Bioengineered Crops and Foods and Legal Liability: A Study of Potential Tort Claims in the Field of Agricultural Biotechnology

LAW 791: Biotechnology Licensing & Litigation

Here is a paper I wrote for a law school class about bioengineered crops. There is a lot of fear and conspiracy theories out there about GMO's. From my research, I did much to substantiate these fears. I definitely think we should be cautious, but not paranoid. 

I.            Introduction

The rise of biotechnology in the 1970's was filled with anticipation of seemingly unlimited possibilities that this new science could produce. It held the promise of revolutionizing the world in science, medicine, industry, and agriculture. However, within a few years a period of painful growth ensued as regulations, slow scientific progress, and scarce resources dampened prospects of growth in biotechnology.[1] Despite the setbacks, biotechnology has marched forward and been successful in launching new commercially viable products.

The effects of biotechnology and its potential for changing lives, for better or worse, have been exhibited more forcefully in the agricultural area than any other field. Companies like Monsanto have patented genetically modified seeds. They have been able to do this due to the precedent setting case in 1980 of Diamond v. Chakrabarty which allowed the patenting of genetically modified living organisms.[2]  Monsanto has genetically modified their seeds to be resistant to Monsanto’s weed and bug killing chemicals like Roundup Ready. With these seeds, farmers can now spray their fields without worrying about killing their own crops. These seeds have been hugely popular and have completely taken over the market for some crops. In 2005, 87 percent of soybeans, 52 percent of corn, 79 percent of cotton, and over half of canola grown in the United States were grown from genetically modified seeds.[3] Since then many different varieties of bioengineered crops have been introduced into the market.[4]

The entry of bioengineered products into the agricultural world raises many legal questions of who should be liable for adverse consequences these products may have on private property, the economy, human health, and the environment. Because the introduction of bioengineered products is relatively new, the law in this area is very much unsettled.

Some questions that are still unanswered include: What tort law should be pursued when prosecuting a liability claim, or should a special area of tort law be carved out for biotechnology? What constitutes a breach of care that would justify a lawsuit? Should people use tort law to address this issue? Will such endeavors be successful? Can one who patents a product for agricultural use be shielded from lawsuits because of the burden of many lawsuits and the impracticability of controlling the spread of seed? Do those who do not want bioengineered products have the right to be free from their intrusion into their lives?

II.            Basic understanding of bioengineered crops

To understand legal liability claims as they relate to bioengineered crops, it is important to have a basic understanding of what they are, why they are useful, and what potential they have to change the human condition. Bioengineered crops have been given a variety of names, which may cause confusion, but they are essentially the same thing: transgenic crops, biotech crops, genetically modified organisms, or GMO's.

Bioengineered crops can be created in different ways, such as selective breeding, genetic engineering, mutagenesis, and a few other select methods. Selective breeding has been done for thousands of years. In fact, almost everything humans eat today has been modified from its original form and been domesticated by farmers and ranchers who have selected the best plants and animals to produce a desired outcome.[5] A good example of selective breeding is with dogs, horses, or cattle where people have purposely bred them to bring out different characteristics or mutations they see as beneficial. The same thing has been done with the food supply to bring out different desired traits. Today, however, scientists have modified the process to make it more controlled and much faster. Selective breeding must be distinguished from other forms of genetic modification because its use has been around for so long and it is relatively non-invasive.  Many people fail however to make a distinction between the bioengineering methods, lumping them together. This distinction should be made because selective breeding does not contain the same potential risks as genetic engineering.

Genetic engineering is usually what is thought of when talking about bioengineered products. It is a much more invasive process that involves splitting DNA and selecting desired gene codes to insert into another living organism’s DNA.[6] This process requires the use of chemicals, bacteria, and complex scientific methods.[7]  This area holds great potential as scientists can now isolate desired characteristics and insert these into an entirely different species. An example of this is a tomato plant that has been injected with part of a gene from another organism to make the tomato have a longer shelf life.[8] This type of genetic engineering is relatively new and scientists have only scratched the surface of what may be done. Because it is a new and invasive process, the Food and Drug Administration (FDA) and the Environment Protection Agency (EPA) regulate all genetically engineered crops and animals, as opposed to non-adulterated selectively bred foods.[9]

Mutagenesis is a process by which scientists deliberately create mutations in organisms to see if they can  generate some beneficial traits.[10] It is not very common and is used only for scientific study thus far.  

