January 2004
Seeds of Judgment
The shape of organic farming hangs in the balance as a lone Canadian farmer goes to court against biotech giant Monsanto.
by Liane C. Casten
These days, farmer Percy Schmeiser spends more time in his office than in his fields. He and his wife Louise used to manage their Saskatchewan canola farm from the spacious, file-filled outbuilding. Now, Monsanto holds a claim against the Schmeiser’s land, and Percy’s days are spent fielding phone calls about his legal struggle against the American-owned company. The Supreme Court of Canada is scheduled to consider Schmeiser vs. Monsanto Canada Inc. in late January. In addition to determining who winds up owning the Schmeiser farm, the court’s decision could shape the course of independent agriculture for years to come.
Louise’s voice cackles over the intercom. It’s lunchtime. Percy rises slowly — he’s 73 years old — and strolls across a tidy driveway to the red brick home where he and Louise reared their five children. Percy is a third generation farmer. He’s grown canola for more than 40 years on a 1,400-acre farm near Bruno, a small town some 50 miles east of Saskatoon. Canola was developed in western Canada from rapeseed, a plant of the mustard family that’s long been used to produce industrial lubricants. Canola was modified through selective breeding to produce seeds that provide edible oil containing an extremely low level of saturated fat. Researchers have raised health concerns about human consumption of canola —including allegations that long-term exposure may promote cancers or suppress the immune system — but canola’s low fat content and inexpensive production cost have made the Canadian oil (hence the name) a common ingredient in mainstream food products such as margarine and common vegetable oil. With nearly 12 million acres planted, the Canadian prairies provide the bulk of the world’s supply. It’s the dominant crop in this part of Saskatchewan. In season, the province’s achingly flat squares of farmland can look like a flowing yellow carpet.
The Schmeisers fine-tuned their canola for their land. Each year, Percy and Louise pulled on their grubbiest jeans and hiked up and down the rows, collecting seeds from the hardiest and most pest-resistant plants. They cleaned and saved the best seeds for planting the following year. After decades of selectively culling (and occasionally swapping seeds with neighboring farmers), the Schmeisers developed what was essentially their own strain of canola. Like generations of seed savers before them, they came to regard their hand-picked seeds as if they were progeny, holding them nearly as dear as their own children.
Monsanto is the world’s leading advocate for a new and different approach to fine-tuning seeds. Founded in St. Louis, Missouri, in 1901, the Monsanto Chemical Company built its business selling industrial food additives such as saccharin and caffeine to manufacturers including Coca Cola. During the past decade, Monsanto spun off its chemicals business and refocused itself on biotechnology. By crafting whole systems of pesticides, herbicides and genetically engineered seeds designed to produce high yields in an environment saturated with those chemicals, Monsanto promises to help farmers feed the world more efficiently.
While the Schmeisers selected seeds that produced the highest yields in their soil, Monsanto’s scientists created seeds designed to produce the highest yields when used in conjunction with the company’s best-selling herbicide, called Roundup. By altering the DNA of its seeds, Monsanto’s technicians engineered cotton, corn, soybean, and canola seeds that resist Roundup. Using these seeds, a farmer can spray Roundup on a field, and it will kill the plants he doesn’t want (like weeds) without affecting the crops he does. The idea proved popular among canola farmers. According to the Canadian Canola Growers Association, up to 90 percent of this year’s crop came from seeds with such traits, including Monsanto’s Roundup Ready and Bayer’s GE Liberty Link.
Because the Monsanto seeds were created in a laboratory, the company is legally entitled to something that the Schmeisers are not: a patent. Monsanto has patented the DNA in all the seeds it sells. Using these patents as leverage, the company discourages the age-old practice of seed saving. Monsanto would rather sell new seeds each season. In order to enforce these patents, Monsanto requires every farmer who buys its seeds to sign a contract under which he promises to pay a fee for each acre of Roundup Ready seed he plants. The fee is about $11 dollars per acre for canola, or about $3,400 dollars for a typical canola farm. Monsanto also requires property inspections to be certain that the contract is honored.
