Monsanto Protection Act? Separating the facts from the fury

| April 1, 2013 |
Anti-Monsanto protesters (Credit: Flickr/mar is sea Y). Anti-Monsanto protesters (Credit: Flickr/mar is sea Y).

The past week has seen a tsunami of stories about the  so-called “Monsanto Protection Act,” more accurately known as Section 735 of HR 933. It’s a tiny provision attached to a massive agricultural spending bill signed into law by President Obama last week.

According to detractors, Section 735 is the “most dangerous food act ever” and a “terrifying piece of policy.” Why? Because, among other claims, it purportedly allows biotech companies to sell seeds that can cause serious consumer health problems. Here is how Gawker frames it:

Section 735 effectively shields large biotech companies, like Monsanto, from the federal courts in case something is found to be harmful in their genetically-modified seeds. Because of Section 735, federal courts would be powerless to stop Monsanto from selling their product.

Just as shocking, activists claim, the provision was secretly written by Monsanto, stealthily inserted into the bill in the dead of night by its Congressional backroom lackeys and then placed on the desk of President Barack Obama, who is so in hock to biotech special interests that he sold out the public and signed the bill, rider intact, therefore undermining American democracy. No kidding. That’s the way even mainstream bloggers and news outlets discuss this legislation. “Monsanto teams up with Congress to shred the Constitution,” shrieked one Huffington Post headline. Hundreds of thousands of angry anti-GMO protestors have signed online petitions expressing their outrage.

Let’s separate the facts from the fury.

The “stealth” claim is just plain wrong. This provision was drafted last year and has been in printed versions of the bill that have been circulating widely in Washington for more than nine months; no one, least of all hyper-vigilant anti-GMO watchdogs, were caught by surprise. For example, Stonyfield Farm, a division of Dannon that makes organic dairy products and is actively engaged in a range of anti-technology agricultural issues, ran a blog post last fall demonizing the provision that its opponents now claim was written behind a veil of secrecy.

Even if the courts find that a (genetically engineered) crop shouldn’t be planted until more research is done about its safety, no one could stop that crop from being planted, even temporarily. This provision clearly tells us that Congress thinks public health and safety should take a back seat to the expansion of GE crops.

The Stonyfield blog post raises the second gross mischaracterization now making the rounds: allegations that the provision would benefit the biotech industry at the expense of consumer health. For example, Russia Today news claims the rider “would strip federal courts of the authority to immediately halt the planting and sale of genetically modified (GMO) seed crop regardless of any consumer health concerns.” This characterization is hokum.

What does the biotech rider actually state?

To date, no court has ever held that a biotechnology crop presents a risk to health, safety or the environment. But make no mistake: it’s not because the courts or the government approval process is lax. Just the opposite. Getting approval for any transgenic crop or food is like running a torturous gauntlet, both arduous and bureaucratic, with companies required to provide years of internal and independent data, which are then carefully reviewed by various government agencies.

Beyond that, the USDA cannot approve a new seed variety until it conducts an Environmental Assessment (EA). This is the point in the process where anti-biotech activists and lawyers do their best to gum up the works in hopes of generating a critical mass of negative public opinion.

By law, the EA must consider any and all factors relating to the “human environment,” which is very ambiguously defined, encompassing human health and leaving all kinds of legal openings for hostile groups to target. If a group such as the Center for Food Safety or the Institute of Responsible Technology or the Union of Concerned Scientists challenges the EA for not considering one issue or another, the assessment can be deemed insufficient and a new one must be ordered.

Alfalfa field (Credit: Flickr/Alternative Heat)

Alfalfa field (Credit: Flickr/Alternative Heat).

In fact, this has happened twice in recent years, with alfalfa and sugar beets. Alfalfa hay, a nutritious, easily digestible livestock feed, is an $8 billion a year business and country’s fourth-most-valuable crop. Monsanto makes GM alfalfa seeds, as part of the company’s Roundup Ready line. They are genetically modified to tolerate glyphosate, the herbicide commercially known as Roundup. When farmers use Roundup, a comparatively mild herbicide, instead of other harsher chemicals to kill weeds, they actually cut down on overall toxic chemical use.

After an exhaustive review, the USDA gave Roundup Ready Alfalfa the green light in 2005. But the Center for Food Safety contended that the government hadn’t adequately evaluated the potential environmental consequences. In 2007, in Monsanto Co. v. Geertson Seed Farms, a federal court agreed with the Center for Food Safety, prohibiting Monsanto from selling Roundup Ready Alfalfa pending yet another assessment.

