Garden, Plant, Cook!

Wednesday, February 02, 2011

Greening - Did The USDA Just Approve GMO Contamination of Organic Foods?

 Dear Folks,

For those of you who may not be familiar with the term GMO it stands for Genetically Modified Organism sometimes referred to and Genetically Engineered Organism or “Transgenic”.

On January 28, 2011, Agriculture Secretary Tom Vilsack announced that the United State Department of Agriculture (USDA) had approved the unrestricted planting of genetically modified alfalfa sold by Monsanto Co. and Forge Genetics. (Called RRA which stands for Roundup Ready Alfalfa.)

This very, very controversial decision by the USDA may well result in their tacit approval to contamination of all organic and naturally grown (no chemicals) foods by GMOs.

A bit of history about the phrase genetically modified or genetically engineered.

If a rose grower wants to develop a new rose with a prettier flower or longer stems he or she would manually cross pollinate two plants with some of the features they were looking for.  Each successive generation would be cross pollinated with other roses which had stronger versions of the feature sought until finally the rose grower had “the” rose he was looking for.  That is a form of genetic engineering that has been around for centuries, used in not only plants but also livestock, dogs (the original dog a wild wolf-type is the direct ancestor of all dogs), cats (some horrible mutations resulting that some people think are ‘cute”) and birds.

The problem with the current GMO and GEO ‘manufacturing’ is that the scientists are not staying with in species but going outside to cross plants (and animals) with bacteria, pesticides and even insects (if you want to scare yourself google transgenic spider and goat).

All of these experiments are touted as better for us: more pest resistant crops, stronger garments, supposedly better yields and supposedly cheaper in the long run for the consumer.

Due to the dominance of huge chemical companies like Monsanto, Dow and Schering-Plough the FDA under its GRAS rules (Generally Recognized As Safe) decided that GMO components are not required to be labeled as such and therefore the ONLY current way to know you are not consuming GMO/GEO foods is to buy organic.  Or maybe you can’t rely on that any longer with the approval of RRA!

If you eat eggs, meat, cheese or drink milk, at some point in time the chickens or cows probably ate alfalfa.

Under the stringent standards created by the USDA for certified organic foods, no part of the component stream of the final product can contain GMO or GEO foods.

Prior to the decision by Secretay Vilsack to approve RRA, he released a letter to the agriculture community.  In it he said:

“Therefore, we have an obligation to carefully consider USDA’s 2,300 page EIS, which acknowledges the potential of cross-fertilization to non-GE alfalfa from GE alfalfa – a significant concern for farmers who produce for non-GE markets at home and abroad.”  --USDA Secretary VIlsack Urges GE and Non-GE Coexistance - January 8, 2011

Vilsack then approved the use of RRA on January 28, 2011.

The almost immediate impact of the approval of RRA will be on Organic Milk Producers and consumers of Organic Milk.  Why?

Because of those stringent guidelines for approval and maintenance of the USDA Certified Organic Program.  Why?

Remember the statement above by USDA Secretary Vilsack “acknowledges the potential of cross-fertilization to non-GE alfalfa from GE alfalfa.

"Many Americans became familiar with GM contamination in September 2000, when StarLink® corn, a potentially allergenic GM variety not approved for human consumption, was found in taco shells and other corn products. Planted to less than 1 percent of the nation’s corn acreage, StarLink was found in 22 percent of the corn samples tested by the USDA and prompted the recall of more than 300 food brands. After an extensive program to remove it, three years later StarLink still showed up in more than 1 percent of corn samples."

Corn pollen is considered one of the heavier pollens and therefore except for bee pollination, wind drift of pollen could be considered to be limited to a 2 mile radius.

With alfalfa having a much lighter pollen, some analysts consider that between wind drift and bee pollination (bees love alfalfa) the range could be 16 miles!

At some point down the road from the approval of RRA one of two scenarios will occur with Organic Milk Producers:

1) you will be drinking organic milk contaminated by Monsanto RRA alfalfa
2) the frequent tests and inspections required by the USDA Organic program will turn up the contamination and the dairy is either fined to oblivion or required to drop out of the Organic program for 5-7 years until they re-satisfy the basic certification requirements.