A.    Purpose and Possibilities of Bioengineered Crops

Crops may be bioengineered for many reasons including increasing their yield, creating frost resistance, creating drought resistance, increasing bug or disease resistance, slowing the ripening process for longer shelf life, and establishing resistance to pesticides and chemicals. Bioengineered crops also show promise in other areas beyond consumption such as pharmaceutical products and industrial uses. These crops' potential to increase the food supply and the quality of food is exciting. Norman Borlaug is credited with saving millions, if not billions, of lives through his studies and implementation of dwarf wheat in Mexico and other impoverished countries.[11] Dwarf wheat is an example of selective breeding. It is wheat that has purposely been made shorter so it will not bend over as it matures and have the grains touch the ground and rot. Changing this one aspect made a large impact on the world.  Other genetic engineering projects seek to accomplish similar outcomes. 

B.     Problems with Bioengineered Crops

Despite the excitement about the possibilities of bioengineered crops, there is also widespread criticism and fear of actual or speculative harm that bioengineered products may cause. Many worry that not enough is known about the adverse consequences of these products and the process it takes to get them introduced commercially to the public. They also question the effectiveness of bioengineering and whether the costs outweigh the advantages. Other concerns people have are damage to property, their health, the environment, and the economy.  More examples include, “the potential industrialization or monopolization of agriculture, whether the insertion of certain genes violates religious rules or dietary restrictions, whether genetic engineering in the first instance violates ethical norms, and whether genetically modified products should be so labeled."[12] These issues will be discussed in turn below.

III.            Damage to Property

Property damage is an area that comprises many biotechnology lawsuits. Many issues have already been decided unlike other areas. Damage to property can be caused by cross-pollination or seed drift. Cross-pollination occurs when bioengineered crops are planted next non-bioengineered crops and they pollinate each other thus producing a hybrid crop. Seed mixing can happen when winds blow or they are co-mingled during harvest, planting, or storage.[13] This mixing creates what’s called a volunteer plant. The most common complaint is that through the mixing of the seeds, farmers cannot stay below required thresholds to sell their product as non-bioengineered. This especially hurts those who sell organic foods.

A.    What Tort Law Should Apply

Many different tort actions are available to address legal causes. They include trespass, negligence, strict liability, private nuisance, public nuisance, and product liability. Some argue that a new category of tort law should be created for biotechnology products because of the unique nature of this science, and to not hamper innovation in this area.[14] Creating a new tort category will probably never happen since courts are unwilling to make such categorical confines, and other areas of special interest that may be subject to many lawsuits, (i.e. nontechnology, pharmaceutical and medical research, software, etc.) have not received such special status.[15]  

                                                  i.      Trespass

Trespass is the physical invasion of one's property.[16] This invasion can be from the bioengineered seeds or pollen that crosses over onto another person’s land. A farmer who has chosen not to grow bioengineered crops and does not want those crops on his property must show more than a bioengineered crop is found on his property. He most show actual damages in some way, most likely by showing economic loss.[17] The National Organic Program (NOP) of the USDA and the Association of Official Seed Certifying Agencies (AOSCA) set tolerance levels for how pure one's crops have to be to meet organic requirements or other factors.[18] Buffer zones between fields are also established in some areas.[19] Organic farmers are most likely to prove actual damages if they can show that they suffered economic loss by their inability to sell their crops as organic because they were above the required threshold.  

