Court Hears Farmers' Bid For Class Certification in GMO Liability Case

Media Release
Saskatoon, Sask. Canada
November 8, 2004

The class certification hearing for the certified organic farmers of Saskatchewan versus Monsanto and Bayer, Hoffman et al versus Monsanto et al, was held at the Court of Queen's Bench in Saskatoon, Saskatchewan on November 1, 2 and 3, 2004. Hoffman et al versus Monsanto et al stands to establish Monsanto and Bayer's liability for losses due to contamination of certified organic crops and farms by the two companies' genetically engineered canola.

GMO contamination has occurred to the point that farmers have all but stopped attempting to grow certified organic canola in Saskatchewan. Farmers have thus been denied the opportunity to serve the growing and lucrative market for certified organic canola which was developing at the time GMO canola was introduced. Furthermore, GMO canola from neighboring farms increasingly appears as weeds or volunteers in certified organic fields. It must be removed, and steps must be taken to ensure that GMO canola does not contaminate current or future crops in that field in order to maintain certified organic status for the crop, field or farm.

The costs of cleaning GMO canola are presently born by the certified organic farmers. If successful, this case will instead place liability for these costs and losses on the corporations that developed and commercialized these GMO crops.

The class certification hearing dealt with five questions in order to determine whether this case meets the requirements for class certification under the Class Actions Act of Saskatchewan.

The pleadings are set out in our statement of claim (http://www.saskorganic.com/oapf/legal.html). Briefly, the cause of action is to determine if, as we claim, the companies have liability and owe damages arising from strict liability, negligence, nuisance and/or trespass, as well as from violation of the Environmental Management and Protection Act of Saskatchewan (EMPA), EMPA 2002 and the Environmental Assessment Act of Saskatchewan.

Legal counsel identified 41 issues of fact and law that comprise the common issues to be tried. A key point in the common issues is the separation of liability from damages. The liability issues are common issues, which will need to be tried. A method of ascertaining the individual damages arising from the liability would be decided for each class member in a second process set out by the Court.

We propose that the identifiable class of persons would be all certified organic grain farmers who were certified at any time between January 1, 1996 and the date of class certification. Since organic certification requires extensive and meticulous record-keeping, it will be possible to make a clear distinction between those inside and those outside of this class definition. We argue that this is the narrowest definition of the class that would include all who have suffered damages as outlined in the statement of claim.

We argue that a class action is the preferable procedure for this legal action. Class actions are meant to provide access to justice for groups of people who would not have the capacity to do so if they were to act individually. This class action provides a way for many small farmers to confront two multinational corporations, something that is beyond the means of any individual.

Class actions provide for judicial economy - a wise use of the Court's time when compared with the resources that would be required for hundreds of individual trials. The costs of preparing thousands of pages of legal documents, research reports and briefs; the costs of providing dozens of expert witnesses; travel costs and court time will be incurred once, by one class action for a trial that will set an important precedent.

Class actions should lead to behaviour modification. If we are ultimately successful in this case, companies that introduce GMO crops would have to take measures to prevent contamination of other crops, and would be liable for the market loss and/or clean-up costs if contamination occurred in spite of these measures.

The representative plaintiffs in this case are Larry Hoffman, L.B. Hoffman Farms Inc. and Dale Beaudoin. Larry and Dale are long-time certified organic farmers with experience growing certified organic canola. Larry decided not to include canola in his crop rotations after GMO canola was introduced so as to avoid contamination. Dale grew his last crop of canola in 1999. When he delivered it, the buyer tested it and refused to take it when it was found to be contaminated with GMO canola. L.B. Hoffman Farms Inc. is the incorporated family farm operation that Larry operates.

Larry Hoffman and Dale Beaudoin understand and agree that as representative plaintiffs they are undertaking a duty to represent the interests of the whole class, not merely their own interests.

In his concluding remarks, Zakreski quoted from a survey of organic traders indicating that the market for certified organic canola was expected to grow from 20 to 60 per cent per year, similar to the growth of other organic crop markets in the same period and that it was lucrative - an uncontaminated producer car shipment was sold for $18.50/bushel in 1999. GMO contamination has all but reduced this market to zero.

