Schmeiser Wants to Take It to The Supreme Court

By Robert Schubert
CropChoice editor

(Monday, Sept. 9, 2002-- CropChoice news) -- Having lost before the Canadian Federal Court of Appeal last week, Saskatchewan farmer Percy Schmeiser will seek to take his case to the next and highest level -- the Supreme Court.

The three-judge panel unanimously decided in favor of Monsanto Canada, Inc. by dismissing all of the 17 points that counsel to Schmeiser had used in contending that a May 2001 lower court decision should be set aside. The judge in that case ruled that Schmeiser had infringed the patent on the canola Monsanto genetically engineered to resist glyphosate, the active ingredient in its Roundup herbicide.

Important in the appellate judges' ruling were the following, says Schmeiser lawyer Terry Zakreski:

"This [ruling] completely takes away farmers' rights because the judges are interpreting the law to mean that patents are over and above farmers' rights," Schmeiser says. "At the end of the day, it means that farmers lose their right to save seed."

Within the next two months, Zakreski will seek leave to appeal to the Supreme Court, which he hopes will agree to hear the case, given what many view as its national importance.

In that event, the counselor would argue, contrary to both the original and the appellate decisions, that how the patented seed arrives on a farmer's land is important and that the patent is not infringed if a farmer doesn't spray Roundup and therefore derives no benefit from the presence of the resistant plants. (Percy did not spray Roundup, which the appellate judges acknowledged.)

Monsanto claims that it is not persecuting farmers, only that it's trying to enforce its patent and ensure fairness to the farmers who've paid for the Roundup Ready technology and agreed not save seed resulting from it.

"It is not, nor has it ever been Monsanto Canada's policy to enforce its patent on Roundup Ready crops when they are present on a farmer's field by accident," says Trish Jordan, director of public and industry affairs for Monsanto Canada. "Only when there has been a knowing and deliberate violation of its patent rights will Monsanto act."

Schmeiser acknowledges that the Supreme Court, if it agrees to hear the case, is his last shot.

"If I lose at the Supreme Court, then I've lost the battle for farmers all over the world, and for their right to use their own seed," he says. It would mean "total control of the seed supply by multinationals like Monsanto, which has found a way to do it, and that's through patent law."

EPA Accuses Two Biotech Companies Of Failing To Properly Isolate Genetically Modified Crops

By Paul Elias, Associated Press
Thursday, August 15, 2002

SAN FRANCISCO - Biotechnology companies have failed to take proper precautions to prevent genetically modified corn from contaminating other crops growing nearby, federal regulators alleged for the first time.

The allegations, lodged against two companies with experimental plots in Hawaii, came amid growing criticism concerning how genetically modified crops are grown and regulated in the United States.

The Environmental Protection Agency accused Pioneer Hi-Bred International of planting genetically modified corn too close to other crops and at an unapproved location.

Another company, the Mycogen Seeds unit of Dow AgroSciences LLC, is accused of failing to plant trees around its experimental plot to create a windbreak to inhibit the spread of pollen. The EPA also says the company planted the wrong kind of unmodified corn as a buffer zone around the experimental crop.

Both companies are experimenting with corn altered using a bacterium's genetic material. The modification allows the corn to produce its own pesticide against the rootworm pest, reducing reliance on chemical sprays. Each company had to agree to rigorous pollen containment regulations before getting government approval to plant outdoors. Neither company's modified corn has been approved for human consumption.

Critics say genetic tinkering may destroy naturally occurring crops by cross-pollinating and that the effects of the modified foods on human health are unknown. "Containment is a critical issue," said Kimberly Wilson of Greenpeace USA. "Once genetically modified crops are released into the environment, there's no getting them back."

The EPA said in letters dated Aug. 5 that it plans to issue "civil administrative complaints" against the companies by Aug. 30. Until then, the agency said it will review any evidence presented by the companies in their defense. Each company faces a maximum fine of $11,000.

"We take these concerns very seriously and are aggressively investigating the matter," Dow's Pete Siggelko said in a press release. "At no time was there any risk to human health and safety and the environment."

Pioneer spokesman Doyle Karr said "we believe that we followed the EPA regulations. We believe we planted in the right place."

