Vermont Legislature Considers Anti-Biotech Bills

Published May 1, 2006

A House-Senate conference committee of the Vermont legislature is working to reconcile two measures that could hold manufacturers of transgenic, sometimes known as biotech, seeds responsible for a broad range of economic losses suffered by organic farmers in the state.

On January 3, the Vermont House passed on a voice vote its version of the Farmer Protection Act. An amendment that would have incorporated “strict liability” was rejected by a 79-68 vote. Dexter Randall, a member of the Progressive Party from Troy, was the chief advocate of that amendment.

The House version was sent to the Senate, which rejected it on January 10, 2006. The Senate had passed its own version on April 5, 2005, by a 26-1 vote.

At press time, the conference committee had not produced a final bill. The extent of liability imposed on seed manufacturers is expected to be the conference committee’s chief hurdle.

Approaches Strict Liability

“The Senate version clearly places liability on manufacturers of seeds for a broad range of injuries [to organic farmers],” said Drew Kershen, the Earl Sneed Centennial Professor of Law at the University of Oklahoma College of Law and a specialist in agricultural law. Kershen said it would be incorrect to characterize the Senate’s bill as imposing “strict liability,” but the measure does “pass the risk from the grower of non-transgenic seeds to the manufacturer of transgenic seeds, and the Senate version has a broad description of injury.”

Like the Senate, the Vermont House had considered a Farmer Protection bill during the 2005 legislative session. When that bill was being considered before both the Agriculture and Judiciary committees, there was an attempt to incorporate “strict liability” into the legislation, but both committees rejected the proposed amendment.

While the current House version does not contain “strict liability,” it does enable some liability to be imposed on manufacturers of transgenic seeds. “The House version softens some of the liability language, but it does basically the same thing,” said Kershen. “It does not say ‘is liable’ but does have language such as ‘may recover’ [damages from seed manufacturers], and the definition of injury is broader in the Senate [version] than the House [version].

“It is not certain how Vermont courts would interpret the language in the House version,” said Kershen.

Seed Manufacturers Face Liability

According to Kershen, Vermont is one of several states considering legislation that would make manufacturers of transgenic seeds liable for economic losses experienced by organic farmers because of “contamination” by biotech crops. Other states that have considered such legislation include California, Hawaii, Montana, and North Dakota.

“Each of these bills emerged from the Center for Food Safety (CFS) founded by Andrew Kimbrell, a long-time opponent of agricultural biotechnology,” said Kershen.

The idea of holding manufacturers responsible for the alleged potential harm to organic farmers generates strong reactions.

“It would be a law that would criminalize contaminating corn with corn and it would create a regulatory nightmare,” said Alex Avery, a fellow with the Hudson Institute’s Center for Global Food Issues.

“It is preposterous and unreasonable,” said Henry Miller, a fellow at the Hoover Institution and former director of the U.S. Food and Drug Administration.

Impact Would Be Large

Both Avery and Miller believe the legislation would have profoundly harmful consequences.

“It would exert a chilling effect on a superior technology,” said Miller. “And it would do so for no reason, because there’s no damage, economic or otherwise.”

“Dairy farmers [who use biotech seeds for growing feed corn] will be left high and dry,” said Avery. “Biotech firms will withdraw [from the state if the bill passes].”

Organic Farmers’ Fears Unsubstantiated

Proponents of the bill have asserted that some manufacturers of seeds must be held liable because of potential damage to organic farmers.

“I vote ‘yes’ [on strict liability] to allocate responsibility for injury and damage to where it belongs: On the back of corporations owning the patents, technology, and the genes, who reap the profits of the [genetically modified] seeds,” said Rep. Duncan Kilmartin (D-Newport City) during the January 3 House debate over the bill.

With producers likely to stop selling genetically enhanced seeds in the state rather than face economically punitive, heightened liability standards, Rep. Harvey Smith (R-New Haven) countered the legislation is merely “a backdoor attempt to disallow the use of biotech seeds in Vermont,” according to a report in the January 4 Rutland Herald.

Miller noted, “organic [faming] is [a matter of] meeting process standards,” not the use of particular types of genes, and hence would not be affected by unintentional pollination by neighboring biotech farms.

Greg Conko, author of the book The Frankenfood Myth and a senior fellow at the Competitive Enterprise Institute, agreed that unintentional pollination would not affect an organic farmer. “As long as it is purely accidental, it should not affect organic certification.”

Michael Coulter ([email protected]) teaches political science at Grove City College, Pennsylvania.

For more information …

The Senate version of the Farmer Protection Act is available online at