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May 2007 Updates

Center for Food Safety Opposes Proposal in Farm Bill to Bar State Prohibitions on Gene-Altered Foods

Center for Food Safety
May 24, 2007

House Subcommittee today approves language slipped into farm bill that prevents states from protecting their citizens.

Center for Food Safety recognizes that proposal ties states' hands, weakening food safety protections at a time when they need to be strengthened.

Washington - Earlier today, the House Subcommittee on Livestock, Dairy and Poultry approved new language slipped into the 2007 Farm Bill that pre-empts any state prohibitions against any foods or agricultural goods that have been deregulated by the USDA. The passage appears to be aimed at several recently enacted state laws that restrict the planting of genetically engineered (GE) crops, but could also prohibit states from taking action when food contamination cases occur.

"Given the recent spate of food scares, it's shocking to see this attempt to derail safeguards for our food and farms," said Joseph Mendelson, Legal Director of the Center for Food Safety. "We need a Farm Bill that will promote stronger food safety standards, not one that attacks these vital state-level protections."

The passage approved by the House Subcommittee today states that "no State or locality shall make any law prohibiting the use in commerce of an article that the Secretary of Agriculture has inspected and passed; or determined to be of non-regulated status."

State legislatures, local governments, and citizens of many states and localities have adopted prohibitions on the planting of certain genetically altered products. Some of the state-level laws that may be pre-empted or compromised if the proposed Farm Bill language were adopted include:

  • Legislation in California and Arkansas that gives these states the power to prohibit the introduction of GE rice. The major rice growing states are particularly concerned after last fall's revelations that several unapproved varieties of GE rice had contaminated natural rice, resulting in massive losses for US farmers when export customers in Asian and Europe closed their markets to US rice.
  • Legislation adopted this year in the state of Washington, which prohibits planting of GE canola in areas near the State's large non-GE seed production. Brassica (cabbage, broccoli, and other such crops) seed producers pushed for this legislation, since GE canola can cross-pollinate with and contaminate natural cabbage seed. The Skagit Valley area in Washington produces $20 million in vegetable seed annually and is home to half of the world's cabbage seed production;
  • County bans on planting of GE crops in four California counties. To protect their organic and natural food producers, four California counties have adopted bans or moratoriums on planting of GE crops;

An overview of these and other state- level regulations of GE crops and foods is available at: .

In addition, the vague language of the proposal raises concerns that states would be barred from taking action when food safety threats arise. For example, states could be barred from prohibiting the sale of e. coli-tainted ground beef if the meat has passed USDA inspection, as was the case in last week's massive 15-state beef recall.

The biotechnology industry has sponsored language akin to the text approved this morning in the House subcommittee in dozens of state-level attempts to pre-empt state regulations on GE crops. They also joined the food and agribusiness industries last year in pushing for a federal "Food Uniformity" law, which would have gutted numerous state-level food safety laws.


GM Rice - Proposed Class Action

By David Bennett
Delta Farm Press
May 28, 2007

Last August, markets reacted negatively when the USDA announced a Bayer CropScience GM trait had been found in the U.S. rice supply. Most thought lawsuits were inevitable.

Now, nine months later, hundreds of suits have been filed and more are expected. Besides bringing a case alone, an option for a rice farmer is to join a proposed class action that's been moving through U.S. District Court Judge Catherine Perry's St. Louis courtroom since last December.

For the plaintiffs, Perry named Don Downing of St. Louis law firm Gray, Ritter & Graham as co-lead counsel along with Adam Levitt of Chicago's Wolf Haldenstein Adler Freeman & Herz. Levitt has experience with agriculturally-related class actions, having worked on the StarLink contamination case.

Since last August, Downing has filed suit on behalf of over 200 Missouri and Arkansas rice farmers. In the proposed class action, there are now some 460 rice farmers representing over 248,000 acres of rice.

In an April filing, Downing said total compensatory damages for plaintiffs and other members of the proposed classes may approach or exceed $1 billion - and that's before taking into account punitive or statutory damages.

Recently Downing spoke with Delta Farm Press about his expectations for the case, timeframes for the litigation and how the plaintiffs' investigation into the contamination is progressing. Among his comments:

On the setup

Besides Downing and Levitt, "there are six law firms that are on an executive committee. That includes, basically, the team of lawyers that will prosecute the actions on behalf of the plaintiffs.