Biotechnology companies developing pesticide-resistant crops must obtain permits from the EPA and the U.S. Department of Agriculture. The USDA approved 1,117 outdoor experiments on 57,000 acres in 2001.

Industry and environmental groups estimate that 70 percent of processed foods on U.S. supermarket shelves contain some genetically engineered components.

The EPA letters were made public by the Washington-based Center for Science in the Public Interest. The group supports biotechnology efforts to reduce pesticide use and believes that genetically modified foods currently on the market are safe.

Still, it is concerned with the EPA's allegations against the companies. "These regulations are necessary to protect the environment," said the center's Gregory Jaffe. "These companies have been doing these experiments for years, and I have to wonder how closely they've been monitored."

Activists Upset With Bush

By Gregory Tejeda
UPI Farming Today
United Press International
From the Business & Economics Desk
August 5, 2002

Consumer and environmental activists are upset with President Bush for what they perceive as his taking sides with companies that produce seed for genetically modified crops.

The Center for Food Safety and the National Environmental Trust both said they will file a legal petition demanding a halt to field tests of genetically modified foods they consider dangerous.

"We are seeking a moratorium on all field tests of (genetically engineered) foods until the government has safeguards in place that prevent unknown test products from being eaten by millions of unsuspecting American consumers," Center for Food Safety legal director Joseph Mendelson said.

Their call for a moratorium came following a proposal by the House Office of Science and Technology Policy to give a pass to food products containing contamination from genetically modified crops that are still in experimental and testing phases.

Published last week in the Federal Register, the office admitted an increasing likelihood of "genetic pollution" between conventional crops and genetically modified crops being grown on nearby farm fields.

Mendelson said the Federal Register report is sufficient reason not to trust crops grown from genetically modified seed.

"The government has basically admitted it can't protect our food supply from genetic crops still in the testing phase," he said. "Just one mistake by a biotech company, and we'll all be eating food contaminated with foreign genetically engineered material that the federal government can't claim is safe."

The United States already runs into opposition to genetically modified crops from the European Union and many other nations, which restrict or ban such crops from being imported into their countries.

U.S. officials argue that genetically modified foods can actually be safer, and can be grown to fit consumer demands.

Matt Rand of the National Environmental Trust said the White House Office proposal is a way of favoring U.S. business interests.

"The Bush administration is giving biotechnology companies a free pass to pollute our food supply," Rand said. "In the long run, this policy will hurt U.S. farmers."

Legal Action Seeks To Block Genetically Engineered Lawn Grass

For Immediate Release
Contact:
Joseph Mendelson, 202.547.9359,
joemend@icta.org
Peter T. Jenkins, 202.547.9359,
peterjenkins@icta.org

Washington, DC -- Today the International Center for Technology Assessment (CTA), a non-profit public interest group, filed a formal legal petition asking the Secretary of the U.S. Department of Agriculture (USDA) to block the release of the first-ever genetically engineered (GE) plant intended for use by homeowners and property managers. Biotechnology giant Monsanto Co. and Scotts Co., the leading lawn and garden product marketer, are seeking Federal approval to commercialize a GE creeping bentgrass, the turfgrass preferred for golf course greens and used in countless lawns across the country.

The GE grass variety is resistant to the top-selling weedkiller Roundup(tm), a brand owned by Monsanto for which it has licensed exclusive marketing rights to Scotts. Currently, use of the Roundup weedkiller is limited to spot spraying of weeds in that the herbicide kills any grass it comes in contact with. The new GE grass has been altered to be resistant to the weedkiller so that users will be able to spray entire lawns, fields and golf courses with the chemical without fear of hurting the grass. Large scale planting of the GE grass would therefore massively increase the amounts of herbicide used in home lawns, sports fields, schools and golf courses around the country.

"Monsanto and Scotts are asking for government approval to massively increase the chemical contamination of our neighborhoods, playing fields, and other recreational areas," said CTA Executive Director Andrew Kimbrell. "Their pursuit of biotech profits is putting our children and our communities at risk, and we will use any legal means to prevent this," Kimbrell concluded.