Whether a farmer can win on a claim of trespass is still debatable. The Supreme Court has yet to settle this and related matters. Therefore, it depends on the jurisdiction in which the case is filed. Recently, a lawsuit was filed by 83 plaintiffs on behalf of almost 300,000 organic farmers against Monsanto for their Roundup Ready seeds. Amongst other things, these farmers claimed the seeds and the overuse of Roundup was invading their crops.[20] This lawsuit was dismissed in federal court because the action failed to satisfy the case or controversy requirement.[21] The Minnesota Supreme Court held that pesticide drift and other particulate matter do not constitute a trespass.[22] However, the Court did not say that they could not sue under private nuisance and negligence theories.[23] A California Court ruled in favor of an organic farmer who successfully sued for one million dollars under trespass, negligence, and nuisance against his neighbor who used bioengineered crops and pesticides which damaged his crops.[24]

                                                ii.      Negligence

Negligence is a commonly used tort where an injured party must show wrongful conduct which falls below reasonable standards for the protection of others against unreasonable risk of harm.[25] This theory may be used against a negligent neighboring farm or a company who sells bioengineered seeds if it can be shown that they failed to take adequate precautions to guard against mixing crops. To establish a claim of negligence, a plaintiff must show a duty of care, a breach of that duty, that the negligence actually caused the harm claimed, that it was a proximate cause, and that actual damages occurred.[26] The presence of bioengineered crops on a plaintiff's property isn’t enough to show negligence; a plaintiff must show the defendant knew, or should have known, that their conduct was potentially harmful.  An example is if a person violated  buffer zones or failed to take precautions to prevent the spread of bioengineered seeds to other properties. This theory has met with mixed results as shown in the Minnesota and California  cases cited in the trespass section above. 

                                              iii.      Strict Liability

An agricultural biotechnology patent holder is strictly liable for damages caused by its product if the product has a defect that renders it unreasonably dangerous and the producer knew or should have known of the danger.[27] Some people have advocated for using strict liability against all who create or use bioengineered crops. The use of this theory is feared by those who advocate for the benefits of bioengineered crops. In the past, strict liability has driven innovative products from the market. If bioengineered crops were to undergo strict liability scrutiny, the full development of this emerging industry might never be realized. [28]

Strict liability would be a difficult lawsuit to win because a plaintiff will have to show that these crops are unreasonably dangerous. Genetically modified crops are already FDA regulated. This means they have to be approved for use in the first place, making it difficult to establish that they constitute an exceptionally dangerous activity.[29] With bioengineered crops becoming more common, it will be increasingly more difficult to bring a strict liability claim.

                                              iv.      Private Nuisance

Private nuisance, unlike other common law claims, focuses not on the harmful conduct of others, but on one’s right to be left alone and enjoy the private use of land free from trespass from others.[30] An injured party must show unreasonable interference with the use and enjoyment of his own land. With widespread use of bioengineered crops, this claim will be difficult to show. Showing disgust isn’t enough to establish a claim. Most likely courts will be unwilling to endorse a private nuisance claim that insists on zero tolerance of pollen flow. “Courts expect neighbors to have reasonable tolerances toward one another as the court engages in the balancing of gravity of the harm against the social utility of each neighbor's use and enjoyment of their own land.”[31] The effectiveness and use of this tort will most likely have similar results as trespass and negligence as previously discussed.

                                                v.      Public Nuisance

           

Some people argue that bioengineered crops shouldn't be used altogether because they create unfair market conditions for those who choose not to use them. Public nuisance is different from private nuisance; it is an unreasonable interference with a right common to the general public.[32] Public nuisance allows persons to file a suit on behalf of themselves and the public.

 In determining whether growing a fully approved bioengineered crop is a significant, unreasonable interference with a right common to the general public, the courts will probably consider two questions as decisive. First, what is the effect of compliance with the regulations applicable to bioengineered crops, if proven true by the agricultural biotechnology companies? Second, has there been an identified harm that, whatever the general utility of bioengineered crops, it would be unreasonable to allow the identified harm without compensating for it? This second question raises the deeper policy issue called the “socialization of harm”—i.e., even if an identifiable harm exists, when should society as the whole bear the harm.[33]

1.      Antitrust

           

