Life is better in the land down under: Australian treatment of GM contamination and why it should be followed in the United States.

Author:Tripp, Jeremy A.
Position:Genetically modified
 
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INTRODUCTION

In 1996, Monsanto introduced the herbicide-tolerant Roundup Ready soybean. Since then, the growth and production of genetically modified ("GM") food in the United States has remained a controversial topic. (1) Although GM crops have been widely adopted by farmers in the United States, (2) many private citizens and lawmakers remain unconvinced of their safety. (3) This combination of widespread adoption and public concern is one factor contributing to the growth and expansion of organic farming in the United States. (4) One major concern for organic farmers is the possibility of crop contamination by neighboring GM crops. (5) Many commentators have suggested that US law remains underdeveloped and fails to provide uniform remedies for organic farmers who might experience any number of contamination events. (6) Some recently published articles have examined the common law claims of nuisance, trespass, and negligence and concluded that these claims fail to provide sufficient remedies for farmers. (7) However, this Note concludes, by relying on the recently decided Australian case Marsh v. Baxter, (8) that organic farmers may find adequate protection within current US common law. Therefore, further statutory revisions are completely unnecessary to protect the US agricultural industry.

This Note proceeds in four parts, arguing that current US law has the ability to efficiently remedy any damages resulting from GM contamination of organic crops. Part I provides background on organic agriculture in the United States and examines the current fear of contamination of organic crops by their GM counterparts. Part II looks at the unsatisfactory precedent that exists in the United States and argues that state-controlled tort claims can provide farmers with satisfactory recovery. Part II.A provides background on the current state of federal regulation of GM crops in the United States, which provides no recovery for contamitated farmers. Part II.B, through analysis of the leading GM contamination case in the United States, In re StarLink Corn Products Liability Litigation, (9) shows why the state remedies currently available to organic farmers provide for full recovery, especially the tort claim of private nuisance.

Part III looks to Australian regulation and its recent handling of contamination cases in order to hightlight the strengths of the US common law system currently available to contaminated farmers. Part III.A discusses current Australian regulation of both GM and organic products, which is remarkably similar to the US system, thus allowing the drawing of useful parallels. Part III.B then presents the recently decided Marsh v. Baxter, which dealt with a private claim for recovery following alleged GM contamination of organic crops. Marsh shows that a farmer facing GM contamination can rely on common law tort claims in order to recover for economic losses. Even though the plaintiff-farmer Marsh had his claims dismissed by the Australian court, the case gives meaningful insight into possible routes for recovery in the case of actual contamination.

Finally, Part IV provides a discussion of the Marsh decision against the background of existing US precedent, including StarLink. This Note concludes that existing state and federal law can provide reasonable and fair relief for a farmer--organic or conventional--who experiences GM contamination. Additional statutory revisions would only further complicate the system, potentially placing burdens on GM farmers and upsetting the balance of the entire agriculture industry. Organic farmers seeking recovery can find satisfactory relief through a dual system of common law claims of private nuisance against contaminating parties and contract claims against non-governmental certifying organizations for wrongful decertification. This system allows for the most productive use of farmland in the United States while simultaneously protecting farmers from any actual damage caused by contamination.

  1. ORGANIC AGRICULTURE AND CONTAMINATION IN THE UNITED STATES

    An investigation into the possible avenues of recovery available to organic farmers facing a contamination event is important given the recent growth of the organic market and the pervasive fear of contamination within the organic agriculture industry. (10) Between 2000 and 2012, sales of organic food products in the United States grew an average of fifteen percent annually. (11) As of 2008, over 4.1 million acres in the United States alone were devoted to organic production. (12) Organic food products are now available in three out of every four conventional stores in the United States and make up over four percent of total US food sales annually. (13) With consumer interest in organic foods rising annually, (14) the health of this industry is an important and worthwhile topic of study.

    Contamination of organic foods can occur in a variety of ways. Not only can the introduction of GM material cause contamination, but the exposure of crops to pesticides or fungicides not approved for use on certified organic products may constitute contamination. (15) GM contamination occurs when GM material is introduced into a non-GM food source. This can occur when particles of GM crops are mixed with those of non-GM crops after harvest or through cross-breeding in the field prior to harvest. For example, the use of rented farm equipment on organic crops following their use in the harvest of GM crops can introduce enough GM material to warrant decertification of the harvested organic products. (16) Additionally, there are several avenues for GM genes or plants to introduce themselves into an organic crop, including wind-driven pollen drift, (17) the movement of cut plant matter leading to 'volunteers,' (18) and animal transportation of seeds and other genetic material. (19)

    While contamination events are not unique to organic producers and handlers, (20) such events can arguably have a much larger impact on the organic food industry due to a number of unique factors. Organic produce is generally sold in the marketplace for a sizable premium over both conventional and GM produce. (21) This premium helps farmers offset the increased cost of production that is required by some organic crops. (22) Even when the costs of growing organic crops are equivalent to those of similar GM crops, organic farmers expect to receive a premium for their efforts. (23) While regulation and certification is covered in depth in Part II.A, it should be stated here that a contamination event could lead to decertification of organic produce and organic farmland. This decertification could force organic farmers to sell produce for a lower price, effectively erasing any expected profit for that growing season and beyond. (24)

    Therefore, in order to ensure the health and continued success of the organic food industry, organic farmers must have efficient and satisfactory legal avenues for recovering damages following a contamination event. (25) However, as GM products are grown on 169 million acres of land in the United States and make up a large portion of the US food supply, any recovery must avoid placing an unnecessary burden on GM producers. (26) As this Note argues, satisfactory avenues already exist in the current tort and contract law of the United States that strike a healthy balance between GM and organic farmers.

  2. STARLINK AND THE STATE OF US LAW

    In the United States, the federal government has established a complicated system that regulates the growth and labeling of organic and GM products. However, these regulations do not establish liability for contamination events. This is left to the common law systems of individual states. Importantly, while the intent element required for many common law tort claims creates barriers to recovery when applied to cases of GM contamination, private nuisance appears to provide an avenue of relief. In re StarLink Corn Products Liability Litigation provides limited insight into the applicability of these state law claims to a case of widespread GM contamination. Unfortunately, both StarLink and analogous non-GM contamination cases serve as insufficient predictors of recovery for organic farmers facing GM contamination. Therefore, questions remain in the United States as to the applicability of tort claims to GM contamination.

    1. US Regulation of GM and Organic Agriculture

      In the United States, various state and federal agencies regulate GM agriculture and GM food products. Under a policy set out in the Coordinated Framework for Regulation of Biotechnology in 1986, the USDA, the FDA, and the EPA assess and regulate genetically modified organisms ("GMOs"), including GM crops. (27) The involvement and scope of regulation by each agency is dependent upon the intended use of the plant. (28) The Animal and Plant Health Inspection Service ("APHIS"), an agency within the USDA, regulates and monitors the risk that a GMO may become a weed or another risk to plant health. (29) The FDA, in regulating the safety of food and food products from plant sources, ensures that GM plants meet the same standards as traditionally-bred plants. (30) The EPA regulates GMOs with pesticide properties under the Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA") (31) and the Federal Food, Drug, and Cosmetics Act ("FFDCA"). (32) While these laws do not establish specific remedies for farmers experiencing GM contamination, the regulatory power of the federal government may establish some instances of liability for producers and growers of GM crops, as illustrated by StarLink. (33)

      The federal government also regulates organic agriculture and products. Modern regulation of organic food production and labeling in the United States began with the passage of the Organic Foods Production Act of 1990. (34) This statute established the National Organic Program ("NOP"), which sets minimum standards for all producers or handling...

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