Caledonian Record
BY JAMES JARDINE, Staff Writer
Saturday December 31, 2005
What’s not to like about a new technology that helps farmers feed a sick and hungry world, enable a Vermont farmer to grow a disease-resistant, pest-resistant crop that produces more yield per acre while using less pesticide and less herbicide? Plenty, if you ask organic farmers and advocacy groups like Rural Vermont.
According to them, pollen from the new GE crops drifts across fields and dusts
organic crops, rendering them unsalable to purchasers of organic foods.
But to state Rep. Dick Lawrence, a former dairy farmer from Lyndonville, GE seeds
are one tool that can help Vermont farmers survive and compete economically with
farmers from other states.
Dexter Randall, a state representative from Troy, says GE seeds can ruin an organic
farmer’s efforts at preserving natural strains of heritage seeds.
As Randall sees it, under existing law, the injured farmer has no recourse against
the manufacturer of these engineered seeds, but is forced by existing law to sue his
neighbor.
Randall sees proposed legislation as helping protect farmers by shifting
responsibility where it belongs – back onto the manufacturer of these new seeds.
Tuesday’s opening session of the Vermont House of Representatives will take up, as
one of its first orders of business, a bill designed to help clarify Vermont law and
assist farmers who want to sue manufacturers of genetically modified seeds.
This bill, titled S.18 after the original version passed by the state Senate last
year, has nothing in common with the Senate bill except the title.
The topic of genetically engineered seeds, or GE seeds as they are known, has been a
contentious one in the Statehouse for several years. Advocacy groups such as Rural
Vermont and the Vermont Public Interest Research Group have pushed for legislation
they claim will protect organic farmers from crop contamination by GE seeds.
Last year’s version of S.18 was called the “Farmer Protection Act” by its
proponents, and supporters of the original S.18 insist the bill is needed to protect
farmers.
The GE seeds versus organic crops debate has divided Vermont farmers into two groups.
Conventional farmers, including dairy farmers who grow cattle corn as a feed crop,
claim genetically modified corn developed by corporations like industry leader
Monsanto have important benefits.
A seed, according to Rep. Lawrence, a Republican, can be engineered to develop its
own resistance to insects and weeds through genetic engineering.
Lawrence says GE crops require less pesticide use by the farmer and less insecticide
use as well. As a result, the farmer saves money and increases his farm profits. The
reduced use of the chemicals has a secondary benefit: When fewer chemicals are
applied by a farmer, there is less chemical runoff in the soil. The healthier, more
disease- and insect-resistant GE crop can produce a higher yield per acre.
Cattle corn represents the vast majority of all GE crops grown in Vermont, according
to Margaret Laggis, a registered Statehouse lobbyist whose clients include GE seed
manufacturers, with about 95,000 acres of GE cattle corn planted in Vermont. By
comparison, Laggis says, organic corn is planted on about 750 to 1,000 acres in
Vermont.
The Argument For GE Legislation
With all the apparent benefits of seed technology to Vermont farmers, what are the
objections of the organic farmers?
Organic farmers argue GE crops pollinate like all other plants, and the pollen from
these GE crops is airborne and can drift for miles. The pollen from the engineered
crops can dust organic crops, and, according to the organic farmers, the pollen dust
contaminates the crop and makes it unsalable as organic, meaning the farmer either
cannot sell it to purchasers of organic foods at all, or the organic farmer must
sell it as nonorganic and lose a price premium.
USDA regulations governing organic farming and the designation of a farmer as an
organic farmer allow a certified organic farmer to sell his crops as organic even if
the crop has been dusted by pollen from a non-organic crop, according to Laggis.
Thus, according to Laggis, nothing prevents an organic farmer from selling his
dusted crop as organic.
The only way an organic farmer would know his crop had been dusted by pollen from a
non-organic crop is by taking samples and having those samples examined and tested
in a laboratory and there is no requirement that testing be done. With many dairy
farmers growing GE cattle corn, it could be very difficult to identify the farmer
whose crop dusted the organic farmer’s.
Rep. Randall, a Progressive, comes from a long line of Vermont farmers. His father
farmed his whole life and Randall has run a dairy farm in Troy for many years.
According to Randall, an organic farmer who has suffered economic damages as the
result of crop contamination, may sue the farmer whose crop contaminated his for
economic losses.
