The case for GMOs: dealing with clashes between property rights and health and safety concerns.

• Author: Moore, Kline C.
• Position: Genetically modified organisms

ABSTRACT

A comparative analysis of international decisions concerning genetically modified organism (GMO) controversies reveals the judicial inconsistency that is often applied to the property rights of GMO producers and researchers. Courts often find that there are strong property right interests in GMOs, but when these rights clash with health and safety concerns, they are often minimized or completely forgotten; therefore, future growth in biotechnology is inhibited. This Note proposes a solution to this issue that better takes into account all stakeholders and allows for future investment and research into GMOs. The solution draws upon the lessons learned from current regulatory and enforcement regimes and international agreements governing GMOs. To arrive at this conclusion, this Note analyzes multiple cases concerning GMO controversies. These cases have been selected because their decisions have either gone against the national regulatory policy or public opinion. Further, this Note looks at the economic effects that these decisions have had on their respective countries.

Table of Contents I. Introduction A. What are GMOs? B. Controversies Surrounding GMOs C. Why Is This Important?. II. Overview of General Types of Regulatory Structures III. Case Analysis of GMO Controversies A. Infringement Cases 1. Argentina 2. Brazil 3. Canada B. Vandalism Cases 1. Germany 2. Belgium C. Resulting Economic Impacts 1. Germany 2. Belgium 3. Canada 4. Argentina 5. Brazil IV. Solution V. Conclusion I. INTRODUCTION

The international market for genetically modified crops is in disarray. Genetically modified crop producers (e.g., farmers and seed developers) not only have to worry about the patchwork of regulatory schemes that have arisen but the inconsistent treatment of these systems in the courtroom as well. While, at some level, international agreements such as the Nagoya-Kuala Lampur Protocol can be viewed as an attempt to provide a stabilized system of liability for genetically modified organism (GMO) producers, they do not address the underlying problem of inconsistent judicial treatment and cumbersome regulations, which can have the deleterious effect of inhibiting further research and development of GMOs.

One explanation for these inconsistencies can be found in the arguments surrounding the dichotomy between property rights and civil rights. The central feature of these arguments is whether property rights are a central right on par with civil rights or a lesser right that must yield to regulations and other civil rights. (1) As GMO cases can squarely fit into either category, (2) they provide the perfect means by which to analyze what happens when these interests collide and the subsequent economic effects of these decisions. This Note, divided into four parts, investigates this issue of judicial inconsistency and its economic impact on GMO producers and countries. Part I provides an overview of the history of GMOs. Part II reviews the general regulatory approaches that govern GMOs. Part III looks at court cases concerning the two major issues involving genetically modified crops: infringement and vandalism. Part III also analyzes the effect, if any, these decisions had on their respective country's economy. Part IV discusses a recommendation for a system that can sustain a proper balance between concerns for health and safety and the property rights of GMO producers and researchers.

1. What are GMOs?

   GMOs are organisms that are engineered, usually in a laboratory by modern biotechnology processes, to exhibit desired physiological traits or produce specific biological products. (3) GMOs are generally discussed in relation to the agriculture industry, but the genetic engineering methods used to create them are also applied to non-edible plants, animals, bacteria, and viruses, for example pigs modified to efficiently ingest phosphorus. (4) Genetic engineering finds its roots in the research of Gregor Mendel, whose work in the 1860s shapes society's current understanding of how traits are passed down. (5) The focus of his work was selective breeding, the process of breeding pairs over multiple generations to obtain desired characteristics. (6) Modern biotechnology has extensively developed Mendel's work, allowing scientists to produce any three desired traits within three months, compared to twenty-five years using Mendel's traditional breeding. (7)