An antitrust claim would be very similar to a public nuisance claim because it would be brought on behalf of the population at large for the benefit of all. In the antitrust case of Sample v. Monsanto Co.[34]  corn and soybean farmers brought a class action suit against seed companies, alleging a price-fixing conspiracy. The farmers motion for class certification was denied because no real injury occurred as is required under the Clayton Act, only lower prices than the farmers' expectations.[35]  Organic Seed Growers & Trade Ass'n v. Monsanto Co. as previously discussed in the trespass section is another example of a failed antitrust case.[36]

In the Philippines, corn farmers are claiming that the prices of genetically modified seeds are causing them to go bankrupt.[37] If they and other international markets start bringing cases against, it could prove to be a huge setback for bioengineered crops. So far, most courts generally have been protective of bioengineered crops and have ruled in their proponent's favor. This may be indicative of future trends as society accepts that bioengineered crops are here to stay. A successful antitrust case or public nuisance case, would be monumental and would be a huge setback for bioengineering research everywhere. This area of law is not yet settled and more cases will probably be brought.

2.      Foreign Markets

           

Some foreign markets have a zero tolerance policy, or extremely low trace-level, for bioengineered crops. This low tolerance raises the issue of whether farmers in the United States can sue under public nuisance so that they can grow their crops risk free of mixing with bioengineered crops.[38] Under such a lawsuit farmers who want to sell to these foreign markets would have to show economic hardship. Courts will be forced to decide on whether to protect those who want to market in bioengineered crops and those who want to produce food for foreign markets that don't allow bioengineered crops. Considering recent court cases and trends, most likely courts will be protective of those who wish to market bioengineered crops.

                                              vi.      Product Liability

           

 A product liability claim can be based in negligence or in strict liability depending on the situation. Most likely a product liability claim in agricultural biotechnology will be based off of a design defect rather than a manufacturing defect or an insufficient warning label. "Should any of the human health or environmental concerns created by genetically modified products be realized or perceived to have occurred, product liability lawsuits are expected."[39]

One of the best product liability claims thus far is the case of Starlink Corn.[40] This corn was given a limited use restriction, only to be used for animals and industrial uses, because it contained the Cry9C gene which was ruled unsafe for human consumption because it may induce an allergic reaction. However, due to cross-pollination it was found in some taco shells and other food products in 2000 which led to the recall of hundreds of products.[41] The Environmental Protection agency (EPA) could have granted an exemption, set a tolerance level for the Cry9C gene in foods, or to deny a tolerance level. The EPA decided against an exemption for the gene, thus effectively creating a zero tolerance for the Cry9C gene in the food supply.[42] As a result of this ruling, many people filed lawsuits that were consolidated into In Re StarLink Corn.[43] This case was settled out of court.[44]

The EPA also ruled that they would not permit any more limited registration for harmful bioengineered crops, so this should be the last lawsuit of its kind.[45] Now, the only way to produce a bioengineered crop that is not for human consumption would be to do so in a completely contained environment or grow it outside and face the lawsuits. The EPA’s decision could have a big impact on bioengineered crops grown for pharmaceutical, industrial, or scientific purposes and may stifle growth in bioengineered plants markets if these crops cannot be grown without great expense.[46] This should lead to some interesting cases in the future about the value of the EPA's decision and its impact on biotechnology.       

IV.            Damage to Health

           

Since the inception of genetically engineered foods with the Flavr Savr Tomato there has been persistent and widespread fear and mistrust of bioengineered foods and of the damage it may be causing to human health.[47] One does not have to search far to see the amount of fear and misinformation this topic has received, rising to the level of hysteria. Some have even thought that these “frankenfoods” would lead to a mass pandemic.[48] The fears of possible health problems include: possible food allergies, increased toxicity of foods, decreased nutritional value of foods, antibiotic resistance in humans, dangerous mutations, and more.[49]

           

Despite the widespread fear, there has not been one substantiated case of illness or death as a result of consuming a bioengineered product.[50] Therefore, few tort cases have been made in this area. There are some cases of allergic reaction that are being investigated.[51]The only case that even comes close to human health concerns is the In Re StarLink Corn, case, but no one actually had an allergic reaction in this case. Skeptics may claim that the reason for no substantiated cases is because genetically modified foods haven’t been around long enough to manifest side-effects, the FDA and scientists have not done a good enough job at detecting problems, the problems are not outwardly noticeable, the difficulty of showing that it was bioengineered foods that actually caused the harm rather than other things, and the economic status of many of those injured are such that they do not receive attention.

