A $2 million award to two American farmers whose markets were disrupted by GM crop contamination highlights the difference between how Canadian and U.S. courts are approaching the issue.
“The United States legal system is exploring the impact of GM crops in a much richer, much more rigorous way than our legal system has decided to do it, and that’s a pity,” said Martin Phillipson, associate dean of research and graduate studies at the University of Saskatchewan’s College of Law.
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Phillipson sees similarities between the recent U.S. case, in which an unapproved genetically modified rice variety from Bayer was accused of financially harming rice growers in five states, and a Canadian case, in which organic farmers tried to seek compensation from Monsanto and Bayer for the loss of their canola markets due to the commercial introduction of GM canola.
That case ended May 11, 2005, when Court of Queen’s Bench judge Gene Ann Smith refused to certify the case as a class action suit. The Saskatchewan Court of Appeal later upheld the decision.
Shortly after being denied leave to appeal the case to the Supreme Court of Canada, the farmers decided not to pursue individual claims against Monsanto and Bayer.
Arnold Taylor, chair of the Organic Agriculture Protection Fund, was pleased with the GM rice verdict. He said it’s the first instance he is aware of where the owner of the technology has been ordered to pay damages.
“It’s exactly what we’ve been saying all along,” he said.
Taylor said it is a daunting task for a Canadian farmer to take on large companies outside of a class action suit.
“They seem to be able to do that in the U.S. better than here for some reason.”
Phillipson said one important difference between the two cases was that Bayer’s Liberty Link rice variety had not been approved by regulators when it contaminated the rice supply.
He said it is easier to prove harm when the crop was never approved for human consumption and clearly shouldn’t have been in the commercial stream.
It would be wrong to extrapolate from the jury award that every time there is a GM contamination incident, biotech companies are going to be on the hook.
“Because they’re not,” Phillipson said.
However, he said the decision is significant.
“What it shows is that, at least in the United States, the courts and juries are quite prepared to recognize contamination as a problem and to recognize it as a harm that deserves legal redress,” he said.
“It puts Bayer on notice that liability is an issue and you have to be able to keep your crops under wraps until they’re approved for release.”
The case is also similar to an incident that occurred earlier this year when Canadian flax growers lost access to the European market after a deregistered GM flax variety was found in the supply chain.
However, Phillipson doubts that case will end up in court because the GM flax variety was developed by a former University of Saskatchewan breeder rather than a company with deep pockets.