Beyond the increase in chemical pollution, CTA also describes the major "biological pollution" threat presented by the GE grass. Creeping bentgrass itself is broadly recognized as a difficult to control weed. It is a wind-pollinated species whose pollen blows easily for hundreds of yards and it readily hybridizes with other grasses. The fact that the leading weedkiller Roundup cannot kill the proposed GE variety will significantly increase the effort, cost and environmental damage necessary to get rid of it where it is unwanted. In many natural areas and parks, where non-native creeping bentgrass already is a serious invader, the herbicide resistant grass could become an almost impossible to eradicate "superweed." The herbicide resistance genes could also "jump" from the bentgrass to other weeds thereby making them dangerous "superweeds." This potential environmental disaster could lead to financial liability problems for Monsanto, Scotts and the retailers and end users of the GE product.

Peter T. Jenkins, CTA's attorney and policy analyst on the petition, stated: "What Monsanto and Scotts are doing to creeping bentgrass will make it a more threatening invasive species for those who don't want it in their lawn or park. Their proposal amounts to genetic assault and battery, recklessness and trespassing."

Citing legal precedents and an array of scientific evidence, CTA's petition argues that USDA officials must not approve release of the GE variety and instead must list it as a noxious weed under the Federal Plant Protection Act. Should the CTA petition be rejected, the organization will file suit in Federal court to halt any approval.

Prior to CTA's formal legal petition a number of groups including the American Society of Landscape Architects (more than 14,000 members nationally); The Nature Conservancy (the largest holder of private land preserves in the world); and the public interest group, the Foundation on Economic Trends wrote letters to USDA requesting a moratorium on the approval and release of the GE grass.

Consumer-Environmental Coalition Files Legal Action Seeking Criminal Investigation of Monsanto and Aventis

Evidence Reveals that Illegal Genetically Engineered Seeds Contaminate U.S.Canola Crops

Washington, DC - Today, Monday, April 15, 2002, the Center for Food Safety (CFS) filed a legal petition with the United States Department of Agriculture (USDA) seeking a criminal investigation of two biotechnology companies, Monsanto and Aventis. The petition is filed on behalf of CFS and the Genetically Engineered Food Alert (GEFA) coalition. It describes newly discovered evidence that genetically engineered canola seed not approved in the United States may have illegally entered into the commercial US seed supply, potentially contaminating canola seed already sold to farmers.

In the past months, two of the country's largest agribusiness corporations, Monsanto and Aventis, have applied for commercial approval of three varieties of canola, GT200 (Monsanto), Topas 19/2 (Aventis) and RF1(Aventis). None of these three canola varieties is currently approved for commercial sale in the United States. The USDA, the federal agency with control over planting and seed sale permission, has not yet approved these canola varieties over concerns that crops can be plant pests. Yet the companies admit that the new varieties may have contaminated U.S. seed supplies, and are now applying for approval in an attempt to avoid a massive food and seed recall.

The Center for Food Safety discovered this new evidence of GE seed contamination through a Freedom of Information Act (FOIA) request. The FOIA documents and USDA environmental assessments clearly show that both companies were aware of the contamination with the illegal seeds and sought USDA approval in an attempt to avoid liability. Included in the materials that the Center for Food Safety requested was a letter from Monsanto from last November to the US Department of Agriculture (USDA) in which the company admits to potential contamination. "Although glyphosate-tolerant canola event GT200 is not intended to be commercialized . . .[it] has the potential to be present in low, adventitious levels in commercial canola varieties." (Letter to USDA from Monsanto, November 9, 2001)

"This is genetic pollution of our food supply," explained Joseph Mendelson, Legal Director for the Center for Food Safety. "And now Monsanto and Aventis are asking the USDA for a cover-up. We are demanding a full criminal investigation of two the companies, and an inquiry into USDA's actions in not making this matter public."

Monsanto was faced with a similar seed contamination situation in 1997. At that time, the Canadian Food Inspection Agency ("CFIA") suspended the sale of a Monsanto genetically engineered Roundup Ready canola due to the fact that it was contaminated with an unapproved variety event GT200. The suspension led to a subsequent recall of 60,000 bags of contaminated canola seed (enough to plant 600,000 acres) and forced the Canadian government to broker deals with farmers to plow under fields already planted with the contaminated seed. According to Monsanto, the problem may have occurred because the company allowed the seeds to get mixed up and bred together.

