10: The Iron Law of the Patenting of LifeMonsanto Company activities and the use of its products positively affect agricultural sustainability.
—Monsanto, Pledge Report, 2005
“One of my biggest concerns is what biotechnology has in store for family farmers,” Dan Glickman declared in the July 13, 1999, speech that so irritated his government colleagues involved with foreign trade. “We’re already seeing a heated argument over who owns what. Companies are suing companies over patent rights even as they merge. Farmers have been pitted against their neighbors in efforts to protect corporate intellectual property rights. . . . Contracts with farmers need to be fair and not result in a system that reduces farmers to mere serfs on the land or create an atmosphere of mistrust among farmers or between farmers and companies.”
The Weapon of PatentsWhen he spoke these iconoclastic words, Bill Clinton’s secretary of agriculture was touching on one of the subjects at the heart of opposition to GMOs: the subject of patents. “We have always criticized the doubletalk of biotechnology companies,” Michael Hansen of Consumers Union told me. “On one hand, they say there is no need to test transgenic plants because they are exactly the same as their conventional counterparts; on the other, they file for patents, on the grounds that GMOs are unique creations. You have to make up your mind: either Roundup Ready soybeans are identical to conventional soybeans, or else they’re not. They can’t be both depending on Monsanto’s interests.”
Before the late 1970s it would have been inconceivable to file a patent application for a plant variety, even in the United States, where the 1951 patent law clearly provided that patents applied exclusively to machines and industrial processes, but in no case to living organisms, hence not to plants. The patent system was at its origin a tool of public policy intended to stimulate technical innovations by granting the inventor a monopoly on the manufacture and sale of a product for a period of twenty years. “The criteria for granting patents are usually very strict,” according to Paul Gepts, a researcher in the Department of Molecular Biology at the University of California, Davis, whom I interviewed in July 2004. “They are three in number: the novelty of the product, that is, the fact that the product did not exist before the inventor created it; the fact that it is not obvious; and its usefulness for industry. Before 1980, the legislature had excluded living organisms from the field of patents, because it thought they could under no circumstances satisfy the first criterion: even if humans intervened in their development, living organisms exist before human action and, moreover, they can reproduce on their own.”
With the advent of genetic manipulation, the question of plant varieties “improved” by the technique of genetic selection described in Chapter Seven arose. Concerned with recovering their investments, seed companies won legislation which granted to their varieties what was called “plant variety protection,” enabling them to sell user licenses to dealers or to include a kind of “tax” in the price of their seeds. [i] But a certificate of plant variety protection was only a distant cousin of a patent, because it did not prohibit farmers from keeping part of their harvest to sow their fields the next year, nor researchers such as Paul Gepts or breeders from using the variety concerned to create new ones. This was known as the breeder’s and research exemption.
Everything changed in 1980, when the U.S. Supreme Court issued a decision with serious consequences declaring a transgenic microorganism patentable. The case had begun eight years earlier when Ananda Mohan Chakrabarty, a geneticist working for General Electric, had filed a patent application for a bacterium that he had been altered to enable it to consume hydrocarbons. The U.S. Patent and Trademark Office had logically rejected the application according to the terms of the 1951 law. Chakrabarty appealed and won in the Supreme Court, which stated: “Anything under the sun that is made by man can be patented.”
This startling decision had opened the way to what has been called the “patenting of life”: based on U.S. precedents, the European Patent Office in Munich granted patents on microorganisms in 1982, on plants in 1985, on animals in 1988, and on human embryos in 2000. Theoretically, these patents were granted only if the living organism had been altered by genetic engineering, but in reality the process has gone beyond GMOs alone. Patents have now been granted for non-transgenic plants, particularly if they have medicinal properties, in total violation of existing laws. “Ever since biotechnology came on the scene, the common-law system of patents has been abused,” Christoph Then, the Greenpeace representative in Munich, told me in February 2005. “To get a patent, it is no longer necessary to present a real invention; often all you need is a simple discovery. Someone discovers a therapeutic use for a plant, the Indian neem tree, for instance, describes it, isolates it from its natural context, and files a patent application for it. The deciding factor is that the description be done in a laboratory, and no attention is paid to the fact that the plant and its virtues have been known by others for thousands of years.”1
The U.S. Patent and Trademark Office grants more than seventy thousand patents a year, about 20 percent of which involve living organisms. It took a long struggle for me to get an interview with a representative of this huge institution, which is under the authority of the Commerce Department and employs seven thousand agents. A citadel in the Washington suburbs, the Patent Office is a strategic location for a company like Monsanto, which secured 647 patents associated with plants between 1983 and 2005.
“The Chakrabarty case opened the door to a very exciting period,” said John Doll of the biotechnology department when I met him in September 2004. “We now grant patents on genes and transgenic plants and animals, any product of genetic engineering.”
“But a gene is not a product,” I said, a little taken aback by his triumphant tone.
“Sure,” he agreed, “but once a company has been able to isolate the gene and describe its function, it can get a patent.”
The New Agricultural OrderI have already described how, as soon as Monsanto researchers had managed to cobble together the genetic cassette allowing the creation of Roundup-resistant soybeans, the company filed a patent application and received the patent without difficulty. The patent ran until 2004 in the United States. In June 1996, the European Patent Office in turn granted a patent to RR soybeans, which applies by extension to any plant variety into which the cassette can be inserted: “maize, wheat, rice, soybean, cotton, sugar beet rapeseed, canola, flax, sunflower, potato, tobacco, tomato, lucerne, poplar, pine, apple, and grape,” which tells a lot about the company’s plans. [ii]
Monsanto then had to find the means to enforce its intellectual property rights. One might think that the strategy of first selling user licenses to seed dealers and then acquiring the principal seed companies would amply secure its return on investment, but this was not the case. Monsanto’s real problem was farmers themselves, who around the world still had the annoying habit of saving part of their crop to replant it (except for hybrids, which do not include autogamous plants such as soybeans and wheat). “In some countries, farmers commonly save seed for planting the following year,” cautiously noted Monsanto’s 2005 Pledge Report, which the company has published periodically since the creation of the “new Monsanto.” “When the seed contains a patented trait, such as the Roundup Ready trait, this traditional practice creates a dilemma for the seed company that developed the variety.”2 In the 10-K form that has to be sent to shareholders and filed with the SEC every year, the language was more direct. Under the heading “Competition,” the company stated in 2005: “The global markets for our products are highly competitive. . . . In certain countries, we also compete with government-owned seed companies. Farmers who save seed from one year to the next also affect competitive conditions.”