Supporters of genetically modified foods may claim that no harmful effects are found because there is no harm from these products, and if there is, they have been found and banned already by the FDA.  They can also argue that if one doesn't use bioengineered crops and it is determined that the bioengineered crop is safer than the original, than producers can be liable under product liability design defects for not using bioengineered crops.

Because of a lack of cases in this area the courts have been silent. It will yet be seen if someone can show a valid claim of physical injury from bioengineered foods. Most likely cases will eventually be brought in this area and then a better assessment can be made about the type of law that should apply and what results will be expected.

V.            Environmental Damage

Many concerns exist about damage to the environment and delicate ecosystems from the introduction of bioengineered crops. Some worries are the invasiveness of bioengineered products, gene transfer, and displacement of native species.[52] While not bioengineered products, killer bees and kudzu are excellent examples of the large negative impact a new species can have on an unsuspecting environment. Killer bees were introduced in Brazil from Africa as part of an experiment and the bees subsequently escaped.[53] They have since intermixed with other honey-bee populations and have spread significantly. They are aggressive and dangerous and have caused lots of damage, especially to bee keepers.[54] Some fear that a similar result will happen with bioengineered products.

Many cases have been brought by plaintiffs seeking to protect the environment. Some cases have been successful, others have not. One difficulty in bringing a successful case is that an environmental group must show is that they have standing to bring a lawsuit. To do this  a plaintiff must show they have sustained real injury. In Lujan v. Defenders of Wildlife, a non-bioengineering case, the plaintiffs were unable to bring a case to protect the environment because they lacked standing. [55]

In Ctr. For Food Safety v. Johanns, environmental advocacy groups successfully obtained an injunction against the Department of Agriculture for issuing permits for open-air field tests of experimental, genetically engineered, pharmaceutical-producing plant varieties in Hawaii, in violation of the Endangered Species Act (ESA).[56] In a similar case, Geertson Seed Farms v. Johanns, the plaintiffs, the Sierra Club and other alfalfa farmers, challenged the Department of Agriculture's decision to deregulate genetically engineered RoundUp Ready alfalfa. The plaintiffs were successful and showed the deregulation violated the ESA, the National Environmental Policy Act, and the Plant Protection Act.[57] Similar results of the above cases were also achieved in Monsanto Co. v. Geertson Seed Farms,[58] Delaware Audubon Soc., [59] and others. In another case, plaintiffs successfully used the Clean Water Act 77 to obtain an injunction

against stocking of fish farms with selectively bred salmon, because of their potential impact with native populations if they were to escape into the wild.[60]

Other cases have swung in favor of the defendants, or those interested in protecting their rights to have genetically modified products free from too many regulations. In Int'l Ctr. For Tech. Assessment v. Thompson, plaintiffs were denied injunctive relief against the FDA for not regulating the commercialization of a genetically engineered ornamental fish.[61] In Ctr. for Food Safety v. Vilsack, owners failed to demonstrate that permitted sugar beet plants presented genetic contamination or other irreparable harm.[62]

Most likely this area of law is just beginning and with the growing concern about the possible harms of bioengineered products more cases will be brought in the future.

VI.            Patent Infringement Lawsuits

So far, most of the cases discussed have been suits brought by a non-user of bioengineered products against those who use them. However, the non-user is not the only person who can initiate a lawsuit. Genetically modified seed patent holders can also bring suit for patent infringement. One of the most recognized names in this area and a company that has been through a large amount of lawsuits is Monsanto. Upon purchase of their seeds, Monsanto requires farmers to sign an agreement that they may not reuse their seeds for planting during the next season, which is a practice which has been done by farmers for millennia. Monsanto can do this to protect their patented seeds. Many lawsuits have been initiated against people who haven't even purchased Monsanto seeds. They have been against people who clean seed so they can be used for the next season, for encouraging farmers to reuse their seeds. Monsanto has also sued people who have not purchased their seeds but have obtianed Monsanto seeds from cross-pollination or wind drift.