Not one to refrain from talking out of both sides of its mouth, the USDA will have approved a chemical and removed a food all at the same time.

There are some preventative steps consumers and natural and organic food producers can do – I discuss these at the end of this blog.

Some litigation history.
GMO seeds are patented and tightly enforced by the patent holder.  Monsanto being one of the largest producers of GMO seed, is usually at the forefront in ‘protecting’ their patents.

There are some very sad stories about farmers who thought they were getting a good deal when entering into agreements with Monsanto to participate in their GMO seed programs.  I am not going to address these here in this blog, but suffice it to say that they read like selling their souls to the devil.

Reminds me of an old Coke-Cola story about a little cafĂ© owner who decided to no longer carrry Coke-Cola.  He was required to take down and return all of Coke’s signage and equipment – fair enough.  But it got worse after that - the company representatives visited him and said that since he had prior sold their product that he was now required to post large signs stating his soda was NOT coke-cola and to explain that to customers.  I don’t know how that turned out for him but when a big company hammers a little guy over the head with their legal department you know how that usually comes out.

Back to litigation by the big guys.  Along the path of Monsanto getting the USDA to approve its RRA, they were involved in a lawsuit over the RRA that made its way to the Supreme Court, and only missed being won completely by Monsanto on the basis of the huge report Vilsack reportedly used as a basis for the final approval - namely the case turned on the fact that the report was not available and further ‘study’ was needed on the issue of the use of RRA.

Two comments from the case are notable for the current and rising concern on the inability of any GMO seed to be kept within its boundaries and also who is benefitting from either the use of seed or who buys organic products.

Monsanto v. Geertson Seed Farms

In one of the most amazing (in my opinion – Catherine) statements of under-education uttered by a sitting Judge – Justice Antonin Scalia appeared unconvinced by the respondents’ reasoning during oral arguments and stated: “This isn’t contamination of New York City’s water supply…This is not the end of the world, it really isn’t. He went on: “The most it does is affect the farmers who want to cater to the European markets”

Scalia was making reference to the oft - repeated statement by the chemical giants that the only reason for organic farming is our export to countries like Japan which has a zero-tolerance policy for GMO foods.  Got that!  Your purchases of organic or naturally produced foods by US farmers in your community does not count.

[Commenting on the Geertson case] ...Gregory Shaffer, a professor at the University of Minnesota Law School, cross-pollination is a risk for organic farms and can prevent goods from being certified organic. "There is some talk about building buffers between the fields," said Shaffer. "It depends on the crop, but there are ways to create buffers to stop cross-pollination."

You can’t build a buffer to bees.

Despite Scalia’s amazingly short-sighted comment, the USDA would disagree with him:

In 2008, U.S. producers dedicated approximately 4.6 million acres of crop land, rangeland, and pasture to certified organic production, more than double the 1.8 million certified acres in 2000, according to ERS estimates (see box, “Tracking the Trends in Organic Agriculture”).Certified organic crop land increased 41 percent between 2000 and 2005and was up 51 percent between 2005 and 2008, reaching over 2.2 million acres. The organic livestock sector grew even faster during this period, with the largest gains in organic dairy and egg production. Certified organic milk cows increased steadily from approximately 87,000 animals in 2000 to over 200,000 in 2008, and organic layer hens grew from 2.4 million to 348 million. Nonetheless, U.S. organic crop acreage accounted for less than 1 percent of total crop acreage in2008, much lower than that in many other countries, including Switzerland (11 percent in 2007), Italy (9 percent), Uruguay (over 6 percent), UK (over 4 percent) and Mexico (nearly 3 percent).
According to the Nutrition Business Journal, U.S. organic food sales are expected to reach $25 billion in 2010, up from $3.6 billion in 1997.

--Economic Research Service of The United States Department of Agriculture

In a now famous case, where Monsanto sought to enforce its patent against a farmer who was not a participant in its program, Monsanto sadly won, although the defendant was not required to pay damages to the company.