   Despite the existence of genetic engineering techniques since the 1970s, (8) the first GMO approved for human consumption was not released until 1994. (9) Once approved, it did not take long for GMOs to become more prevalent in the market. Genetically modified crops currently make up more than 70 percent of the global production of soybeans and cotton. (10) As of 2011, genetically modified crops made up "about 90% of the papaya grown in the United States, all in Hawaii," "95% of the nation's sugar beets, 94% of the soybeans, 90% of the cotton and 88% of the feed corn." (11) Given this significant representation in America's food supply chain, GMOs also represent a sizable portion of the United States' gross domestic product (GDP): 2.5 percent in 2012. (12) The reason for the proliferation of genetically modified crops is threefold: efficiency, health, and sustainability. Genetically modified crop research began as a race to develop crops that produced more food while using fewer resources. From 1996 to 2012, the use of genetically modified crops saved 123 million hectares of land from being used for farming while still increasing crop yields. (13) As these benefits were realized, aspirations grew from simply increasing production yields to also serving the nutritional needs of certain communities--an example of this is "golden rice." (14) This rice, enriched genetically with beta carotene, was developed in response to the fact that "[m]illions of people in Asia and Africa don't get enough of this vital nutrient." (15) In addition, some studies show that genetically modified crops can decrease the emissions of greenhouse gases emissions, as compared to traditional plantings. (16) This is due to a reduction of fieldwork necessary to maintain some genetically modified crops, such as tillage. With a reduction of tillage, "more residue [will] remain in the ground, sequestering more [carbon dioxide] in the soil and reducing greenhouse gas emissions." (17) Achievement of these benefits, however, has not come without controversy.

2. Controversies Surrounding GMOs

   Genetically modified crops are controversial in almost every country where they are planted, with the most vocal GMO protests usually found in developing countries. (18) These protests range from peaceful boycotts to vandalism. The most cited reasons behind these protests are health and environmental concerns. The general argument is that GMOs are developed and deployed too rapidly to allow for proper testing and assessment of the risks associated with them. (19)

   Globally there have been several examples of violent GMO protests. In the Philippines, activists broke down fences and destroyed a farmer's crops because he was growing genetically modified crops in his field. (20) In Australia, activists, "wearing Hazmat protective clothing," "scaled the fence" at a test farm growing genetically modified wheat and, with weed eaters, destroyed all the crops. (21) Likewise, in Brazil, a group of female activists "armed with sticks and knives" "destroyed millions of samples of genetically modified (GM) eucalyptus saplings." (22)

   Similar protests also occur in the United States. The most innocuous of these events are those that are entirely confined to the political realm. (23) Activism in the United States, however, is not limited to just the public sphere. Sometimes activists have gone so far as to proclaim that "it is the moral right--and even the obligation--of human beings everywhere to actively plan and carry out the killing of those engaged in heinous crimes against humanity." (24) The heinous crime that the activists are referring to is the production and distribution of GMOs. The protests also include vandalism. For example, in Oregon approximately sixty-five hundred genetically engineered sugar beet plants were destroyed over the course of three days by protesters. (25)

   Due to these controversies, various international actors developed a patchwork of regulations to govern GMO production and transportation. (26) While there are three mechanisms for the international regulation of GMOs, the most notable is the framework developed at the United Nations level, the Cartagena Protocol agreement. (27) The Cartagena Protocol entered into force on September 11, 2003, and currently has 170 signatories. (28) It concerns various issues of biosafety largely requiring only advanced notification of transportation of GMOs and subsequent safe handling and use. (29) A subpart of this agreement required that, within four years, the parties would agree on how to deal with issues of liability due to the nonconsensual "transboundary movements" of various GMOs. (30) Now, twelve years since the ratification of the Cartagena Protocol, the liability system, the Nagoya-Kuala Lumpur Supplementary Protocol, is still not ratified as it is lacking six signatures. (31) While the reasons for this are numerous, one of the primary reasons is that local perceptions of GMOs have become so divisive that creating a standard regulatory structure is a political nightmare, but this is exactly what is required going forward. (32)

3. Why Is This Important?

   One of the major factors affecting the interpretation of international, and even national, legal and regulatory frameworks concerning GMOs is the perception of the local community. For instance:

   While marketing and importing GMOs and food and feed produced with GMOs are regulated at the [European Union (EU)] level, the cultivation of GMOs is an area left to the EU members. EU members have the right...