Seeds of hope: how new genetic technologies may increase value to farmers, seed companies, and the developing world.

• Author: Daniel, David

1. INTRODUCTION

   When Nobel Prize winner Norman Borlaug died in September 2009, a chorus of academics, scientists, and public policy experts sang his praises. (1) Borlaug was widely credited as the father of the "Green Revolution," the technological transformation of agriculture that has allowed food production to keep apace with explosive population growth since 1945. (2) Borlaug proclaimed that his work, by advancing the growth of more crops on less land, enabled countries such as India and Mexico, which historically faced difficulties feeding their expanding populations, to become largely self-sufficient. (3)

   The Green Revolution has nonetheless sparked controversy. During Borlaug's lifetime, environmental advocate Vandana Shiva contended that the ethnic violence that occurred in the Punjab region of India in the mid-to-late 1980s could be traced directly to the influence of Borlaug's agricultural policies, which resulted in a scarcity of resources and the destruction of both the environment and a way of life. (4) Borlaug responded to such criticism by claiming that it was not the scientific development per se that had caused such problems, but the explosive population growth that made such developments necessary in the first place. (5)

   This debate is symptomatic of a larger discussion about the role technology plays in food production. The development of new technologies (GM technologies) capable of altering the genetic makeup of plants has led to the production of genetically-modified organisms (GMOs), further intensifying the debate. (6) The commercialization of GMOs has allowed agriculture to move from a subsistence-based activity to a commercial operation and to the streamlining of seed production, as corporations compete to develop genetically-modified seeds with either the highest yields or the strongest resistance to pest or drought. (7)

   Although the isolation of certain genetic traits in agriculture is nothing new, (8) the commercialization of the seed industry has significantly complicated the worldwide network of food production. Corporations, consumers, and farmers often work with competing objectives, advocating for or against different agricultural technologies in the pursuit of their respective interests. Mutual mistrust and an unwillingness to work together hinder the accomplishment of collective public goals, such as establishing sustainable agricultural systems and feeding the hungry.

   One particular type of GM-technology which has generated enormous controversy is Genetic Use Restriction Technologies (GURTs). In their most common form, GURTs are a kind of anti-germinating, self-sterilizing seed, which are unable to reproduce after one growing season. (9) These seeds were developed by the biotechnology industry for the primary purpose of protecting biotech companies' intellectual property rights. (10) As is often the case with attempts to regulate technology, the rapid advancements in genetically modified organisms continue to outpace any attempts at administrative or statutory regulation. Although numerous jurisdictions have enacted laws that regulate GMOs or have enacted a legal framework for apportioning liability resultant harm from the use of GMOs, (11) few attempts have been made, specifically, to regulate GURTs.

   This note provides a comprehensive discussion of the issues surrounding GMOs and GURTs, from the history of their development, to a discussion of their risks and benefits, and an analysis of how the law should address both the property rights in this technology and the resulting torts. Finally, following an analysis of the means by which farmers and biotechnology companies inefficiently use litigation to pursue their goals, this note argues for the use of GURTs as a solution to the problem of social cost in a GMO context. In addition to increasing efficiency, GURTs can simultaneously assuage many concerns about GMOs, including the perception that GMOs threaten human health and the environment. If GURTs are brought to the marketplace, many of the concerns and controversies that surround GMOs would be alleviated, and farmers and biotechnology companies could better pursue their interests without the detraction of costly and inefficient litigation.

