Bill would authorize GMO trespass lawsuits against patent holders

Malheur County farmer Jerry Erstrom points out a genetically engineered creeping bentgrass plant June 14, 2016, on an irrigation ditch bank near Ontario, Ore. Erstrom testified March 16 in favor of proposed legislation in Oregon that would allow farmers whose crops are damaged by GMOs to sue patent holders for damages.

SALEM — New lawsuits over trespass by genetically engineered crops would be authorized in Oregon under proposed legislation that would hold biotech patent holders liable for damages.

Supporters of House Bill 2739 say it’s a common sense strategy to remedy problems caused by genetically modified organisms, or GMOs, similar to consumer lawsuits over defective products.

“This is not a wild legal grab. We will not be compensated for our angst. We will only be compensated for provable legal damages,” said Sandra Bishop of the Our Family Farms Coalition, which supports HB 2739.

Jerry Erstrom, a Malheur County farmer, said he supports the bill even though he’s planted genetically engineered corn on his property.

“If you do something that messes up my livelihood, you should be held accountable for it,” Erstrom said at a March 16 hearing of the House Judiciary Committee.

Creeping bentgrass that’s genetically engineered to tolerate glyphosate herbicides escaped control in Eastern Oregon, and the crop’s patent holder should be responsible for control costs as it spreads, he said.

“It’s coming to the Willamette Valley. Say what you want, it’s going to be here,” Erstrom said.

Proponents of HB 2739 say there’s nothing new about holding companies liable for their products hurting people or property, but organic and conventional farmers must currently bear the financial burden from GMO crop contamination alone.

“We’re not coming to you from a level playing field. Harm is only coming one way,” said Amy van Saun, legal fellow with the Center for Food Safety, which supports the bill.

Supporters say the legal mechanism of HB 2739 is simple and fair because the liability rests with companies that profit from GMO patents.

Complicated searches for a culprit won’t be necessary, since biotech traits can be determined with genetic tests, said Elise Higley, director of the Our Family Farms Coalition.

“It’s super easy to track it back to who is responsible,” Higley said.

Opponents of the bill argue that pollination among related crops isn’t limited to GMOs, but neighboring farmers have long found practical ways to avoid unwanted crosses.

“It’s one of the greatest risks I face, but it’s a manageable risk,” said Kevin Richards, who grows seeds and other crops near Madras, Ore.

Under a provision in HB 2739, plaintiffs are entitled to triple the amount of economic damages caused by the unwanted presence of GMOs, which is clearly meant to be punitive, according to the bill’s detractors.

“It would single out and stigmatize biotech patents,” said Barry Bushue, president of the Oregon Farm Bureau.

Critics also questioned the logic of making patent holders liable for unauthorized GMOs, since the problem may be caused by irresponsible practices of neighboring landowners or factors beyond human control, like birds.

“They sell the seed but they have no control once that happens,” said Roger Beyer, a lobbyist for the Oregon Seed Council and other crop groups.

Apart from the immediate impacts of the bill, imposing new liability on patent holders may discourage seed companies from offering innovative products in Oregon, said Scott Dahlman, policy director of the Oregonians for Food and Shelter agribusiness group.

If companies face the threat of additional lawsuits, “they will reconsider whether they sell things here,” Dahlman said.

Pete Postlewait, a farmer near Canby, Ore., said he’s disturbed by the precedent of punishing patent holders for the actions of end users, since that logic could be extended to non-GMO cross-pollination.

“By weakening plant patent laws in this way, it will surely stifle innovation in plant breeding,” he said.

The bill’s language also encompasses new methods, such as gene editing, that are used by university breeders who often hold their own patents, said Steve Strauss, a professor who studies biotechnology at Oregon State University.

“Wheat breeders and others would love to use this gene editing technology,” he said.

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