At first glance, it was an open-and-shut case. In 1998, Mississippi farmer Homan McFarling bought soybean seeds with genetic traits owned by Monsanto, then as now the world's dominant provider of genetically modified seeds -- and also the biggest herbicide maker.
Like all farmers who buy GM seeds, McFarling signed a contract obliging him not to hold back any of the resulting harvest as seed for the next year's planting. But McFarling saved his seeds anyway -- and Monsanto busted him. Hot to protect its multibillion-dollar investment in genetic modification, Monsanto set loose a cadre of rent-a-cops into the farm belt in the late 1990s, in search of farmers who dared defy its patent claims.
According to a comprehensive 2005 study [PDF] by the Center For Food Safety, "Monsanto has an annual budget of $10 million and a staff of 75 devoted solely to investigating and prosecuting farmers." By the time of the study, the company had launched 90 lawsuits involving 147 farmers and 39 small businesses, CFS reports.
McFarling was one of Monsanto's first targets. The giant corporation sent the full weight of the law crashing down on the farmer's head, suing him and winning a judgment of $780,000 (he had originally bought $24,000 in seeds, according to a New York Times account from 2003.
Preventing people from saving seeds and freely propagating crops has been tried before. In medieval times, merchants in the Levant strove mightily to corner the coffee market by refusing to export raw coffee beans that might be replanted. Their effort eventually failed, and coffee now flourishes in Latin America, South Asia, and southern Africa.
But Monsanto has patent law on its side. Monsanto has established for itself the right to claim ownership of genetic material -- a revolutionary step in the history of property rights.
And McFarling trespassed on those rights. He signed a contract and then reneged on it. Case closed. Early this month, the Supreme Court upheld Monsanto's claim against McFarling (through the appeals process, the fine has been whittled to $350,000). The seed giant's case was so strong that the court made its ruling without comment.
Yet the logic behind Monsanto's claim, so airtight on its own terms, has serious implications for broader society.
Seminal Logic
Desire to plant Roundup-Ready soybeans -- engineered so that the plants can withstand infinite doses of Monsanto's flagship herbicide -- is what plunged McFarling into his legal mess.
These statistics reflect 2004 data and are based on industry sources: Monsanto and ISAAA.
Source: Etc. Group
Herbicide-tolerant soy roared through the farm belt like a prairie fire in the 1990s. Introduced in 1995, it accounted for nearly 50 percent of all soy by 1998, the year that McFarling made the seed order he will rue for the rest of his life. Today, more than 90 percent of soy planted in the United States is herbicide-tolerant -- and the great bulk of it contains Monsanto's Roundup-Ready trait. Globally, 91 percent of genetically modified soy contains [PDF] Monsanto traits; the company's market share in the United States is likely even higher.
To understand how this product conquered the farm belt so rapidly, you have to understand how large-scale commodity farmers make decisions. Your neighbor tries a new product, and suddenly boasts weed-free fields and yields that trump yours.
He reveals that he bought newfangled, high-dollar seeds -- and more than made his money back with the higher yield. So you do the same. Trouble is, everyone else does, too -- and the higher yields nationwide lead to lower prices for soy, erasing any advantage of the new seeds.
Indeed, USDA figures show that soybean production surged after the introduction of herbicide-tolerant varieties in 1995 -- and prices dropped. Soy prices didn't recover in any meaningful way until the great biofuel boom that started in 2006. All things being equal, technologies that increase yield end up lowering prices -- erasing any net gain for farmers.
Thus in their rush to adapt new technologies, farmers aren't working in their own interest, but rather in the interests of big corporate buyers like Archer Daniels Midland and Cargill -- and, of course, in the interests of the companies that sell the new technologies, like Monsanto.
And once new technologies gain traction, they can be nearly impossible to resist. If soybean prices are dropping because all farmers are adopting a new technology, then holding out can seem insane. Say you're trying to make a living growing soybeans, and you'd prefer not to use GM seeds. By holding out, you get low prices and subpar yields -- a disastrous combination.