The company’s language seems to suggest that the practice of saving seeds exists only in distant and backward countries. This was so far from being the case that when Robert Shapiro came up with the brilliant idea of having all farmers who bought RR soybean seeds sign a “technology use agreement,” he encountered a good deal of resistance. The agreement, which dealers were required to present, provided for payment of a technology fee, set first at $5 and then at $6.50 per acre of soybeans, and, most important, a commitment not to replant any harvested seeds the following year. Another clause required growers to use only Monsanto’s Roundup, not any of the many generics on the market, after the expiration of the patent in 2000.
The terms of the contract that must be signed are still draconian: farmers who violate it risk having to pay a heavy penalty or being sued in state or federal court in St. Louis (which has certain advantages for the company). Monsanto also assumes the right to review customers’ accounts going back three years and to inspect their fields at the slightest suspicion: “If Monsanto reasonably believes that a grower has planted saved seed containing a Monsanto genetic trait, Monsanto will request invoices or otherwise confirm that the fields in question have been planted with newly purchased seed. If this information is not provided within 30 days, Monsanto may inspect and test all of the grower’s fields to determine if saved seed has been planted.”3
The provision also covered seed dealers, one of whose activities used to be to clean the seeds farmers had harvested before they could replant them, by removing the chaff. In Lords of the Harvest, Daniel Charles tells of an Ohio seed dealer who was forced against his will to post a notice in his barn that was supposed to protect him from growers Monsanto called “pirates”: “important information for individuals saving seed and replanting . . . Seed from Roundup Ready soybeans cannot be replanted. It is protected under U.S. patents 4,535,060; 4,940,835; 5,633,435 and 5,530,196. A grower who asks to have Roundup Ready seed cleaned is putting the seed cleaner and himself at risk.”4 “In the end,” Charles remarks, “most farmers went along. They signed, grumbled, and joined the new agricultural order.”5 According to Peter Carstensen, a professor at the University of Wisconsin Law School, the practice instituted by Monsanto effected a “dual revolution.” “First,” he told me when I met him in October 2006, “it had the right to patent seeds, which was absolutely prohibited before the advent of biotechnology; second, it extended the rights of the manufacturer granted by patents. For that I would adopt the image that Monsanto likes to use. It compares a transgenic seed to a rental car: when you’ve finished using it, you return it to the owner. In other words, the company doesn’t sell seeds, it just rents them, for one season, and it remains the permanent owner of the genetic information contained in the seed, which is divested of its status as a living organism and becomes a mere commodity. Finally, farmers became users of Monsanto’s intellectual property. When you realize that seeds are the basis for feeding the world, I think there are reasons to be worried.”
“But what means does Monsanto have to enforce its contract?”
“They’re huge. I was stunned when I found out that they’d hired the Pinkerton Detective Agency. [iii] Monsanto pays its agents to comb the countryside looking for cheaters, and if necessary it seeks out informants. The company set up a toll-free number where anyone can denounce his neighbor. It spends a lot of money to enforce its rule in the fields.”
Of course, all this could have been avoided if Robert Shapiro had been able to use the Terminator technique, which would have allowed him to resolve the company’s “dilemma” without spending a penny and above all without having to set up a very unpopular war machine.
The Gene Police“Biotech crops are protected by U.S. patent law,” John Hoffman, vice president of the American Soybean Association, told me with his perpetual smile. “And so I may not in any way save seed to replant the following year. It’s something that is a protection for Monsanto, for biotech companies. Because they literally invest millions and millions of dollars to produce this new technology we are very happy to use.” Listening to this Iowa farmer brought to mind Hugh Grant, the CEO of Monsanto, who said the same thing in an interview with Daniel Charles: “We are interested in protecting our intellectual property, and we make no apologies for that. . . . It’s as hard as that. There’s a gene in there that’s the property of Monsanto, and it’s illegal for a farmer to take that gene and create it in a second crop. It’s necessary from the point of view of return on investment, and it’s against the law.”6
“And how can Monsanto know that someone, for instance, replanted harvested seeds?” I asked Hoffman.
“I’m not sure how to answer that, no. That’s a good question for Monsanto.”
Unfortunately, as I said earlier, Monsanto executives refused to see me, as I was told by the company’s public relations director, Christopher Horner. I would have been interested in interviewing Horner because, according to an article in the Chicago Tribune, he was the one who had to come to the defense of his employer when the Center for Food Safety in Washington published a very disturbing report in November 2004. Titled Monsanto vs. U.S. Farmers, this very detailed eighty-four-page document confirmed the existence of what is known in North America as the “gene police,” operated by Pinkerton in the United States and Robinson in Canada.7 It also reported that the company had been conducting a veritable witch hunt in the American prairies since 1998, leading to “thousands of investigations, nearly 100 lawsuits, and numerous bankruptcies.”8
“The number of farmers sued represents a minuscule number of the 300,000 or so who use the company’s technology,” Horner retorted. “Lawsuits are the company’s last resort.”9 But Joseph Mendelson, legal director of the Center for Food Safety, criticized the company’s “dictatorial methods.” He claimed it was capable of anything to “impose its control over all phases of agriculture.” The report he supervised does chill the blood. After noting that 85 percent of the soybeans grown in the United States in 2005 were transgenic, along with 84 percent of canola, 76 percent of cotton, and 45 percent of corn, it goes on to say: “No farmer is safe from Monsanto’s heavy-handed investigations and ruthless prosecutions. Farmers have been sued after their field was contaminated by pollen or seed from someone else’s genetically engineered crop; when genetically engineered seed from a previous year’s crop has sprouted, or ‘volunteered,’ in fields planted with non–genetically engineered varieties the following year; and when they never signed Monsanto’s technology agreement but still planted the patented crop seed. In all of these cases, because of the way patent law has been applied, farmers are technically liable.”
