . . although [the actor] has exercised the

utmost care to prevent the harm.”108 In order for an activity to be

“abnormally dangerous,” there are several factors to consider, including the

likelihood and degree of harm, the ability to eliminate the risk using

reasonable care, and the extent to which the activity is commonly used.109

106 Id. 107 MINN. STAT. 561.19 (2011). A significant alteration of the agricultural

operation can reset the established date of operation, but the adoption of a

new technology or a change in the crop product produced (i.e., GMOs) does

not qualify as a significant alteration. Id. See, e.g., MISS. CODE ANN. § 95-3-

29 (West 2011); IND. CODE ANN. § 32-30-6-9 (West 2011); N.C. GEN. STAT. ANN.

§ 106-701 (West 2011); CAL. CIVIL CODE § 3482.5 (West 2011); GA. CODE ANN.

§ 41-1-7 (West 2011); COLO. REV. STAT. ANN. § 35-3.5-102 (West 2011). 108 RESTATEMENT (SECOND) OF TORTS § 519 (2012). 109 RESTATEMENT (SECOND) OF TORTS § 520 (2012). There are six factors as

follows: (a) existence of a high degree of risk of some harm to the person, land

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The farmer would have to argue that the activity of planting GMOs is

abnormally dangerous and the argument is likely to fail on the first two

factors, degree of risk and likelihood of harm.110 The liability would fall to

the person that engages in the dangerous activity, namely, the neighboring

farmer.

Trespass is the third liability theory for a farmer who has had GMO

pollen drift onto his field. In Minnesota, trespass stands as a viable avenue

for recovery. The recent case of Johnson v. Paynesville Farmers Union

Cooperative Oil Company holds that pesticide drift can constitute a

trespass.111 In differentiating pesticide drift from wafting odors, the court

explained that, “while wafting odors will not affect the composition of the

land, a liquid pesticide or herbicide being sprayed for agricultural purposes

will; by design, it descends and clings to soil or plants, killing organisms.”112

While this issue awaits a final determination by the Minnesota Supreme

Court, the Minnesota Court of Appeals held that damages could accrue from

or chattels of others; (b) likelihood that the harm that results from it will be

great; (c) inability to eliminate the risk by the exercise of reasonable care; (d)

extent to which the activity is not a matter of common usage; (e)

inappropriateness of the activity to the place where it is carried on; and (f)

extent to which its value to the community is outweighed by its dangerous

attributes. Id. 110 Roger A. McEowen, Legal Issues Related to the Use and Ownership of

Genetically Modified Organisms, 43 WASHBURN L.J. 611, 624-5 (2004). 111 Johnson v. Paynesville Farmers Union Cooperative Oil Company, 802

N.W.2d 383 (Minn. 2011). 112 Id. at 388.

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pesticide drift.113 In Johnson, the Johnson farm’s organic certification was

put at risk and the Johnson’s incurred costs to attempt to eliminate the

offending presence of the pesticide, including affects on their crop rotation,

removing some fields from production, and destruction of crops.114

The privileges the GMO patent holders enjoy due to patent protections

are perhaps the biggest threat to the non-GMO farmer. The patent holder

holds the right to enforce their exclusive right to control their proprietary

product by suing anyone who uses the product without the patent-holder’s

permission.115 The non-GMO farmer is usually only liable if the farmer

grows the GMO crop, but the alternative to growing it (even when it’s

presence is due to drift and it was not initially deliberately planted by the

non-GMO farmer) is to dig up the field or take it out of production for a

period of time sufficient to allow the patented plant to not intermingle with

the non-GMO plants.116

Monsanto brought a successful suit against a conventional farmer in

Canada for patent infringement.117 Percy Schmeiser harvested his crops and

saved his seed, as he had always done, but his crops were contaminated with

113 Id. at 391. 114 Id. 115 See infra § III(A); Kanchana Kariyawasam, Legal Liability, Intellectual

Property and Genetically Modified Crops: Their Impact on World Agriculture,

19 PAC. RIM L. & POL’Y J. 459 (2010). 116 See SEED WARS, supra note 1, at 39. 117 Schmeiser v. Monsanto, [2002] F.C. 309 (Can.), available at

http://reports.fja.gc.ca/eng/2003/2002fca309.html (last visited Apr. 5, 2012);

Kariyawasam, supra note 115.

