Dragging Monsanto to justice
Care2.com
posted by Laetitia Mailhes Jan 30, 2011
http://www.care2.com/greenliving/dragging-monsanto-to-justice.html

The mood of the Eco-Farm Conference's 1,000 attendees turned somber this week when the announcement was made from the pulpit, on Friday morning, that the Obama Administration had decided to deregulate Monsanto's genetically-modified (GM) alfalfa.

"This is a sad day for the future of sustainable agriculture", pioneering organic farmer Larry Jacobs, President of Jacobs Farm-Del Cabo summarized in the press release published by the Ecological Farming Association that organizes the annual conference in Pacific Grove, California.

Alfalfa is the fourth most important crop grown on America soil behind corn, soybeans and wheat. According to sustainable food systems advocate and author Michael Pollan, "93 percent of alfalfa hay is grown without any herbicide at all", which means that the GM alfalfa seed developped by Monsanto in order to resist its Roundup herbicide "is a bad solution to a problem that doesn't exist".

It is a bad solution because alfalfa pollen is exceptionally volatile, traveling easily for miles courtesy of insects and breezes. In other words, GM alfalfa is a prime candidate for the harmful transgenic contamination of conventional crops through cross-pollination””a phenomenon that biologists call "gene flow". The Supreme Court accepted that much in a ruling given last June in the case brought by the Center for Food Safety and other plaintiffs against the USDA after a premature deregulation of GM alfalfa.

The disastrous chain of events that could result from the planting of GM alfalfa is better understood when one realizes that alfalfa hay is a staple diet of dairy and beef cattle. More to the point, organic farmers rely on organic alfalfa to feed their animals. In the absence of GMO labeling in the United-States, the organic label is the only non-GMO guarantee offered to consumers. In fact, 83% of organic consumers say they purchase organic food specifically to avoid GMO, according to the Stonyfield Farm Case Study (2009). Contamination of alfalfa fields by GMO signals the end of organic crops, and consequently jeopardizes the organic practices and label of organic farms, putting their very survival at risk.

Opponents to GM alfalfa are bracing for a legal fight.

The Center for Food Safety is planning to file charges against Monsanto again by tackling a new angle, Page Tomaselli, staff attorney at the Center for Food Safety, explained Friday at the Eco-Farm Conference. Their strategy will hinge on the "gene flow" risk accepted by the Supreme Court last June as harmful and illegal under current environment protections.

The Public Patent Foundation (PUBPAT), a New York-based organization, is also getting ready for an intense, protracted battle. Its strategy: suing Monsanto under the Declaratory Judgement Act in order to counter its "aggressive strategy to enforce its patents", as PUBPAT executive director and patent lawyer Dan Ravicher put it to the Eco-Farm Conference attendees (this strategy was successful in 2009 against the Federal governement who ended up declaring that all patents granted for human genes were invalid).

The Declaratory Judgement Act was designed to afford a party threatened with liability (such as a farmer whose fields could be contaminated by proprietary GMO) an opportunity for adjudication before its adversary commences litigation (see Monsanto's well-oiled strategy of suing farmers whose fields were contaminated by GMO, for "patent infringement"). This way, PUBPAT aims to deprive Monsanto of its main tools to keep pushing its domination over the seeds market and eradicating all competition. Indeed, if it succeeds, PUBPAT would practically render Monsanto's patents irrelevant.

Dan Ravicher travelled especially from New York this week in order to meet with the Eco-Farm Conference attendees and to present the four legal arguments that PUBPAT intends to make to the judge:

1/ Monsanto's patents are invalid

By law, patents must be new, non-obvious and useful. Not only are GMOs not useful, but they are harmful for public health, the environment and society. Moreover, they are obvious since they derive from gene sequencing.

2/ Monsanto's patents are not infringed
There is no intention on behalf of contaminated farmers to infringe patents. In facts, contamination causes damage to them.

3/ Monsanto's patents are not enforceable

If both previous arguments fail and patents are still admitted by the judge as being valid and infringed, PUBPAT intend to demonstrate that they are not enforceable because they are being misused to gain undue control over the market. PUBPAT will have to demonstrate that Monsanto knew that their seeds would contaminate fields and push out competitive crops.

4/ Monsanto is not entitled to any remedy

Finally, no remedy is required because Monsanto has not lost a sale in the case of a field contamination. Consequently, it is not entitled to a penny of damages.

Only one argument needs to be successful for the case to be won. Conversely, Monsanto needs to win all four arguments to win the case. "Our goal is to prevent Monsanto from suing farmers. Beyond that, we fully intend to take advantage of the trial to expose Monsanto's practices and educate everybody about the many issues connected to its business and its strategy", Dan Ravicher said in Pacific Grove. The full process is expected to take three to six years.

PUBPAT intends to file the case in New York City within two months on behalf of two dozen plaintiffs (individual farmers and organizations that represent their interests). Dan Ravicher, who had also come to the Eco-Farm Conference in order to recruit candidates to fill in the ranks of the plaintiffs, witnesses and amici (people not involved in the case but who will be impacted by the outcome), found an especially receptive audience in the wake of the GM alfalfa announcement. Farmers and activists lined up behind the microphone to offer their support and, in many cases, their participation to the legal proceedings.


Laetitia Mailhes is a French journalist. After many years as the technology and innovation correspondent of the French "Financial Times" in San Francisco, she recently decided to focus on what truly matters to her: sustainable food and farming. Her blog, The Green Plate Blog, launched last summer.