To conduct its study, the CFS consulted data supplied by the company itself, which frequently publicizes the cases of “seed piracy” it has detected in the country—an unusual degree of transparency designed to dissuade anyone tempted to violate its iron law. In 1998, for example, the company investigated 475 cases of “piracy,” and up to 2004, the annual average was more than 500. The CFS compared these data with a list of lawsuits filed against American farmers by Monsanto, compiled by the Administrative Office of the U.S. Courts, which by 2005 had recorded ninety suits.10 The average damage amount won by the company was $412,259, with a high of $3,052,800, for a total of $15,253,602 (in a few exceptional cases growers were exonerated). The suits led to the bankruptcy of eight farmers. Mendelson told me, “These numbers are only the tip of the iceberg, because they cover only the rare cases that went to court. The vast majority of farmers who were sued, very often unjustly, decided to negotiate a settlement because they were afraid of the costs of a trial against Monsanto. And none of these settlements show up because they all contained a confidentiality clause. That’s why we were able to analyze only the cases that ended with a verdict.”
The CFS report discloses that Monsanto has an annual budget of $10 million and a staff of seventy-five to conduct its “investigations.” Its primary source of information is the toll-free number 1-800-ROUNDUP, which the company officially inaugurated on September 29, 1998, in a formal press release: “Dial 1-800-ROUNDUP; tell the rep that you want to report some potential seed law violations or other information. It is important to use ‘land lines’ rather than cellular phones due to the number of people who scan cellular calls. You may call the information in anonymously but please leave your name and number if possible for any needed follow up.”11 According to Daniel Charles, the tip line received fifteen hundred calls in 1999, five hundred of which triggered an investigation.12 Questioned about the line, criticized for “fraying the social fabric that holds farming communities together,” in the measured words of the Washington Post, Karen Marshall, a spokesperson for Monsanto, replied simply: “This is part of the agricultural revolution, and any revolution is painful. But the technology is good technology.”13
“We Own Anybody That Buys Our Products”Most farmers who had lost cases contacted by the CFS told the same story: one day an agent, usually a Pinkerton man, knocked on their door, sometimes accompanied by the police. He asked to see their invoices for seeds and herbicides and demanded that he be allowed to go into their fields, where he took plant samples and photographs. The tone was often threatening, even brutal. Sometimes no agent ever appeared, but the grower was sent a summons on the basis of a “dossier” made up of aerial views and analyses of plants taken from the farmer’s property without his or her knowledge. Not infrequently, farmers who were sued denied that they could be bound by a technology agreement (twenty-five out of ninety), because the dealer who sold them the seed had never talked about it, because they signed without really reading it, or because the practice was so out of the ordinary. This was the case for Homan McFarling, a Missouri farmer sued in 2000 for having “saved RR soybean seed,” something he never denied. The trial verdict required him to pay 120 times the cost of the saved seed, or $780,000, according to the terms of the agreement, which he didn’t even remember signing and of which he didn’t have a copy. He appealed and, unusually, won a reduction in damages: the court questioned “the constitutionality of a contract asking for enormous damages for what was a very small actual loss.”14 The amount he finally paid is unknown.
Others were penalized even though they didn’t know they were growing GM crops. For example, Hendrik Hartkamp, a native of the Netherlands, bought a ranch in Oklahoma in 1998. On the property he found a store of soybean seeds, which he planted. On April 3, 2000, he was sued by Monsanto for “patent law violation,” because some of his seeds were transgenic. After ruining himself in conducting his defense, he sold his ranch at a loss and left the United States for good. “The terrible thing,” Joseph Mendelson told me, “is that courts don’t distinguish between those who knowingly reuse their seeds and those who did not plant GMOs intentionally. The only thing that counts is that the gene was found in a field: whatever the reason, the owner of the field is held liable.” When a farmer claimed that he had never signed a contract but settled for $100,000 (hence remaining anonymous), a Monsanto representative retorted with remarkable frankness: “We own you—we own anybody that buys our Roundup Ready products.”15
The CFS report also reveals that for at least six of the ninety suits filed by Monsanto the agreement presented by the company had a forged signature, “a practice documented as common among seed dealers.” This happened, for example, to Eugene Stratemeyer, an Illinois farmer who fell into a trap set by an “inspector”: in July 1998, a man appeared at his farm and asked to buy a small quantity of seeds. Since the planting season was over, he explained that he wanted to do an erosion test. Stratemeyer agreed to help him out. Ordered to pay damages of $16,874.28 for patent infringement, Stratemeyer countersued Monsanto for use of forgery.
When farmers decide to defend themselves by publicly challenging the prohibition of replanting part of their crop, they leave themselves open to harassment or even a carefully orchestrated campaign of slander in the media and in the eyes of all agricultural intermediaries. This is what happened to Mitchell Scruggs, a Mississippi farmer who had always admitted saving RR soybean and Bt cotton seeds. He saw this as an inalienable right that he defended on principle, but also because of the financial implications of Monsanto’s requirement. His calculation was simple: In 2000 he grew soybeans on 13,000 acres, 75 percent of them transgenic. To sow one acre with RR soybean seed, he had to pay $24.50 for a fifty-pound bag, compared to $7.50 for conventional soybean seed. To illustrate the “huge profits earned by Monsanto,” he pointed out that if he decided to sell legally the surplus of his conventional crop as seeds, he would get $4 a bag.16 For Bt cotton, he said, the ratio was one to four between conventional and transgenic seeds.