"Judge Perry has given us a deadline of (May 17) to file an amended and consolidated class action complaint. We will do that and allege claims on behalf of farmers in each of the five long-grain rice producing states: Louisiana, Arkansas, Missouri, Mississippi and Texas.

"There will be separate class actions all in one large consolidated complaint. For example, there will be several counts on behalf of Louisiana rice farmers. There will be the same for Arkansas rice farmers. That will be done for each state.

"Also, Bayer's lawyers, Levitt and I have been working on various procedural type agreements. Those include a confidentiality agreement, an electronic discovery agreement, and a document preservation agreement.

"We're also working on a scheduling order that we intend to submit to Judge Perry the week of May 28. Actually, May 29 is the date by which we need to file a joint statement setting forth the agreement we can reach on the various items (listed above).

"Judge Perry will have a hearing for the lead lawyers on May 31. That will be a scheduling conference. At that time, Judge Perry will set various deadlines - let us know how she'll process the case - going forward."

What does this mean for the farmers? They can join the class at any time?

"All rice producers in the five state region I mentioned (are eligible).

"They'll be part of the class if it's certified. The judge must make a determination about whether this case is appropriate for class action. There won't be a decision on that until later this year - fall or winter, probably.

"(If it is certified), every rice producer in that five state region will have a chance to opt out of the class. He can choose to not be part of the action."

Eligibility criteria?

"The amount of acreage and bushels of rice will have some impact on the amount (of money) each farmer recovers. But in terms of whether they participate in the case, all they have to be is a long-grain rice producer."

How are negotiations with Bayer's lawyers going?

"Both sides are trying to be professional in their dealings with each other. We've had no difficulty getting along with Bayer's lawyers . . . We certainly have disagreements, but we're able to work through them. To the extent we can't agree on issues, Judge Perry will resolve things."

You've visited Mid-South rice farmers. What are you hearing from them?

"The farmers I've spoken with understand litigation takes time. That's particularly true when there's been, I think, about 195 cases filed around the country. It will take time to get the procedural equipment in place to let these cases move.

"But we've assured farmers we're moving as fast as we possibly can. And I know Judge Perry, in previous hearings, has expressed her interest in moving the case along as efficiently and expeditiously as possible.

"But (that's difficult) because there are so many states, so many farmers, so many state laws to consider, that it takes more time than a garden variety automobile accident case, for example.

"We have heard from farmers who have gone out of business - or gotten out of the farming business.

The toll on farmers

"Many farmers have decided to quit planting as much rice as they have in the past. That's for a variety of reasons, but one is the significant rice seed shortage caused by the contamination of the Cheniere and Clearfield 131 varieties.

"As a result, many farmers couldn't obtain the type of rice seed they needed. Or, they couldn't obtain sufficient quantities of it. Therefore, some farmers were forced to plant rice seed they feel will yield less than their preferred variety. Other farmers have been forced to plant crops that are substantially less lucrative than rice.

"Combine that with all the other problems the contamination has caused - the rice price isn't where it would have been had this not happened - and we've lost a chunk of our export market. I know there are a lot of efforts to minimize that problem. But the fact remains that the world price for U.S. rice is substantially lower than it would be if this hadn't happened. All U.S. long-grain rice farmers have been damaged in that regard.

"Other farmers have incurred costs of the decontamination of their equipment, of their grain bins and machinery. And the whole rice distribution system has also incurred decontamination costs that will ultimately be passed along to the rice producers. Those will come in the form of basis points they have to pay or other charges and fees that will be passed to them.

"At the end of the day, our view is the rice producers are left holding the bag because of the contamination. That's what this case is all about: obtaining compensation for rice producers for the economic losses they've suffered."

Do you have a figure yet on how much this has cost?

"No. On reason is some of the damages are continuing to accrue. (Getting a figure) will be part of what will be happening during litigation. We have retained economic experts that are looking into the damages suffered by rice producers as a whole."

On new cases

"Cases continue to be filed. The vast majority of them have been filed by rice producers. But there have been cases filed by mills, by exporters and importers and others that were sitting on a substantial quantity of rice that was devalued as a result of the contamination."

On the USDA investigation into the cause, or causes, of contamination

"Our understanding is their investigation is continuing . . . They haven't told us why it's taking so long.

