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Don’t Misrepresent the Farmer Assurance Provision

April 3, 2013
sugar beetsThere has been quite a lot of hoopla in the anti-biotech community over a tiny provision in the spending bill recently signed by President Obama. The “Farmer Assurance Provision” protects farmers and growers when a previously approved and deregulated biotech seed becomes the subject of frivolous lawsuits. Opposition groups such as the Center for Food Safety use the judicial system to challenge USDA’s regulatory authority that governs biotech crops and to potentially halt the use of the superior seeds.

We saw this happen in recent years with lawsuits over biotech alfalfa and biotech sugarbeets, when farmers were unable to plan, purchase seeds, plant and harvest crops. For farmers who grow alfalfa – the nation’s fourth most important crop – this uncertainty went on for years. Sugarbeet growers were actually told to go into their fields and dig up plants and seedlings, thereby destroying an entire season’s work. So Congress saw a need to protect farmers in such situations.

Unfortunately in their ruthless battle against technology, progress and innovation, these groups will grasp at every opportunity to vilify biotechnology – even if it hurts farmers in the process.  Any legislative provision that improves regulatory predictability for biotech crops that is approved by Congress will receive this amount of scrutiny and attention. The activists use it to raise money and to scare people about the food they eat and about mainstream agriculture.

Fortunately, there has been some push-back in the media on the over-hyped outrage over “Section 735” of the “Consolidated and Further Continuing Appropriations Act.”

Rich Keller, Editor of Ag Professional, writes “activists have mischaracterized the rider’s actual effect and have called on Congress to have it terminated.”

Gregory Conko, a Senior Fellow at the Competitive Enterprise Institute, issued a statement saying:

“For close to a decade, activists have used nuisance litigation to overturn the approval of biotech crops... Given how abusive NEPA litigation has gotten and how disruptive these rulings are to farmers and the American food chain, enacting the Farmer Assurance Provision is the very least Congress should do to protect American agriculture.”

Jon Entine, executive director of the Genetic Literacy Project and a frequent contributor to Forbes sums up the fury around this legislative language and answers the critics claims in his article, “Exposing the Anti-GMO Legal Machine: The Real Story Behind the So-Called Monsanto Protection Act”.

In this piece, Entine answers the question: What does the biotech rider actually state and what is it designed to address?:

To date, no court has ever held that a biotechnology crop presents a risk to health, safety or the environment. But make no mistake: it’s not because the courts or the government approval process is lax. Just the opposite. Getting approval for any transgenic crop or food is like running a torturous gauntlet, both arduous and bureaucratic. Companies are required to provide years of internal and independent data, which are carefully reviewed by various government agencies.

Beyond that, the USDA cannot approve a new seed variety until it conducts an Environmental Assessment. This is the point where the process gets even messier—and where anti-biotech activists and lawyers do their best to gum up the works in hopes of generating a critical mass of negative public opinion.

By law, the EA must consider any and all factors relating to the “human environment,” which is very ambiguously defined, leaving all kinds of legal openings for hostile groups to target. If an anti-science group such as the Center for Food Safety or the Institute of Responsible Technology or the Union of Concerned Scientists challenges the EA for not considering one issue or another, the assessment can be deemed insufficient and a new one must be ordered.

In fact, this has happened twice in recent years, with alfalfa and sugar beets. Alfalfa hay, a nutritious, easily digestible livestock feed and $8 billion a year business, is the country’s fourth-most-valuable crop.  Biotech alfalfa is genetically modified to tolerate glyphosate, an herbicide that is commercially known as Roundup. When farmers use Roundup, which is considered a mild herbicide, instead of other harsher chemicals to kill weeds, they actually cut down on overall toxic chemical use.

After an exhaustive review, the USDA gave Roundup Ready Alfalfa the green light in 2005. But the Center for Food Safety contended that the government hadn’t adequately evaluated the potential environmental consequences, although the agency believed it had. In 2007, in Monsanto Co. v. Geertson Seed Farms, a federal court agreed with CFS, prohibiting Monsanto from selling Roundup Ready Alfalfa pending yet another assessment.