Ordered to pay damages of $65,000 in 2003, Scruggs initiated a class action suit accusing Monsanto of antitrust violations and asking that GMOs be subject to the usual plant variety protection system. Because he had openly resisted “Monsanto’s law,” his life became infernal: company agents had gone so far as to buy an empty lot across the street from his farm supply store where they set up a surveillance camera, and helicopters frequently flew over his property.17
Matters sometimes turned tragic, ending in prison terms. In January 2000, for example, Ken Ralph, a Tennessee farmer, was sued for saving forty-one tons of transgenic soybean and cotton seed. Judge Rodney Sippel of the U.S. District Court in St. Louis ordered Ralph to pay preliminary damages of $100,000 and required that he keep the seed in question so that the exact harm suffered by Monsanto could be assessed. At the end of his rope, even though he maintained that the signature on the agreement presented by the company was a forgery, Ralph decided to burn the stock. “We’re tired of being pushed around by Monsanto. We are being . . . drug down a road like a bunch of dogs,” he told the Associated Press.18 Sippel finally ordered him to pay $1.7 million in civil damages, and, following a guilty plea, another judge sentenced him to eight months in prison and further damages of $165,469 for “obstruction of justice and destruction of evidence.”
The case caused a stir, because it brought to light another of the company’s abusive practices: the technology agreements contained a clause providing that in case of a dispute, proceedings were exclusively to be brought before state or federal court in St. Louis. For victims around the country this meant extra expenses in the conduct of their defense. Most important, it gave Monsanto what the Chicago Tribune called in 2005 a considerable “hometown advantage.”19 Established in its domain for more than a century, the company was used to working with the same law firms, including Husch and Eppenberger.20 It turns out that Judge Sippel, known for his hard line against “pirates,” had begun his legal career at Husch and Eppenberger.21
It should also be pointed out that in 2001, when discontent was spreading in American prairie farms against the patenting of seeds, John Ashcroft, then George W. Bush’s attorney general, who had also been governor of Missouri from 1983 to 1994, asked the Supreme Court for a ruling on the question. On December 10, in an opinion written by Clarence Thomas (formerly, it will be recalled, an attorney for Monsanto) the court decided 6–2 in favor of the patenting of seeds.22
Everyone Is Afraid“Patents have changed everything,” said Troy Roush, an Indiana farmer who was a victim of the gene police, when I met him on his Van Buren farm in October 2006. “I really advise European farmers to think very hard before they get into transgenic crops. Afterward, nothing will be the same.” Hearing this six-foot-tall rugged man say these words while holding back both tears and anger was deeply moving.
His nightmare began in the fall of 1999 with a visit from a “private detective from Monsanto,” who told him he was “doing an investigation of farmers who save their seed.” That year, Roush, who ran a family farm with his brother and his father, had planted five hundred acres of RR soybeans for a seed company with which he had signed a contract. [iv] He had also planted twelve hundred acres of conventional soybeans with seeds that he had saved from his preceding harvest.
“It was very easy to tell which fields were under contract, as the contract clearly stipulated,” he told me. “I offered to let the detective consult the documents and my herbicide invoices, but he refused.” In May 2000, he was sued; supporting Monsanto’s claim was a topographical map and analyses of samples taken from his property without his permission. “There were several glaring mistakes. For example, one of the suspected fields was in reality planted with conventional corn for the Weaver Popcorn Company, which I was easily able to prove.”
“Why did you negotiate a settlement with Monsanto?” I asked.
“We had already spent $400,000 to establish our innocence,” he answered. “And after two and a half years, the family was totally wiped out. I no longer had the strength to face a trial with an uncertain outcome, because precedent unfortunately favors Monsanto, which has unlimited resources for this kind of case and has everything under control. If the company had won, we would have lost everything, because it would have taken everything. Everything. Also, when I asked my lawyer what I would gain from going to trial, he told me: ‘Just the glory of being found innocent.’ ”
In the middle of this conversation David Runyon, another Indiana farmer who had been visited by “detectives” in 2003, came into the room. The detectives had left a business card with the name “McDowell and Associates” and a startling logo: a large M superimposed on a row of men wearing capes and black hats. According to him, these were Monsanto agents claiming to have an agreement with the Indiana Department of Agriculture authorizing them to inspect the fields of farmers suspected of “piracy.” David Runyon wrote immediately to Senator Evan Bayh, who checked the claim and confirmed that it was a lie, in a letter that I have a copy of.
“Patents ruined the life of rural communities,” David Runyon told me, obviously very upset. “They destroyed trust between neighbors. Personally, I talk to only two farmers these days. And before I agreed to meet with you or even talk to you on the phone, I checked on Google [to see] who you were.”
“Farmers are really afraid?”
“Of course they’re afraid,” Roush answered. “It’s impossible to defend yourself against that company. You know, in the Midwest, the only way to survive with the profit margins of farming constantly going down is to increase the size of your land. For that to happen, a neighbor has to leave. So, a phone call to the snitch line, and you never know.”
“You don’t feel safe from another charge?”
“Certainly not,” Runyon answered. “First of all, because in Indiana we’re like the last of the Mohicans, since we still grow conventional soybeans in the middle of a transgenic empire. And also because our fields may be contaminated by nearby GMOs. That’s what happened to my neighbor.”
He took out some photographs showing a field of yellowed and stunted soybean plants, dotted with green plants. “This plot of conventional soybeans was mistakenly sprayed with Roundup by my neighbor’s son, who mixed up different plots. All the green plants are Monsanto soybeans. I calculated that the contamination amounted to 15 percent.”
“How is that possible?”
“In the United States, the distribution channels for the two kinds of soybeans are not separate,” said Runyon. “My neighbor’s conventional seeds could have been contaminated by transgenic grains left in the combine that had previously worked in a Roundup Ready field, or at the dealer during seed cleaning. It’s also possible that GM pollen was spread by insects or by the wind. My neighbor has just realized that Monsanto can sue him for patent infringement.”
“That’s right,” Roush agreed. “That’s what happened to our Canadian colleague Percy Schmeiser.”