Devil's Bargain
Even when prices are high -- as they are now, because of the biofuel boom -- there's economic pressure to submit to GM seeds. Farmers know that good times don't last forever; you have to "make hay while the sun shines." To wring every penny out of the soy rally, you have to maximize yield. And that means planting Roundup Ready soy -- and dousing it with Roundup, Monsanto's flagship herbicide.
Thus farmers hardly enter into Monsanto's "technology agreements" under completely free-market conditions. Their choice is essentially to submit to Monsanto's terms, or live with lower yields.
Remember, 90 percent of U.S. soy -- our second-biggest crop -- is genetically modified to be herbicide-resistant; and more than 90 percent of that contains traits owned by Monsanto. For corn, our biggest crop, 60 percent is GM -- and nearly all of it contains Monsanto genes.
Since the U.S. food system relies so heavily on these two crops, essentially our entire food supply is genetically modified, to the benefit of one company. Since the U.S. doesn't require companies to label GM ingredients, it's impossible to know how much of the U.S. diet contains genes owned by Monsanto. In a much-cited study from 2000, the Grocery Manufacturers of America estimated that 70 percent of food in the U.S. contains genetically modified traits. The proliferation of GM seeds has only grown since.
Somehow, a single corporation has managed to use patent law to gain de facto control of the nation's two biggest crops -- and managed to annul the age-old right of seed-saving over a broad swath of farm country. Monsanto may have airtight logic on its side for patent law, but it has clearly run afoul of a much less-enforced branch of legal code: antitrust law.
The time has come to bust up this giant seed trust.
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Comments View as Flat
rong Posted 4:57 am
17 Jan 2008
Monsanto crop monopoly
Well, I guess the question is, "what's to be done about it?". The only way I can see for farmers to not get hurt by leaving the Monsanto empire would be to all leave together, thereby all keeping to the same relative crop yields. Can that happen? I suspect not, because I don't see the leadership in the farming community to pull off something like that.
What's truly scary is the data about 70% of the US food being contaminated with genetically modified ingredients. It's not so much what science says about whether they think it's going to hurt you, it's about knowledge and choice. We deserve to know what's in our food and choose based on that knowledge. The government, I think, is turning a blind eye to the needs of its citizens in this case. It shouldn't be up to them to decide for us what's important for us to know and what's not. But then, it seems pretty clear that large parts of our government are being subverted by special interests, and have been for some time.
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swan Posted 5:34 am
17 Jan 2008
Alternatives
Boycotts work. I don't think it would be too hard to organize a boycott of gm foods. The first thing we'd have to do is identify which foods are free of genetically modified ingredients. This would obviously increase the market for local food producers. I would like to see premeditated, well-publicized boycotts against specific items just to show the power we have as consumers. I remember the green grape and iceberg lettuce boycotts of Cesar Chavez day - boy, did they work!
We can make our voices heard. The organic food movement is really taking off. We don't have to let them get by with this. I am writing about the local food movement and other ways of living in harmony with the natural world in my blog at http://goodwordswan.wildflowerstew.com
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GoodCheer Posted 6:01 am
17 Jan 2008
Trust case.
I'm sure there are a huge number of bloggers here with better knowledge of the law than me (probably fairly few with less actually), but I think Tom Philpott's comment about trust regulations seems important. Can someone point to conditions for such a suit that are NOT met in this instance?
A possible solution through anti-trust litigation would be to separate the company that sells seeds and owns genetic patents from the company that sells chemicals... should be an easy enough delineation to make. It's not clear what the outcome would be... the seed company might make seeds tolerant of other company's herbicides... or seeds that generate herbicide in their own metabolic processes.
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natureguru Posted 1:12 am
18 Jan 2008
The writing on the wall
So now we're allowing multinational corporations that sell chemicals to dictate what types of foods farmers grow and how? Do consumers realize to what extent our food supply system has been corrupted by greedy businesses? Surely not the USDA or the FDA. Boycotts are a great idea; so is writing letters to these government entities, voicing our concerns. Thank goodness we can still avoid ingesting these products, by choosing non-gmo soy, by going vegan, by avoiding processed corn by-products, and by growing our own food. Agribusiness and factory farms are not good for consumers. Unless we take responsibility for our food choices, we will become unwitting guinea pigs in the ongoing experiment to industrialize our food supply for the benefit of big business. I feel for the farmers, but they need to organize and stay away from these corporations. These monopolies should not be allowed to exist unchecked. (For more, read Michael Pollan's book "The Omnivore's Dilemma", or go to http://www.organic-nature-news.com.)