Monsanto aggressively defends it patents, which the company insists are necessary to reward investors who fund innovation. The company employs an investigative staff that continually checks farmland for evidence of crops containing its patented DNA. When evidence of illegal use of its generically modified seeds is discovered, the company files suit against the farmer. Since introducing Roundup Ready canola in 1995, Monsanto has claimed to have filed only a dozen such cases a year in Canada. They’ve managed to settle out of court with every one of those — except for Percy Schmeiser.
Unlicensed Use Vs. Contamination
Schmeiser never bought Monsanto’s seeds. Nor did he attend the meetings Monsanto held for farmers throughout the area, where salesmen extolled the benefits of this new agriculture. He’d been grooming his own seeds for decades and was satisfied with the yields they produced. Besides, he never sprayed chemicals like Roundup on his heritage seeds because it would have killed them. He did use Roundup on occasion, however, primarily to spray beneath the power lines that run alongside his property. That’s where he first noticed the Monsanto seed creeping on to his land.
It was the summer of 1997, and Schmeiser was surprised to see that some of the roadside canola he’d sprayed with Roundup had survived. Curious, he sprayed about three acres of his crop to see what would happen. About 60 percent of the sprayed plants survived, with thicker clumps closer to the road. The clumps suggested to Schmeiser that Monsanto’s seed had been drifting onto his property, probably from passing trucks laden with Monsanto canola and "contaminating" his hand picked seed stock.
"It will blow in the wind," Schmeiser said. He popped open a pod of canola, and revealed the freckle-sized black seeds. "A little plant like this makes a minimum of 4,000 seeds. Maybe 10,000. You can’t control it."
Monsanto noticed the errant seed about the same time. It’s not known exactly how Schmeiser initially attracted their inspectors’ attention, but court documents reveal that the company went to unusual lengths to spy on the Schmeisers:
* Monsanto approached the Humboldt Flour Mill where Schmeiser brought his handpicked seed for cleaning and asked for a sample of his harvest for DNA testing. The mill handed over Schmeiser’s seeds. Court documents allege Monsanto had offered discounts to Humboldt Flour in return for providing samples from targeted farmers.
* Monsanto hired a Saskatoon private investigation company, founded by former Royal Canadian Mounted Police officers, to trespass on Schmeiser’s land and obtain samples of his canola.
* Monsanto agents loitered just outside the Schmeisers house and office, watching their comings and goings. The Schmeisers also allege the agents repeatedly made hang-up phone calls.
* And the company sponsored a toll-free "tip line" through which it encouraged farmers to blow the whistle on their neighbors. The company also placed radio advertisements broadcasting the names of non-compliant growers caught planting the company’s engineered seeds.
"They watch us, they trespass on our fields," Percy complained. "Then they harass us, they call us up and threaten us. My wife got a call when I was overseas telling her,‘You better watch it.’ Now Louise has high blood pressure. That call really shook her up."
During the next few seasons, the genetically engineered plants found their way throughout the Schmeiser farm. As a result, Monsanto asserted that the Schmeisers were in the business of growing the company’s patented seeds, and therefore owed payment. Unlike scores of similarly accused North American farmers who signed out-of-court settlements, Schmeiser fought back. "The question is, where do Monsanto’s rights end and mine begin?" he asked.
Monsanto Vs. Schmeiser
Monsanto’s first case against Schmeiser went to a Saskatoon federal court in 2000. Monsanto was not interested in how the seeds arrived on Schmeiser’s farm. Having given up the idea that he could be sued for breach of contract — Schmeiser never signed — the company simply claimed that anyone caught with their seeds is guilty of infringing upon their patent, of stealing their property.