2. BACKGROUND OF GURTS

   In March 1998, the U.S. Patent & Trademark Office granted a patent for the "[c]ontrol of plant gene expression" to researchers at the Delta and Pine Land Co. and the U.S. Department of Agriculture. (12) The patent covers "[p]lant cells, plant tissues, plant seed, and whole plants containing the above DNA sequences" (13) One application of this patented technology was a form of "self policing" seed that can sterilize itself after one growing season. (14) Known as the "antigermination patent" by scientists and dubbed "terminator technology" by critics, these seeds have not yet been made commercially available as of the writing of this note. (15)

   Monsanto, the world's largest seed producer, (16) acquired the Delta and Pine Land Co. in 2007 and consequently acquired the antigermination patent. (17) Monsanto pledged in 1999 not to commercialize this technology and in 2006, the United Nations Convention on Biodiversity adopted a moratorium on the commercialization and field testing of these particular seeds. (18)

   Canada, with support from Australia and New Zealand, recommended lifting the ban on field testing and suggested instead a case-by-case evaluation of the risks and benefits of this technology. (19) Under pressure from other major agricultural producers, such as Brazil, the ban remains in place. (20) Some activists continue to question Monsanto's promise not to commercialize the technology, arguing that unless governments impose a blanket ban on the technology, the threat of commercialization remains. (21) At this time, Monsanto maintains that it will neither develop nor sell the "terminator seeds." (22)

   The term GURT was first proposed by molecular biologist Richard Jefferson and his colleagues in a study for the secretariat at the United Nations Convention on Biological Diversity (CBD). (23) Two types of technologies fall under the category of GURTs: TGURTs, which activate or deactivate a particular trait in an organism through a chemical inducer; and V-GURTs, which interfere with reproduction by yielding sterile seeds. (24) Additionally, there are three distinguishable varieties of VGURTs. (25) In the first category, fertile seeds can be made infertile through the activation of a chemically dormant lethal gene. (26) A second V-GURT can render a sterile seed fertile through the application of a chemical compound. (27) Finally, for vegetatively reproducing crops, a gene which represses growth during storage can be expressed through a chemical application. (28)

   Another characteristic of this technology is that it provides an inherent biological means of enforcing the intellectual property rights of patent holders, which is especially useful to biotechnology companies operating in countries where patent and intellectual property rights are not strongly enforced. (29) For example, biotechnology companies selling patented, genetically modified seeds routinely require their customers to sign licenses that stipulate that the seeds will be planted for only one growing season and not hoarded for future use. (30) The yet un-commercialized terminator gene automatically sterilizes the crop after one growing season, thereby eliminating the need for biotechnology companies to investigate their customers' crops to ensure compliance with their contractual terms.

   Activist groups such as Greenpeace, Friends of the Earth, and Organic Growers of the British Soil Association have continually criticized antigermination technology. (31) Greenpeace, for example, maintains that in addition to raising health and environmental concerns, the technology will lead to a consolidation of power in the seed industry that eventually will strangle small farmers. (32) These organizations have been extraordinarily successful in arguing either for stronger regulation or an outright ban on many GMO products. (33) For example, anti-biotech forces successfully lobbied for and won a ban on the import of genetically modified crops into the European Union less than two years after the arrival of the first genetically modified soybeans on the continent. (34)

3. WHY SHOULD GMOS AND GURTS BE REGULATED?

   Like all food and food additives, genetically modified food must be carefully evaluated by health and environmental agencies to ensure its safety for human or animal consumption. Yet, much of the concern generated over genetically modified foods--whether calling for stronger regulation, better labeling, or an outright ban--often stems less from scientific evidence of their harm than from deeply-rooted notions about the nature of human civilization. (35) This section first examines how the development of GURTs has led to increased regulation. Second, this section explores how a move into genetically modified products by companies and farmers can create unforeseen costs to them, a theme discussed later in greater detail. Finally, this section evaluates the perceived health, environmental, and sociological risks associated with GURTs and other GMOs.

   3.1 Reasons for the Development of GURTs

   Commentators have suggested three main reasons for the development of GURTs. (36) First, antigermination technology such as the terminator gene is designed to give biotechnology companies more control over the use of their products than legal recourse ever can. (37) In essence, GURTs have the potential to extend intellectual property protection beyond the length provided by statute. (38) Second, GURTs have the potential to contain transgenes in GMOs. (39) Third, they have the potential to act as a tool of "precision agriculture," i.e. as a switch that can be activated or deactivated to optimize growing conditions. (40) This discussion focuses on those GURTs which...