Down East 2013 ©
By Virginia M. Wright
For nearly three decades Jim Gerritsen quietly farmed organic seed potatoes in Aroostook County. These days he is in the international spotlight as the spokesman for the lead plaintiff in a lawsuit against Monsanto Corporation, the world’s largest producer of genetically modified seeds.
Gerritsen is president of the Organic Seed Growers and Trade Association (OSGATA), whose lawsuit asks to have Monsanto’s patents for genetically altered seeds invalidated.
OSGATA, which has been joined in lawsuit by eighty-two seed businesses, family farmers, and trade organizations, including the Maine Organic Farmers and Gardeners Association, wants court protection for farmers against possible lawsuits for patent infringement should Monsanto’s transgenic crops be found in their harvest as a result of accidental cross pollination.
Monsanto makes its transgenic seeds by transferring the genes of one species into the DNA of another. Among its products is Roundup Ready transgenic seed, which grows crops that tolerate the company’s weed killer, Roundup.
The agriculture giant’s reputation for suing or threatening to sue farmers for patent infringement has been widely reported; nevertheless, U.S. District Judge Naomi Reice Buchwald dismissed OSGATA’s lawsuit in February, saying the plaintiffs’ allegations were unsubstantiated. The case is now before the United States Court of Appeals for the Federal Circuit in Washington, D.C. Gerritsen expects oral arguments will likely be heard this winter. [Update: The U.S. Court of Appeals will hear oral arguments in the case on Jan. 10, according to a report in The Portland Press Herald.]
In the meantime, Gerritsen, who was named an Utne Reader visionary in 2011 for his leadership on the OSGATA case, has been traveling around the country, speaking about the lawsuit and its relationship to other concerns about genetically modified foods, including safety, consumer choice, and farm independence.
Tell us a little about your farm, Wood Prairie Farm.
We’ve been farming organically in the town of Bridgewater for thirty-six years. We’ve got a small farm — as a potato farm in Aroostook County, we’re not even on the radar screen. We’re surrounded by woods. Route 11, twenty-five miles west of here, interrupts the north Maine woods, but then they go on all the way to Quebec City. That kind of isolation is ideal for growing anything, but it’s particularly good for growing organic seed, so that’s what we’ve focused on for the last twenty-five years — primarily seed potatoes, but we also grow other seed crops like corn, peppers, tomatoes, squash. We’re blessed to be in Aroostook County. It is one of the world-class areas for raising potatoes. You can’t find anyplace better.
Why is isolation a good thing?
Two things come to mind immediately. Isolation is important for genetic purity of seed growing. You need geographical isolation to prevent cross-pollination of crops like corn or squash, whose pollen will travel great distances.
The other aspect is that a farmer’s troubles seem to come from his neighbor. It’s great for, say, a potato farmer to have a buffer between him and another farmer’s potatoes because that’s where a pest like the Colorado potato beetle is going to come from. The more isolated you are, the more protected you are.
That ties into the topic of OSGATA’s lawsuit against Monsanto, which stems from farmers’ concerns that transgenic seeds might contaminate their crops. How are organic crops threatened by genetically engineered (GE) crops?
It all comes down to the lessons that we learn back in high school biology class: Each farm crop has its own biological qualities that are at stake when it comes to reproduction. Pollen can be dispersed great distances by wind and insects, and if pollen goes off one farm to another, that can cause trouble.
I’ll give you an example: One of the crops we grow is organic sweet corn seed. Genetic purity is necessary for good quality seed. If a neighbor were to grow a type of corn that a cow would eat either for silage or dry corn, the pollen from that corn not only could make our sweet corn genetically impure, but it also would lower its quality because it would be less sweet and kind of starchy.
When you get into genetically engineered crops, you’re facing a whole different level of concern. Many countries, as well as the organic and non-GMO [genetically modified organism] conventional markets in this country, will not accept crops that have GE content. A number of the farmers who are plaintiffs in our lawsuit are conventional farmers who do not want to grow GMO crops, and in many cases they have developed a nice market niche for a crop like corn that is free of transgenic content.
Genetic engineering is a process that would never, ever be found in nature. For example, researchers once spliced a gene from a flounder fish into a strawberry in order to try to give the strawberry increased frost resistance. Well, obviously if you set a strawberry and a flounder in a room for a million years you would never get any crossing going on. This concerns us because the biotech companies say the kind of genetic manipulation they’re doing is what farmers have been doing for thousands of years, and that is absolutely false. These are humanly engineered in the laboratory.
I for one have no confidence in the studies that the Food and Drug Administration (FDA) relies upon in their regulatory decision-making process. Many of the federal regulators come from the biotech industry — they spend a few years supposedly regulating the crop, then they go back to the biotech industry. The other factor is, the federal government has no research function of its own. They simply do a document review of what the biotech companies provide to them.
