Two problems with the "Monsanto Protection Act"
An urgent e-mail was sent out this past spring requesting President Barack Obama veto H.R. 933 because of a "poison pill" an activist group says is tucked into Section 735 of the bill. The e-mail didn’t link to the bill, so we tracked it down and read it ourselves. Even though the bill was voted down in June, the underlying arguments of the so-called "Monsanto Protection Act" are still worth exploring.
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."
It’s written in complicated legalese. Kevin Folta, an associate professor at the University of Florida, who has studied genetics and genomics for years, provided some interpretation of Section 735, a behemoth of a sentence that rambles on for 198 words.
"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—this is only my interpretation," Folta adds.
John Dillard, an agricultural and environmental litigation attorney with OFW Law and Farm Journal Legal Ease columnist, provides additional clarity.
In general, a genetically engineered plant is deemed a regulated article under the Plant Protection Act, he says. Companies can petition for nonregulated 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," Dillard says. "If USDA determines, based on the data presented, that the GMO plant is not a plant pest risk, then it is given nonregulated status.
"With this status, companies can market the seed, and farmers are free to plant it in accordance with any USDA restrictions," he adds.
Recent history motivated the provision, Dillard adds, citing the lawsuit against Roundup Ready (RR) sugar beets. A district court granted an injunction ordering the destruction of the RR sugar beets that were planted before that lawsuit. RR alfalfa was also held up for four years due to an activist lawsuit. The U.S. Supreme Court later allowed RR alfalfa seed planting to go forward.
"It is now standard practice for anti-GMO groups to challenge USDA’s finding of nonregulated status.," Dillard says. "These lawsuits will continue—they just won’t leave farmers stuck with crops they can’t harvest."
Genetically modified organisms/GMO crops will still undergo years of testing and review before being allowed nonregulatory status, sometimes by multiple governmental agencies. For example, Bt corn had to be approved by USDA, the Environmental Protection Agency and the Food and Drug Administration before it could be sold.
Section 735 is intended to prevent abuses of the court system once the GMO crop is 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. The underlying problem is that the provision is written so densely and so vaguely that it allows people more than enough room to twist the meaning however they want.
You can e-mail Ben Potter at email@example.com.
To read the complete Section 735 of H.R. 933 concerning USDA’s regulatory process of GMO crops, visit www.FarmJournal.com/GMO_legal_battles