In Monsanto Canada Inc. v. Schmeiser, Schmeiser did not purchase Monsanto seeds but had some in his field due to spread. He sprayed some of his field with roundup leaving only the Roundup protected crops that survived. Mr. Schmeiser then saved this seed for the next year so he could have his own Roundup protected seed. The Court in this case ruled in favor of Monsanto for patent infringement. [63]

Many of farmers have fought back as shown by cases like the previously mentioned Organic Seed Growers & Trade Ass'n v. Monsanto Co. where 83 plaintiffs combined to sue Monsanto against their claims of patent infringement.[64] Farmers, seed businesses, and related membership organizations brought the action claiming that they were not infringing patents, that those patents were invalid and unenforceable, and that patentees would be entitled to no remedies against them.[65] The plaintiffs lost the case when the case was dismissed before adjudication. 

VII.            Constitutional Violations

There are some claims against bioengineered agricultural products that fall under other areas of protection, like first amendment rights. In Alliance for Bio-Integrity v. Shalala, the plaintiffs challenged the FDA's decision to not require labeling of genetically modified products as a violation of the Religious Freedom Restoration Act. Part of the plaintiffs complaint was that if a gene from an animal that a religion prohibits eating is put into a genetically modified food it should be labeled as such so adherents can avoid eating it. So far the FDA does not require labeling of genetically modified foods. In a recent decision in California, voters decided to not require labeling as well.[66] Labeling of genetically modified food is a popular and controversial issue that has received a lot of attention recently. Even though labeling is not required, some companies choose to label the use or non-use of genetically altered products.

VIII.            What the future may hold

Many uncertainties still exist with what the future may hold with liability claims in agricultural biotechnology. What can be expected is more lawsuits. Bioengineered products are fairly new and it will take multiple and many lawsuits to work out who should ultimately be held responsible when there are disputes.

Specifically, more anti-trust lawsuits will be seen as bioengineered crops continue to take over the market. In addition, pharmaceutical companies will probably try to challenge the EPA's decision to disallow limited use crops. As well, even though there has not been one successful case showing physical injury from bioengineered crops, more cases will most likely be brought alleging injury, especially if long-term health effects become manifest. More environmental cases will be brought, especially since many environmental groups have already won cases in this area. This will continue to be a hotly contested area. Many patent infringement lawsuits will continue to be brought, just as in the past. Expect the future to hold more lawsuits regarding the labels.

Ultimately, many areas of law are yet to be worked out as bioengineered products  continue to take over the agricultural and food markets. Many hotly contested cases are yet to be seen. If the current trends continue, courts will continue to be rather protective of bioengineered products, and they will become an increasingly accepted part of people's

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[1] Dan L. Burk & Barbara A. Boczar, Biotechnology and Tort Liability: A Strategic Industry At Risk, 55 U. Pitt. L. Rev. 791, 792 (1993-1994).

[2] Diamond v. Chakrabarty, 447 U.S. 303, 100 S. Ct. 2204, 65 L. Ed. 2d 144 (1980).

[3] Gregory N. Mandel, The Future of Biotechnology Litigation and Adjudication, 23 Pace Envtl. L. Rev. 83, 84 (2006).

[4] Id at 86.

[5] Gregory N. Mandel, The Future of Biotechnology Litigation and Adjudication, 23 Pace Envtl. L. Rev. 83, 84 (2006).

[6] Thomas O. McGarity, Seeds Of Distrust: Federal Regulation of Genetically Modified Foods, 35 U. Mich. J.L. Reform 403, 406-407 (2001-2002).

[7] Gregory N. Mandel, The Future of Biotechnology Litigation and Adjudication, 23 Pace Envtl. L. Rev. 83, 85 (2006).

[8] Id at 86.