Canadian Organic Farmers Sue Monsanto On GM Crops

By Kanina Holmes
01-10-02

WINNIPEG, Manitoba, Jan 10 (Reuters) - A group of Canadian organic farmers launched a lawsuit against biotech giants Monsanto Co. (MON.N) and Aventis SA (AVE.N) on Thursday seeking compensation for damages caused by genetically modified canola they say is blowing into their fields.

"Organic farmers in Saskatchewan have said that the time has come for this legal challenge and we're here today to let the world know that," Marc Loiselle, a board member of the Saskatchewan Organic Directorate (SOD), a group representing organic producers in the province, told a news conference.

"We claim that the two companies, Monsanto and Aventis, are responsible for GE (genetically engineered) contamination on multiple grounds and we're confident that this will be proven in the court of law," Loiselle told reporters in Saskatoon.

Two organic farmers filed the class action lawsuit in Saskatoon court on behalf of all organic farmers in the province, the heart of Canada's bread basket. The legal action is also aimed at halting plans to introduce transgenic wheat in the region.

There are about 1,000 organic growers in Saskatchewan, whose farms represent about 1 million acres (405,700 hectares). SOD alleges that genetically engineered crops threaten the environment and their industry.

"Any kind of science, whatever it is, if it's infringing on our rights, they don't have a right to do it, said Arnold Taylor, an organic grower and president of SOD.

The amount of compensation being sought has yet to be determined, but Taylor estimates it will be "in the millions."

Organizations that certify crops as organic have zero tolerance for genetically modified organisms (GMOs) in the seed supply. They also prohibit organic farmers from applying most crop chemicals. Instead, organic farmers rely on crop rotation, which includes the staggered planting of canola and wheat, to control weeds.

Switch to Transgenic Canola

Many farmers across Western Canada have switched to transgenic canola since GM varieties were introduced in Canada in the mid 1990s, citing better weed control and yields. Today, about 60 percent of the canola grown in Saskatchewan is genetically modified to resist weeds.

Canola, the Canadian variant of rapeseed, is used mainly to produce processed food ingredients, cooking oils, and livestock feed. Canada is the world's largest canola exporter.

Organic producers say that pollen from GM canola, which is patented by Monsanto and Aventis, is blowing on to their fields, contaminating their crops and their seed supply, and driving away premium-paying customers, most of whom are in Europe.

"They're trying to make these companies pay for their losses that were sustained by them from having removed a crop, an entire crop from their selection of crops," Terry Zakreski, the farmers' lawyer told Reuters, noting that this is believed to be the first lawsuit of its kind in Canada.

"They want to stop them from introducing another crop that could economically destroy them if it's allowed to happen," said Zakreski.

Agricultural sciences company, Monsanto, which produces Roundup Ready canola, one of the most widely grown GM varieties, has recently conducted field trials across Western Canada to develop genetically modified Roundup Ready wheat.

The plants are genetically modified to be unaffected when the herbicide Roundup in used on the fields to control weeds.

"To me it's just a matter of continuing to give farmers choice in terms of what they grow. And farmers make choices whether they grow organic or conventional or transgenic, and they make those choices based on what works for them on their farm," said Monsanto Canada spokeswoman Trish Jordan.

Monsanto has said that it will not commercially release GM wheat until concerns about segregation and market acceptance are addressed.

SOD announced its intention to sue the biotech companies last year, but said new legislation in Saskatchewan permitting class action lawsuits paved the way for Thursday's announcement.

Farmers Can Use Seeds Despite Patent, Panel Says

Globe and Mail (Canada)
June 7, 2002

Farmers should have the right to plant genetically modified seed they have harvested from previous years' crops, even if the original seeds were covered by a patent, a blue-ribbon panel on biotechnology is advising the federal government.

The Canadian Biotechnology Advisory Committee's recommendation -- part of a package of 13 proposals dealing with patent-related issues -- would effectively absolve Saskatoon farmer Percy Schmeiser of blame in a patent-infringement case involving a genetically modified organism, a case that has garnered worldwide attention.

