By Neil Hamilton

Editor's NOTE Not long before the IFOAM conference (August 21 to 26, 2002) we asked Professor Hamilton if he'd contribute something on the issue of liability for GMO contamination. He offered this piece, with the promise of future columns on ag law in general and GM0 liability in particular. (If you have legal ag questions for Professor Hamilton, click here.) First presented in St. Louis on October 21, 2000 at a meeting of the AALA's Legal Issues in Biotechnology event, this article is still quite relevant in identifying the main legal issues that will be playing out in the years to come. Professor Hamilton is the Ellis and Nelle Levitt Distinguished Professor of Law, and Director of the Agricultural Law Center, Drake University Law School in Des Moines, Iowa. For the journal version of this piece, he provided the following information about himself as context for understanding the perspective from which he wrote. "I have been fortunate through a series of accidents, opportunities, and good fortune to be in a position to gain insight on some of these issues. I serve on the National Genetic Resource Advisory Council, a body created by Congress and appointed by the Secretary of Agriculture, to advise the USDA and the nation on the policy for the National Genetic Resource System which includes our seed banks. I also serve on the board of directors of the Seed Savers Exchange, the largest non-profit organization of people involved in collecting, preserving, and exchanging heirloom vegetable seeds, and on the board of Diversity, the leading journal of the international plant genetic resource community. In October1999, I completed the intellectual property audit for the International Potato Center (CIP) in Peru, one of sixteen centers administered collectively under the Consultative Group on International Agricultural Research (CGIAR), and affiliated with the Food and Agricultural Organization (FAO) of the UN. I have participated in several national and international conferences addressing these issues, including a Rockefeller Foundation workshop in Bellagio, Italy, in March 2000. As a caveat let me be clear, I am not a patent attorney or an intellectual property expert and make no claim to be. But I am a student of agricultural law and an observer of how the policy choices we make influence the type of society and political economy we create. These remarks are written from that perspective."

Genetic pollution or "pollen drift" is perhaps the most intellectually interesting legal issue relating to biotechnology. It involves an intriguing mix of both traditional common law principles relating to property rights, contracts, and tort liability and the potential application of statutory or regulatory rules enacted to promote biotechnology. A variety of legal theories will no doubt be used in the litigation likely to result from the conflicts relating to non-GMO crops being "contaminated" with GMO pollen.

Whether the theory is based on nuisance, trespass, or by analogy to "pesticide drift" there is no shortage of legal arguments to make on behalf of growers who believe their crops are damaged by the action of neighbors - or the companies selling the products. But on the other hand, claims of regulatory protections, contractual rights, and perhaps even statutory exemptions - might be made on behalf of the growers of GMOs. Several states have proposed legislation to deal with the issue, with the fundamental questions being where to locate the presumption of right and which theory of liability to employ.

The concerns of organic farmers are one component of the debate about genetic pollution caused by the movement of GMO pollen. At the present time no private or governmental certification program for organic food allows use of GMO seeds. This means from a consumer perspective, the "organic" label is one avenue - perhaps the only one - for purchasing GMO free food. From the perspective of organic growers, the ability to market grain as "GMO-free" opens additional marketing opportunities. Of course, a producer does not need to be certified organic to enter a contract to sell non-GMO or "GMO-free" products, if the producer can meet whatever standards are required to make such sale.

However, the issue of genetic pollution can arise in both situations, because the actual testing for the presence of GMO material will be done somewhere later in the marketing or food processing chain. Producers who do not knowingly plant any form of GMO seed might still have crops yield positive tests, if the crops are contaminated by GMO pollen which drifted in from neighboring fields. Such positive GMO tests might also result if the crop is otherwise "contaminated" with GMO seed after harvest or during shipping or processing. Even in cases where producers take extensive precautions, contamination can still result from the actions of neighbors or others.

The problem of genetic pollution can also be an issue relating to seed purity, even seed sold as GMO free. This issue was well illustrated in Europe in June 2000 when it was discovered a supply of canola seed grown in Canada and planted in a number of EU countries was contaminated with GMO material. The episode resulted in European nations taking action to destroy the planted crops and compensate growers for the loss. But it also brought into focus the issue of what liability rests with the seed company, a particularly interesting question in light of the fact the seed may not have violated existing seed trade standards concerning purity or contamination.

The GMO debate provides several examples of the significance of controlling terms and language. One of the more interesting, and one with potentially significant legal consequences, is the fight over what to call plants engineered to act like chemicals and resist pests. The EPA has chosen to call this family of products bio-pesticides. But industry officials and some scientists argue these products are not pesticides but instead are "crop expressed protectants."

Why does it matter what terms is used? One possible example could be in a lawsuit by a farmer whose crops are contaminated with pollen from a neighboring field planted to GMOs. Under traditional pesticide drift law, if the judge views the product as a pesticide then the person using it will be responsible and strictly liable for its movement off the property. If it is seen as a natural product -- then the fact the crop expressed itself all over the neighbor's field may not result in liability.