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Don't blame the bean.

We all know the story of Jack and the magic beanstalk. Jack and his widowed mother are forced to sell the family cow because they are too poor to feed themselves, let alone feed an animal that won't give any milk. Thin and hungry, Jack sets out with the half-starved animal, intending to sell her to a butcher in town.

As luck would have it, Jack meets a traveling butcher along the way. The butcher offers the boy a handful of enchanted beans for the worn-out cow, claiming they will bring riches beyond description when they are planted. Not surprisingly, the boy's stomach and imagination got the best of him, and he handed over the family cow. Jack, sure that these beans were the answer to all of their problems, ran home to tell his mother.

His mother was frustrated that Jack had not come home with money or food. She threw the beans out the window and sent Jack to bed hungry, as usual. Upon rising the next morning, Jack noticed that the beans had grown into an unruly mass that stretched into the clouds. And, instead of stopping to wonder why the beans grew so big, Jack raced outside to see where the giant intertwined stalks led.

As the rest of the story goes, Jack finds the giant's castle in the clouds. He returns three times, via the enormous beanstalk, each time stealing food and riches. In the end, Jack and his mother live happily ever after because of the bounty Jack was able to steal from the giant. But in the real world, stealing from a giant will not make you rich. It will, in all likelihood, destroy you, not them.

Stealing from the giant

On May 13, 2013, the United States Supreme Court once again ruled in favor of biotech giant Monsanto in a dispute involving the company's patented Roundup Ready seed. (Bowman v. Monsanto) Immediately, the headlines screamed that yet another farmer had been victimized by Monsanto. However, on a closer look, we find that in this case against Monsanto as with all the others, we are not dealing with a naive farmer who was duped. Rather, we are dealing with opportunists who tried to beat the system and lost.

Vernon Bowman is an Indiana crop grower. Not a small family farmer, but a large corporate farmer who depends on genetically modified seed in order to make a profit. He simply owns too much land to farm sustainably. Mr. Bowman bought the first round of Roundup Ready soybeans from a seed dealer associated with Monsanto, and willingly signed the licensing agreement which gave him a license to plant the seed one time.

Patented seed is expensive, and Vernon Bowman didn't want to pay to plant a second crop after he harvested the first. The second planting is much riskier, because late-season planting often results in much lower yields than earlier planting. So Mr. Bowman came up with a way around purchasing Monsanto's expensive, patented seed. He bought Monsanto's less expensive, but still patented, feed.

Bowman went to a grain elevator that sold feed and bought soy beans meant as animal feed to plant in his field, believing that most, if not all of the soybeans sold for feed were also Roundup Ready, because the vast majority of other soybean growers in his area were also using Monsanto's Roundup Ready soybeans. He was right. When the beans emerged, he sprayed with Roundup as usual, and only a few of the plants died. He harvested the rest, saved them, and replanted them again the next season.

But Vernon Bowman was too clever by half. He was so proud of his idea that he shared it with anyone who would listen. It didn't take long for the rumor mill to find the feed mill After a couple of years, Monsanto found out, and the gig was up.

Bowman lost on all of his defense theories, but the one the Court found most ludicrous was his blame-the-bean defense. Essentially, Bowman and his attorneys tried to claim that Bowman didn't do anything to infringe on Monsanto's patent. After all, it's not his fault the beans he planted grew. Surely, they argued, Bowman is not responsible for a process of nature. If you put beans in the ground, there's a good chance they'll grow. That's what beans do, even Monsanto's magic beans.

Writing an opinion for the entire Court, Justice Kagan expressed their disbelief when she admonished Bowman that he could not blame his actions on the bean. "But we think that blame-the-bean defense tough to credit. Bowman was not a passive observer of his soybeans' multiplication; or put another way, the seeds he purchased (miraculous though they might be in other respects) did not spontaneously create eight successive soybean crops."

Bowman signed the agreement, then broke it. He owes Monsanto for the seed he in essence stole-nearly $85,000. And no one in their right mind feels sorry for him. When you steal from the giant, you're bound to get stomped. But will that same standard apply when the giant itself, Monsanto, is the defendant?

Hiding in the oven

In the fairy tale, Jack gets away from the giant for the third and final time by hiding in the oven-the last place you would expect to find a human. Jack was able to slay the giant by destroying the magic bean stalk, causing the giant to slam into the ground below. In the real world version, there is something non-human hiding in the oven-a freshly baked loaf of genetically modified wheat, wholly owned and controlled by the giant Monsanto.

