Company argues it's not "out to get" America's small population of organic farmers, cites lack of lawsuits

Monsanto Comp. (MON) is a firm with a long and controversial history.  It is accused of abusing intellectual property rights to sue small farms (allowing its patented crops to blow seeds onto their properties, then suing them); trying to bribe officials in Canada and Indonesia [1][2]; and suing dairy farmers who advertise that their milk doesn't contain growth hormones.  They also were the company responsible for spraying Agent Orange all over soldiers in Vietnam, which is thought to have led to cancer and other ailments.

I. The Farmers Sue Monsanto

Those criticisms are unlikely to go away, particularly in the wake of a controversial decision by The U.S. District Court for the Southern District of New York, a federal court.  Judge Naomi Reice Buchwald moved this week to throw out a potential class action lawsuit [1][2][3], sought by small independent farmers.

In the case the farmers, led by lead plaintiff Bryce Stephens, sought relief against Monsanto in the form a prohibition on Monsanto from bringing suit against organic farmers regarding seed contamination, given the really real possibility of cross-pollination via the wind and animals.

Mr. Stephens, who received degrees from Wichita State University (Kans.) and Washburn University (Kans.), turned away from a potentially lucrative career in law to instead run an 1,000 acre family farm that has been organic since 1994.  But Mr. Stephens states that he was unable to grow organic soybeans -- a high demand crop -- for two reason both tracing to Monsanto's transgenic crops.

First, he says that his neighbors grew the transgenic strain.  When other farmers in the area took their soybeans to be genetically tested, they test positive for Monsanto's patented genes -- the Monsanto crop had spread its germ into their fields.  As bulk buyers who supply such mega-health food chains such as Whole Food Market, Inc. (WFM) test for transgenic genetics, this would have made his crop essentially worthless.  It is estimated that between 0.5 and 2 percent of "organic" corn is really genetically modified.

Whole Foods Canola oil
Pollen contamination from neighboring farmers who use Monsanto's seeds can see an organic farmer's product banned from big buyers like Whole Foods Market.
[Image Source: Getty Images]

Second, there was the implied threat that even if he did try to sell his organic crop to various small buyers that Monsanto might sue.  He writes, "I have long been aware of Monsanto's campaign of patent accusations against farmers.  This has been well publicized in news reports and documentaries about the farming industry that I have read and seen.  I have also personally contributed support through certain organizations to help a specific farmer that was sued by Monsanto for patent infringement."

Now Mr. Stephens and his fellow organic farmers had several legal options at their disposal -- for example, they could have sent a legal cease and desist letter Monsanto to try to prevent future suits.  Instead, their attorney Dan Ravicher (the lead attorney) of the Public Patent Foundation opted for a novel approach -- file a class action suit looking to put in place a "laws of nature" based preliminary injunction that would prohibit Monsanto from suing small farmers for seed contamination, or at least put restrictions on the practice.

The class was expected to grow to at least 3,000 organic farmers, had it been authorized.

II. But Were the Tables Really Turned?

However, things were killed before they even took off.  The judge apparently took issue with the fact that none of the farmers had been personally threatened by Monsanto, and the fact that Monsanto only brought a small number of patent infringement suits last year.

The company successfully argued that the suit was pointless as its policy was not sue if "trace" amounts of patented seed were found on an organic farmer's land.

Wrote the judge, "[the allegations] are unsubstantiated ... given that not one single plaintiff claims to have been so threatened."  She also complained that the farmers had "overstate[d] the magnitude of [Monsanto's] patent enforcement", which documents indicated entailed 13 cases last year, which she opined "is hardly significant when compared to the number of farms in the United States, approximately two million."

Of course, that ruling does overlook the fact there are only 13,000 organic farmers in the U.S., out of those 2 million [source].

Dan Ravicher, executive director of the Public Patent Foundation and lead lawyer for the plaintiffs said the ruling will allow Monsanto to continue "patent bullying" and called it "gravely disappointing."  

Soybean farm
Farmers were unable to convince a federal judge that their farms were endangered by Monsanto. [Image Source: Katherine Leigh Photography]

It appears Monsanto has been tentative in terms of probing suits towards organic farmers whose fields contain small amounts of "Round Up Ready" soybeans (which produce their own pesticides) or other patented corn, soy, canola and cotton crops.  Most of the farmers sued in the U.S. have been traditional farmers who refused to pay Monsanto's seed fees, but were found with substantial amounts of Monsanto seed growing on their land.  These farmers have traditionally argued foul play, but it's a murkier situation as -- unlike the organic farmers -- they could potentially gain financially by illicitly using Monsanto's crop (as their buyers don't care about GMO content).

Monsanto did try one high profile organic farm suit in Canada, and won.  It scored a $400,000 USD damages payout.  However, Percy Schmeiser took Monsanto to the Canadian Supreme Court.  The highest court in Canada ruled that Monsanto's patents are valid (in Canada), but that it could not enforce the damages due to the ambiguity.  Mr. Schmeiser tells his side of the story in an audio recording on his homepage.  Monsanto, meanwhile, paints the farmer as a liar and villain here [press statement].

III. Future Uncertain

The company insists that it doesn't see itself as an aggressor towards organic farmers.  Writes Monsanto executive VP David F. Snively, "This decision is a win for all farmers as it underscores that agricultural practices such as biotechnology, organic and conventional systems do and will continue to effectively coexist in the agricultural marketplace."

While both sides have very different views, the U.S. Department of Agriculture's Advisory Committee on Biotechnology in the 21st Century is taking the organic farmers' concerns seriously in recent hearings, where they're discussing how to handle these tricky patent issues.

USDA sticker
The USDA that certifies (and stickers) organic produce, is concerned about the issue of pollen contamination. [Image Source: The Healing Kitchen]

Doug Gurian-Sherman, a senior scientist with the Union of Concerned Scientists, told NPR's food and agriculture blog The Salt, "Beyond whatever happens with this suit, there are some very legitimate issues behind it.  There is already a significant burden to organic food production, and there is more coming. It raises the question: Is it possible for organic agriculture to survive in the face of GM crops?"

Dan Ravicher is considering whether to appeal the dismissal, on behalf of the farmers.

Sources: Public Patent Foundation [1], [2], Monsanto

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