"We are doing our own investigation. Once Judge Perry allows the discovery process to go forward - and we anticipate she'll allow the parties to begin this summer - we'll have the opportunity to issue subpoenas to get to the bottom of what happened, to do a full-scale investigation.

"Right now, we don't have subpoena power to force Bayer to answer questions under oath. But we will have that beginning in July."

You're only going after Bayer?

"Bayer has been named in virtually all the cases. It was their GM (trait) that contaminated the U.S. rice and seed supply. But there are cases in the multi-district litigation that have named as defendants Riceland and LSU. They're part of the proceedings."

Best and worst-case guesses for when the trial will begin or a settlement is made?

"A settlement could happen anytime, but we don't look for one anytime this year. From our discussions with Bayer, it seems they want to pursue this through litigation for some time.

"We don't look for any final resolution during 2007. It's possible something could be done in 2008 - I think that's the first opportunity for farmers to see a result. But it could be 2009, or beyond, before this winds down and is completed."


US Still Bullying EU to Market GMOs

Press Release
Friends of the Earth Europe
May 30, 2007

But avoid the dirty GMO word! advises US official

Brussels - New documents obtained by Friends of the Earth Europe reveal that the United States continues to pressure the EU to market new genetically modified (GM) crops and foods, despite the World Trade Organisation's recent verdict that the EU has a right to protect itself against GMOs. In an email exchange, US officials even insisted that the EU should steer clear of the term "GMOs" in order to minimize public opposition to its policies. [1]

Friends of the Earth Europe GMO Campaign Coordinator Helen Holder said: "Even after they failed to win at the WTO, the US and their friends in the biotech industry are still trying to force feed European citizens GMOs. The European Commission must stand firm, and put European citizens' health, the environment and the right to GM-free food and farming before the interests of a few big corporations."

The documents ? email correspondence and minutes of a meeting between the European Commission and the US earlier this year ? were obtained by Friends of the Earth Europe under a freedom of information request. The documents reveal US frustrations at the EU's failure to "normalize trade" of agricultural biotechnology products and at the "lack of political will to operate EU approval systems of GMOs" due to member states' opposition. [2]

The US was pushing the European Commission to:

  • Ignore risk assessment concerns and push GMOs quickly on to the EU market
  • Agree a deal to fast track GMOs that the US wants to be sold in Europe
  • Authorize a controversial genetically modified oilseed rape as proof that the Commission is backing down under US pressure
  • Bring top EU decision makers into line with US policy and commit to allowing GMOs into the EU
  • Abolish member states' national bans
  • Lower standards for GM contamination of food for GMOs that are not authorized in the EU

The World Trade Organisation (WTO) issued its final ruling of the GMO dispute last autumn, finding no clear winner or losers. It did not question the right of counties to put in place strict biosafety laws, nor the right of a country to ban an individual GMO. The GMO bans in place when the complaint was lodged were ruled illegal on a technicality only [3].

For further background see FoEE media briefing:

  3. For an overview of the WTO dispute ruling see:

Bill to Ban Terminator Introduced in Canada

News Release
ETC Group
May 31, 2007

A bill to prohibit field testing and commercialization of Terminator seed technology was introduced in the Canadian Parliament today. Terminator refers to plants that are genetically engineered to render sterile seeds at harvest - a technology that aims to maximize seed industry profits by preventing farmers from re-planting harvested seed.

"Canada needs to pass this bill into law because genetic seed sterilization is dangerous and blatantly anti-farmer - suicide seeds threaten to intensify corporate control over Canadian agriculture and offer no benefits for farmers," said Colleen Ross of the National Farmers Union.

Initially developed by the US Department of Agriculture and multinational seed companies, "suicide seeds" have not been commercialized anywhere in the world due to an avalanche of opposition from farmers, indigenous peoples, civil society and some governments. In 2000, the United Nations Convention on Biological Diversity recommended a de facto moratorium on field-testing and commercial sale of Terminator seeds; the moratorium was re-affirmed in 2006. India and Brazil have already passed national laws to prohibit the technology.

"Canada has led a behind-the-scenes push to undermine the United Nations moratorium," points out Pat Mooney, Executive Director of the Ottawa-based ETC Group, "so it's time the Canadian Government listened to the people."

