Publications: Biotechnology

Plant Biotechnology Law After Geertson Seed Farms: Potential Impacts on Regulation, Liability, and Coexistence Measures

Alison E. Peck Research Assistant National Agricultural Law Center

In the 2007 decision Geertson Seed Farms v. Johanns, a district court held that the U.S. Department of Agricultures Animal and Plant Health Inspection Service violated the National Environmental Policy Act by deregulating genetically engineered alfalfa without performing an environmental impact assessment.  This article reviews the Geertson decision and considers its actual and potential impact on the legal landscape related to plant biotechnology.  After a summary of the decision, it briefly reviews the landscape of biotech regulation, liability rules, and coexistence strategies.     Download this article. Posted: September 22, 2008.

Do European Union Non-Tariff Barriers Create Economic Nuisances in the United States?

Thomas P. Redick Principal, Global Environmental Ethics Council and

Michael J. Adrian Associate, Gallop, Johnson & Neuman, Clayton, MO

On April 18, 2004, the European Union’s Directives on Traceability and Labeling went into effect, imposing in effect a “zero tolerance” standard for biotech crops that have not received regulatory approval from the E.U.  The Directives will also lead to genetic testing of shipments of United States commodities exports.  This article overviews the European Union’s complex regulatory policy regarding biotech crops, the United States’ reaction to the new laws, and reviews case law on “nationwide nuisance” class action lawsuits.  This article also reviews the tools proposed for preventing liability and examines E.U. policies on biotech crops and human health in the United States, the E.U., and their trading partners.    Download this article Posted:  August 26, 2005

Revising Seed Purity Laws to Account for the Adventitious Presence of Genetically Modified Varieties: A First Step Towards Coexistence

A. Bryan Endres Assistant Professor of Agricultural Law University of Illinois

Adoption of genetically modified seed varieties in the United States, Canada, and South America continues to expand, with GM crops comprising almost 70 million hectares and over 93 percent of the total biotech cropland worldwide.  As an increasing number of farmers plant GM varieties, the potential for adventitious mixture of genetically modified DNA with products produced via organic and conventional (non-GM) methods also increases.  This article examines the critical role played by federal and state seed purity laws in the achievement of coexistence in the United States and the preservation of commodity agricultural exports to the European Union.  It concludes that existing domestic seed laws should be revised to account for the widespread adoption of GM varieties.      Download this article Posted:  Sept. 14, 2005

Farmers’ Guide to GMOs

David R. Moeller Farmers’ Legal Action Group, Inc. Michael Sligh Rural Advancement Foundation International – USA

For nearly a decade, US farmers have commercially grown genetically modified organisms, or GMOs. Whether farmers grow GMOs or conventional seeds or are certified organic, the use of GMOs in commercial agriculture will affect their operations. This guide sets out recent statistics on the commercial production of genetically modified crops, discusses the regulation of GMOs by three federal agencies, looks at the obligations and legal limitations farmers assume when they sign GMO contracts, analyzes farmers’ right to save seed in light of recent U.S. and Canadian cases, provides information on steps farmers should consider taking if they are accused of violating a seed patent, addresses issues of potential liability for farmers from GMO contamination, discusses some of the current international issues related to GMOs, and summarizes recent research on the cost and benefits of GMOs.  Also included are a list of resources and a reproduction of the legal sections from Monsanto’s 2005 Technology Agreement.    Download this article Posted:  Jan. 4, 2005