This was incredibly disruptive to thousands of farmers, who had planted alfalfa, which is a perennial crop so does not have to be reseeded each year. The legal status of a field of GM alfalfa planted legally after the USDA had deregulated GE alfalfa was suddenly changed under the court ruling. Farmers were being told that they had to follow a new set rules in handling their crop. For more than four years, they didn’t know if the technology was going to be available for their use. The confusion and patchwork of conflicting regulations, court decisions and labeling requirements dealt a sizable economic blow to one of the country’s most important export crops. The ongoing chaos was exactly the kind of commercial uncertainty that anti-GMO forces were hoping to manufacture.

The alfalfa case standoff eventually made it to the Supreme Court. The evidence in support of the safety and public benefits of GM alfalfa was so strong that in 2009, the Obama Administration had Solicitor General Elena Kagan file a brief on the biotechnology company’s behalf, even though the government was not a defendant in the appeal. To no scientist’s surprise, in June 2010 SCOTUS overturned the lower court’s injunction that had prohibited Monsanto from selling pesticide-resistant alfalfa seeds.

“An injunction is a drastic and extraordinary remedy, which should not be granted as a matter of course,” Justice Samuel Alito wrote for the 7-1 majority, concluding that the US District Court in San Francisco had “abused its discretion.”

The temporary injunction, by then determined to be abusive, proved a financial disaster for the farm industry and many individual farmers who had suspended planting alfalfa pending a final resolution.

Sugar beet fiasco

A sugar beet at harvest time (Credit: Flickr/grabe)

A sugar beet at harvest time (Credit: Flickr/grabe).

An almost identical disaster  played out over sugar beets, 95% of which are grown from GM seeds. In 2010, the Center for Food Safety and some organic farmers who stood to gain by attacking conventional and GM crops convinced a court on procedural grounds—there was no finding of environmental or health dangers—to void the five-year-old approval of transgenic sugar beet seeds. Despite no evidence of any potential harm, that November, a federal judge ordered the GE sugar beet seedlings—all but 5% of the nation’s beet crop—pulled from the ground, as required by law. If the decision had stood, it could have destroyed as much as half of America’s granulated sugar production on purely technical grounds. The saga only ended in July of last year when the USDA ruled once and for all to allow unrestricted planting of Monsanto’s GMO sugar beets.

It was a victory for science, but the professional “antis” considered it a victory as well. After all, they had caused billions of dollars in unrecoverable damage to the American farm economy and rattled the cages at the corporations they consider “evil.”

The rider that has been ruffling so many feathers was specifically designed to prevent egregious abuses of the court system and regulatory process. The legislation does not, as critics allege, allow farmers or Monsanto to sell seeds proven to be harmful. Rather, it provides legal consistency for farmers and businesses so that they will not be jerked around by temporary findings by competing court systems as activist challenges make their way across the legal food chain. Going forward, the provision will protect farmers who buy GM seeds and plant them under the belief that it is legal to do so because the seeds have been subjected to extensive USDA scrutiny and approval.

The so-called “Monsanto Protection Act” has nothing to do with consumer safety or limiting biotech’s liability for making “dangerous” products, as even Salon claimed. In the two cases heralded by campaigners—alflafa and sugar beets—only technical legal concerns were raised; consumer safety and the environment were never the issue.

No product is exempt from the law when health or environmental problems are identified. If the USDA or a court determines that a biotech seed or crop or food does not pass environmental or health muster, it will be pulled from the market and banned.  But until that happens, because of this provision—let’s call it the Food and Farmer Safety and Health Protection Act—USDA safety determinations cannot be arbitrarily overturned by rogue courts responding to activists.

The howling over the so-called Monsanto provision is all show and little substance. Anti-GMO campaigners are clearly positioning themselves for another offensive against a new wave of GM crops and foods, with new pesticide tolerant grain varieties and a host of nutritionally enhanced grains, such as Golden Rice and drought resistant wheat, in their crosshairs. Yes, we should all be concerned, but for the safety of our scientific, technological and legal processes.

Jon Entine, executive director of the Genetic Literacy Project, is a senior fellow at the Center for Health & Risk Communication and STATS (Statistical Assessment Service) at George Mason University.

  • http://twitter.com/GMKnowBoulder GM Know

    Hmmmm. In reviewing the persons involved with the Genetic Literacy Project, it would appear that it’s chocked-full of institutionally-vested professional Monsanto promoters ( and lovers of all things genetically manipulated).