Monsanto v. Percy Schmeiser

The judgment along with previous ones upon which it was built has been interpreted by many to mean that if any RR crop is found on agricultural land wherein it was not specifically purchased even if it found its way there through entirely natural means such as wind or insect pollination, the farmer is liable to Monsanto for "theft" of its property. That at least seems to be the goal of Monsanto.

Schmeiser was not required to pay Monsanto any damages due to the fact that he had not profited from the "infringement".

Various views and opinions of Monsanto’s suit against Schmeiser essentially boiled down to the Monsanto-view theory that if their GMO product wound up on your land, it was your responsibility to either pay them for it or remove it at your own expense. This view is confirmed by a statement made by a company employee following the Schmeiser decision.

"Monsanto's Jordan said the company isn't concerned that Schmeiser won't have to pay. "The important aspect of this particular case was intellectual property, not any sort of monetary gain," she said. "The ruling affirms the way that we do business". Of course Monsanto had been seeking hundreds of thousands of dollars in "damages".

Possible Remedial Actions:
If you are a natural or Organic grower or producer of non-GMO food products you can take a ‘leaf’ from Monsanto’s legal notebook and set up an in-expensive early defense prophylactic. (I avoid being crude but this seems to fit in this situation!)  More on this suggestions below.

If you are a consumer of natural, Organic or prefer not to buy GMO/GEO products - let the vendors and suppliers (grocery stores) you deal with know in clear and unequivocal terms that you want GMO containing foods labeled as such so you can make your own choices.  This is not out of the question as it has been done before - usually by a labeling statement which reads “does not contain.”

When consumers started to become alarmed about the use of “rBGH” (“Bovine Growth Hormone used to cause the cows to produce more milk aka rBST) first came producers who did NOT use it labeling the milk as such.  Then came grocery chains like Kroger (Frys) and Safeway who banned rBGH-milk and dairy products from their stores.  Oh and you know who developed and sold rBGH to dairies?  Monsanto.

And it may not be easy to get stores to do this but you the consumer have a lot of power.

Seed and organic or natural food producers have some of the “does not contain” options available to them, but may generate the kind of brutal legal battle Monsanto is capable of, attacking those who do not want GMO or GEO contaminants and want to tell their customers so.

Monsanto has responded to this trend by lobbying state governments to ban the practice of distinguishing between milk from farms pledged not to use rBST and those that do  --The New York Times

Monsanto sued Oakhurst Dairy of Maine over their use of a label which pledged to not use artificial growth hormones. The dairy stated that their disagreement was not over the scientific evidence for the safety of rBST (Monsanto's complaint about the label), but "We're in the business of marketing milk, not Monsanto's drugs." The suit was settled when the dairy agreed to add a qualifying statement to their label: "FDA states: No significant difference in milk from cows treated with artificial growth hormones." The FDA recommends this additional labeling but does not require it.


The “Leaf” from the legal notebook of Monsanto.

According to one source on the internt Monsanto sent out over 200 ‘cease and desist’ letters to farmers they accused of using their GMO seed without payment or permission.

Let’s take a scenario where you grow and sell organic or non-GMO seed to consumers (like me) or retailers like plant nurserys.  You have signed the voluntary “safe seed pledge” (Consumers: look for that SSP particularly on the internet sites.) and you just found out some of your farming neighbors or farmers in your community have entered one of Monsanto’s SYSTTD* GMO programs, or that a feed store or seed dealer in your community has agreed to be Monsanto’s distributor.

Since Monsanto readily accuses farmers of theft of intellectual property - you assert your rights to “Not Trespass” and turn the responsibility back on the farmers, dealers and Monsanto with a letter, reminding them of THEIR responsibility to contain their product and YOUR remedies under the law, which include claims of criminal trespass, criminal or civil negligence, and toxic trespass.

