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In 1998, a genetically modified variety of corn called “StarLink” was planted in approximately one percent of cornfields in Iowa. By 2000, more than half of the cornfields in the state showed some signs of contamination from this variety, and farmers committed to non-GMO crops were facing some very big problems.
One problem was economic. Some parts of the world, including the European Union and Japan, heavily regulate or forbid the sale of genetically modified food products, so entire markets can be unintentionally closed to these farmers. Purveyors of organic food products in the United States are committed to selling non-GMO products also.
The constant risk of contamination from pollen from patented genetically modified plants can pose legal problems as well. For example, if a farmer has a contract to provide non-GMO corn, and the farmer’s fields become contaminated, the farmer will have to breach the contract with the buyer and possibly pay damages. At best, the anticipated premium from selling the non-GMO crop will be lost.
Worse, the farmer may be unable to sell the contaminated crop at all, because the plants contain patented cell structures claimed by the inventor of the GMO corn, and the farmer would arguably be infringing on the patent by selling the crop without the patentee’s permission.
Since the StarLink contamination was uncovered in 2000, pollen drift is recognized as a very real problem for non-GMO farmers. The impact of patent infringement lawsuits is still being determined, however.
Some of the earliest tests have been brought into courts by Monsanto, the world’s leading agricultural biotech corporation. This company has been particularly active in using patent law to police anyone it finds to be growing its patented plants. It is believed that actions and investigations by Monsanto against farmers number into the thousands, with most settling outside of court in confidential agreements.
School of Law Professors Paul J. Heald and James C. Smith have investigated two possible legal solutions to the plight of the bystanding farmer. The first is defensive: The professors suggest that the patent holder could be held partly accountable for allowing the unwanted spread of patented genetic material, and as a result, they may not be able to pursue a case. The second is offensive: The farmers may have a valid claim for nuisance, trespass, negligence or interference with personal property.
Although these defenses have not yet been applied in a patent infringement suit on pollen drift, they may provide strong arguments for future defendants. GMO pollen drift is a new, high-tech problem, but established principles of federal and state law may provide existing solutions.
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Since the StarLink GMO crop contamination was uncovered in 2000, pollen drift is recognized as a very real problem for non-GMO farmers. The impact of patent infringement lawsuits is still being determined, however.
