The Monsanto Protection Act creates a 'precedent-setting limitation on judicial review of genetically-engineered crops.
On 26 March 2013, President Obama signed into law a bill passed by the House and Senate earlier that month known as the 'Consolidated and Further Continuing Appropriations Act, 2013' to provide funding for various federal agencies through the end of the 2013 fiscal year. One of the provisions included in that bill in the section for 'Agriculture, Rural Development, Food and Drug Administration (FDA) and related agencies' was Section 735, variously dubbed the 'Farmer Assurance Provision' or the ''Monsanto Protection Act,' an inclusion which reignited a clash between the agribusiness industry and food safety groups. The former maintains that the Farmer Assurance Provision prevents activists from manipulating the court system to force farmers to abandon or destroy genetically modified (GMO) or genetically engineered (GE) crops that have already received U.S. Department of Agriculture (USDA) safety approval; the latter assert that Congress kowtowed to big business by sneaking into an appropriations bill a provision that allows large biotech companies like Monsanto to do an end run around the court system and avoid legitimate legal challenges to the safety of their products:Not only has anger been directed at the Monsanto Protection Act's content, but the way in which the provision was passed through Congress without appropriate review by the Agricultural or Judiciary Committees. The biotech rider instead was introduced anonymously as the larger bill progressed - little wonder food activists are accusing lobbyists and Congress members of backroom dealings. The Food Democracy Now and the Center for Food are directing blame at the Senate Appropriations Committee and its chairman, Sen. Barbara Mikulski. According to reports, many members of Congress were apparently unaware that the 'Monsanto Protection Act' even existed within the spending bill, HR 933; they voted [for the bill] in order to avert a government shutdown.The 'Farmer Assurance Provision' is not new to 2013: it was also part of the initial draft of a FY2013 Agriculture Appropriations bill in June 2012. The text of the provision (Section 735) states that:In the event that a determination of non-regulated status made pursuant to section 411 of the Plant Protection Act is or has been invalidated or vacated, the Secretary of Agriculture shall, notwithstanding any other provision of law, upon request by a farmer, grower, farm operator, or producer, immediately grant temporary permit(s) or temporary deregulation in part, subject to necessary and appropriate conditions consistent with section 411(a) or 412(c) of the Plant Protection Act, which interim conditions shall authorize the movement, introduction, continued cultivation, commercialization and other specifically enumerated activities and requirements, including measures designed to mitigate or minimize potential adverse environmental effects, if any, relevant to the Secretary's evaluation of the petition for non-regulated status, while ensuring that growers or other users are able to move, plant, cultivate, introduce into commerce and carry out other authorized activities in a timely manner: Provided, That all such conditions shall be applicable only for the interim period necessary for the Secretary to complete any required analyses or consultations related to the petition for non-regulated status: Provided further, That nothing in this section shall be construed as limiting the Secretary's authority under section 411, 412 and 414 of the Plant Protection Act.The provision directs the Secretary of Agriculture to grant temporary deregulation status to allow growers to continue the cultivation of biotech crops that had previously been approved by the U.S. Department of Agriculture (USDA) while legal challenges to the safety of those crops are underway, and it prevents courts from interceding in the review process - a situation which critics contend unconstitutionally bars the court system from taking part in ensuring the safety of food products:The 'Monsanto Protection Act' effectively bars federal courts from being able to halt the sale or planting of controversial genetically modified (aka GMO) or genetically engineered (GE) seeds, no matter what health issues may arise concerning GMOs in the future. The advent of genetically modified seeds - which has been driven by the massive Monsanto Company - and their exploding use in farms across America came on fast and has proved a huge boon for Monsanto's profits. But many anti-GMO folks argue there have not been enough studies into the potential health risks of this new class of crop. Well, now it appears that even if those studies are completed and they end up revealing severe adverse health effects related to the consumption of genetically modified foods, the courts will have no ability to stop the spread of the seeds and the crops they bear.The American Soybean Association (ASA) and other major agricultural associations expressed support for the provision in 2012, stating that it 'addresses a costly vulnerability in the regulatory process for biotechnology that is discouraging innovation in agriculture and unnecessarily putting farmers at financial risk' by allowing biotech opponents to mount challenges to GE crop approvals based on procedural, rather than scientific, issues:Opponents of agricultural biotechnology have repeatedly filed suits against USDA on procedural grounds in order to disrupt the regulatory process and undermine the science-based regulation of such products. These lawsuits have also created tremendous resource constraints for USDA and have resulted in significant delays in approval of new, innovative products that will help growers provide Americans with an abundant and economical food supply while remaining competitive in the world market. [This provision] provides certainty to growers with respect to their planting decisions. If enacted, growers would be assured that the crops they plant could continue to be grown, subject to appropriate interim conditions, even after a judicial ruling against USDA. The inclusion of [this provision] is a positive step to ensure that U.S. farmers and our food chain are shielded from supply disruptions caused by litigation over procedural issues unrelated to sound science or the safety of biotech crops. This legislative solution ensures that national agricultural policy is not being decided by the court system while providing a level of certainty that is critical to ensure that our agricultural producers continue to lead the world.Dozens of food and consumer groups opposed the provision on the grounds that it was unnecessary and undermined the judiciary's authority to regulate the growing of genetically engineered crops:Reeling from federal court decisions that have found approvals of several genetically engineered (GE) crops to be unlawful, the biotech industry has quietly slipped a policy rider into the FY 2013 Agriculture Appropriations bill now being debated in the House Appropriations Committee. The provision would strip federal courts of the authority to halt the sale and planting of an illegal, potentially hazardous GE crop while the U.S. Department of Agriculture (USDA) assesses those potential hazards. Further, it would compel USDA to allow continued planting of that same crop upon request, even if in the course of its assessment the Department finds that it poses previously unrecognized risks. Far from safeguarding farmers, the only parties whose interests are 'assured' by this rider are those of GE crop developers. The 'farmer assurance provision' has very little to do with farmers and everything to do with the developers of GE crops. It would strip the Judiciary of its authority to fully adjudicate violations of law by USDA and compel USDA to take actions that might harm farmers and the environment - all to 'assure' the profits of a handful of biotech companies, including Monsanto, Dow and Bayer CropScience. Every court that has reversed a USDA decision to approve a GE crop has carefully weighed the interests of all affected farmers, as is already required by law. No farmer has ever had his or her crops destroyed. USDA already has working mechanisms in place to allow partial approvals, and the Department has used them, making this provision completely unnecessary.The provisions of this bill (including the 'Monsanto Protection Act') were originally to remain in effect for six months, until the end of the fiscal year on 30 September 2013. The bill was later extended to expire on 15 December 2013.
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