I fielded a worrisome e-mail last week urging that President Barack Obama veto H.R. 933 because of a "poison pill" an activist group says is tucked into Section 735 of the bill.
"Known as the Monsanto Protection act, [this provision] undermines the independence of judicial review and gives biotech seed companies like Monsanto, DuPont and Dow Chemical a blank check on the approval of new genetically engineered crops," the email dutifully informed me.
Scary stuff. But is it true? The e-mail didn’t link to the bill, so like any good reporter, I tracked it down and read it. I was a bit troubled by what I read. Here are two things that bother me the most about Section 735 of H.R. 933.
1. It’s not even called the "Monsanto Protection Act."
It’s called Section 735 of H.R. 933. That’s not exciting enough for most people, so proponents tend to refer to it as the "Farmer Assurance Act," while opponents have settled on the "Monsanto Protection Act." Invoking Monsanto like it’s some big scary monster destroys the chance for constructive dialogue. Skeptical scientist Brian Dunning even named a new logical fallacy after it – the Argumentum ad Monsantium.
"This is the logic that compels many anti-GMO activists to reply to any argument in support of biotech crops with, ‘So you love Monsanto,’" he writes. "Monsanto does not necessarily have anything to do with any given science-based discussion of the merits of what can and should be done with direct genetic manipulation."
If you want to have a conversation without resorting to scare tactics, then you have to read the actual copy. Which brings us to No. 2…
2. It's written in hopelessly complicated legalese.
Here’s the entirety of Section 735. Go ahead, tell me what it means to you:
In the event that a determination of non-regulated status made pursuant to section 411 of the Plant Protection Act is or has been invalidated or vacated, the Secretary of Agriculture shall, notwithstanding any other provision of law, upon request by a farmer, grower, farm operator, or producer, immediately grant temporary permit(s) or temporary deregulation in part, subject to necessary and appropriate conditions consistent with section 411(a) or 412(c) of the Plant Protection Act, which interim conditions shall authorize the movement, introduction, continued cultivation, commercialization and other specifically enumerated activities and requirements, including measures designed to mitigate or minimize potential adverse environmental effects, if any, relevant to the Secretary’s evaluation of the petition for non-regulated status, while ensuring that growers or other users are able to move, plant, cultivate, introduce into commerce and carry out other authorized activities in a timely manner: Provided, That all such conditions shall be applicable only for the interim period necessary for the Secretary to complete any required analyses or consultations related to the petition for non-regulated status: Provided further, That nothing in this section shall be construed as limiting the Secretary’s authority under section 411, 412 and 414 of the Plant Protection Act.
That’s one single sentence, by the way. If your eyes glazed over trying to read it, join the club. I reached out to someone smarter than me to interpret the language. I started with Dr. Kevin Folta, an associate professor at the University of Florida, who has studied genetics and genomics for years.
"After my synthesis, it simply says that [USDA] can make an executive decision based on evidence," he says. "With all of the anti-GMO fervor, all of the misinformation, we cannot take all claims seriously – only those that have sound scientific background. Going forward, it is easy to see how activists might report a problem or cause a problem to stop use of biotech. I think this provision helps limit that possibility and gives the [agency] opportunity and authority to consult scientific experts before a decision is made."
"Please note that this is only my interpretation," he adds.
I also contacted John Dillard, an agricultural and environmental litigation attorney with OFW Law, and author of the Ag in the Courtroom blog on AgWeb. Dillard provided additional clarity.
In general, a genetically engineered plant is deemed a regulated article under the Plant Protection Act, he says. However, companies can petition for non-regulated status for their genetically engineered crops by proving through sound scientific methods that the plant is not a plant pest risk.
"This is a lengthy process that allows for input from the general public," he says. "If USDA determines, based on the data presented, that the GMO plant is not a plant pest risk, then it is given non-regulated status. With this status, seed companies are free to market the seed to farmers, and farmers are free to plant it in accordance with any restrictions imposed by USDA."
Recent history motivated the provision, Dillard adds, citing the lawsuit against Roundup Ready sugarbeets. A district court granted an injunction ordering the destruction of the RR sugarbeets that were planted before that lawsuit. Roundup Ready alfalfa was also held up for four years because of an activist lawsuit. Finally, the U.S. Supreme Court stepped in to allow Roundup Ready alfalfa seed planting to go forward.
"One of the first things that the anti-GMO groups typically do is to seek an injunction from the courts to bar further sale of the GMO seeds in question and order the destruction of the seedlings that have already been planted," he says. "It is now standard practice for anti-GMO groups to challenge USDA’s finding of non-regulated status. These lawsuits will continue – they just won’t have the consequence of leaving farmers stuck with crops they can’t harvest."
In short, GMO crops will still undergo years of testing and review before they are allowed non-regulatory status, sometimes by multiple governmental agencies. For example, Bt corn had to be approved by the USDA, EPA and FDA before it could be sold. Section 735 is intended to prevent abuses of the court system once they are already on the market.
Lawsuits challenging USDA’s decision to approve a new GMO variety can still go forward. That’s not quite the "blank check" that activist groups fear. Then again, you can hardly blame them. The provision is written so densely and so vaguely that it allows people more than enough room to twist the meaning however they want.
The bottom line? The provision might be well-intended, but it’s a shame it was so poorly written.