    There is NOT A SINGLE published peer-reviewed clinical human health feeding study proving GMOs are safe. 15+ years into the grand American eater experiment, we get more un-vetted loosing of GMOs into our environment and food supply via the Monsanto Protection Act….

    Fact from fury is just a distraction from the abuses that have been pushed upon the American public, and into our collective environment, by the biotech pirate ship with the help of their accredited (paid research) academic crew members.

    • http://www.facebook.com/people/Jon-Entine/547229912 Jon Entine

      This site and its contributors are totally independent. If you’d like to contribute to the site, you are welcome to…anyone can. Just sign up as a contributor. If you post an analytical article on any subject, from any perspective, we will post it. We will not post rants, however.

      As for your claim that there is not a single peer reviewed clinical health feeding study proving GMOs are safe, that is just wrong. There has been no clinical study even suggesting serious medical or health related problems from ingesting GMOs. Moreover, we’ve had billions of people eat GMOs over the past 17 years and billions of animals consume GMOs over decades and not one incident particular to the process of GMOs (all foods are potential allergens) has been found…not one. The National Academy of Sciences, the FDA, the European Food Safety Authority and EVERY major scientific review body in the world have concluded, based on thousands of studies, that GMOs pose no unique health challenges. GMO Know is the anti-thesis of a science based organization. Jon Entine, Executive Director, GLP

      • YourEnchantedGardener

        Hey, Jon, I like your site. It is a clear explanation of where you stand. I would like to engage with you in an Honest Dialogue on Science, Ethics, and Food. I will post here, on my own Plant Your Dream Blog, and on the Dialogue on Science, Ethics, and Food Facebook page. I also made a couple comments on Forbes. Keep up the good work. I do not agree with your point of view; however, I appreciate the clarity that you have in expressing what you believe. Leslie Goldman, Your Enchanted Gardener. My links are here:

        My Take: http://tinyurl.com/bttfxkf
        Dialogue site: http://tinyurl.com/bun9dxy

      • Daniel Ros

        Clearly your independent. Just like so many other ‘independent’ institutions. Read Trust Us We’re the Experts if you wanna know why I don’t believe a word of it just because you say so. But you have money coming in. From where? I highly doubt your
        ‘really’ as independent as you say. Especially since so much University research is outside funded these days. Most likely you hawk your independence but somewhere up the chain sits a man with a checkbook. And he loves to fund people like you. And you love that he loves that don’t you. You don’t ever have to even meet each other. But if you are independent I do apologize for my lack of current belief. Let me ask you a quick question. How well do you think human health is doing these days in your tech food system? Well dear sir…I must insist that you walk outside your lab and have a look. Or just walk down the street. Maybe you should read Nutritional and Physical Degeneration if you want to know what humans actually are suppose to look like when they eat food made by nature. Yeah, your not championing the most successful scientific industry. I take that back. My and your idea of success are probably far different. If that success is measured in health, vitality, and fitness of the people subject to it you’re basically a SS prison guard towing the company line. If however we talk about the $$$ that is flowing from it well lets have another Macallan 64 Year Old in Laligue.

        Another question. Can you design a study which will tell where and when the 9 ball will fall later in the game if we control the speed and angle of the break? Nope too many variables to get consistent results even with the break controlled. Can you test something like aspartame and know it’s benefit/cost in a complex system such as the human body? Can you tell me which toxic chemical it was that caused that cancer in so many people I know? Can you tell me what chemicals become when exposed to the numerous other chemicals that find their way into our bodies? The butterfly effect hides your true effect and I’m sure you love it. The truth is you don’t know. You don’t know if one of your GMOs is causing an increase in allergies. You don’t know if one of your alterations and centralizations (potato famine anyone?) are causing problems and the effects it is having on people and babies and children. I hope you have none BTW. You don’t know any more then you can say when and where the 9 ball is going down. Eventually? Probably. But let me tell you, the track record of your peers is destroying the health and vitality of an entire nation of people. You can’t eat nutritionally void, chemically toxic, crap foods and expect anything other then what you see outside your window. Oh I bet this can get even better. Here I have a challenge for you. You post your intensive agriculture, chemically enhanced, glyphosate produced abs here and I’ll post my organic, free range, local produced abs here and we’ll see which one of us has an idea of human health. Ok your turn.

