Farmers Efforts To Claim Class Action Status
Against Monsanto Co. Denied By Judge

David Barboza
New York Times

A federal judge [October 1] denied class-action status to an antitrust lawsuit that accused some of the world's biggest agricultural seed companies of conspiring to fix prices.

The decision is a severe blow to a case brought in 1999 by some of the nation's most prominent antitrust lawyers, who accused the Monsanto Company and other big agricultural seed makers of trying to control the booming market in genetically altered seeds in the 1990's.

Judge Rodney W. Sippel of Federal District Court in St. Louis wrote in a 20-page ruling that the plaintiffs had not provided "common evidence" to show that a broad class of farmers had been affected by the conspiracy described in the suit.

Judge Sippel sided with the companies, who argued in April that the pricing data for seeds was so varied, complicated and tied to geography, seed types and other conditions that there seemed no way to prove that a large group of farmers were affected.

"I am convinced that the impact of defendants' alleged antitrust violations cannot be shown on a class-wide basis with common proof," Judge Sippel wrote. "Instead, it is a highly individualized, fact-intensive inquiry that necessarily requires consideration of factors unique to each potential class member."

After the ruling, the companies accused in the case --- Monsanto; Bayer; Syngenta; and Pioneer Hi-Bred, the world's biggest seed company --- praised the judge's decision and said the case against them had no merit.

"We obviously see this as a huge victory," said Bryan Hurley, a spokesman for Monsanto, based in St. Louis. "This pretty definitively concludes there's no basis to make broad claims."

Doyle Karr, a spokesman for Pioneer, a division of DuPont, also praised the ruling, saying, "As we have said since the case was filed, we believe the underlying claims are without merit."

The lawyers who brought the antitrust suit on behalf of a group of farmers said they planned to appeal.

"We're confident in our arguments for class certification that we plan to make to an appeals court," said Richard Lewis, a lawyer at Cohen, Milstein, Hausfeld & Toll, the law firm that filed the suit. "The allegations of wrongdoing remain, and this opinion says nothing whatsoever about those allegations.'

Just a week ago, Judge Sippel ruled that the antitrust case could go forward. But he did not decide whether it should go ahead as a class-action case, representing thousands of farmers, or as a much smaller case involving the small group of farmers who filed suit.

In that earlier ruling, Judge Sippel also dismissed a part of the class-action suit that sought relief for farmers who lost money after some export markets were closed to genetically altered crops.

The lawyers who filed suit, however, have argued in court that they have already seen internal records from the seed companies that show that a conspiracy took place.

But some of the companies, including Monsanto, say that the accusations have no merit, that the seed market is intensely competitive and that the lawsuit was initially backed by opponents of genetically altered crops who were simply seeking a way to slow the introduction of such crops.

The lawyers who filed suit have disputed that claim.

Ontario Seeks to Intervene in Biofoods Court Case

By Colin Freeze
Thursday, October 9, 2003
Globe and Mail

Canola farmer's gene-patenting fight linked to possible patient-care delays

Fearing that gene-patenting issues could compromise patient care and escalate health-care costs, Ontario is seeking to intervene in a court case involving genetically modified crops.

A looming Supreme Court case that began as a dispute between a Saskatchewan canola farmer and a multinational biotech company could end up setting ground rules that would extend far beyond agriculture, the province says in a legal brief filed last week.

"It is crucial that these issues be discussed with regard to the potential impact on the health-care system," writes Dianne Dougall, the Ontario Ministry of Health's legal director, in an affidavit filed in court last week.

Ontario's hospitals may seem to be far removed from the grain fields of Western Canada. Yet doctors and farmers alike are wrestling with corporations that are attempting to lay claim to sequences of DNA, the blueprint of all life, and to profit from related technologies.

Because of this, Ontario wants to intervene in the case of Percy Schmeiser, a Saskatchewan farmer in his 70s, and Monsanto Co., a biotech multinational that says he violated intellectual property > laws.

The crux of that dispute centres on whether Mr. Schmeiser owes Monsanto money for bioengineered canola plants that grew on his land. But Ontario argues that it has "fresh and different perspective" to bring to the case, which is to be heard by the Supreme Court in January.