[9] Thomas O. McGarity, Seeds Of Distrust: Federal Regulation of Genetically Modified Foods, 35 U. Mich. J.L. Reform 403, 432-433 (2001-2002).

[10] Dorland's Medical Dictionary for Health Consumers, by Saunders, an imprint of Elsevier, (2007), http://medical-dictionary.thefreedictionary.com/mutagenesis.

[11] Nobel Prize winner Norman Borlaug dies at 95, Associated Press, Sept. 13, 2009, http://www.webcitation.org/6AjYLd0b9.

[12] Gregory N. Mandel, The Future of Biotechnology Litigation and Adjudication, 23 Pace Envtl. L. Rev. 83, 89 (2006).

[13]  Drew L. Kershen, Legal Liability Issues in Agricultural Biotechnology, 44 Crop Sci. 456, 456 (2004).

[14] Dan L. Burk & Barbara A. Boczar, Biotechnology and Tort Liability: A Strategic Industry At Risk, 55 U. Pitt. L. Rev. 791, 792 (1993-1994).

[15] Id.

[16] Legal Information Institute, Cornell University Law School (Aug. 19, 2010), http://www.law.cornell.edu/wex/trespass

[17] Drew L. Kershen, Legal Liability Issues in Agricultural Biotechnology, 44 Crop Sci. 456, 457 (2004).

[18] Id.

[19] Id.

[20] Jane Ayers, 300,000 Farmers Sue Monsanto in Federal Court: Decision on March 31 to go to Trial, Nation of Change, Feb. 12, 2012, http://www.nationofchange.org/300000-organic-farmers-sue-monsanto-federal-court-decision-march-31st-go-trial-1329059467.

[21] Organic Seed Growers & Trade Ass'n v. Monsanto Co., 851 F. Supp. 2d 544 (S.D.N.Y. 2012).

[22] Johnson v. Paynesville Farmers Union Co-op. Oil Co., 817 N.W.2d 693 (Minn. 2012).

[23] Id.

[24] Jacobs Farm/Del Cabo, Inc. v. W. Farm Serv., Inc., 190 Cal. App. 4th 1502, 119 Cal. Rptr. 3d 529 (2010).

[25] Drew L. Kershen, Legal Liability Issues in Agricultural Biotechnology, 44 Crop Sci. 456, 458 (2004) quoting Restatement of the Law. 1965. 2d, Vol. 2, Torts. West, Eagan, MN.

[26] Id.

[27]Drew L. Kershen, Legal Liability Issues in Agricultural Biotechnology, 44 Crop Sci. 456, 457 (2004) quoting Restatement of the Law. 1977. 2d, Vol. 3, Torts. West, Eagan, MN.

[28] Dan L. Burk & Barbara A. Boczar, Biotechnology and Tort Liability: A Strategic Industry At Risk, 55 U. Pitt. L. Rev. 791, 793 (1993-1994).

[29] See Thomas O. McGarity, Seeds Of Distrust: Federal Regulation of Genetically Modified Foods, 35 U. Mich. J.L. Reform 403 (2001-2002).

[30] Drew L. Kershen, Legal Liability Issues in Agricultural Biotechnology, 44 Crop Sci. 456, 458-459 (2004) quoting Restatement of the Law. 1979. 2d, Vol. 4, Torts. West, Eagan, MN.

[31] Drew L. Kershen, Legal Liability Issues in Agricultural Biotechnology, 44 Crop Sci. 456, 459 (2004), quoting Restatement of the Law. 1979. 2d, Vol. 4, Torts. West, Eagan, MN.

[32] Id quoting Restatement of the Law. 1965. 2d, Vol. 2, Torts. West, Eagan, MN.

[33] Drew L. Kershen, Legal Liability Issues in Agricultural Biotechnology, 44 Crop Sci. 456, 459 (2004).

[34] Sample v. Monsanto Co., 218 F.R.D. 644 (E.D. Mo. 2003).

[35] Id. at 650

[36] Organic Seed Growers & Trade Ass'n v. Monsanto Co., 851 F. Supp. 2d 544 (S.D.N.Y. 2012).