The War on GMO’s:  A Report from the Front

John S. Harbison Staff Attorney The National AgLaw Center

In April 2004, the Vermont legislature became the first in the nation to require manufacturers of genetically modified seeds to label and register their products.  The proponents of this statute narrowly missed passing a companion bill that would have imposed liability for economic losses caused by genetic contamination on seed manufacturers, rather than neighboring farmers who grow genetically modified plants in their fields.  In March 2004, the residents of Mendocino County, California, went even further by enacting an outright ban on genetically modified plants.   Following Mendocino County’s lead, voters in a dozen other California counties are considering initiatives that would ban genetically modified crops.  This article does not explore the pros and cons of GMOs.  That debate is already lengthy–and barbed–and it is likely to continue for a while.  Rather, this article analyzes the Mendocino County ban and the Vermont labeling and registration statute with respect to their constitutionality.  Sponsors of both measures anticipate legal challenges.  In fact, the biotechnology industry has hinted strongly that these challenges will arrive soon.  And, quite clearly, both measures raise interesting issues under two related constitutional law doctrines:  the dormant commerce clause and the concept of federal preemption.  Because Mendocino County Measure H and Vermont H. 352 are so different in effect, analysis of their respective constitutionality, or lack of it, especially under the dormant commerce clause, is going to be very different too.  Accordingly, Part A of this article provides an introduction to these related constitutional doctrines.  Part B briefly sets forth the principal concerns of GMO opponents.  Part C explores the application of the dormant commerce clause to the Mendocino County ban and the Vermont labeling and registration statute.  Part D explores the application of the doctrine of federal preemption to these same measures.    Download this article. Posted:  Aug. 6, 2004

Jack and the Beanstalk: Property Rights in Genetically Modified Plants

Nathan A. Busch Attorney at Law

The conversion of domesticated plant species into transgenic plants and their subsequent utilization in the agricultural production of usable crops has created a tension between the farmer, the seed manufacturer, and the public.  The farmer desires to save the progeny transgenic seeds from one planting cycle for use in the next and to be autonomous in his decisions regarding the utilization of his land, his financial resources, and his crop.  The seed manufacturer desires to make a profit from the transgenic plant.  The public desires that the food and fiber produced by the transgenic plants be safe for consumption.  While all of these positions are equally valid, discussions among these three parties usually fall into a quagmire of often emotional and irrational arguments.  The theory upon which this article is founded is that each of the parties is merely articulating, sometimes without eloquence, a position derived from the property rights fundamental to each party.  Through examination of the property rights of each of the parties, a path to the resolution of the tension will be illuminated. This article aims to examine the farmer’s and seed manufacturers’ property rights in genetically modified plants, leaving the public property rights for the time being.  The story of Jack and the Beanstalk1 provides a useful allegory and sets the stage for this discussion.   Download this article. Posted:  May 27, 2004

J.E.M. Ag Supply v. Pioneer Hi-Bred International: Its Meaning and Significance for the Agricultural Community

Michael T. Roberts Shareholder Van Cott, Bagley, Cornwall & McCarthy

On December 10, 2001, the United States Supreme Court in J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred International, Inc. (“J.E.M.“), held that utility patents may be issued for plants under the Utility Patent Act despite distinct protections available under the Plant Variety Protection Act and the Plant Patent Act.  J.E.M. was the first United States Supreme Court decision in two decades to rule on the eligibility for patenting under the Utility Patent Act, and the Court’s decision was closely followed by, and has important implications for, the agricultural community.  This article addresses the meaning and significance of J.E.M. to the agricultural sector.  It  outlines the factual, procedural and legal background of the dispute in J.E.M. and explains the rationale and scope of the Supreme Court’s decision.  The implications of the decision for the agricultural community, including agricultural biotechnology companies, seed companies, and agricultural producers are addressed.  The unique issues for utility patent applications under the Utility Patent Act are also explored.   Download this article.Posted: Jan. 21, 2003.

Legal Liability Issues in Agricultural Biotechnology

Drew L. Kershen Earl Sneed Centennial Professor of Law University of Oklahoma

Legal liability in tort law should be contrasted with regulatory approval.  Regulatory approval focuses on whether a particular transgenic crop, microorganism, or animal is safe to humans and the environment.  Regulatory approval deals with whether and under what conditions agricultural biotechnology crops and animals may be produced, marketed, and used.  By contrast, before or after regulatory approval, a particular transgenic plant, microorganism or animal could possibly cause damage to property, persons, markets, the environment, or to social structures.  Legal liability in tort addresses the kinds of liability that may exist for these possible damages.  Those who produce or use agricultural biotechnology products need to know about the legal standards by which they may be held accountable for damages.  In addition, those who might potentially be damaged by agricultural biotechnology need to be aware of the kinds of claims that they might assert to establish legal liability against producers and users of this technology.   Download this article. Posted: Dec. 5, 2002.