Basically, the province says that gene-patenting laws must be kept from tilting too far in favour of corporations, or else patients in the publicly funded health-care system will suffer.

"It's not just a cost issue -- we're concerned about the ability of patients to access the best health care and the ability of researchers to develop the best test and treatments," said Sara Blake, a lawyer for the attorney-general of Ontario.

The fear is that overly broad gene-patenting laws could handcuff doctors and researchers. Early this year, Ontario got into a war of words with a Utah-based company that lays claim to two genes associated with breast cancer and also to related tests that screen patients for the disease.

Flouting the company's intellectual-property claim, Ontario has vowed to develop its own tests for a fraction of the cost. British Columbia backed off doing the same because it feared the tests could prompt legal actions against the province.

In a 2002 report to premiers of other provinces, Ontario called for a review of the federal Patent Act, saying health-care providers must be protected in disputes involving gene patents and that corporate claims must be kept from being too broad.

Ontario's attempt to intervene in the case is being welcomed by the lawyer acting for Mr. Schmeiser. Other groups opposed to bioengineered foods, such as the Council of Canadians, are separately seeking intervenor status in the case.

Lower courts ruled that Mr. Schmeiser violated intellectual-property rights when he allowed a pesticide-resistant form of canola to sprout on his land without paying Monsanto for seeds.

Mr. Schmeiser has always maintained that he was something of a hapless bystander, saying the seeds somehow blew onto his property.

Nadège Adam, biotech campaigner
Council of Canadians
502-151 Slater
Ottawa, ON K1P 5H3
p 613.233.4487, ext. 245 | f 613.233.6776
nadam@canadians.org

No Insurance Cover For GM Crops That 'Could Be Like Thalidomide'

By Robert Uhlig Farming Correspondent
Daily Telegraph
October 8, 2003

The major agricultural insurance companies are refusing to insure farmers who intend to grow genetically modified crops, according to a survey that deals a further blow to Government hopes of approving at least one crop for commercial cultivation next year.

The survey, conducted by working farmer members of Farm, a campaign group, found insurance companies unwilling to take on the risk of liability claims against farmers who grew GM crops.

Leading rural insurance underwriters told the farmers that they were concerned that "GM could be like thalidomide - only after some time would the full extent of the problems be seen".

Some spoke of the potential of lawsuits akin to the big payouts for asbestos-exposure victims.

"Fifty years ago, insurers were writing policies for asbestos without a care in the world. Now they are facing claims of hundreds of millions of pounds," one underwriter told the farmers.

"The insurance industry has learned to be wary of new things, and there is a real feeling that GM could come back and bite you in five years' time."

Rural insurers are so concerned at the scope for liability claims if the Government approves GM crops that they are even refusing to insure non-GM farmers against losses or liability due to contamination by GM pollen.

The problem of how to grow GM crops and conventional varieties has proved to be such a difficult issue to resolve that the Prime Minister's advisers have repeatedly failed to reach a consensus.

The Agriculture and Environment Biotechnology Commission, which advises the Government, is expected to deliver a much-delayed report on co-existence by the end of the month.

All the insurers surveyed felt that too little was known about the long-term effects on human health and the environment to be able to offer any form of cover for farmers growing GM crops.

Even NFU Mutual, the insurance arm of the National Farmers' Union, which is in favour of GM crops, will not provide insurance for farmers wanting to grow GM crops. A spokesman said the company believed the risks were not fully understood and advised farmers to seek cover through the biotechnology companies that own the patent to GM seeds.

Agricultural Insurance Underwriters Agency, which underwrites policies for Norwich Union and Sun Alliance, said it had an exclusion clause for liability arising from GM crops.

Rural Insurance Group, which underwrites Lloyds policies, puts GM crops in the same bracket as acts of terrorism and excludes them from cover.

BIB Underwriters Limited, which underwrites AXA policies, said it would turn down any policy that has any association with GM, including cover for farm building and property insurance as well as public liability. A spokesman said that aside from the problems of cross contamination, BIB anticipated a risk of claims associated with arson or vandalism due to anti-GM protesters.

