Principles of Plant Genetics and Breeding

278 CHAPTER 15
2 The transfer of proprietary genes into public germplasm
has the potential to restrict the free access and
distribution of germplasm among researchers.
Legal risks that accompany
adoption of GM crops
As biotech products enter the food and agriculture production
chain, their adoption is accompanied by a variety
of legal risks. Some of these legal issues are briefly
discussed next.
Tort liability versus regulatory approval
Biotechnology research and application are highly regulated
by the federal government as previously discussed.
These regulations include the conditions under which a
certain GM crop or GM organism or products will be
approved for the safe use by humans and concerning the
safety of the environment. Regulations also affect how
the products are produced, marketed, and used.
However, before or after regulatory approval, a GM
plant or organism could cause damage to property, persons,
markets, environment, or social structure. Tort is
a civil legal action whereby the claimant alleges injury or
wrong, arising independent of contact, to the person or
property of the claimant. Both producers and users of
biotech products are subject to these kinds of liability,
which may exist for these kinds of possible damage, as
discussed by D. L. Kershen.
Damage to property
Trespass
The most likely grounds on which property damage may
be alleged are as follows:
1 Pollen flow from a GM crop to a non-GM crop.
2 Mechanical mixing of seeds or plant parts during
harvesting, storage, or transportation.
Producers of specialty crops (e.g., organic crop producers)
may allege this damage and bring a common law
cause of action based on trespass (the physical invasion
of the possessory interests of the property (land) of
the person claiming damages). Physical spread of GM
pollen to a neighbor’s field is enough for this infringement
to occur. Because pollen flow is a natural process
that occurs freely, it is important that in such a law suit,
the plaintiff establish that the physical invasion caused
damage.
Strict liability
Damage to property may also be alleged and a tort claim
in strict liability brought by a plaintiff. This liability is
a case of liability without fault despite the exercise of
utmost care, and can be considered if it is shown that the
activity of growing a GM crop is abnormally dangerous.
The plaintiff would have to show: (i) a high degree
of risk of some harm to the person, land, or chattels of
others exists; (ii) there is a likelihood that the harm that
results will be great; (iii) there is an inability to eliminate
the risk by the exercise of reasonable care; (iv) the extent
to which the activity is not a matter of common usage;
(v) there is inappropriateness of the activity to the place
where it is conducted; and (vi) the extent to which its
value to the community is outweighed by its dangerous
attributes.
Negligence
Negligence is a fault-based claim that alleges that
property damage resulted because a neighbor growing
a GM crop failed to take adequate precautions. In
this case, both the farmer and the agrobiotech company
that developed the GM cultivar are liable. It is for this
reason that refuge rows are required by growers of GM
crops.
Private nuisance
The owner of a property has a right to the private use
and enjoyment of land free from non-trespassory invasion
by another. The plaintiff must prove that nearby
fields of GM crops have unreasonably interfered with
the use and enjoyment of one’s own land.
Damage to person
A damage to person claim may be brought by a plaintiff
alleging damage arising from the toxicity of a GM
crop or its product, or an allergic response to these crops
or their food products. The claim may also be based on
an alleged damage from long-term exposure to GM
crops or that their food products cause ill effects to
health. A case in point is the Starlink® corn in human
food, involving Aventis Corporation. Pharmaceutical
GM crops have the highest likelihood to present such
a risk.