Unapproved Genetically Modified Corn: It's What's for Dinner

• Author: Kyndra A. Lundquist
• Position: J.D. Candidate, The University of Iowa College of Law, 2015; B.S., Iowa State University, 2008
• Pages: 825-851

825

Unapproved Genetically Modified Corn:

It’s What’s for Dinner

Kyndra A. Lundquist

ABSTRACT: The most notorious escapes of genetically modified organisms

(“GMOs”) included products still in the testing phase that the U.S.

Department of Agriculture (“USDA”) had never approved for sale or

consumption. The USDA, more specifically, its subdivision, the Animal and

Plant Health Inspection Service (“APHIS”), must change the current culture

of noncompliance among growers. Changes in the regulation of field trials of

GMO products would allow U.S. growers to certify to food distributors and

importers of U.S. agricultural products that crops are what growers purport

them to be and that unwanted and never-approved GMOs have not

contaminated their products. Better regulation would shift the costs of

preventing the escapes of these seeds on to the producers rather than farmers,

who might suffer economic loss if GMO seed contaminates their crops, or the

public, which suffers when agricultural markets across the globe are disrupted

by discovering unwanted GMO strains in food or other agricultural products.

I. INTRODUCTION ............................................................................. 826

II. DEFINING AND REGULATING GMOS ............................................. 829

A. WHAT ARE GMOS? ................................................................. 829

B. CURRENT U.S. REGULATORY FRAMEWORK ............................... 831

1. The Principles and History of Biotechnology

Regulation...................................................................... 831

2. The Process of Biotechnology Regulation .................. 832

C. INTERNATIONAL GMO REGULATION ........................................ 834

III. RISKY BUSINESS: ISSUES IN CURRENT REGULATION ...................... 836

A. GM-RELATED ECONOMIC DISRUPTIONS .................................... 837

B. DAMAGE TO NEIGHBORING FIELDS ........................................... 839

C. ENVIRONMENTAL RISKS ........................................................... 842

1. Biodiversity..................................................................... 842

 J.D. Candidate, The University of Iowa College of Law, 2015; B.S., Iowa State University,

2008. I thank the writers and editors of the Iowa Law Review for their work on this Note and my

family for their support.

826 IOWA LAW REVIEW [Vol. 100:825

2. Pesticide Resistance ....................................................... 843

D. STALLED REFORM ACTIONS ..................................................... 845

IV. PROPOSED REGULATORY CHANGES ............................................... 846

A. NOTIFICATION INCLUDING RISK ASSESSMENT ........................... 847

B. CONTAINMENT ........................................................................ 848

1. Isolation Distance .......................................................... 848

2. Submission of Containment Plan ................................ 849

3. Administrative Penalties for Escape ............................. 849

C. MAPPING FIELD TRIALS ........................................................... 850

V. CONCLUSION ................................................................................ 851

I. INTRODUCTION

In May 2013, the USDA announced that a farmer had found an

unapproved variety of genetically modified (“GM”) wheat growing in

Oregon.1 The farmer reportedly found the wheat growing in his field and

sprayed it with herbicide.2 After the wheat did not die, he sent a sample to

Oregon State University for testing.3 Testing revealed that the wheat was

genetically engineered to resist herbicide and was of a type that Monsanto

Company field tested between the years 1998 and 2005 over several states.4

This discovery came at a time when questions regarding the safety of

genetically modified organisms (“GMOs”) were on the rise, and the debate

continues today.5 The fact that no government agency had ever approved any

1. TADLOCK COWAN, CONG. RESEARCH SERV., R43100, UNAPPROVED GENETICALLY MODIFIED

WHEAT DISCOVERED IN OREGON: STATUS AND IMPLICATIONS 1 (2013), available at http://www.fas.

org/sgp/crs/misc/R43100.pdf.

2. Unapproved Genetically Modified Wheat Found in Oregon, USA TODAY (May 29, 2013), http://

www.usatoday.com/story/news/nation/2013/05/29/genetically-modified-wheat/2370533/.

3. Id.

4. COWAN, supra note 1, at 1. Monsanto Company tested the wheat with APHIS approval

in 100 field trials across 16 states with testing in Oregon beginning in 2001. Id. If a product is

being “field tested” or is in the “field trial” stage, the product is being planted outdoors to allow

the company to gather initial planting data. However, it has not yet been approved for sale, so it

can still be considered experimental.

5. In January 2014, General Mills announced that it would stop using GMO products to

make its cereal, Cheerios. Bruce Horovitz, Cheerios Drops Genetically Modified Ingredients, USA

TODAY (Jan. 2, 2014), http://www.usatoday.com/story/money/business/2014/01/02/cheerios-

gmos-cereals/4295739/. While anti-GMO activists heralded the move, others we re critical, stating

that the decision was likely made for marketing purposes, especially considering that Cheerio s

previously contained little material from GM products. Richard Levick, Are GMO-Free Cheerios the

First Domino?, FORBES (Jan. 9, 2014), http://www.forbes.com/sites/richardlevick/2014/01/

09/are-gmo-free-cheerios-the-first-domino/. The debate over the labeling of GMO products,

and, more generally, GMO safety has continued in attempts to sway public opinion to either side.

See Jayson Lusk & Henry I. Miller, Op-Ed., We Need G.M.O. Wheat, N.Y. TIMES (Feb. 2, 2014),

http://www.nytimes.com/2014/02/03/opinion/we-need-gmo-wheat.html?hp&rref=opinion&.