Randall says the whole basis for the “Farmer Protection Act” – and the basis for his
plan to offer an amendment in the House – is to allow organic farmers to avoid suing
their neighbor and instead suing the manufacturer of the GE seeds.
Why purchasers of organic products are afraid of organic food that may have been
contaminated by pollen drift is less clear. Randall admits there haven’t been enough
studies done because, he said, it’s too new a technology to know if there is any
harm to the health of humans or animals. Randall points out that a GE seed has had
its DNA structure modified by its manufacturer and the resulting seed is not
something that naturally occurs in nature, compared to even a hybrid plant.
Another farmer in the Legislature, Rep. David Zuckerman, a Burlington Progressive
who grows organic crops on the Burlington Intervale in what is known as
community-supported farming, is the chairman of the House Agriculture Committee and
a fervent support of various versions of the Farmer Protection Act.
“There’s a mixed bag of science out there,” Zuckerman said. “The real question
hasn’t been studied as thoroughly as it could be.”
Zuckerman is suspicious of research done by the developers of GE technology and says
some governments have cut funding to study the science of GE technology.
He admits GE crops can enable a farmer to use fewer pesticides, but that when GE
crops are grown year after year, they may develop a resistance to pesticides. He
suggests higher crop yields may occur at first, but in the long term, the increased
output may disappear.
Zuckerman, like Randall, sees the issue primarily in terms of helping injured
organic farmers sue the manufacturer instead of the farmer planting the crop. He
believes Randall’s amendment adding strict liability to the current version of S.18
will allow organic farmers to have direct access to the manufacturer and will give
organic farmers new strict liability laws making it easier to obtain damages.
The House Agriculture Committee has heard hours of testimony, including the
testimony of Peter Langrock, a Vermont attorney who won a major product liability
suit on behalf of a farmer, and the testimony has been that farmers already are able
to sue manufacturers for damages as consumers under consumer protection laws.
While proponents of legislation argue farmers today must sue fellow farmers when
crops are contaminated, the reality is, according to numerous sources, that no
Vermont farmer has ever sued another Vermont farmer for damages resulting from crop
contamination.
Furthermore, no Vermont farmer has ever sued a manufacturer of GE seeds for damages,
and no manufacturer of GE seeds has ever sued a Vermont farmer – even though the
seed manufacturers require purchasers of their GE seeds to sign a contract
stipulating the manufacturer of the seed always retains ownership of the seed.
Opponents of GE seed legislation think S.18 and the
“strict liability” amendment to
be proposed by Randall as a solution in search of a problem.
How Did We Get Here?
In the final days of the last legislative session, the House Judiciary Committee
took up bill S.18, which had emerged from the House Agriculture Committee on a
controversial vote of five in favor, three against, and three not voting.
Before the House Agriculture Committee looked at the bill, it had been voted on in
the full Senate and passed by a vote of 26-1. When the Judiciary Committee got the
bill, they stripped all of the language out of the bill and included entirely new
language, then passed the bill out of the committee by a vote of nine in favor, one
against, and one not voting.
The new bill drafted by the House Judiciary Committee is the one to be voted on by
the House Tuesday morning.
The intent of the bill is to codify farmers’ ability to recover economic losses
caused by the wrongful action of others, confirm farmers’ status as consumers with
all the protection that provides, and provides Vermont farmers with a Vermont forum
and choice of law when legal disputes arise.
The bill also states that in any action in which liability for damages against the
manufacturer of goods for agricultural use has been established in Vermont, the
prevailing party may recover for economic losses. The bill clearly establishes by
statute that Vermont farmers are consumers, and goods purchased by farmers for
agricultural use are consumer goods.
Finally, it establishes that the venue for farmer suits shall be Vermont, even in
cases in which the other party is located in another state.
Randall’s amendment will add strict liability to the S.18, putting back into the
bill the language removed by the Judiciary Committee.
Amy Shollenberger of Rural Vermont, a nonprofit advocacy group, interprets Randall’s
amendment to mean that if a farmer can prove his crop was contaminated by pollen
from a genetically modified crop, such as cattle corn, and if the farmer can prove
that as a result of the contamination of his product by the genetically modified or
genetically engineered product he suffered economic damages, he can win his suit and
collect damages against the manufacturer of the GE seed, not the neighboring farmer
who planted the GE seed.
“That’s how it’s supposed to be,” Shollenberger said, adding that under strict
liability, the manufacturer of the seeds would have no defenses.
