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Liability for Farming? Rachel G. Lattimore

Explore the safety of biotechnology in agriculture, regulatory reviews by federal agencies, and the need for a new liability scheme. Learn about the co-existence of biotech crops with conventional ones and the nuances of genetic changes in crops.

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Liability for Farming? Rachel G. Lattimore

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  1. Liability for Farming?Rachel G. Lattimore Food Biotechnology: A Legal Perspective Friday, March 14, 2003 University of Richmond School of Law Arent Fox Kintner Plotkin & Kahn, PLLC 1050 Connecticut Avenue, NW Washington, DC 20036-5339 P: 202/857-6000 F: 202/857-6395

  2. Is There a Need for A New Liability Scheme? • Are crops developed through agricultural biotechnology fundamentally different than crops developed by more conventional breeding? • Are these crops as safe as other crops? • Are these crops commonly used? • Do these crops grow differently than others? • Can these crops co-exist with other types of crops?

  3. As Safe As Other Crops • All commercially produced biotechnology-derived crops have been reviewed by at least two federal agencies. • These crops must be cleared for commercial production and sale before they go on the market. • After over a decade in the fields and on the tables, not a single instance of substantiated harm to human health, safety or the environment.

  4. Federal Safety Review of Crops Developed with Biotechnology • USDA has reviewed and cleared all these crops as safe to grow. • FDA has reviewed and cleared all these food crops as safe for humans and animals to eat. • EPA has reviewed and cleared all crops that control pests as safe to eat and safe to grow.

  5. How Safe Is Safe? • Crops with biotechnology traits have been reviewed by federal agencies, which look at toxicity, allergenicity and environmental safety. • Crops without these traits are put on the market without a similar health or environmental safety review. • Is a new liability scheme needed for safety’s sake? What would it require of all crops?

  6. Widespread Adoption • These crops are not different than “regular” crops – these areregular crops. • 75% of the 2002 US soybean crop had a biotech trait.* • 71% of the 2002 US cotton crop had a biotech trait.* • 34% of the 2002 US corn crop had a biotech trait.* • How would “regular” or “normal” be defined under a liability scheme if most of the crop has a biotech trait? * Source – Council for Biotechnology Website

  7. These Crops Grow LikeAll Other Crops • Specific genetic changes made through biotechnology do not change the basic nature of the crop. • These crops pollinate exactly like their “conventional” counterparts. • These crops pose no more risk of cross-pollination with neighboring crops than any other type of crop.

  8. These Crops Grow LikeAll Other Crops • Any open-pollinating crop can cross-pollinate with another neighboring crop. • Growers of specialty crops protect against this: • Blue corn • White corn • Canola • Organic • “Non-GMO”

  9. Pollen Happens • Should a blue corn grower sue a yellow corn grower for planting too close? • Should a sweet corn grower sue a field corn grower for planting too close? • Should you sue your neighbor whose grass makes you sneeze? For the price of a car wash? Claritin? • Should your neighbor have to dig up his lawn & install a rock garden? “Native” grasses?

  10. Co-existence With Other Crops • Specialty Growers Earn a Premium Price • They contract to meet certain standards. • They assume the responsibility of meeting those standards. • They take extra effort to meet those standards. • They are rewarded with a premium price. • They do not share premium with neighbors.

  11. Organic Growing Doesn’t Require Zero Biotech • National Organic Program is process based, and does not exclude unintended presence of biotech material. • “The presence of a detectable residue of a product of excluded methods alone does not necessarily constitute a violation of the [organic] regulations.” - 65 Fed. Reg. 80548, 80632 (Dec. 21, 2000). • Organic Growers who contract for zero percent presence of biotech material are assuming a contractual risk.

  12. Is There a Need for A New Liability Scheme? • Not based on safety. • Not based on the rare, unknown, or uncommon nature of product. • Not based on unique pollen concerns. • Not based on any inability of growers to segregate crops. • Not because organic farming requires new standards.

  13. Thank you. Arent Fox Kintner Plotkin & Kahn, PLLC 1050 Connecticut Avenue, NW Washington, DC 20036-5339 P: 202/857-6000 F: 202/857-6395

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