Percy Schmeiser: A Rebel in Big Sky CountryBorn in 1932 in Bruno, a little town of seven hundred in the heart of Saskatchewan, Canada, Percy Schmeiser is “Monsanto’s nightmare, the pebble in its shoe,” according to a reporter for Le Monde, Hervé Kempf.23 A descendant of European pioneers who had settled in the North American prairies in the late nineteenth century, the man is a fighter—a “survivor,” as he likes to say—who more than once has come close to having his energy sapped by his experience. He survived, for example, a severe work accident that disabled him for years, as well as virulent hepatitis contracted in Africa. For, along with his activities as a farmer, the prairie rebel is a man of action and a practicing Catholic: he was mayor of his town for a quarter century, then a representative in the provincial assembly, and he went on numerous humanitarian missions; he and his wife did not hesitate to entrust their five children to their grandparents, so that they could spend time helping people in Africa and Asia. Schmeiser is also a sportsman who, during the long winter cold, has climbed Kilimanjaro, and attempted Everest three times without success.
Unfortunately, I was unable to meet him, because when I went to Saskatchewan in September 2004, he was, I believe, in Bangkok, in response to one of the many invitations from around the world he has been receiving since he became the “man who rebelled against Monsanto.”24
The case of this farmer, who had been working a fifteen-hundred-acre family farm for fifty years, began in the summer of 1997. He had just sprayed the ditches bordering his canola fields with Roundup, and he realized that his work had done practically no good: many plants that had germinated outside his area of cultivation resisted the spraying. Intrigued, he contacted a Monsanto representative, who told him that this was Roundup Ready canola, put on the market two years earlier. The months went by, and in the spring of 1998, Schmeiser, who was known throughout the region as an expert breeder of canola seeds, replanted seeds from his previous crop. When he was preparing to harvest the crop in August, he was contacted by a representative of Monsanto Canada who informed him that inspectors had detected transgenic canola in his fields and proposed that he enter into a settlement to avoid being sued.
But Schmeiser refused to give in. He turned over documents to his lawyer proving that he had bought a field in 1997 that had been planted with Roundup Ready canola. He also explained that the plant had the strength of a weed, the very light seed was able to invade the surrounding prairies at the speed of the wind and be carried for miles by birds, and seeds could lie dormant in the soil for more than five years. Observing that the transgenic canola was mostly found on the edges of his fields, he concluded that they must have been contaminated by his neighbors’ GM plantings or by grain trucks passing by on the road. Schmeiser’s resistance was, of course, stimulated by the revelation of Monsanto’s harsh practices, including the spraying of Roundup by helicopter of fields of farmers suspected of “piracy,” according to what Ed and Elizabeth Kram, a farming couple in the province, said in August 1998. This was an action that was at least “strange,” and one that Monsanto has never denied, as Hervé Kempf reports, “also acknowledging in a statement to the police that its agents had taken samples of canola from Ed Kram for laboratory analysis.”25
Monsanto Canada, in any case, was adamant. Displaying to the press the analyses of the samples it claimed to have taken (without his knowledge) from Schmeiser’s farm, which contained a level of contamination greater than 90 percent, the company decided to file suit while continuing to pressure Schmeiser to settle.26 “During 1999, Schmeiser told Kempf “we were often watched by men in a car, who said nothing, did nothing, but were just there, looking. Once they stayed three days in a row. When you walked toward them, they sped away. We also got anonymous phone calls, people who said: ‘We’re going to get you.’ We were so afraid I bought a rifle that I kept in the tractor when I was working in the fields.”27
The case finally came to trial in the provincial capital, Saskatoon, in June 2000. Judge Andrew McKay issued his decision on March 29, 2001, provoking stupefaction among all Schmeiser’s supporters. The judge determined that in sowing his fields with seeds harvested in 1997, which he “knew or ought to have known are Roundup tolerant,” Percy Schmeiser had infringed Monsanto’s patent. He stated that “the source of the Roundup-resistant canola in the defendant’s 1997 crop is really not significant for the resolution of the issue,” and that “a farmer whose field contains seed or plants originating from seed spilled into them, or blown as seed, in swaths from a neighbor’s land, or even growing from germination by pollen carried into his field from elsewhere by insects, birds, or by the wind, may own the seed or plants on his land even if he did not set about to plant them. He does not, however, own the right to the use of the patented gene, or of the seed or plant containing the patented gene or cell.” This is so because “growth of the seed, reproducing the patented gene and cell, and sale of the harvested crop constitutes taking the essence of the plaintiff ’s invention and using it without permission.”28
The judge thereby rejected out of hand the defense argument that Monsanto’s interest in using the “essence” of GMOs was to be able to apply Roundup to crops, which Schmeiser had not done, as his herbicide invoices showed. He did not consider the fact that to take its samples, Monsanto had had to enter the farmer’s property illegally, nor that the tests conducted by experts that Schmeiser had consulted showed a significantly lower level of contamination. As Kempf rightly pointed out, “the decision is extraordinary: it means that a farmer infringes the patent of any company producing GM seeds whenever his land is contaminated by transgenic plants.” The decision obviously pleased Monsanto: “This is very good news for us,” said Trish Jordan, a representative of Monsanto Canada. “What the judge found was that Mr. Schmeiser had infringed on our patent, and awarded us damages.”29 They amounted to $15,450 Canadian, or $15 per acre harvested in 1998, though only part of the harvest was contaminated. Monsanto was also awarded legal costs.
Schmeiser appealed, but Judge McKay’s decision was upheld on September 4, 2002. But Schmeiser, who had already sacrificed his pension and some of his land to carry on his defense (which cost $200,000 Canadian), did not give up. “This is no longer the Schmeiser case,” he said, “it’s the case of all the farmers in the world.”30 He appealed to the Supreme Court of Canada, which on May 21, 2004, issued a decision eagerly awaited by everyone worried by the progression of GMOs: by a 5–4 ruling, the court upheld the two previous decisions but, oddly, found that Schmeiser had to pay neither damages nor Monsanto’s legal costs. The substantive finding was dramatic, because it confirmed that farmers were responsible for transgenic contamination of their fields, but the decision also suggested that the justices were troubled at the outcome. “With one hand they give and with the other hand they take away,” said Richard Gold, an intellectual property specialist at McGill University in Montreal.31 But Monsanto saw it as a victory that it would not fail to exploit in the future. “The ruling affirms the way that we do business,” said Jordan.32
When GMO Contamination Produces SuperweedsI have been constantly impressed by Monsanto’s capacity to say one thing and do the exact opposite. At the very time it was harassing Percy Schmeiser, its public relations department wrote in its Pledge Report: “In cases of unintended appearance of our proprietary varieties in a farmer’s fields, we will surely work with the farmer to resolve the matter to the satisfaction of both the farmer and Monsanto.”33 So much for the window dressing designed to reassure shareholders and possible customers. On the ground, the reality was entirely different, for GMO contamination had become a major problem on the North American prairies.