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pollen from a Monsanto-patented GMO canola.118 He re-planted his saved

seed the next season, consistent with normal farming practice.119 Schmeiser

grew suspicious of the presence of GMOs when he sprayed Roundup along the

roadway and a large number of canola plants survived.120 Schmeiser’s canola

crop subsequently tested positive for the “Monsanto gene” that made the

canola resistant to glyphosate (Roundup).121 The court held that the farmer’s

awareness of the presence of the GMO seed is irrelevant to the question of

patent infringement – Schmeiser knew or ought to have known of the

possibility that his crops were contaminated with GMO canola seed and

Schmeiser was found guilty of patent infringement.122 Though Scheimser

did not want Monsanto’s seed in his field, did not use Roundup on his canola

crop,123 and did not benefit from the glyphosate resistance, the mere presence

of the patented gene in his crop was enough for liability to attach.124

It is a lengthy and costly process for a farmer to remove GMO seed

from a field; even more so in the case of an organic farmer. In order to

Kariyawasam points out the disequilibrium of the broad patent protections

118 Schmeiser, F.C. 309 (2002). 119 Id. 120 Id. 121 Id. 122 Id. 123 He only used Roundup to kill plants and weeds along the roadway. Id. 124 In fact, the invasion of the patented seeds ruined Schmeiser’s work in

developing his own strain of canola by saving his seeds every year. Stephanie

M. Bernhardt, High Plains Drifting: Wind-Blown Seeds and the Intellectual

Property Implications of the GMO Revolution, 4 NW. J. TECH. & INTELL. PROP.

1, ¶ 11 (2005).

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extended to GMOs without the accompanying liability for the harms GMOs

cause.125

B. Proposal for GMO Manufacturer Liability

GMOs raise complicated and unsettled issues in the United States.

Some sectors and people have embraced the new technology and point to

short-term use and evidence of their suitability for continued use. Others

take more of a cautionary approach and would like to see more evidence of

safety or harm before jumping in with both feet. We should approach GMOs

with caution. We need to be able to feed the world, but we also “need to

reorient our regulation from a reactionary to a precautionary posture.”126

Our foodways would be much safer if “proof of safety” requirements were

more common than “proof of harm” requirements.127 As such, we need more

legislation limiting GMOs. GMOs need not be eliminated – they could be

promising and have some distinct advantages – but the only or best hope for

the future is not dependence on the large agricultural companies who hold

the patents to GMOs.

In Minnesota, the theory of trespass remains a means of legal redress

for damages caused by GMOs.128 GMO damages parallel the damages the

Johnson’s allege in Johnson, namely, crop loss, farm planning, removing

125 Kariyawasam, supra note 115, at 471-2. 126 Jeffrey A. Hank, Chemicals and Toxins in Consumer Goods, 89-SEP MICH.

B.J. 33, 35 (Sept. 2010). 127 See id. at 35. 128 See infra § III(A); Johnson v. Paynesville Farmers Union Cooperative Oil

Company, 802 N.W.2d 383 (Minn. 2011).

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fields from production, and loss of price on crops.129 The Johnson’s, like many

who would suffer damages from GMOs, are organic farmers and damages

such as loss of price are specific to loss of the premium price organic food

commands in the marketplace and potential loss of organic certification.130

Damages can also lie with conventional farms, not just with organic. If the

farmer does not want GMO plants and has them in his field, he is harmed at

least by the time and effort required to remove the GMOs from his fields and

at the most by loss of value; he would not be able to export his crops to

Europe or Japan, for example, nor sell them as non-GMO. In order to remove

GMO seeds from a field, the soil has to be replaced, which an expensive

undertaking.131

Limiting the spread of GMOs is also a challenge. It may be impossible,

however, to eliminate contamination completely in areas where both

conventional and GMO plants are grown in relatively close proximity. Buffer

zones are a common way to help limit the spread of GMOs, but it is often the

farmer who does not plant GMOs that bears the burden of maintaining the

buffer; it is the non-GMO farmer, after all, who stands to be harmed by

GMOs unintended presence in the non-GMO crops. A buffer of up to 800

meters may be required to isolate canola,132 other crops may require more or

less of a buffer, but the responsibility for maintaining the buffer should be

129 Johnson, 802 N.W.2d, at 391. 130 See id., at 390-1. 131 Bernhardt, supra note 124, at ¶ 22. 132 Bernhardt, supra note 124, at ¶ 14.

