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Nuisance Law and the Prevention of "Genetic Pollution": Declining a Dinner Date With Damocles

May 2000

Citation: 30 ELR 10328

Issue: 5

Author: Thomas P. Redick, Christina G. Bernstein

In the quarter century since the first applications of recombinant deoxyribonucleic acid (DNA) technology in agriculture were submitted for regulatory approval in the United States, genetically modified organisms (GMOs) have come to represent an increasingly large share of the grain produced in the United States. In 1999, more than one-half of the soybeans and one-third of corn harvested in the United States came from genetically modified (GM) seed.1 In addition, an estimated 60 percent of packaged foods sold in the United States may contain genetically altered ingredients.2 Due to the concerns of foreign governments and consumers, growers and grain companies are being pushed to segregate GMO crops from non-GMOs.3 The ensuing demand for non-GMO products drives a costly process of segregation of GMOs from non-GMOs that begins in the field and ends at the grocer's shelf.

The segregation of GMOs is creating significant economic risks from the threat of commingling unapproved varieties with those approved for export. Almost overnight, billions of dollars in trade can be impacted by the decision of a foreign government to conduct a lengthy assessment of the slightest hypothetical environmental impact of a GMO. For example, the sequence of events may begin with a regulatory agency overseas finding that threatened butterfly or wild ancestor of corn could be impacted by a particular GMO (e.g, B.t. corn)4 that is being considered for import approval as a commodities shipment. While regulators overseas conduct studies to determine if an environmental impact could exist (perhaps even searching the countryside for Monarch habitat or a mythical ancestor of corn), a chain of events is triggered in the United States, where the same GMO is planted on thousands of acres. The delay in approving the GMO for export markets may require immediate segregation of that GMO from the fungible stream of commodity commerce (e.g., open to thousands of varieties of No. 2 grade corn) to protect the export stream for that particular crop from commingling.5 In nations where there is a "zero tolerance" for unapproved GMO varieties in shipments of grain commodities, the importing authority may reject large shipments of grain if a single grain of unapproved GMO is found.6 The importing authority could theoretically accept small amounts of insect parts and rodent feces but turn away entire shipments based on a single nucleotide sequence of offending DNA or the mere lack of a certificate confirming that no illegal DNA is present.7

Mr. Redick is of counsel and Ms. Bernstein is an associate at Chapin Shea McNitt & Carter in San Diego, California, which is counsel to the American Soybean Association on genetically modified organisms risk management. Mr. Redick is co-chair of the annual Biotechnology Roundtable sponsored by the American Bar Association Section on Energy, Environment & Resources (ABA). The Council for Agricultural Science & Technology (CAST), the American Crop Protection Association (ACPA), and the American Agricultural Law Association (AALA) (see the CAST website at http://www.cast-science.org for reports of the past three roundtables). Questions or comments can be sent to cbernstein@chapinlaw.com. The views expressed herein are solely those of the authors.

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