What kinds of crops are most vulnerable to accidental pollination by genetically modified plants?
Canola is wicked for reestablishing itself. They’ve now found that GMO canola is cross-breeding with wild species of canola. It is getting way out of hand in North Dakota, Manitoba, Saskatchewan. These are weeds that grow in the shoulders of the road and at the end of culverts. They’re spreading like mad. It’s because the pollen of canola is extremely mobile, as it is for corn, and it can spread quite a distance.
There are some crops not yet approved by the federal government whose potential for spread is mindboggling. In Oregon, GMO bentgrass was found growing fifteen miles from the research plot where it is being developed. Imagine if you were a seed farmer in Oregon raising bentgrass seed and you wanted nothing to do with GMOs. You’d have to be assured that there wasn’t GMO bentgrass being grown within a radius of fifteen or twenty miles of your farm or else you’ve got a big problem, especially if you are selling your bentgrass seed to Europe or Asia, where they do not allow it. You’d have no market; the value of that crop would be evaporated.
[The bentgrass to which Gerritsen refers was discovered in eastern Oregon’s Malheur County in 2010, according to the Capital Press, an agriculture newspaper. It tested positive for a transgenic gene that makes it resistant to Roundup, Monsanto’s weed killer. Oregon State University weed scientist Carol Mallory-Smith speculated that the plants originated from seed that had spread from a field near Parma, Idaho, where Roundup Ready bentgrass is being developed for golf courses by Scotts Co. and Monsanto.]
In dismissing OSGATA’s lawsuit, Judge Buchwald said the farmers were creating a controversy where none exists.
We feel her ruling is filled with factual and legal errors that led her to dismiss our case, and that’s the basis on which we are filing our appeal. She had done inadequate research on the entire reason Congress passed the Declaratory Judgment Act. We are a classic case. She said we haven’t suffered any economic harm, and in our briefs we expressed to her, yes, we have. Farmers within our plaintiff group have suspended growing crops like organic corn, organic canola, and organic soybeans because of this certainty that they will be contaminated by Monsanto seed being grown by their neighbors.
The judge actually acknowledged that this contamination is going to occur, but then for whatever reason she did not make the connection that possession is the problem. Here’s how patent law works: Once a corporation is given a patent on something — in this case, genetically engineered crops — they have total ownership of that material. The only way someone can be in possession of that is if they have signed a licensing agreement and paid royalty on that licensed right to use. It doesn’t matter whether you intend to possess. It doesn’t even matter whether you’re knowledgeable of possession. If you are in possession without a licensing agreement, you are in violation of a patent right and you are subject to patent infringement violation. That’s why we needed to go court. We have no protection.
The lawsuit seeks to invalidate Monsanto’s patents on genetically altered seeds. That would protect farmers from patent infringement lawsuits, but how does it protect your crops from being contaminated by transgenic seeds?
Here’s the situation right now: If our corn crop should become contaminated by Monsanto’s corn, there is zero value in the organic market place for it. We might as well throw it away. So that’s one immediate impact.
But if I should say, “Jeepers, this is threatening the survival of our farm. This corn seed crop is so important to us, and it wasn’t right for them to trespass onto our farm. I’m going to get a lawyer and I’m going to file a lawsuit to try to recover damages.” We are concerned that Monsanto will countersue us and say, “You’ve got our technology. You don’t have permission to have our technology, and we’re suing you for patent infringement.” Then we go bankrupt trying to defend ourselves in this secondary lawsuit.
We believe that the contamination is occurring, and farmers are scared to death to seek compensation for fear they’ll be countersued. Once we gain court protection under the Declaratory Judgment Act, we will have the legal tools that we need to properly get compensation if Monsanto hurts us.
Why should consumers be concerned about this?
The demand for organic food is steadily increasing. People are putting two and two together, and they’re seeing that the food that they purchase is an important part of their family’s well-being and health. So from the consumer’s standpoint, this protection of farmers is essential to protecting their right of access to something besides genetically engineered foods.
There are campaigns around the country, including Maine, to require labeling of genetically engineered food. Why do you think mandatory labels are necessary? What don’t consumers know about the food they are buying?
They don’t know if it’s been genetically engineered or not. National polling in the United States has consistently indicated that 90 percent of the American public favors mandatory labeling of GE crops — 90 percent! It goes across all party lines — Republicans, Democrats, independents are in favor of this. And why? It’s because America is a democracy. Democracy is based on the idea of informed citizenry making the best decisions. To deny that kind of information to Americans is un-American and it’s outrageous. Over fifty countries, including China, have mandatory GMO labeling, but in America, which prides itself on being the world’s leading democracy, we don’t. What’s going on?