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shared proportionate to acreage.133 In addition to a buffer, planting GMO

and non-GMO crops at different times will help reduce cross-

contamination.134 This must be coordinated among neighbors in order to be

effective. Isolation methods, however, should not be the only remedy for

pollen drift – there should also be retroactive solutions to GMO

contamination.

When GMOs cross property lines unintentionally, as pollen, is wont to

do, the non-GMO farmer is harmed by the invasion of his land. The party

alleging harm must prove the two elements of trespass: (1) the claimant’s

rightful possession of the land; and (2) defendant’s unlawful entry.135 Given

that pesticide drift in Johnson could constitute a trespass, GMOs could, too,

relying on the courts distinctions requiring “discernible deposits” on the

claimant’s land136 and “affect[ing] the composition of the land.”137

Liability for trespass in the case of GMOs should not, however, rest

with the neighboring farmer but with the manufacturer of the GMO. If the

manufacturer holds the patent to a GMO, is allowed to license the GMO at its

discretion, and can sue for damages if the GMO is discovered in a place the

133 PETER THOMISON, OHIO ST. U. EXTENSION, MANAGING “POLLEN DRIFT” TO

MINIMIZE CONTAMINATION OF NON-GMO CORN (2003). 134 Johnson, 802 N.W.2d, at 391. 135 Id. at 387. 136 Id. at 389. 137 Id. at 388.

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GMO is not authorized to be138, the manufacturer should be liable if the

owner of the land with the errant GMO does not want the GMO.

Trespass liability for GMOs need not be determined by a traditional

court of law, but by trustees of an Indemnity Fund. Legislation proposing a

similar idea has been seen before.139 The Fund would be funded through a

tax on GMO manufacturers or a fee on the sale of GMOs from the

manufacturer to the grower. It is important that a farmer who has suffered

damage not be required to bring action against his neighbor or against a

multi-national corporation. Legal action in rural communities against

neighbors can fracture those communities, the health of which is vital to the

preservation of good will and perhaps the town or city itself. It is also

unreasonable, as a practical matter, to presume that a farmer has the

resources to sue a company such as Monsanto or Dow. Farming is not a

glamorous profession for most and its practitioners work hard to supply their

surrounding communities and the country with food.

The Fund would not be intended to indemnify the farmers who use

GMOs. GMO growers would need to document their compliance with

reasonable measures to avoid pollen drift (i.e., wind direction, buffer zones,

weight additives, coordination of planting schedules). The policy behind the

Fund would be to allow those damaged by GMOs to be able to recover and to

place the responsibility with the entity that wishes to protect the GMO – the

138 Bernhardt, supra note 124, at §§ V–VI. 139 It was proposed in Iowa, but was not passed. Cox, supra note 59, at 414.

Craven 31

patent-holder. The Fund would help to stop the spread of GMOs by providing

the resources for the non-GMO farmer to reverse GMO contamination. By

allocating financial resources from the entity that profits from the GMO to

those who are actually harmed by the GMO’s presence, the quality of food

and biodiversity have better protection, too.

IV. Conclusion

GMOs have become ubiquitous with the soybean, canola, and corn.

While the potential advancements and improvements in agricultural yields

should not be ignored, we should be more cautious in their widespread

adoption. International sentiment in the European Union mirrors this

precautionary approach. With the understanding that GMOs are not going

away, we need a regulatory framework that both acknowledges that harm

can come from GMOs and supports individual choice in whether or not to

consume them. Food’s place as one of the human’s most basis survival

requirements only underscores its supreme importance in our lives. The

ability for an individual to make his or her own choices about food quality

and food source is a basic freedom we in this country should continue enjoy.