The giant didn't have to come down Bowman's soybean stalk. He had any number of genetically modified wheat stalks in 16 states where Monsanto conducted experiments with GMO wheat to choose from. And that's just what he did. While all eyes were on Vernon Bowman's patent-infringement and contract woes, the giant climbed down one of Monsanto's magic wheat stalks in Oregon.

In May 2013, a commercial wheat grower in Oregon discovered Roundup Ready wheat in his field after spraying with glyphosate, the chemical in Roundup. A few wheat plants survived. There can be no doubt that they are Roundup resistant. These are Monsanto's creations.

According to the USDA and Monsanto, testing of GMO wheat was completely abandoned in 2005. If their patented wheat seed is in a field in Oregon, it's not their fault. They didn't put it there. The seed could have arrived in the bowels of a bird or on a steady breeze. Perhaps the GMO wheat seed traveled by rail from one of the other 15 testing sites. While this defense failed miserably for Bowman, it will likely be successful for Monsanto.

Instead of waiting for a full investigation of what occurred, the Center for Food Safety (CFS) and two commercial wheat growers filed a class-action lawsuit in the United States District Court for the Eastern District of Washington a few weeks after the discovery. This knee-jerk reaction will most assuredly lead not to giant's demise, but to even greater protection for the holders of GMO seed patents. The reason is simple. CFS has filed suit claiming negligence, strict liability, and public nuisance--all of which are tort theories. Contract and patent law don't apply here.

Fee, Fie, Foe, rum

Right out of the door, the Bowman case and this case are on unequal footing. The giant giving chase to Bowman was rightfully trying to claim money owed on a contract and enforce its patent rights. This time, the townsfolk are attempting to chase the giant. The giant is amused and encouraged. Monsanto knows it will be able to assert a blame-it-on-the-bean defense and succeed. One cannot be liable for negligence for something they have no control over.

But it's the claim of strict liability that is the giant's biggest prize. Strict liability laws are laws that don't require the element of intent in order to hold someone responsible for their behavior. It doesn't matter if you meant to do it. If you did it, you're guilty. End of story. (See "Can raw milk get you in hot water?" in the November/December issue of 2010).

There are thousands of strict liability laws in the U.S. If your pet tiger claws off your neighbor's face, you're strictly liable. If you're using dynamite to facilitate the digging of your pond and it blows your friend's arm off, you're strictly liable. If you're driving impaired and fail a sobriety test, you're strictly liable. The rationale behind all strict liability statutes is that the controlled activity is such a threat to life and limb that no matter what precautions are taken the threat remains substantial. That's the problem with CFS's complaint. There simply isn't enough proof that GMO wheat is so dangerous to human safety that even with precautions horrible pain and suffering will occur. Yet. There haven't been any clinical trials, and while some significant research has emerged that GMO food may be toxic to human health, no government agency has issued such a health warning-but that doesn't mean they won't. Research takes time, assembling and integrating that research takes even more time.

It's possible that a decision in this case could set precedent, making future claims for strict liability against Monsanto nearly impossible to sustain, and the ruling would most likely be the result of CFS's lack of proof. As the plaintiffs, they bear the burden of proof here. If they lose, and professional court watchers don't like their chances, in order to bring a claim in the future, an injured grower will have to prove negligence or nuisance-which requires the assistance of an attorney, guaranteeing that only those growers and organizations with deep pockets could even hope to recover.

That's why Monsanto is thrilled that this suit has been filed so quickly. It's premature, and if the court rules that strict liability is inappropriate here, there's almost no chance of a future codified law making Monsanto liable for contamination of non-GMO crops.

Monsanto would also benefit from the court's recognition of the class action. Once the class is certified by the court, CFS would represent every wheat producer in the U.S. Which would result in thousands of growers sharing in whatever settlement CFS's attorneys agree on, should it come to that. (The attorneys get paid first from any settlement.)

A class-action suit serves only to limit Monsanto's liability on past activity. It doesn't foreclose future experiments with GMO crops. For that to happen, there will have to be state or federal legislation specifically addressing the issue.

Thanks for nothing, Jack

It's highly unlikely that CFS's suit will change anything for the better, except the organization's own coffers. Historically, nothing brings in donations to tax-exempt organizations better than a well-publicized lawsuit. However, the unintended consequences of action without thought only works out well in fairy tales. Sure, Jack didn't have to make the effort to walk all the way to town. He got a sweet deal on some magic beans and enjoyed huge rewards with scant exertion. But don't look for that result here. There's still a long way to go over some pretty tough terrain until anyone is prepared to defeat the giant Monsanto.


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Title Annotation:Homestead politics
Author:Cook, Jerri L.
Publication:Countryside & Small Stock Journal
Date:Sep 1, 2013
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