We have caloric intake on the labels. We have “be careful peanuts may have been used in this” labels. Many other things are on the labels. Many of us have concerns about genetically engineered foods. In September, scientists at CRIIGEN (Committee for Research and Independent Information on Genetic Engineering) published the results of a two-year study, which found that rats fed a diet of Roundup-resistant corn or water containing Roundup [at levels permitted in drinking water and GM crops in the United States] developed increased amounts of cancerous tumors and had shortened lifespans. Here is the real interesting thing to me: The rats started to express these problems four months into the study. The studies that biotech submits to the FDA are based on ninety-day tests.
Here’s another important thing to remember: When the biotech industry goes to the FDA, they say their crops are substantially equivalent to traditional crops and for that reason we shouldn’t label them. Then the industry goes to the U.S. Patent Office and says, you know, this invention we have here is new and wonderful, it’s different, and it deserves a patent. Which is it? Either it’s new and different and deserving of a patent, in which case it must be labeled, or it’s substantially equivalent and in that way not deserving of a patent.
How prevalent are genetically engineered crops in Maine?
There are about 25,000 acres of genetically engineered corn grown primarily in the dairy belt in central Maine. There are GMO soybeans, and there is some GMO canola being grown up here in Aroostook County. Sugar beets are another crop that has been made resistant to Roundup, and I would imagine they’re making their way into Maine, but I have not heard any numbers. That’s one of the problems: There is no requirement for farmers growing GMO crops to let their neighbors know or to file a report to the state. Since the crops look the same, you don’t know if one is GMO or not. That doesn’t seem fair. It seems reasonable that they should have to register so a neighbor could find out what’s going on in their vicinity.
Currently there aren’t any genetically engineered varieties of potatoes, which are one of Maine’s biggest crops. Why is that?
Interestingly, genetically engineered potatoes were one of the first crops that were introduced in the mid-1990s by Monsanto. They called the product New Leaf. They had gene-sliced a bacterial toxin into a potato plant. The target insect was the Colorado potato beetle, a serious insect that plagues potatoes in every temperate potato-producing region in the world. The idea was that the bug would eat it and it would die. One of the two New Leaf seed potato propagation facilities was here in Maine, in Island Falls, so this was a big area for producing that early generation stock, and the crops were planted here.
After five or six years, New Leaf potatoes were withdrawn from the market. The problem is, when you gene-splice, it’s not like the bacterial toxin stops at the leaf and doesn’t go through the stem and tuber. Every single cell, including those in the tuber, had that bacterial toxin. As you might imagine, there was concern among the public — do we really want to be eating this? In the early 2000s McDonald’s announced it would no longer be buying French fries made with New Leaf potatoes. Then McCain, the local French fry processor, stopped using GMO potatoes, and Monsanto voluntarily removed them from the market.
Here’s something illuminating: Under Maine law, Monsanto was required to register those potatoes as a pesticide with the Maine Board of Pesticides Control. It met the legal definition of a pesticide, even though it was a potato that people were supposed to have confidence eating.
Do you find that Mainers are generally well informed about food quality and choices?
More so than other parts of the country, partly because we have a rural heritage and many people still have gardens. But there also has been a growing interest in food across the country in the last ten to twenty years. In the fifties and sixties, people got into the convenience of having the food prepared in the factory. Now the pendulum is swinging. People want to know more about their food. They’ve made the connection between their family’s health and the food they consume.
Small family farms are on the rise in Maine. Do they stand to benefit if the labeling of transgenic foods become law?
Oh, absolutely, absolutely. You know, I don’t want to feed GMOs to my family. The corporations like them because they control the seed supply and they gain royalty payments every time a farmer uses their seed. But from the standpoint of an organic farmer or a consumer who wants access to good food, GMO foods have not been proven to be safe.
As for the growth of small farms and farmers’ markets, it’s all tied together with the increased interest in food and eating healthy. We’re a seed company, and the last five years have been the best years for the seed industry going back to World War II. More people are planting gardens, and people who already had gardens are doubling their size. These are good traditional Maine and New England values, the idea of self-reliance, cutting your own firewood, growing your own garden, making do for yourself.
For decades the numbers of farms in every state was going down, down, down. We have turned that around, and Maine is toward the top in terms of the number of new farms. These new farmers are the people you see at the farmers’ markets in Portland, Yarmouth, and other places. They’re highly educated, and they’ve decided they want a life with meaning. My wife and I came to that conclusion thirty-five years ago: This is a great place and a great way to raise our kids. We’re in wonderful rural communities with wonderful hardworking neighbors. There’s so much going for it that I think these young people are making the choice to farm in Maine because it’s a great life.
Photo by Jennifer Smith-Mayo