Environmental Pollution by Genetically Modified Seeds Emerging Litigation Reality or Flash-in-the-Pan?

Three years ago, Larry Bohlen, environmentalist and director of the Health and Environment Programs “Friends of the Earth”, stopped at the local grocery store to buy cereal, corn chips and shells. Larry Bohlen suspected that the yellow color of the corn derived from contamination of the corn with Star-Link corn (specified by the commercial notation CRY9C), a variety of feed corn genetically engineered to produce its own pesticide and unapproved for human consumption because it may contain proteins that are allergens. His suspicions were aroused by the both the color of the corn products and the well-known tendency of crops to spontaneously cross-pollinate without the possibility of isolation from and control from other crops. Bohlen sent the corn products to a laboratory for analysis and was told his suspicions were correct. Several months later, Aventis CropScience, the American company that developed Star-Link corn seeds, paid 110 million dollars to farmers as a result of a settlement obtained between the parties to the resulting lawsuit. In the original suit, farmers who did not use the genetically modified seeds claimed that Star-Link seeds contaminated their fields by cross-pollination and caused their cost of production to increase due primarily to the decrease in market value of their contaminated products as well as the adulteration of agricultural machinery and warehouses containing the genetically modified seeds. As far as we know, Adventis CropScience is one of the first cases in which “biological pollution” due to GMOs became a nuisance relevant to a defined group rather than a diffuse public. The farmers alleged that Aventis CropScience violated the terms of its EPA license, which provided that: (a) Star-Link CRY9C corn seeds were approved only for animal feed, but not for human consumption; (b) the company was required to inform purchasers of its seeds of the usage limitations for Star-Link and to instruct them regarding avoidance of contamination by the genetically modified seeds; and (c) the company was required to conduct a statistically sound follow-up survey of purchasers following harvest, to monitor compliance with the Grower Agreement (the agreement between the company and purchasers). The contamination led to food recalls, a cleanup, and boycotts by two of the world’s largest corn importers, South Korea and Japan. The legal claims of the farmers were based on classic theories of nuisance law including private and public nuisance. The farmers argued that nuisance law applies to the fields of safety and public health. The Israeli legal system adopted nuisance law almost in its entirety from the British common law. According to Article 42 of the Israel Tort Ordinance (new version) – 1968 (hereinafter, “Tort Ordinance”), a suit on public nuisance can be filed either by the government or by anyone who suffers economic loss as a result of the nuisance. Under Article 44 of the Tort Ordinance, anyone who suffered economic loss as a result of an interruption of the reasonable use of his land can state a claim for private nuisance. Therefore, implementation of the nuisance rules existing in the Israeli legal system is theoretically possible. On the other hand, biotechnology companies claim that since the spreading of seeds is a natural process, the public has no right to prevent this phenomenon. In addition, biotechnology companies claim, imposing liability in these cases may chill the companies’ development of agricultural products and hamper the improvements in quality of life and food supply to vast communities worldwide. It is unclear whether StarLink is an outlier or a sign of things to come in GMO jurisprudence. On the one hand, the StarLink opinion states that an analogy can be drawn between the facts in StarLink and those of 1973 cases involving Maine fishermen who successfully sued for compensations from a company causing sea pollution through the release of oil. This would imply a broad applicability of nuisance law to cases of GMO contamination or biological pollution. On the other hand, with proper prophylactic measures by biotechnologies companies to avoid biological contamination, the problem of GMO contamination may not be a recurring one. In the present uncertain environment for GMO food and agricultural products, it is advisable for biotechnology companies that develop such products to take all possible prophylactic measures before marketing their products. These precautions should include careful drafting of legal agreements and warranties and proper wording of label information, especially guidance as to proper use of the GMO seeds.