“GM canola has, in fact, spread much more rapidly than we thought it would. It’s absolutely impossible to control,” said Professor Martin Entz of the University of Manitoba in 2001. “It’s been a great wake-up call about the side effects of these GM technologies.”34 The same year, Professor Martin Phillipson observed: “Farmers in this province are spending tens of thousands of dollars trying to get rid of this canola that they didn’t plant. They have to use more and more powerful pesticides to get rid of this technology.” 35 These two statements were quoted in Seeds of Doubt, a report published in September 2002 by the Soil Association (a British association for the promotion of organic farming founded in 1946), which presented a very detailed description of transgenic crops in North America: “Widespread GM contamination has severely disrupted GM-free production including organic farming, destroyed trade, and undermined the competitiveness of North American agriculture overall. GM crops have also increased the reliance of farmers on herbicides and led to many legal problems.”36
A study commissioned by the Saskatchewan Agriculture Department, for example, found in 2001 that pollen from Roundup Ready canola could travel a distance of at least eight hundred yards, eight times the distance recommended by authorities between GM and conventional crops.37 The result was that the U.S. body certifying organic food acknowledged in the Western Producer in 2001 that it was practically impossible to find canola, corn, or soybean seed that had not been contaminated by GMOs. In the same article, the Canadian Seed Trade Association admitted that all conventional varieties had been contaminated to a level of at least 1 percent by GMOs.38 One wonders what the situation is eight years later.
In any event, anticipating the uncontrollable effects of transgenic contamination, the principal agricultural insurance companies in the United Kingdom announced in 2003 that they would refuse to insure producers of GM crops against this risk, which they compared to the problems of asbestos and terrorist acts, because of the unforeseeable costs it might bring about. In a survey published in The Guardian, insurance companies such as National Farm Union Mutual, Rural Insurance Group (Lloyd’s), and BIB Underwriters Ltd (Axa) said they “felt that too little was known about the long-term effects of these crops on human health and the environment to be able to offer any form of cover.”39
But one thing was certain: in North America, GMO contamination had caused “a morass of litigation,” in the words of the Soil Association, “embracing all levels of the industry: farmers, processors, retailers, consumers, and the biotechnology companies,” with disputes among them all arising whenever an unwanted GMO appeared anywhere.40 To illustrate the insoluble absurdity of the situation, Seeds of Doubt gave the example of the contamination of a shipment of conventional Canadian canola, inspected in Europe in May 2000 because a Monsanto transgene had been detected in it. The Advanta seed company in Canada had to destroy thousands of acres, indemnify its growers, and then shift its seed production from west to east in Canada, where it judged it could better protect itself from cross-pollination, and all of this was followed by a wave of lawsuits.41
The problems posed by transgenic contamination are not only legal but also environmental. When a transgenic canola seed is blown by the wind, for example, into a wheat field, the farmer considers it a weed that he finds it very hard to get rid of: “as this canola is resistant to Roundup, a total herbicide, the only way to get rid of it is to pull it up by hand or use 2-4D, an extremely toxic herbicide.”42 Likewise, a GMO producer who wants to rotate his crops by alternating, for example, Roundup Ready canola with Roundup Ready corn, can also confront this problem, intensified by the specificity of canola: because its pods ripen at uneven rates, producers have adopted the habit of cutting the plants and drying them in the fields before harvesting the seeds. Unfailingly, thousands of seeds stay in the ground and germinate the following year, or even as much as five years later. This has been dubbed “volunteer” or “rebel” canola, which is in fact a “superweed.”
GMOs Mean Ever More HerbicidesThe irony of the story is that Monsanto understood very early on the financial interest these “rebel” plants might represent. On May 29, 2001, the company was awarded patent 6,239,072 covering a “tank mixture” that would “allow control of glyphosate-susceptible weeds and glyphosate-tolerant volunteer individuals.”43 As the Soil Association report points out, “the patent will enable the company to profit from a problem that its products had created in the first place.”44
Considering developments in the North American prairies, one might expect that this “tank mixture” will become the company’s next cash cow. The development of superweeds has in fact become one of the major headaches of North American agronomists, who have observed that they may emerge in one of three ways. In the first case, which has just been described, they are Roundup-resistant “volunteers” whose destruction requires the use of more potent herbicides. In the second case, GMOs cross with “adventitious” plants (the technical term for weeds) that are genetically close, transferring to the weeds the gene for Roundup resistance. This happens particularly with canola, a natural hybrid of turnip and cabbage, able to exchange genes with related wild species, such as wild radish, mustard, and arugula, that farmers consider weeds. A study conducted by Mike Wilkinson of the University of Reading confirmed in 2003 that the flow of genes between canola and wild turnip (Brassica rapa), one of the most widespread adventitious plants, was very common, which indicated that “cross-pollination between GM plants and their wild relatives is inevitable and could create hybrid superweeds resistant to the most powerful weedkillers,” as the Independent pointed out.45
The third case in which superweeds appear is simply because, having been sprayed exclusively by Roundup several times a year, year after year, weeds develop resistance to the herbicide. Oddly, even though the company has had long experience with herbicides, it has always denied this phenomenon: “After 20 years of use, there are no reports of any weedy species developing resistance to Roundup herbicide,” claims an advertisement extolling the virtues of RR soybeans.46 Similarly, in its 2005 Pledge Report, the company continues to assert that transgenic crops “allow growers to use less herbicide.”47
