|Press releases, public commentary and rebuttal have sprouted throughout the news media as a result of the recent discovery of biotech soft white winter wheat by an Oregon farmer. Lawsuits against Monsanto have sprouted as well.
Three lawsuits have been filed, and there may be more. Two complaints are in the U.S. District Court for the Eastern District of Washington in Spokane and one in Kansas.
If the Kansas farmer’s complaint is indicative of plaintiffs’ knowledge of the wheat industry, then like Mr. Bowman in Bowman v Monsanto, plaintiffs should lose against Monsanto. It is unlikely that the Kansas farmer grows soft white winter wheat in his area of Kansas. Nonetheless, the charges against Monsanto are instructive to illustrate the hysteria generated by the Oregon GMO wheat incident.
Seven law firms include eight counts against Monsanto for allegedly allowing the GMO wheat to be planted in Oregon and charge Monsanto in Count one with negligence because Monsanto “created a dangerous condition when creating, testing, handling and storing GE wheat…”.
Count two says Monsanto “had a duty to act carefully in its testing of GE wheat, whether the testing was for profit or gratuitous,…” and therefore Monsanto is negligent and proximately caused damages to the Kansas farmer.
The third count is Res Ipsa Loquitur which in plain English means the thing speaks for itself. In other words, the Kansas farmer is saying that the mere fact the wheat was found automatically infers the defendant was negligent.
Number four accuses Monsanto of gross negligence because the wheat was found in Oregon. This count is most interesting because it claims that Monsanto knew that wheat can be a cross pollinating plant. (Very limited ability to cross pollinate.)
Count five claims Monsanto has created a public nuisance by causing widespread contamination of the U.S. wheat and seed supplies. This has led to “…a significant interference with the public health, the public safety, the public peace, the public comfort, or the public convenience.” The Kansas farmer claims he has suffered harm caused by Monsanto’s public nuisance because he has suffered a business loss.
Private nuisance is Count six, where it is claimed these few wheat stalks in Oregon have contaminated the U.S. wheat supply and it is further claimed this Monsanto contamination from the Oregon farm has “…interfered with, and will unreasonably interfere with and will substantially impair, plaintiff’s use and enjoyment of his interest in [his] land…”
Count seven will raise your eyebrows. The Kansas farmer claims the Oregon GMO wheat “…continues to constitute an abnormally dangerous activity or ultra-hazardous activity, because such activities create a high degree of risk of harm…”
The last count of the Kansas farmer alleges common law negligence per se which means that plaintiffs believe Monsanto violated the Plant Protection Act and violated a federal regulation promulgated under the Plant Protection Act. This count claims that Monsanto has a regulated article under the Plant Protection Act and introduced it improperly into the environment or otherwise disseminated GMO wheat in violation of regulatory standards.
The complaint relies heavily on the fact that Monsanto knows that wheat is a “cross pollinating” plant. This will come as a surprise to most farmers because the data shows wheat to be a self-pollinating plant (99% of time) such as rice, soybeans, barley and peanuts. In fact, self-pollinating plants are not conducive to cross-pollination and in fact purported concerns about gene flow cross contamination is largely, if not completely, academic in nature. Wheat pollen, for example, is viable for only a few minutes and may travel up to 200 feet according to a USDA and Colorado State study.
The Kansas farmer should be more concerned about Fusarium mycotoxins which can travel with the wheat, be processed in food and cause chronic or acute illness. GMO wheat may be able to resolve this issue.
The herbicide-resistant technology that Monsanto developed has led to the adoption of no-till and conservation tillage practices. Glyphosate is a broad spectrum herbicide and does not have many of the deleterious environmental effects associated with other types of herbicides farmers use on their crops. In fact, EPA says glyphosate allows farmers to avoid using herbicides that are 3.4 to 16.8 times more toxic to humans.
The Kansas farmer and his lawyers probably need to check their facts and his standing to bring such a complaint because he does not allege he grows soft white winter wheat. In addition, they might also check their history because the farmer’s complaint says Kansas farmers have been growing wheat since approximately 1939. The Kansas Historical Society states wheat was introduced into Kansas in 1854 and has been widely produced in the state since the 1870s.