Judge Smith reserved judgment. We expect she will deliver her decision early in the new year.

Plan to Engineer Smallpox Virus Causes Alarm

For Immediate Release - Gene Watch
Dr. Sujatha Byravan
November 12, 2004

Cambridge, MA---The Council for Responsible Genetics (CRG) learned yesterday from sources at National Public Radio of a decision by the World Health Organization (WHO) "to allow for the first time the genetic modification of the deadly smallpox virus." The CRG wishes to express its strong opposition to this decision, and calls on all citizens and civil society groups to join the organization in fighting efforts that could create an even more dangerous version of the virus currently in United States and Russian laboratories.

Genetic engineering of potential bioterrorism agents, whether conducted under a defensive or military rationale, sets an ominous precedent that encourages similar projects around the world, creating the prospect of a biological arms race. Until now, the WHO has strictly banned such research on smallpox, and few if any known experiments involving the genetic modification of lethal pathogens are currently conducted in the United States.

Smallpox (variola virus) was successfully eradicated in 1977 after an unprecedented ten-year, $300 million global campaign coordinated by the WHO in over 30 countries. Today, the last known strains of smallpox virus reside in two high-security laboratories: the Center for Disease Control and Prevention (CDC) in Atlanta, Georgia, USA, and the Russian State Center for Research on Virology and Biotechnology in Koltsovo, Novosibirsk, Russia.

"We have seen no evidence of a threat that would justify this research," says Sujatha Byravan, Executive Director of the CRG. "A decade ago, the WHO was planning to destroy the world's last remaining samples. Today, it is proposing to tinker with the virus in ways that could produce an even more lethal smallpox strain. This is a devastating step backwards."

Today's decision will permit two different types of genetic modification of smallpox that have been hotly contested within the WHO for several years. The first involves the "generation of recombinant variola viruses expressing reporter genes, such as the gene encoding the green fluorescent protein." These genes allow scientists to more effectively trace cell processes and the spread of viruses. The second, more controversial recommendation would involve "the expression of variola virus genes in other orthopoxviruses" through single gene transfer. The Department of Homeland Security claims that these procedures will speed the development of drugs and vaccines to combat the use of smallpox in a bioterrorist attack.

"Such claims are illusory," says Susan Wright, a research scientist and biological weapons expert at the University of Michigan. "Genetic engineering could generate thousands of variations of natural pathogens. Designing drugs and vaccines against specific variations cannot strengthen defenses. On the contrary, such research serves only to increase the risk that novel pathogens will be released, either by accident or intention." Victor Sidel, a past president of the American Public Health Association and Physicians for Social Responsibility, concurred. "Instead of contributing to the biological arms race under the guise of producing defenses," he noted, "the WHO should seek to strengthen the Biological Weapons Convention by adding new provisions for inspection and verification." Wright and Sidel are members of the CRG Working Group on Biological Weapons.

As recently as November 2003, the WHO Advisory Committee on Variola Virus Research issued "significant reservations" about proposals to create recombinant variola viruses and insert variola virus genes into other, less dangerous viruses. The plan has drawn open opposition from prominent scientists including DA Henderson, the former bioterrorism czar to President George W. Bush, who led the worldwide campaign to eradicate smallpox.

If you wish to send a letter encouraging the CDC to abstain from genetically engineering the smallpox virus, it can be sent by email to cdcsmallpoxplan@cdc.gov or by mail to Public Comment c/o BPRP, Bioterrorism Preparedness & Response Planning, Centers for Disease Control and Prevention, Mailstop C-18, 1600 Clifton Road, Atlanta, GA 30333.

The CRG has circulated a statement, signed by biologists and research scientists, calling for a "prohibition against the development of novel biological and toxic agents, or the modification of biological agents, to enhance virulence, pathogenicity, or transmission characteristics, for any purposes, including biological defense." To sign the statement, visit CRG's Campaign for the Peaceful Development of the Biological Sciences.