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mtvyfan Posted 1:25 am
18 Jan 2008
Remember Percy Schmeiser
Percy Schmeiser is an organic farmer in Saskatoon, Saskatchewan and was sued by Monsanto for planting GM canola on his fields. He did not plant them, the seeds drifted onto his property and actually contaminated his organic crops, but Monsanto sued anyway and WON! That was outrageous Mr. Schmeiser continues his appeals, but the outcome does not look very promising for him. If a company as big and powerful as Monsanto can win in court, not only do our patent laws need to be changed, but our court system as well. The little guys is usually the loser.
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COmac Posted 3:50 am
18 Jan 2008
Check the Canadians Out!
As I understand it Mssr. Schmeiser has switched gears and is suing Monsanto as they make it impossible for him to grow organic crops and is winning. If anyone knows the current status please ammend this string!
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nycowboy Posted 4:29 am
18 Jan 2008
Lousey Judges
The problem is the quality of judges in these cases. Any judge who was not in the hand of corporate interests and beholden to through a right-wing property rights ideology, would have long through out these cases?
Can you imagine the Supreme Court of the 1960s or 1970s upholding these cases?
Clearly, where there where cases of signed and infringed patents, then there should be punishment. But aren't many of these cases excessive? Understandably, these amounts are usually significantly reduced after the judgment, but still.
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grill53 Posted 11:21 pm
18 Jan 2008
Percy Schmeiser update
You can learn of Percy Schmeiser's efforts via his web site:
http://www.percyschmeiser.com/
He is suing to recover his costs as a result of Monsanto's lawsuit. The Supreme Court "determined that Monsanto's patent is valid, but Schmeiser is not forced to pay Monsanto anything as he did not profit from the presence of Roundup Ready canola in his fields."
The court date is actually next week - January 23, 2008 - this will be very interesting...
excerpt from the site below:
Schmeiser vs Monsanto court date set
The liability issue of the presence of Roundup Ready canola which contaminated Percy Schmeiser's fields will be addressed in a court date that has been set for January 23, 2008. After a mediation session failed to produce an agreement, the court date was set to address the issue. In a statement released on May 18, 2007, Percy Schmeiser stated that "I am disappointed that mediation did not result in a settlement on the liability issue, yet at the same time optimistic that now that a court date has been set, the matter will finally be addressed."
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planetthoughts Posted 4:49 pm
19 Jan 2008
Good idea
The part of the case history that seems ridiculous is that a farmer that gets some seeds blown into his/her property from a Monsanto-based neighbor can also no longer re-use their own seeds.
Something should be done about this situation. I understand the farmers signed an agreement that they can not re-sue the seeds. Perhaps we need a Federal law, or even a constitutional amendment, preventing such contractual clauses that license living things rather than selling them. Monsanto should be required to improve their product in order to make more sales. Or perhaps the license can be valid, but could be for a minimum of 5 years at a time, allowing farmers a less expensive path by re-using seeds for 5 years before needing to purchase again.
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mdwalsh Posted 6:18 am
20 Jan 2008
Monsantonopoly
I think this is clearly a monopoly. If one car company or one gas company or one phone company controlled 91% of the market, there would be a lot more noise. However it seems that Monsanto has learned from those that came before them and have done a much better job hiding this.
Because there is no proof that GM crops are bad for us physically, the FDA has no right to label GM products. Even if they did, the genetic modification is actually part of the pesticide, and thereby domain of the EPA. But since GM crops are foods, the EPA can't do anything. Furthermore, by consolidating farms and pushing the use of markets of scale to get farmers to plant commodity crops, they've driven a greater divide between the consumer and producer.
I think the only way out is to call for more information. Push for producers to label products as GMO free and for the government to allow them to do it, and support farmers who use non-GMO seed locally, and even go so far as to support them just for using GMO seed that's NOT Monsanto.