    • michael wade

      Safety, the absence of risk, cannot be “proven” by science.
      You would know that had you ever bothered to learn something about the topic you’re spouting on about here.The limit of detection always determines the extent of what we mean by safety, and we cannot prove the absence of something, only its presence. You cannot show us anything, backed by legitimate science, proving GMO foods are harmful. But that fact won’t stop you from offering your meaningless opinion as fact here, will it?

    • Rickinreallife

      Well then you should be able to easily point out where the legal analysis is wrong. Please point out the legal reasoning that contradicts the author’s statment that the so-called Monsanto Protection Act would prohibit the courts from enjoining a crop where actual or imminent harm is shown or that it limit’s biotech companies’ liability for making “dangerous” products that the author so blatantly omitted.

  • lorac

    good analysis. i read sec. 735 and it seems to protect farmers, not monsanto.

  • http://www.facebook.com/donnarandy.choate Donna Randy Choate

    You really think people are stupid ? FDA stands for FRAUD AND DECEPTION GUARANTEED!

    • Your1Friend

      Agreed, Donna.

      Pardon me if I express profound skepticism of our regulatory agencies and our advisory agencies in Washington!

      I find it truly hard to believe that some Americans still imagine the FDA, the USDA, the EPA to be credible! Moreover, I have grave doubts about the “infallibility” of The National Academy of Sciences — could the infamous “revolving door” of Washington also be manifest at this honorific institution? Let us be skeptical, very skeptical. What has become of American science is most disturbing to me.

      The integrity of the EFSA has also been under question. I have been shocked by what I have found about the EFSA.

      • Davis

        The only reason GMOs are regulated at all is *because of actions the USDA has taken*. A sub-agency of the USDA, APHIS, issued a rule stating that GMO plants would—by default—be treated as “plant pests” under the Plant Protection Act. Companies or individuals thus have to petition APHIS to have a particular GMO seed stock de-regulated. If APHIS had not issued that rule, there would be no basis at all for regulating GMOs.

        Simply put, the USDA is not trying to screw us.

      • http://profiles.google.com/edgeben Benjamin Edge

        And Joe Mercola and Jeffrey Smith are infallible sources of information about food safety? Sure!

        • Your1Friend

          And who said they were “infallible?”

          But I do credit them for being skeptical of the luddite GMO technology masquerading as “science!”

    • Your1Friend

      The following will come as no surprise to non-GE activists. We will see how this saga unfolds (or mutates):

      http://www.occupymonsanto360.org/2013/03/02/syngenta-charged-for-covering-up-livestock-deaths-from-gm-corn/

    • http://twitter.com/YG_Mitchell Y.G. Mitchell

      lol

    • altas

      I second that notion!

  • EA

    Thank you once again for promoting the principles of sound science. Your articles are always engaging and thoughtful.

  • johnwerneken

    The “Federal Court” in question, the Ninth District Court in San Francisco, is a Kangaroo Kook Court, none of whose decisions deserve credence or respect. But unfortunately we allow government bodies to make decisions that are binding upon us, which is the real tragedy. Why the hell should a bunch of other people get to decide what you or I do?
    Significant health damage or major financial damage ought to be required to be proven before people can sue others for the purpose of obstructing their activities.

  • http://www.facebook.com/david.samuels.7982 David Samuels

    It’s difficult to know where to start to dispell this ignorant “in the gm pocket” diatribe. Man’s digestive system is not meant to injest food with inserted genes that are resistant to herbicides, pesticides and promoter viruses. The idea that you can take a gun and shoot in a “tiny” bit of DNA and not cause damage at the insertion point, let alone damage to the intestines that were never meant to eat this altered food, is insane. Studies that aren’t funded by the biotech cabal clearly show that animals who eat GM feed have smaller brains, testicles and immune dysfuction, among other maladies. That’s why the American Academy of Environmental Medicine – the same folks who discovered Gulf War Syndrome and chemical sensitvities – said in 2009 that every doctor should prescribe a non- GMO diet.

    In 1992 the FDA scientists said, it needs to be tested. They said expect toxins, new allergens and unknown diseases. They were silenced.