US Maize 'Threat' to Mexico Farms

BBC News
November, 13 2004

The North American Free Trade Agreement (Nafta) is having a severe effect on rural Mexico, TVE's Earth Report programme claims.

Nafta was set up ten years ago by Mexico, Canada and the US to promote competition and efficiency.

But US maize farmers, propped up by subsidies, are outcompeting their Mexican counterparts.

As a result, US maize is flooding Mexican markets, threatening to put traditional farmers out of business.

Not only does this create social problems - it also has environmental consequences, TVE claims.

Currently, most Mexican farmers use non-intensive, natural methods to grow their crops, which are kind to the local environment.

Now, because of US competition, they may have to abandon those methods or leave the land altogether, TVE says.

"Indigenous farmers have to compete with farmers that do agriculture at a very strong environmental expense, with large environmental impact," said Dr Exequiel Escurra, of the Mexican National Ecology Institute.

"The amount of fertilizer, the amount of pesticide modern farmers use, has a very strong environmental impact."

In addition, many Mexican environmentalists are worried that GM maize from America could contaminate their crops.

"There is a concern that transgenic corn may affect traditional Mexican corn," said Dr Escurra.

Traditional farmer

Aldo Gonzales is a "campesino" - an indigenous farmer - who grows maize in Oaxaca, Mexico's second poorest state.

His farm, which has been in his family for generations, produces food primarily for his own family's consumption.

The tiny surplus is sold at the local market. Although it is a hard life, his four hectares give him independence.

But now Mr Gonzales, and thousands like him, fear their way of life is about to end.

"The Mexican government has instituted a lot of policies that are aimed at wiping out small Mexican farmers," he said.

Leaders who supported Nafta said it would make life better for all Mexicans.

For the consumer, at least, this is true.

US maize is heavily subsidised, which means Mexicans can buy the grain cheaper than ever before. But some Mexican farmers feel it is nothing short of a kick in the teeth.

"We believe the free market is a lie, because the United States is subsidising farmers, and Mexican farmers don't receive subsidies," said Mr Gonzales. "That's not a free market, that's not free competition, that's not fair competition."

Subsidies

The US Farm Act of 2002 allows for up to $19bn to be given to American farmers.

Though fewer people farm in rich countries, the farming lobby is still powerful.

Globally almost $300bn are spent each year to subsidise agriculture, which is roughly equal to the annual profit of the agricultural trade.

Nafta countries can guard against subsidised foodstuffs flooding their markets. For example, Mexico could tax imported maize.

"The irony is that in the 10 years Nafta has been implemented, Mexico has never chosen to use the tools to stop the importation of subsidised corn," said Luis de la Calle, Director General, Public Strategies of Mexico.

"The reason for that is that we are a net consumer of corn and therefore in the end we benefit from a subsidy from the US."

At the moment, 25% of Mexicans live in the countryside. Dr de la Calle believes that will drop to 5% within the next two decades. Aldo Gonzales does not welcome that prospect.

"So we're talking about the government having the intention of making 20 million Mexicans who live in the countryside disappear," he said.

Double threat

Many of the great indigenous civilizations of the Americas were built on maize, but one day Mexico could stop farming it altogether.

However, it is not just the system of free trade that some feel poses a threat to their way of life.

According to Dr Escurra, global corn improvement relies on the range of corn varieties that exist in Mexico.

But GM contamination could eventually reduce the diversity of corn varieties.

"Basically, crop improvement is based on traditional varieties," said Dr Escurra. "Losing those traditional varieties could be an issue of great concern."

The US currently uses transgenic seeds in 30% of the maize it exports to Mexico.

Under Nafta, the US now sells between six and eight million tonnes of maize to Mexico every year. But, according to the Mexican government, very little transgenic maize has spread, and it is not a cause for concern.

However, some indigenous farmers are still worried.

"The indigenous people of Mexico have farmed corn for 10,000 years," said Mr Gonzales.

"The security of the world's food should not be in the hands of corporations. It should be in the hands of farmers."

http://news.bbc.co.uk/1/hi/sci/tech/4008205.stm

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