Mr. Schmeiser was found guilty of violating the patent agreements that Monsanto Co. places on the use of its genetically modified canola. The company requires that the canola seed, which is resistant to the herbicide known as Roundup, be bought each year from the company at a premium price.

Mr. Schmeiser was found to be growing the modified seed in his field during a year in which he hadn't bought any seed. A judge ordered him to pay Monsanto $19,000 in damages and court costs of $153,000.

While Mr. Schmeiser originally said that genetically modified seed had blown into his fields, his lawyer is now arguing before a federal appeals court that the seed was saved from crops grown the previous year and that Mr. Schmeiser was entitled to replant it as an "ancient right of a farmer."

In advocating what it calls a "farmer's privilege," the panel says in its recommendations that the patent law should allow farmers to "save and sow plants from patented plants."

From his farm in Bruno, Sask., Mr. Schmeiser said: "I'm really, really happy to hear that. The whole basis of my fight is the rights of farmers to use seed from year to year."

A representative of Monsanto Canada Inc. said the company did not have an immediate comment on the report.

The committee, which was formed in 1999 to advise seven government departments on issues related to biotechnology, has also weighed in on another contentious patent issue currently before the courts. As was first suggested in a preliminary report last December, the CBAC is advising the government to allow the patenting of genetically modified plants and animals.

The committee, however, recommends strongly against the patenting of human beings in any stage of human development. While it has been generally accepted that human-rights legislation effectively prohibits human patenting, Arnold Naimark, the former president of the University of Manitoba, who heads up the 17-person committee, says that there there is no specific ban in Canadian patent law. "It was our thought that that loop should be closed," he said.

Update:

Organic Farmers Lawsuit Against Monsanto Moves Forward

by Murray Lyons
The Leader-Post (Regina, Saskatchewan)
December 21, 2002

Organic farmers seeking class action

SASKATOON --A stack of documents "four to five inches thick" was filed this week in Court of Queen's Bench in Saskatoon as organic farmers seek to get their lawsuit against two multinational chemical companies certified as one of Saskatchewan's first class-action suits. Lawyer Terry Zakreski filed the application and a supporting sheaf of more than 1,000 pages of affidavits on behalf of Dale Beaudoin and Larry Hoffman, the two representative plaintiffs, in the case against Monsanto Canada and Aventis Crop Science.

These two companies introduced herbicide-resistant varieties of canola to the Prairies. Aventis and its product line are now owned by Bayer Crop Science. Zakreski also filed a notice of motion calling for an injunction against Monsanto from introducing Roundup Ready wheat that the company has developed and has been putting through field trials at undisclosed locations throughout the Prairie provinces. Marc Loiselle, research and communications director for the Organic Agriculture Protection Fund (OAPF), says getting an injunction against introduction of Roundup Ready wheat is as important to the organic farmers as the damages cited over organic canola. "If we have to sit around and decide on the canola issue before advancing to the wheat issue, (Roundup Ready wheat) will be out there and there will be no turning back," he said. Monsanto is the first company to try to get a genetically modified (GM) wheat variety licensed in Canada.

The injunction states that "unconfined and commercial-scale release of Roundup Ready wheat will irreparably harm the organic grain farming industry in Saskatchewan." The action claims organic farmers in Saskatchewan have already lost $14 million from GM canola as most farmers now are unable to grow organic canola because of cross contamination from the genetically engineered varieties which have virtually taken over the market. The farmers estimate a premium of $170 million would be lost over the next decade if introduction of Roundup Ready wheat kills the organic wheat industry.

House Panel Grapples With Value Of Ag Biotech Research

Kathleen Hart
Food Chemical News
Volume 43, Issue 33
October 1, 2001

A Republican member of the House Science Committee last week openly questioned the value of boosting federal spending for research on agricultural biotechnology when governments and consumers around the world have no interest in buying genetically engineered crops.

"I don't care how much we spend on basic research at Michigan State or Arizona State or the University of Minnesota, or anywhere," Rep. Gil Gutknecht (R-Minn.) lamented Sept. 25 during a House Science subcommittee hearing on proposed legislation to strengthen National Science Foundation-sponsored research on agricultural biotechnology. "We're losing this battle. If we can't convince our European counterparts of the safety of this, if they continue to use, on the floors of their parliaments, terms like 'Frankenfood,' how do we win this?"

