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Jun 20

The Monsanto Protection Act Bill – Is All the Hype True?

The Monsanto Protection Act Bill – Is All the Hype True?

Recently there has been a lot of misinformation floating around the Internet regarding what is dubiously referred to as “The Monsanto Protection Act”, giving rise to such claims as “the US Government has granted Monsanto absolute immunity from prosecution in US courts.” This claim is not exactly true. As with many things political, the truth is somewhere buried underneath the mud. The so-called “Monsanto Protection Act” was actually a last minute inclusion in a bill called the “Consolidated and Further Continuing Appropriations Act, 2013”, which provided funding for vital US federal agencies and programs. As with many political moves, the congressional supporters of bioengineering/food corporations had enough votes to attach this as a rider, (a legislative procedural move that allows an attachment to a bill which has little to do with the main subject matter of the bill), when they couldn’t muster enough support to pass it outright. Riders are often used to either push politically controversial or unpopular legislation through by attaching it to critical funding legislation which must be passed. In other words, where there is a majority which can force a riders’ attachment to a larger and vital bill, it can effectively override the President’s ability to keep the unpopular legislation out by constraining his veto. For President Obama to have vetoed the bill to keep out the rider, the collateral damage by allowing federal welfare, health, national security, and numerous other agencies and programs to be defunded, which would potentially cause much more harm than the perceived harm of allowing the rider to pass.

Thus, this politically unpopular law was passed through Congress and was forced on President Obama (who has previously expressed his opposition to unsafe bio-engineered seed stock) as it would have been equally unpalatable to not pass the spending bill to which the “Monsanto Protection” act was connected as a rider. A short examination of the rider reveals that it allows farmers who had previously purchased seed which was declared legal by the USDA to continue to use the seed even though a federal court has ordered the USDA to take it off the market pending further investigation. It does this by making it mandatory for the USDA to issue a temporary permit for those farmers who already have the seeds to continue using the seeds during the pendency of the investigation ordered by the federal court. If we think about it from the perspective of the innocent farmer who purchased this seed after the USDA approved, it makes sense, as this would cause immediate financial harm to an innocent third party, the farmer, and could also cause a spike in food prices (as there could be large amounts of crops that could not be harvested). Further, we must remember what is actually going on in these lawsuits. The federal courts have Constitutional oversight over the USDA in that they can examine the actions of the USDA to make sure that it is following the law. The federal courts cannot, and do not, substitute their judgment for that of the USDA on the issues of whether the bio-engineered seed is actually safe or not. This would violate the Constitutional principle of deference given to an administrative agency on issues under the purview of the agency. There has long been an understanding in the federal courts that the federal court is in no position to substitute its judgment for the judgment of the agency on specialty issues handled by that agency. This in and of itself would violate the “separation of powers” protections of the Constitution because the administrative agencies were granted their authority to act by Congress. Thus, the courts cannot usurp this power.

The courts may only tell the agency that it has violated the law, or that it is not doing its duty under the law. In the cases relevant to the issues here, the courts are telling the USDA, “you have not made the proper investigation.” However, the federal courts cannot and do not make the pronouncement that the bio-engineered seeds are dangerous and may not be planted. The only way this finding would come up would be through a personal injury products liability lawsuit. So, is all the hype true? No. There is no order here giving Monsanto immunity.

If the seeds are dangerous and cause actual harm, Monsanto may be sued under ordinary theories of negligence. It is undoubtedly true that this rider was the product of the Monsanto lobby and it is not a good idea from a policy point of view. It would be wise to allow the USDA to have discretion halt the use of seeds that could be potentially dangerous or to allow the federal court to issue an injunction if there is a credible indication of imminent harm based on evidence before the court. If anything, this abusive action by right-wing pro-corporate farming congressmen is a shining example of why the line-item veto needs to be re-introduced. This law is a bad law, but it is not as bad as the hype.

- Zachary D. Norris, JD, LL.M. and Ada Echetebu, JD, LL.M.

*This article is for general informational purposes only and does not constitute legal advice, nor should it be construed as constituting any legal advice from Norris Echetebu Law, The Norris Law Firm or any of its affiliated lawyers. For specific analysis of your US legal issues, please contact the attorneys at Norris Echetebu Law at +64 (0)9-889-2602 or visit us on the web at http://nz-uslegal.co.nz/