Robin Maynard, the national co-ordinator of Farm, said: "When insurers quantify GM crops in the same category as thalidomide, asbestos and terrorism, no thinking farmer should risk their business and public reputation by taking on this unproven, unwanted and unnecessary technology."

Study Reveals First Evidence That GM Superweeds Exist

By Steve Connor Science Editor 10 October 2003

Cross-pollination between GM plants and their wild relatives is inevitable and could create hybrid superweeds resistant to the most powerful weedkillers, according to the first national study of how genes pass from crops to weeds.

Its findings will raise concerns about the impact of GM crops. Next week the results will be published of farm-scale trials which have studied the impact on the countryside of three types of crop.

The government-funded scientists said the latest findings "contrast" with previous assessments of gene flow between farm crops and weeds. They had suggested that the danger of hybridisation - where two types of plant cross-pollinate to create another, for example a superweed - was limited. Superweeds are considered to be a threat because, in some cases, they might absorb resistance to weedkillers from GM crops engineered to be herbicide-tolerant.

But the results of the research, which involved analysing satellite images of the British countryside and patrolling 180 miles of river banks, reveal that hybridisation is both more widespread and frequent than previously anticipated.

Mike Wilkinson of Reading University, who led the study published today in the journal Science, said physical barriers such as isolation distances - buffer zones designed to stop pollen spreading from GM crops into the wild - would have only a limited impact on preventing hybridisation.

"This [study] shows that isolation distances will reduce hybrid numbers but not prevent hybridisation. It depends on what level of hybridisation you deem acceptable but if you want to absolutely prevent hybrids then isolation distances will not do so," Dr Wilkinson said. "Hybridisation is more or less inevitable in the UK context," he added.

The study concentrated on non-GM oilseed rape and assessed how easily it cross-bred with a near-relative in the wild called bargeman's cabbage, also known as wild turnip, which typically grows along river banks. Although the research was based on conventional oilseed rape, Dr Wilkinson said the conclusions applied to any flow of genes that could be expected from the GM varieties of oilseed rape that were undergoing farm-scale trials.

"Our findings are directly transferable to almost all sorts of genetically modified oilseed rape," he said. "The only exceptions will be ones where there is male sterility introduced into the crop."

Researchers scoured the countryside for sites where bargeman's cabbage grew near to oilseed rape fields and they used DNA techniques to assess whether any hybrids between the crop and the wildflower had been produced as a result of pollen transfer.

The scientists, from the Natural Environment Research Council and the Centre for Ecology and Hydrology in Dorset, calculated the frequency of hybridisation and used it to estimate the number of hybrids that would form each year across the UK.

They concluded that typically there would be 32,000 hybrids produced annually in wild riverside populations of bargeman's cabbage, and a further 17,000 hybrids growing among a weedier variety of the wildflower which tends to infest farmland. This represents a relatively small fraction of the 88 million wild bargeman's cabbage plants estimated to grow along British riverbanks, but if the hybridisation involved a GM gene that conferred a significant advantage on the weed, the hybrid could quickly spread to pose a superweed threat.

An important outcome of the work is that it will allow scientists to assess what needs to be done to limit the spread of genes and pollen from GM crops. One possibility is to make the male plants sterile so they do not produce pollen.

"If we know how many hybrids to expect then we can test methods that people put forward hoping to prevent hybrid formation. In order to prevent hybrid formation you need to know how many to expect in the first place," Dr Wilkinson said.

"One of the main reasons for doing the work is that this sort of data represents a starting point for us to do predictive modelling, to predict how particular different sorts of genes will behave across the country.

"It's important to know how many hybrids to expect, to know how efficient it has to be to prevent hybrids. The key question is whether the gene that they contain is going to cause a change [to the countryside] or not," he said.

Although the latest study stands in contrast to previous work attempting to predict gene flow between farm crops and wild flowers, Dr Wilkinson said the findings were not totally surprising. "The level of hybrid formation is more or less in keeping with what we expected on a national level," he said. "What's surprised us slightly is the variability between the regions."

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