Pollen Drift and Potential Causes of Action

I. INTRODUCTION The Krafts1 have farmed for generations in the black soil of America's heartland. Matthew Kraft and his father and grandfather before him have grown organic corn on their 300-acre family farm in LaPorte City, Iowa. Farming has been their livelihood, producing a respectable income allowing them to live a modest lifestyle. During the last decade, the Krafts received premium prices for their organically certified corn.2 Organic foods have become increasingly popular among consumers who prefer natural ingredients and are concerned about the impurity of genetically modified crops.3 In fact, the organic food sector has been growing an incredible twenty percent per year since 1990.4 These staggering statistics are a result of fierce consumer resistance to genetically modified foods in the United States, Europe, and Asia.5 The Krafts have reaped the economic benefits of selling organic corn for approximately $4.00 a bushel as opposed to the open market price of $1.67.6 Life and business had been good for the Krafts until this year when harvest came and they tested their corn for organic certification. To their utter dismay, the Krafts' organic corn tested positive for genetic contamination. The Krafts found themselves victims of drift,7 a recent villain in the agricultural world that has devastated many organic farms and nongenetically modified (non-GM) farms.8 What is the profile of this agricultural villain that is rampaging across America's heartland? Genetically Modified (GM) pollen can attack at morning, noon, and night, often unbeknownst to its victims. It can come by wind, insects, birds, and trucks.9 The villain might come from the neighboring farm or a remote farm miles away.10 Regardless of the origin of the GM pollen, it is indiscriminate in where it lands, having particularly devastating effects upon organic farms and non-GM farms. Cross pollination of GM pollen with non-GM or organic crops the crops with genetic material, and may result in loss of organic certification or render the crops unsuitable for trade with countries that have zero tolerance for unapproved varieties of GM crops.11 Potential victims try to safeguard their farms, but no security system is guaranteed to keep the perpetrator out. The Krafts set up barriers of bushes, shrubs, and trees; created buffer zones; and bought corn seed guaranteed to be free of genetic engineering. Nonetheless, the GM pollen found its way in. Once GM pollen breaks into these organic or non-GM farms, it wreaks havoc and leaves behind evidence of genetic material.12 The masterminds of genetically modified crops, biotechnology giants such as Monsanto, DuPont, Pioneer Hi-Bred, and Novartis Ag, fund the research and development of GM crops.13 These huge biotechnology firms sell genetically modified seed in the agricultural market.14 In fact, GM crops are more pervasive than ever in American agriculture, accounting for more than twenty-six percent of all corn, sixty-eight percent of all soybeans, and almost sixty-nine percent of all cotton in the United States.15 However, these biotech companies are more elusive and difficult to catch than the GM seed that does the actual crime because one company's seed is often indistinguishable from another company's seed.16 Several GM farms that buy their seed from various biotech companies surround the Kraft farm. It can be difficult to prove from exactly which farm the pollen came and thereby which biotech company produced that particular GM seed.17 Not only are biotech corporations responsible for manufacturing the GM seed that contaminates organic crops, but they are also initiating lawsuits against organic farmers. In fact, there are cases in which seed companies are suing farmers for unintentionally producing GM crops.18 On March 29, 2001, a Canadian judge ruled in favor of Monsanto Co., the St. Louis based producer of biotech seeds, in its demand that a Canadian farmer, Percy Schmeiser, pay for the company's genetically engineered Roundup Ready Canola found growing on his field. …

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