[37] Philippines: GM corn bankrupts farmers, Consumers International, Sept. 18, 2012, http://www.consumersinternational.org/news-and-media/news/2012/09/corn.

[38] Drew L. Kershen, Legal Liability Issues in Agricultural Biotechnology, 44 Crop Sci. 456, 461 (2004).

[39] Gregory N. Mandel, The Future of Biotechnology Litigation and Adjudication, 23 Pace Envtl. L. Rev. 83, 92 (2006).

[40] StarLink Corn Products Liability Litigation. 2002. WL 1291790 at *1 (MDL. ND Ill 2002a).

[41] Gregory N. Mandel, The Future of Biotechnology Litigation and Adjudication, 23 Pace Envtl. L. Rev. 83, 93 (2006).

[42] Drew L. Kershen, Legal Liability Issues in Agricultural Biotechnology, 44 Crop Sci. 456, 460 (2004).

[43] Kramer v. Aventis CropScience USA Holding, Inc. (In re StarLink Corn), 212 F. Supp. 2d 828 (N.D. Ill. 2002).

[44] Id.

[45] Drew L. Kershen, Legal Liability Issues in Agricultural Biotechnology, 44 Crop Sci. 456, 460 (2004).

[46] Id.

[47] Redenbaugh, Keith, Bill Hiatt, Belinda Martineau, Matthew Kramer, Ray Sheehy, Rick Sanders, Cathy Houck and Don Emlay, Safety Assessment of Genetically Engineered Fruits and Vegetables: A Case Study of the Flavr Savr Tomato. CRC Press. 288 (1992).

[48] Tim Worstall, How those GM Frankenfoods are going to murder us all in our beds, The Telegraph, Sept. 20, 2012,  http://blogs.telegraph.co.uk/finance/timworstall/100020189/how-those-gm-frankenfoods-are-going-to-murder-us-all-in-our-beds/.

[49] Thomas O. McGarity, Seeds Of Distrust: Federal Regulation of Genetically Modified Foods, 35 U. Mich. J.L. Reform 403, 416 - 424 (2001-2002).

[50] Id at 416.

[51] Id.

[52] Grossman, M.R., Biotechnology, property rights and the environment. 50 Am. J. Comp. L. 215, 219 (2002).

[53]Marcia Barinaga, How African are "Killer" Bees?, 250, No. 4981 Science, New Series 628, 629 (1990).

[54] Id.

[55] Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S. Ct. 2130, 2136, 119 L. Ed. 2d 351 (1992).

[56] Ctr. For Food Safety v. Johanns, 451 F. Supp. 2d 1165 (D. Haw. 2006).

[57] Geertson Seed Farms v. Johanns, C 06-01075 CRB, 2007 WL 518624 (N.D. Cal. Feb. 13, 2007).

[58] Monsanto Co. v. Geertson Seed Farms, 130 S. Ct. 2743, 177 L. Ed. 2d 461 (2010).

[59] Delaware Audubon Soc., Inc. v. Sec'y of U.S. Dept. of Interior, 612 F. Supp. 2d 442 (D. Del. 2009).

[60] Gregory N. Mandel, The Future of Biotechnology Litigation and Adjudication, 23 Pace Envtl. L. Rev. 83, 99 (2006).

[61] In Int'l Ctr. For Tech. Assessment v. Thompson, 421 F. Supp. 2d 1 (D.D.C. 2006)

[62] Ctr. for Food Safety v. Vilsack, 636 F.3d 1166 (9th Cir. 2011).

[63] Monsanto Canada Inc. v. Schmeiser (Monsanto Canada Inc., 2001)

[64] Organic Seed Growers & Trade Ass'n v. Monsanto Co., 851 F. Supp. 2d 544 (S.D.N.Y. 2012).

[65] Id.

[66] M. Joy Hayes, The 2 Words the Food Industry Spent 45 Million to Avoid Using,  Aol., Nov. 15, 2012, http://www.dailyfinance.com/2012/11/15/genetically-modified-the-2-words-the-food-industry-spent-45-mi/.