At the very end of this blog I will give you a sample letter to send out.  I can’t give you legal advice and you should not take this blog as such.  Most of you have some kind of legal representation or you can avail yourself of paid assistance from your local Legal Aid, county attorney community legal assistance programs or perhaps the ACLU would want to get involved, after all it seems completely unfair that you might be victimized by damage and loss due to contamination from something you want no part in and then be made to pay THEM.

*Sell Your Soul To The Devil

Legal Theory and A Case.

Don’t expect any help from the USDA or the FDA – while they supposedly want to promote and support organic agriculture they appear to be more interested in supporting major corporations than consumers.

    As a general matter, trespass is actionable without proof of damage, whereas negligence is not.

    Alert your neighbor, seed dealer and Monsanto (or the manufacturer of the seed) that you will not allow or tolerate trespass of their seed or plant material on your land.

Before you send the letter have plant samples genetically tested from your farm. Soil and plant testing laboratories are in all states.


Common Law on negligence was unclear (at best) until Lord Atkins' speech in Donoghue v Stevenson 1932. In this case, he expounded the `neighbour principle': that a man has a`duty of care' to those people whom it is reasonably foreseeable that his actions will affect. If he fails adequately to discharge that duty, then he will be liable for any adverse consequences that flow from his failure.

This judgement did not immediately catch the attention of other judges; it took about a decade before the `neighbour principle' became entrenched in judicial thinking. When it did, the law of negligence largely assumed the form it has today. In brief, to sustain a claim in negligence, the claimant must show that he was owed a Duty of care by the defendant, and that the defendant was in Breach of the duty of care, and the breach was the cause of the defendant's loss or injury.

In your letter remind your neighbor, dealer and Monsanto about their neighborly obligation of Duty of Care to contain their crop and they are take whatever action is needed to guarantee that cross pollination will not occur, and that you have the right to sue for the damage should it occur on your property.

A Case History:

Toxic Trespass: Organic Farm Can Seek Damages from Pesticide Company
By Kurtis Alexander
Santa Cruz Sentinel, December 22, 2010

Jacobs Farm/Del Cabo, Inc. v.Western Farm Service, Inc.

"This week, California's Sixth Appellate District Court upheld Jacob's right to sue the pesticide applicator, Western Farm Service, and let stand the $1 million award a jury handed Jacobs two years ago. The ruling becomes final in 30 days.

Here is a case that began when the Jacobs sale of product to Whole Foods was rejected because when tested it came back as containing pesticides.  Since Mr. Jacobs asserted in the suit that he discovered he was allergic 40 years prior t pesticides and made a specific point of never using pesticides, the only possible source was his neighbor farmer who hired the services of Western Farm Service, who sprayed the Jacobs farm.


Dear Neighbor,

It has come to my attention that you have decided to grow Genetically Modified Seed (or sell it) in my neighborhood or community.

You may not know that my farm/ranch is Organically Certified (or that I am committed to growing seed / plants in a natural manner without chemicals) and that I chose to not use any GMO products.

Because of this I need to remind you of your obligation to prevent nuisance cross-pollination or wind drift or other potential contamination points from your operation to my farm.

Under the trespass and negligence laws of our state, I would have legal recourse under those statutes as well as other possible remedies at law to compensate me for any damage or loss whatsoever.

I hope by sending this letter no legal action would ever be required as you accept your legal obligation to limit contamination from your GMO product.

Thank you for your attention to this matter,

Yours truly,

A..Farmer [be sure to review this with your legal counsel]

. . .

As consumers we have the power to create change for the good, but you have to do something.  Start a letter writing campaign to your grocers and local farm agencies that you want to know when something contains GMOs, and that you want your organic or natural foods TO BE organic and natural.  You want the choice to consumer GMOs or not.

Buy only seeds you know are labeled as not containing GMOs.  There a dozens of seed suppliers who signed the Safe Seed Pledge to now knowingly sell or transfer plants or seeds containing GMOs.

“Don’t Just Stand There, Plant Something!” – Arizona Nursery Association

Keep warm, the nicer weather returns next week,

-- Catherine, The Herb Lady