“Untrue,” says the American agronomist Charles Benbrook in a study published in 2004 titled “Genetically Engineered Crops and Pesticide Use in the United States: The First Nine Years.”48 According to him, the claim of reduction in the use of herbicides was valid for the first three years following the introduction of GM crops in 1995, but not after 1999. “The increased herbicide use . . . should come as no surprise,” he explains. “Weed scientists have warned for about a decade that heavy reliance on HT [herbicide-tolerant] crops would trigger changes in weed communities and resistance, in turn forcing farmers to apply additional herbicides and/or increase herbicide rates of application. . . . Farmers across the American Midwest look back fondly on the initial efficacy and simplicity of the Roundup Ready system and many miss the ‘good old days.’ ”
Charles Benbrook knows his subject: after working as an agriculture expert in the Carter White House and then on Capitol Hill, he was head of the agriculture division of the National Academy of Sciences for seven years before setting up his own independent consulting firm in Sandpoint, Idaho. Since 1996 he has been carefully studying the data on herbicide use recorded by the National Agricultural Statistics Service (NASS), a division of USDA, comparing them with the data supplied by Monsanto, which he considers “misleading and dishonest.”49 In a 2001 article, he had already noted that “total herbicide use on RR soybeans in 1998 was 30 percent or more greater on average than on conventional varieties in six states, including Iowa where about one-sixth of the nation’s soybeans are grown.”50
In his 2004 study, he observed that the quantity of herbicides sprayed on the three principal crops in the United States (soybeans, corn, and cotton) had grown by 5 percent between 1996 and 2004, amounting to 138 million additional pounds. Whereas the quantity of herbicides used for conventional crops had continually decreased, the quantity of Roundup had gone in the opposite direction, as Monsanto in fact congratulated itself for on its 2006 10-K form: after noting that glyphosate sales accounted for $2.20 billion in revenues in 2006, compared to $2.05 billion in 2005, the company stated that “any further expansion of crops with our Roundup Ready traits should also incrementally increase sales of our Roundup products.”
These results were the fruit of a strategy that had long been planned. The company’s annual report for 1998 stated: “A key factor in volume growth for Roundup is a strategy based on price elasticity, with selective price reductions followed by larger percentage volume increases.” When it was pointed out that this development was proof that GMOs do not reduce herbicide use, the company replied that it was to be expected that Roundup sales would increase because the surface planted in Roundup Ready crops was continually growing. Nine years after first being marketed, transgenic crops did cover nearly 125 million acres in the United States, 73 percent of which were Roundup Ready (another 23 percent was Bt), but these areas had already been cultivated before the advent of GMOs, and hence sprayed with pesticides.51
In addition, according to Charles Benbrook, the end of Monsanto’s monopoly on glyphosate in 2000 produced a price war that brought the price of Roundup down by at least 40 percent, although the company’s revenues were not adversely affected. Finally, he writes, “reliance on a single herbicide, glyphosate, as the primary method for managing weeds on millions of acres planted to HT varieties remains the primary factor that has led to the need to apply more herbicides per acre to achieve the same level of weed control.”52 He noted that before the introduction of GMOs, scientists had identified only two glyphosate-resistant weeds—rigid ryegrass in Australia, South Africa, and the United States, and goosegrass in Malaysia—but that there were now six on American territory alone, led by horsetail, which had become a veritable plague on the prairie, and Palmer pigweed varieties such as waterhemp and ragweed. For example, a University of Delaware study showed that horsetail plants taken from RR soybean fields survived ten times the recommended dose of Roundup.53 In addition to those weeds already identified as Roundup-resistant, there is a whole list of glyphosate-tolerant weeds, that is, not yet resistant but for which doses have to be multiplied by three or four to get rid of them.
The Dark Side of Biotechnology“Specific weed resistance can reduce a farm’s rentable value by 17 percent.” This was one of the conclusions of a 2002 report from Syngenta, a Swiss company that was one of Monsanto’s principal competitors, sent to all its agricultural customers.54 Relying on a survey of American farmers, the chemical and biotech giant reported that 47 percent of them favored a return to “crop and chemical rotation.” As Charles Benbrook noted in early 2002, the decline in profitability was not the only “bad news” about what he called the “dark side” of biotechnology, which “scientists are now unraveling and farmers are just learning about.”55
First, contrary to what Monsanto has always claimed in its advertising, it is not true that “under comparable growing conditions, the yields for these new lines are expected to be equivalent to other top-yielding varieties.”56 “Unfortunately, we proved the opposite,” Roger Elmore, an agronomist, told me. In 2001, he and colleagues at the University of Nebraska published a study on the subject.57 Now at the University of Iowa, near where I met him at his home in October 2006, he told me: “We conducted this study, for two years and in four different locations, because we had received information from various states indicating that transgenic soybeans had lower yields than related conventional varieties. Our results prove that yields decline by at least 5 percent.”
“How do you explain it?” I asked, scrutinizing his chart.
“It’s what we call ‘yield drag.’ We had two hypotheses that might explain the drag affecting the yield of transgenic plants: either it was due to the effect of Roundup on plant metabolism, or it was the result of genetic manipulation. To test the first hypothesis, we grew three groups of RR soybeans from the same strain, one of which was sprayed with Roundup, a second with ammonium sulfate, a product that stimulates the action of herbicides, and the third with water. The yield in all three cases was exactly the same, fifty-five bushels an acre. So it’s genetic manipulation that explains yield drag. Apparently, the violent insertion of the gene disturbs the productive capacity of the plant.”
“So transgenic soybeans are not the same as the conventional variety?”
“That’s what our study shows.”
“How did Monsanto react?”
“Let’s say the company wasn’t really eager to have us publish it,” he answered with the necessary caution.
“But hadn’t they done a study of the yield of their own soybeans?”
“The data they supplied were very weak from the scientific point of view and answered more to needs that were, let’s say, commercial.”