Without Randall’s amendment, Shollenberger said, supporters of the original Farmer
Protection Act are lukewarm about the bill proposed by the Judiciary Committee. She
said the amended bill proposed by the Judiciary Committee “would be OK,” providing
“it was a separate issue.”
But she also thinks that while the bill essentially codifies by statute a holding in
a landmark case, Main Line Tractor vs. Nitrite, which was decided in U.S. District
Court for Vermont and held a farmer was a consumer under certain consumer protection
laws, it does not help farmers by giving them a mechanism by which a farmer may
easily and directly sue the manufacturer of GE seeds, a mechanism provided in the
original Farmer Protection Act.
Rural Vermont has promoted the so-called Farmer Protection Act for several years,
but each year the bill gets derailed at the last minute. This year, Shollenberger
said, “I think we’re going to win.”
Supporting The Status Quo
Lawrence, a member of the House Agriculture Committee that spent the last session
studying GE seed liability legislation, calls GE seeds a tool for the dairy farmer,
and adds that if he were farming today he would use GE seeds.
“I would not have a problem with it,” he said.
Lawrence opposes the amendment offered by Randall, which essentially attempts to
resurrect the old Farmer Protection Act. He feels the sponsors’ use of the name
“Farmer Protection Act” is misleading and that the original bill does not protect
farmers and instead it injures Vermont farmers by denying them the use of a tool
that can help them compete in the marketplace with farmers from other states.
“This is just a step to make it more difficult for dairy farmers,” Lawrence said,
adding he believes the bill and the proposed amendment are “needless pieces of
legislation. I shall not vote in favor of it, but I think it’ll probably pass.”
Lawrence thinks those who vote for the bill and Randall’s amendment will do so
because it creates the appearance that their vote is benefiting farmers, although
they really are not.
Rep. William Johnson, a Canaan dairy farmer and a Republican, also serves on the
House Agriculture Committee. He joined Lawrence last year in opposing GE liability
legislation.
Johnson says of S.18 and Randall’s proposed amendment that his first instinct is “we
don’t need to do anything” but that “if we’ve got to have a bill,” then the bill as
proposed by the Judiciary committee is the least objectionable.
According to Johnson, the efforts to pass strict liability will simply “create a new
level of liability” beyond the existing and well established liability laws
currently available.
Lawrence opposed the original bill during the 2005 session, as did six of the 11
members of the committee.
The most vociferous opponent of Randall’s amendment may be Vermont Secretary of
Agriculture Steven Kerr.
Kerr calls Randall’s amendment creating strict liability for the seed manufacturers
“a crass political outrage” designed to “further a political agenda.” Kerr adds that
Randall is trying to resurrect “a tired old bill.”
Kerr argues GE seed technology can benefit hundreds of millions of people who are
hungry and sick throughout the world. Kerr says when an organic crop is dusted by
pollination “there’s no damage, there’s no danger.”
Speaking of the whole issue of “protecting” farmers, Kerr says the dangers claimed
don’t exist, saying, “If you poke it, it’s just not there.”
He is angry at what he sees as an attempt to “stigmatize technology for purely
political purposes.”
During one vote taken on the original bill, it appeared the opponents could prevail
in defeating the strict liability provisions of the bill. Rather than see a vote
against the strict liability provision, committee Chairman Zuckerman persuaded
supporters to join opponents and have a straw vote of 11 to zero.
Rep. Johnson said the only vote taken by the House Agriculture Committee on the
issue of strict liability thus resulted in an 11 to zero vote against a strict
liability provision.
At one point, the House Agriculture Committee was scheduled to meet, but three
members of the committee had made it clear they had other commitments and would not
be present. Zuckerman chose that day to hold a vote and S.18, the Farmer Protection
Act, passed by a vote of five to three with three members not present, all of whom,
Zuckerman knew, would have voted “No” and given the bill a negative vote in
committee of six against and five in favor.
A negative vote in committee tends to act against a bill when it is brought to the
floor for a vote of the full House. When the three representatives returned to the
Statehouse and learned of Zuckerman’s action, they were outraged and took the matter
up on the House floor. The full House responded by taking the bill passed with a
controversial committee vote and deciding not to act on it, but instead voted to
refer it to the House Judiciary Committee for further study.
At that point, the Judiciary Committee stripped everything out of the bill and
replaced
it all with the current language to be voted on Tuesday.