Organic Standards Weaken Claims for Damages for GMO Drift

This commentary is offered by guest blogger, James Haley, an attorney candidate in the LL.M. Program in Agricultural & Food Law at the University of Arkansas School of Law.  James' bio appears at the conclusion of the post.

Negligence, strict liability, trespass, and nuisance are the common legal theories that are used by injured parties to recover for damages from pesticide drift.  These are the same legal theories that an organic producer would use to recover for damages caused by the drift of genetically modified organisms (GMO) onto their property.  Which of these theories would apply and the burden of proof a plaintiff would be required to meet varies greatly among the different states and is not discussed here.  What would be common to all theories is that the plaintiff would have to prove damages, which specifically for organic producers would be losing their USDA organic certification or not being able to sell their products as organic.  However, current National Organic Program (NOP) regulations and policies that allow for some GMO contamination serve to undercut an organic producer’s ability to recover. It is likely that GMO drift may not cause the producer to lose their certification or their ability to continue selling their products as organic.  

How is this possible?  

First, a review of some basic USDA organic certification requirements.  Processed foods sold under the “organic” label must have 95 percent organic ingredients and GMOs are not allowed.  Processed foods sold under a “made with organic _________” label must contain at least 70 percent organic ingredients and GMOs are not allowed.  There is a common misconception that there is a general “five percent GMO allowed” rule; this does not exist in NOP regulations or policy.  A certified organic producer is prohibited from using any GMOs.  

NOP has published a policy memorandum on GMOs in relation to USDA organic standards.  In it,  Deputy Administer of NOP Miles McEvoy emphasizes that organic standards are process based and are not based on the end product:  “[c]rops grown on certified organic operation may be sold, labeled and represented as organic, even with the inadvertent presence of GMOs, provided that all organic requirements under 7 CFR Part 205 have been followed.”

So long as the presence of GMOs in the crop is inadvertent, that is, it is not the result of the organic producer’s actions, the GMO contamination will generally not cause an organic producer to lose their USDA certification and their products will still qualify for organic labeling.  As a result, GMOs can be (and likely are) present in some organic products.  Since raw materials under an organic label may contain inadvertent GMO contamination and remain certified, processed foods sold under both the “organic” and “made with organic _________” labels may also contain GMOs even though GMOs are not technically allowed in either.

Thus, the allowance of inadvertent GMO contamination in certified organic products erodes one of the primary ways that a producer would be able to prove damages because its presence will generally not cause the loss of USDA organic certification. Producers will likely be limited to showing damages related to the loss of other certifications, such as Non-GMO Verified, or damages related to their specific product representations and/or contract obligations.

The irony of this is that although it may be difficult or even impossible for an organic producer to prove a cause of action resulting from GMO drift, it is relatively easy for the GMO seed suppliers to do so.  Because patent infringement does not require intent, seed companies can sue victims of GMO drift for patent infringement.  However, one large seed company, Monsanto, states that they have never sued an organic operation and it is not their policy to enforce their rights if “trace amounts” of their protected seeds or traits are present as a result of “inadvertent means.”  But they can.

How much GMO is in our organic food?  That is presently unknown, but it may become known in the near future.  NOP published a final rule in November that created an organic inspection program (Periodic Residue Testing of Organic Products) that will require accredited certifying agents (CAs) to conduct annual inspections of five percent of the operations that they certify, or a minimum of one if they certify less than 30.  CAs are to ensure that organic producers are not using prohibited substances or methods, to include GMOs.  It appears NOP has given CAs complete discretion in carrying out this inspection program as long as they conduct the required number of inspections.  NOP has provided guidance to the CAs on how to execute the inspection program that allows them to choose which operations to inspect, the method for selecting them, what material is to be inspected at each operation, what prohibited substance is to be inspected for, and what laboratory to submit samples for testing.  It can be argued that this gives CAs too much discretion.

As previously stated, discovery of GMO in organic products does not automatically strip a producer of their certification.  NOP’s guidance states that CAs need only “consider suspending or revoking” certification if the detected prohibited substance or method was a result of “intentional or direct application.”  But if the prohibited substance was not a result of intentional or direct application, then the CA is to “work with the operation to determine why the residues are present” and “should also require that the operation develop a corrective plan to minimize exposure to the [prohibited] agent in the future.”  This guidance provides significant wriggle room and demonstrates that NOP does not want to strip anyone’s organic certification.  

What will this inspection program yield?  In the guidance provided to CAs, Miles McEvoy states that “[t]here will be wide variety in each of your selection criteria and which tests you conduct.  As such, it will not be possible to draw conclusions across a specific commodity or category of products.”  Depending on your point of view, the inspection program may appear to be designed either to provide meaningless data and ensure GMO crops remain blameless or it may appear to strike a careful balance between industrialized and organic agricultural operations.  But we will have to wait and see what the actual results of the inspection program will be.

Consumers do not purchase certified organic products because they only care about the process; many have genuine concerns over the safety of GMOs.  Unfortunately, NOP’s administration of USDA’s organic program does little to alleviate their concerns.  In fact, its policies allow inadvertent GMO to be present in organic products, making it all the more difficult for a producer to prove monetary damages for GMO drift.

James D. Haley is a candidate in the LL.M. Program in Agricultural and Food Law at the University of Arkansas.  He received his J.D. from the University of Arkansas where he served as the Executive Editor of the Journal of Food Law & Policy and as an extern in Walmart’s Environmental Compliance department.  James received his M.B.A. from Columbia Southern University while on active duty in the United States Marine Corps, where he served in the infantry for twenty years.  James is admitted to practice law in the State of Arkansas.