Monsanto argued that unless patent protection laws are enforced, it will have thrown billions of dollars of investment down the drain. The company argued that it must level the playing field for farmers who pay the company’s technology fee when they purchase genetically engineered seeds from licensed dealers.
Schmeiser was a well-regarded member of his community. He’d served as both mayor of Bruno as well as a Liberal member of the Saskatchewan provincial legislature back in the 1960s and 1970s. None of that mattered to the judge, who found that Monsanto’s seeds were being grown, and Percy knew it. The court ordered the Schmeisers to pay Monsanto $15,180 — an amount equal to their profits from the sale of their 1998 canola crop — as well as $116,535 to reimburse Monsanto for its court costs.
Those court costs keep growing. Schmeiser appealed to the Canadian Appellate Court, and lost again. The Supreme Court of Canada is scheduled to hear his case on January 20, 2004. Schmeiser sees the case as a conflict between two sets of rights. On one side are age-old "plant breeders rights," which allow farmers to buy seed and plant the offspring. On the other side is patent law.
The Court has allowed several amicus briefs in support of Schmeiser. The Sierra Club of Canada; the Attorney General for Ontario; the Council of Canadians; the National Farmers Union; Research Foundation on Science; Technology and Ecology; and the International Centre for Technology Assessment.
But few are watching the case as closely as organic farmers. Drifting genetically engineered canola seeds have wiped out organic canola farmers in Saskatchewan, according to Arnold Taylor, president of the Saskatchewan Organic Directorate. "We can’t grow certified organic canola anymore," Taylor told the Toronto Star. Representing more than a thousand farmers, the group is organizing a class action lawsuit against Monsanto, Bayer, and others.
Likewise, Schmeiser is counter-suing Monsanto on trespass and contamination grounds for the company’s inability to control its product. If he wins at the Supreme Court level in January, the counter-suit will be easier to win. Schmeiser’s attorney, Terry Zakreski, believes that what’s at stake is nothing less than who controls the future of farming in Canada. He’s hopeful that Monsanto can be denied its right to patent something so basic as life itself, citing an earlier Canadian decision where a mouse engineered for cancer testing had already been deemed unpatentable.
The last thing the Schmeisers expected after a lifetime of farming was to be caught in a legal battle with one of the world’s leading proponents of agricultural biotechnology. Percy and Louise built a life on their canola farm, which provided well for their children and their 15 grandchildren. They were ready to retire.
Percy walks back to his office, while Louise cleans up the kitchen. If they lose their next court battle, they’ll likely have to sell their farm in order to pay Monsanto’s lawyers. Louise’s health has suffered as a result of the stress. The anticipation, which could take weeks, is weighing on both of them.
Liane Casten is a freelance writer living near Chicago. Additional reporting for this story was provided by Monte Paulsen in Vancouver.
© 2004 Dragonfly Media
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A Word About Canola Oil The rapeseed plant, from which canola oil comes, might as well be Canada’s national botanical. After all, the word "canola" itself was derived from "Canadian oil," and it has become a major cash crop that grows abundantly on the Canadian plains. In fact, it was two Canadian plant breeders who developed canola as a rapeseed hybrid. The oil has been given favorite child status in the oil industry and is used abundantly in processed foods. Like olive oil, canola is high in the healthy monounsaturated fat but is more abundant than olive oil and a whole lot cheaper. It’s also a good source of omega-3 fatty acids. However, these qualities are severely compromised in processing canola, according to well-known expert and author in the field of lipid (fat) chemistry, Mary G. Enig, Ph.D. "Canola is a highly unsaturated oil and in order to be stabilized it has to be deodorized...and in doing so trans-fatty acids are produced," says Enig. She’s concerned that many people seem to use canola oil almost exclusively for their oil needs — from high-heat cooking to salad dressings. In order to avoid the health dangers of trans fats from canola, her advice is to buy high-quality canola oil from a reputable supplier who processes it without heat and to limit its use to salad dressings. — Rebecca Ephraim |
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