Just as campaigners had hoped, the order was incredibly disruptive to thousands of farmers, who had planted alfalfa and now were being told that they could be in violation of a court order. The industry screeched to a halt, dealing a sizable economic blow to one of the country’s most important export crops. The ongoing chaos was exactly the kind of commercial uncertainty that anti-GMO forces were hoping to manufacture in its Hail Mary attempt to prevent transgenic crops from being embraced or rejected on their own merits.

The alfalfa case standoff eventually made it to the Supreme Court. The evidence in support of the safety and public benefits of GM alfalfa was so strong that in 2009, the Obama Administration had Solicitor General Elena Kagan file a brief on the biotechnology company’s behalf, even though the government was not a defendant in the appeal. To no scientist’s surprise, in June 2010 SCOTUS overturned the lower court’s injunction that had prohibited Monsanto from selling pesticide-resistant alfalfa seeds.

“An injunction is a drastic and extraordinary remedy, which should not be granted as a matter of course,” Justice Samuel Alito wrote for the 7-1 majority, concluding that the U.S. District Court in San Francisco had “abused its discretion.”

The temporary injunction, by then determined to be abusive, proved a financial disaster for the farm industry and many individual farmers who had suspended planting alfalfa pending a final resolution. The almost identical disaster scenario has played out over sugar beets. 95% of which is from GE seeds. In 2010, the Center for Food Safety and some organic farmers who stood to gain by attacking conventional and GM crops convinced a court on procedural grounds—there was no finding of environmental or health dangers—to void the five-year-old approval of transgenic sugar beet seeds. Despite no evidence of any potential harm, that November, a federal judge ordered the GE sugar beet seedlings—all but 5% of the nation’s crop— pulled from the ground, as required by law. If that decision had stood, it could have destroyed as much as half of America’s granulated sugar production on purely technical grounds. The saga only ended in July of last year when the USDA ruled once and for all to allow unrestricted planting of GMO sugar beets.

It was a victory for science, but the professional “antis” considered it a victory as well. After all, they had caused billions of dollars in unrecoverable damage to the American farm economy and rattled the cages at the corporations they considered “evil”. That’s certainly something to crow about.

The rider was specifically designed to prevent such egregious abuse of the court system and regulatory process. The legislation does not, as critics allege, allow farmers or seed companies to sell seeds proven to be harmful. Rather, it provides legal consistency so farmers and businesses do not get yanked one way or the other based on the temporary findings of competing court systems as activist challenges make their way up the legal food chain. Going forward, the provision will protect farmers who buy GM seeds and plant them under the belief that it is legal to do because the seeds have been subjected to extensive USDA scrutiny and approval.

The so-called Monsanto Protection Act has nothing to do with consumer safety or limiting biotech’s liability for making “dangerous” products limited liability, as even quasi-mainstream news outlets, like Salon, have claimed. That’s just ignorant reporting. In the two cases heralded by campaigners—alflafa and sugar beets—only technical legal concerns were raised; consumer safety and the environment was never the issue.

No product is exempt from the law when health or environmental problems are identified. If the USDA or a court determines that a biotech seed or crop or food does not pass environmental or health muster, it will be pulled from the market and banned. But until that happens, because of this provision—let’s call it the Food and Farmer Safety and Health Protection Act—USDA safety determinations cannot be arbitrarily overturned by rogue courts responding to anti-science activists—what appears to have happened in the alfalfa case, until the Supreme’s intervened with its overwhelming 7-1 decision.

The howling over the so-called Monsanto provision is all show and little substance. It’s goal was to protect farmers against rogue anti-technology campaigners. Congress and the Obama Administration knew exactly what they were doing–and they did the right thing. Anti-GMO campaigners are clearly positioning themselves for another offensive against a new wave of GM crops and foods, with new pesticide tolerant grain varieties and a host of nutritionally enhanced grains, such as Golden Rice and drought resistant wheat, in their crosshairs. Yes, we should all be concerned.