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ckmotorka Posted 1:09 pm
22 Jan 2008
The Dark Lord GMO
Non-GMO labeling is increasingly suspect because, as Monsanto fully knows despite its denials, it is impossible to contain these species. If there is a field in the vicinity that grows Monsanto's seed, it's virtually impossible for an organic farmer to truly know his crop is free of these genetic traits. To say such crops can be contained is a farce. Alfalfa is another crop that is now going through the same process in the farming community. One judge has been smart enough to put a hold on any new farms growing Monsanto's GMO version of alfalfa, but it's too late. It spreads to quickly, too easily. Altered genes have been found in supposedly heritage crops in Mexico for chrissake. The genie is out of the box. Pandora's box is open. Any other cliches come to mind? Because they all apply here.
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mrtomato Posted 2:03 pm
22 Jan 2008
Monsanto The THUGS
SAY NO TO GMO'S DO NOT USE ANY MONSANTO PRODUCTS.get the word out.the stores you go to tell themSTOP SELLING MONSANTO PRODUCTS.GO ORGANIC
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mrtomato Posted 2:09 pm
22 Jan 2008
SUPPORT LOCAL FARMERS
SUPPORT YOUR LOCAL FARMERS
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luannrudolph Posted 11:58 pm
22 Jan 2008
Power of the Consumer
Unfortunately, everything I know about Anti-trust laws would indicate that Monsanto would not be found as a monopoly. They would argue that there are a number of opportunities for any company to compete with them and that it is not their fault that no one chooses to put a competitive product on the market.
But the power of the consumer is great. What we can do is just stop supporting their products. First and foremost, stop using round-up. I'm probably preaching to the choir here but there is no need for this product to be in use, especially by the average consumer who uses it to kill weeds in sidewalk cracks. Buy local and buy organic. These need to go hand in hand. Just because it is local, does not mean that it is not GMO. And last, educate, educate, educate. The majority of us who read articles on this site already know about the evils of Monsanto and GMO in general. It is within our power to educate those that don't. Make this a topic of concern. Talk to your government representatives. Boycotts. All of these things will work if there is a big enough movement around it! The power is ours!
http://greenmadesimple.blogspot.com/
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Martha Hagood Posted 1:17 pm
23 Jan 2008
Boycott GMO's? Boycott conventional meat and dairy
And anything made with soybean oil. Is corn oil made from GMO corn these days? Then cut that out, too. You have to cook your own food, so you can control your ingredients. I don't think there's any other way.
Will enough people do that to have any kind of economic impact? If not, the courts have opened the door to major change before. About 100 years ago, a combination of popular muckraking journalists and savvy politicians pushed back against monopolistic companies -- the Beef Trust, Standard Oil, insurance companies, financial institutions -- and it made for real change. We could do worse than look to the Progressive Era for strategies.
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Greennovator Posted 4:50 pm
24 Jan 2008
Percy Schmeiser
Please,
Somebody, why I can't find anything about what happenned with 'Schmeiser V Monsanto' that was supposed to go to court yesterday (Jan 23rd 2008). Grist, and others, post these provacative stories and then leave us hangin'. Nothing on AP or Reuters or Guardian or NZHerald or Google or etc. -- please use your sources to give us an update (Tom Philpott, you listening?) [my challenge to all of you]
(maybe Saskatchewan news is a bit slower to hit the NET? Did the case get rescheduled?)
Lew
(longtime lurker, 1st time poster, frequently pitying 'J-blo-Ma'[sic]; DOING the kinds of things you report on, pretty much since birth.)
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Greennovator Posted 6:23 pm
24 Jan 2008
Percy Schmeiser
BTW ... have tried to follow this story since seeing "Future of Food". And thanks for all of the links, editorials, articles, and posts related to this topic ... as well as everything else you put 'out there'
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RudolfC Posted 7:29 am
21 Feb 2008
Anti-Trust Opportunity
I was doing some other research and came across this: http://en.wikipedia.org/wiki/International_Salt_Co._v._Un .... The upshot is that Monsanto's requirement that anyone who buys Roundup-Ready xxx must use Roundup is a per se violation of the Sherman Anti-Trust Act. Now all we need is an Attorney General willing to prosecute...<sigh>.
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