Gutknecht said he has seen no indication that European opposition to genetically modified food is diminishing. "I had some meetings earlier this year with the members of the German Bundestag, and boy, I tell you, it was like talking to a wall. They're not interested. They are not going to buy - if they can avoid them at all, they're not going to buy any GMO crops from the United States."

The Minnesota congressman noted that some farmers in his district are now being paid a premium for non-GMO soybeans that are to be shipped to Japan.

New products

Rep. Nick Smith (R-Mich.), who chairs the Subcommittee on Research, extolled "biotechnology's incredible potential to enhance nutrition, feed a growing world population, open up new markets for farmers and reduce the environmental impact of farming." The subcommittee called four friendly witnesses to testify on behalf of two bills that would authorize additional spending for NSF-sponsored research on agricultural biotechnology.

Smith's bill, HR 2051, authorizes funding to establish Plant Genome Expression Centers geared toward accelerating development of new biotech crop varieties. The focus of research at the new centers would be on alternative uses of crops, including crops engineered to serve as energy sources, to produce vaccines, or to provide inexpensive industrial chemicals. The centers would be equipped with supercomputers that would increase scientists' capacity to understand proteins and gene expression. The bill would authorize $3 million in appropriations for fiscal year 2002, increasing to $4.5 million for FY2003.

HR 2912, authored by subcommittee ranking member Eddie Bernice Johnson (D-Texas), would fund NSF-sponsored research partnerships aimed at developing plant varieties targeted to the needs of developing nations. The bill would authorize $6 million in spending for FY2002 and $9 million for FY2003.

Public sector funding

Robert Paarlberg, a professor of political science at Wellesley College, noted that as of last year, 98% of the world's biotech crop acreage was still confined to the United States, Canada and Argentina, the same three countries that launched GM crops five years ago. "This failure of the GM crop revolution to spread more widely into the developing world is surprising," he said.

Distrust of "giant U.S.-based multinational seed and agribusiness companies" throughout much of the developing world has generated suspicion and anxiety about biotech seeds and crops in poor countries, Paarlberg said. "One reason the National Biosafety Committee in Kenya has not yet given final biosafety approval to the virus-resistant sweet potato is that the technology came originally from the Monsanto Co. One reason it has been hard in Brazil to get approval for [Roundup Ready] soybeans is that, once again, this is a Monsanto product," he continued. "One reason India has not yet given a final release to Bt cotton is that it is, once again, a Monsanto product."

The only way to overcome political inhibitions that are preventing the adoption of biotechnology in poor countries, Paarlberg argued, is by funding more biotech crop research through the public sector.

Plague vaccine reserve

Charles Arntzen, founding director of the Arizona Biomedical Institute at Arizona State University in Tempe, believes public attitudes toward biotechnology will be turned around if researchers start introducing more products that have an immediate value for human health.

"We're hoping we can come up with new research findings that will lead to new products that will have a much more dramatic effect on the world population," he said.

Arntzen, who is known for his pioneering work on potatoes and tomatoes genetically engineered to express human vaccines, told the subcommittee that Johnson's bill would help to establish the kinds of research links that will benefit children's health around the world, particularly in developing nations. He formerly directed the Boyce Thomson Institute affiliated with Cornell University.

With the Sept. 11 terrorist attacks on New York City and the Pentagon still very much at the forefront of congressional activity, Smith asked Arntzen, "Do you see [whether] it's conceivably possible, or scientifically possible, to develop the kind of vaccines that might be widespread to give us some degree of protection against the weapons of biological warfare?"

Arntzen responded, "Very definitely. We are currently supported by the Department of Defense for research, publicly funded, to develop a strategic reserve for plague vaccine. It is part of the strategy that there could be a number of biological agents for which we wouldn't necessarily want to immunize the entire population, but we would want to be able to respond rapidly if there were a threat." --- "We lost irradiation because of public unease. We could lose this... The momentum is with the critics." - Consumers' Association of Canada vice-president Jenny Hillard. CAC is a recipient of both Monsanto and Canadian government monies and has opposed even the labelling of GM foods.

"There are forces out there that may make [genetically engineered products] a vestige, an antique."

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