The results of Elmore’s study thus confirmed the meta-analysis carried out by Charles Benbrook in which he had gone through 8,200 yield measurements made by U.S. university agriculture departments in 1998. They showed that yield drag on average was 6.7 percent, with peaks of 10 percent, particularly in the Midwest, which amounted to a loss of 80 million to 100 million bushels of soybeans for the year 1999 alone.58
As Benbrook pointed out, yield drag turned into a genuine catastrophe because of another phenomenon brought to light by researchers from the University of Arkansas in 2001.59 They found that Roundup affects the rhizobium bacteria present in the soybean roots, which assist in growth by the fixation of atmospheric nitrogen. The sensitivity of the bacteria to the herbicide would explain the decline in yield of RR soybeans, which might reach 25 percent in a dry spell. “Unfortunately,” according to Benbrook, “it now appears that RR crops are more vulnerable to certain diseases, especially when plants are battling other sources of stress caused by, for example, excessive cold or high pest pressure, or a mineral or microbial imbalance in the soil. These plant health problems arise because the genetic material moved into RR crops to make them tolerant of Roundup modifies the normal functioning of a key biochemical pathway that also happens to trigger and regulate a plant’s immune response.” He went on to say: “Unfortunately this information was only available after 100 million acres of RR soybeans had already been planted in America.”60
A careful review of scientific and agricultural journals reveals that problems with Roundup Ready crops have been common around the country (similar problems with Bt plants will be discussed later). In 1999, for example, scientists in Georgia were contacted by soybean producers complaining that the stems of their plants were splitting for unknown reasons, leading to extremely low yields. Their study revealed that transgenic soybeans produce 20 percent more lignin than conventional soybeans, which, at higher than normal temperatures, made the stems exceptionally fragile.61
An Economic Disaster“There’s profit in your fields. Unleash it with Asgrow Roundup Ready soybeans.” This ad published by a Monsanto subsidiary in a farm magazine in January 2002 did not convince the Soil Association, which wrote in Seeds of Doubt: “The evidence we have gathered demonstrates that GM food crops are far from a success story. In complete contrast to the impression given by the biotechnology industry, it is clear that they have not realised most of the claimed benefits and have been a practical and economic disaster.”
Monsanto was quick to reply to this stinging indictment that one could expect nothing less from one of the principal European organizations for the promotion of organic farming. But this assessment was also that of researchers who had taken the trouble to consider all aspects of transgenic agriculture to determine whether, from a strictly economic point of view, the effort paid off. Michael Duffy, a University of Iowa economist, for example, conducted a study in cooperation with the National Agricultural Statistical Service of USDA. He went through the accounts of the state’s farmers item by item, comparing production costs and revenues for RR soybeans (108 fields) and conventional soybeans (64 fields) in the 2000 harvest. The result was beyond question: if all factors of production were taken into account (cost of seeds, herbicide use, yield, fuel costs, fertilizer, and so on), producers of transgenic soybeans lost $8.87 per acre compared to $0.02 for producers of conventional soybeans.62 It should be noted that this study was conducted in the midst of a price war on herbicides that had lowered costs and at a time when weeds were not Roundup resistant. Michael Duffy also compared earnings from Bt corn and conventional corn and came to a similar conclusion: $28.28 loss per acre for the former and $25.02 loss for the latter.
One might be surprised that farmers lost money in producing in all cases. This was precisely another drawback of GMOs, which had produced a collapse of American exports to Europe and a resulting price decline. Under consumer pressure, the European Commission, which had at first unhesitatingly authorized the importation of transgenic soybeans, corn, and canola from the United States and Canada, had had to backtrack and declare a five-year moratorium on GM crops on June 25, 1999, followed by required labeling of GM products on October 21.63 These two decisions, which were vigorously challenged on the other side of the Atlantic, created confusion in the American prairies, where grain dealers asked farmers to deliver their transgenic and conventional crops separately, with a bonus for the conventional crops.
According to the Washington Post, there was growing anger, especially in exporting states such as Iowa and Illinois, where farmers had a persistent sense of having been bamboozled: “American farmers planted [gene-altered crops] in good faith, with the belief that the product is safe and that they would be rewarded for their efforts. Instead they find themselves misled by multinational seed and chemical companies and other commodities associations who only encouraged them to plant increased acres of [these crops] without any warning to farmers of the dangers associated with a crop that didn’t have consumer acceptance.”64
In the meantime, the harm had already been done: according to the Department of Agriculture, corn exports to Europe fell by 99.4 percent between 1996 and 2001, amounting to an annual loss of $300 million. Likewise, while Europe had absorbed 27 percent of soybean exports in 1998, the figure fell to 7 percent in 1999. And Canada, the world’s largest exporter of canola, lost its entire European market, not only for canola, but also for honey.65
As a consequence, to save its farmers’ earnings, the American government had to provide special subsidies, estimated at $12 billion between 1999 and 2002.66 In May 2002, the Senate passed a new farm bill providing $180 billion in subsidies for the following ten years, a way “to mask the economic failure of GM crops from farmers,” in the killing words of the Soil Association.
This context lay behind the conflict early in the new century between Canadian and U.S. farmers and Monsanto, which for once suffered a serious setback in its strategy to spread GMOs when it had to give up its transgenic wheat.
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Notes:i. The system is guaranteed by the UPOV agreements (Union for the Protection of New Varieties of Plants), signed by thirty-seven countries in 1973.
ii. Patent EP 546090, titled “Glyphosate tolerant 5-Enolpyruvylshikimate-3-Phosphate Synthases.”
iii. Notorious for its violent methods, like those of a private militia, particularly when it was hired to break strikes in the late nineteenth century. The Pinkerton National Detective Agency was founded in 1850 by Alan Pinkerton, who had his moment of glory when he foiled an assassination attempt against President Abraham Lincoln, who hired his agents to ensure his security during the Civil War. Helped by its logo—an eye with the slogan “We never sleep”—the agency was hired by companies to infiltrate unions and factories with methods summed up in the expression “bloody Pinkerton,” designating a strike-breaking cop.
iv. The company, which had inserted the gene into one of its varieties, paid him for multiplying the seeds the company would sell to other farmers.