Nearly all food products on the U.S. supermarket shelves now contain one or more genetically modified organisms (GMOs). You eat them every day—they include derivatives from corn and soy, common in many foods, in which insecticide resistance and pest toxins are inserted into the cellular level of the plant, and are thus present in the resulting vegetable or fruit. However, surprisingly, these products are not required to be specially regulated or even labeled in the U.S., as they are in most of the world. Moreover, the possible harmful effects of ingesting GMOs are not well understood. Could food companies and farmers be held liable for harm arising from GMOs? That is the issue addressed in my latest research project.[i]
This study approaches these legal liability risks by first exploring patent infringement. In the area of GMOs, the patent rights of biotech companies have long been established under U.S. law and beyond, reaching into international markets through treaties. As a result, biotech companies have successfully sued farmers for GM crops that have sprouted in their fields from cross-pollination and seeds blown from neighboring fields—patented creations that these farmers did not intend to use and, in fact, may view as contamination. However, with ownership comes great responsibility—and potential liability.
In view of the scientific uncertainty, future harm from these bioengineered products has not been determined. This may lead to new lawsuits for contamination and potential product liability for injury to persons as well as property in the future. Recent court cases establish the foundation for a new concept of economic loss—that the contamination of a farmer’s crop with GMO seed caused a depressing effect on the prices of an entire crop market, and every farmer who sold any corn that year was in fact damaged because of depressed prices—a notion that could also apply when a genetically engineered crop is fully approved in the U.S. but is not approved in major export markets.
Facing this substantial potential liability, it would be in the best interests of the biotech industry to self-regulate proactively before state and federal regulators step in along with attorneys through the private tort system. So too should farmers be made aware of and carefully consider these legal liability risks in determining whether to plant GM crops and whether, indeed, they will be as profitable as the biotech companies would lead them to believe in the long run. As injuries and damages prove to be prohibitively expensive, the industry should come to realize that ultimately, safety is good business.
This article adds to my body of research on GMOs, which has addressed the issue from a wide range of perspectives, including intellectual property, ethics, comparative international law, and international trade. This exploration has caused me to propose mandatory labeling, preapproval, monitoring, and traceability as essential to GMOs.
Congress and the President have recently enacted the FDA Food Safety Modernization Act. Prompted by increasing incidents of food contamination, this new law represents a mandate that food safety is at this moment becoming a priority. Thus the time is ripe for a reassessment of other areas of food laws. GM foods warrant special regulation consistent with the new proactive policy, as well as a stronger role of the U.S. Department of Agriculture (USDA) in partnership with the Food and Drug Administration (FDA), other agencies and their constituencies to carry out the mandate of achieving food safety.
Next in line is the use of milk and meat from cloned animals and their progeny, which have been approved by the FDA for the food supply with no labeling, pre-approvals or post-market monitoring, using the same reasoning as has been applied to GMOs. So to leave you with a scary thought—the milk and meat you are eating may be from these cloned creations and, once again, you would have no way of knowing… Through my research, I hope to raise public awareness and contribute to changes in the law that will improve the overall safety of the U.S. food supply.
[i] Debra M. Strauss, “Liability for Genetically Modified Food: Are GMOs a Tort Waiting to Happen?”, The SciTech Lawyer, Vol. 9, Issue 2, pp. 8-13, Fall 2012. See Professor Strauss’ research at http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1078423
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