"Researchers are continuing to develop and win patents on Terminator because seed sterility is simply too lucrative for industry to abandon," said Lucy Sharratt of the Canadian Biotechnology Action Network. "A national law to prohibit the technology is the only way to insure that Terminator is never commercialized in Canada. The Government of Canada must show its commitment to the international community and not bow to industry pressure," said Sharratt.

The full text of the Canadian bill will be available here on June 1:


Scientists Create New Crop of Genetically Modified Crops

By Maywa Montenegro
May 31, 2007

If you've ever colored Easter eggs - I mean the old-fashioned way, with food-coloring, not with those plastic wraparounds - then you know that when you mess up, you have two options: rinse them off with some white vinegar and start over, or forge ahead, layer even more color on top, and hope that something presentable emerges.

Okay, so that metaphor's a bit of a stretch, but that's what came to mind when I read, earlier this week, that scientists at the University of Nebraska, Lincoln, have engineered a new category of transgenic crops. The new plants -- which include broad-leafed greens such as soybeans, tomatoes, and tobacco -- harbor a bacterial gene that makes them resistant to an herbicide called dicamba.

"But we have Roundup!" you cry. "Why do we need anything else?" Well, because Roundup (active ingredient: a chemical called glyphosate) isn't working as flawlessly as it used to. According to the story in Science (sorry, subscription only), 24 percent of farmers in the northern Midwest and 29 percent in the South say they have glycophate-resistant (GR) weeds. Crop scientists in Argentina, Brazil, and Australia report GR grasses popping up too.

Which is hardly a surprise when you consider the loads of the chemical we've dumped on our fields in the past few decades. In 1995, U.S. farmers used 4.5 million kilograms of glyphosate; today they use 10 times that amount. And glyphosate-resistant crops (better known as "Roundup Ready"), first engineered by Monsanto in 1986, now dominate the market. Today, more than 90 percent of soybeans and 60 percent of the corn are glyphosate resistant. With many farmers using glyphosate as their sole herbicide, we've essentially ensured that mavericks would eventually sprout. "The selective pressure for weeds to develop resistance has been huge," Stephen Duke, a plant physiologist at the USDA's Agricultural Research Service told Science.

Now plant researchers are hoping to alleviate some of that pressure by introducing dicamba into the mix. If farmers can rotate between dicamba-resistant (DR) and glyphosate-resistant crop varieties, they say the likelihood of weeds gaining a foothold will fall. The new plants also feature an interesting safety mechanism that should help stave off weeds: the dicamba resistance gene (taken from a bacterium) lives only in the plants' chloroplasts. Because chloroplast DNA is only inherited through the maternal side, this means that the GM gene can't be spread through the male pollen. It's a reproductive stopgap of sorts.

But the researchers themselves don't seem so confident that Mother Nature won't soon outsmart even this clever maneuver. Monsanto, which has licensed the dicamba technology, is hard at work on "gene stacking" -- combining genes for multiple herbicide resistance into one plant. "We have the technology today to develop herbicide resistance to anything we want to," Jerry Green, a weed scientist with DuPont Crop Protection told Science.

Yes, we have the technology. That's not the point. How and whether we should use that technology seems to me to be the more relevant issue. Our love affair with glyphosate is showing the first signs of an ugly breakup, and instead of changing (or reversing) course, we're simply forging ahead with more chemical solutions, more layers of genetic dye.

Perhaps the most disturbing part of it all, though, is that when the first dicamba-resistant soya goes into production -- in three to seven years, according to Monsanto -- no one will probably notice. Without a cogent system of labeling standards, consumers will have no idea that this has gone to market, and the mainstream press (sorry, Science and Nature) certainly won't cover it. It's not so much that I'm fearful of a hazard to human health by ingesting these foods (a Twinkie probably has more ingredients to worry about); it's the damage these GM crops do to the greater environment that's so troubling. These mighty duos of herbicide and herbicide-resistant crops create a vicious loop that we've been happy to run in because there's profit to be had. The fallout, though, is biodiversity itself. The widespread planting of these GM marvels to the exclusion of all else wreaks havoc on ecosystems, on levels we can see and on those we don't yet understand. It would be nice, at least, if as voters and consumers, we could have a say in the matter ... Because while this egg may look pretty on the surface, I have a feeling it's already rotten inside.

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