    With the new information about epigenentics and the complete fraud of the “well, one gene makes one protein, so we can’t do that much damage” is akin to the days of Copernicus. Independent scientists, agronomists, veterinarians and physicians who are willing to be mocked and ridiculed and say, ” the earth goes around the sun.” In other words, GMOs don’t belong in the food supply. The pseudo scientific that put them on the market – “substantial equivalence” – is a illogical nonesense. But when you want to sell a lie, just make it big enough and repeat it over and over. Just ask Jane Akre and Steve Wilson from WTVT. That was when Monsanto took over the media. Now they run the Congress. Folks like me just want it labeled so mothers of infants have a choice to not feed their baby genetically engineered infant formula. Well, now it’s not labeled and Monsanto can plant anything it wants. The idea that the USDA or the FDA ” tests” these things is not true. The FDA has said, ” Monsanto has to prove it’s safety.” So they just say it’s safe. Just like the folks that believe the sun revolved around the earth. That’s how big this fraud is, and I pray that the truth will be revealed.

    • http://www.facebook.com/people/Jon-Entine/547229912 Jon Entine

      David, with all due respect, your post is a collection of myths and right wing conspiracy theories. Silenced FDA officials? The American Academy of Environmental Medicine? That’s a junk science group that rejects medicine. Please. As University of California plant geneticist Pamela Ronald has written in Scientific American in 2011: There is broad scientific consensus
      that genetically engineered crops currently on the market are safe to eat. After 14 years of cultivation and a cumulative total of 2 billion acres planted, no adverse health or environmental effects have resulted from commercialization of genetically engineered crops (Board on Agriculture and Natural Resources, Committee on Environmental Impacts Associated with Commercialization of Transgenic Plants, National Research Council and Division on Earth and Life Studies 2002). Both the U.S. National Research Council and the Joint Research Centre (the European Union’s scientific and technical research laboratory and an integral part of the European Commission) have concluded that there is a comprehensive body of knowledge that adequately addresses the food safety issue of genetically engineered crops (Committee on Identifying and Assessing Unintended Effects of Genetically Engineered Foods on Human Health and National Research Council 2004; European Commission Joint Research Centre 2008).

      Jon Entine, Executive Director, Genetic Literacy Project

  • http://www.facebook.com/ken.roseboro Ken Roseboro

    To quote the St. Louis Post-Dispatch, Monsanto’s hometown newspaper the rider is a “sleazy bit of business.” Also it is a “big deal. Damn the committee hearings. Damn political philosophy. Damn the public interest. Damn the constitution… Do the deals in the seams, and if at all possible, do it in secret.”

  • chuck

    If people don’t start lesson and read what is happening to this country, Just look at what Monsanto and the government are doing. Trying to alter and make all hi-bred seeds. People just don’t care anymore, if it’s free and you don’t have to speak up everything is OK. IORAC is one of those people. This country is headed in the wrong direction.

    • http://www.geneticliteracyproject.org/ Jon Entine

      Chuck, I think you are referring to “hybrid” seeds. Those seeds, developed by dozens of companies and university labs, predate the advent of genetic modification. They are literal the miracle of modern agriculture…hybrid seeds are one of the primary drivers of the green revolution. Without them, we would have mass hunger. It would help if you did a little reading in this area. Putting the debate over GM crops aside (hybrid seeds are different than GM seeds) what you are suggesting we do–ban altered seeds–would lead to massive world hunger and food riots.

      • Brian Cummings

        huh. that means they’ve won. we can’t live without monsanto now. so they can do anything they damn well please, and they make money hand over fist. Perfect position to be in, isn’t it?

        • mondolibre

          oh dear Lord. I pity what the author has to put up with.

  • MithrA432

    I don’t want Glyphosphate in my groundwater or in my guts, GMO’s (and more importantly the related pesticides used on them) are plant pests under Plant Protection Act, APHIS is not immune from fraud: An Office of Inspector General report found in 2005 that, among other failures, APHIS biotechnologists do not sufficiently document their review process and scientific basis for approving initial field test applications. The OIG also found that APHIS did not effectively track information required during the field tests, including approved applicants’ progress reports, which should contain the results of field tests, including any harmful effects on the environment. – See more at: http://gmo-journal.com/2011/05/05/regulatory-independence-myth-lives-on-at-usda/#sthash.ozHjDY8X.dpuf

    • mondolibre

      idiocracy

  • mondolibre

    “Monsanto’s got ‘Lektrolyes!”

    Anti- GMO Idiocracy

  • Rev Wright

    Is this article still relevant?

    http://www.scientificamerican.com/article/do-seed-companies-control-gm-crop-research/

    My concern/interest is the exploitation of GM crops for aggressive take over of the agricultural industry through contractual agreements such as the ones issued to farmers (re: Monsanto Co. vs. Geertson Seed Farms)