Frequently Asked Questions: Organic Crops and GMO Pollen Cross-Contamination
Updated: Jul 8, 2020
This post should not be construed as legal advice.
For the most part, crops are in the ground and growing now, but issues can exist when we have genetically modified organism (GMO) crops growing near organics. Let’s talk about GMO contamination of organic crops.
From time-to-time, many of you will ask, “What about GMO cross-pollination of organic crops?” Well, I’m sorry to tell you that there is no exact answer because this is a developing area of the law. That said, when a court is presented with this issue, they potentially will use the existing legal theory of negligence to find liability for GMO cross-contamination.
Earlier, I posted a quick overview of pesticide drift liability (see A Quick Overview of Pesticide Drift Liability). A court faced with a claim of negligence in cross-contamination by a GMO producer would use a similar analysis as a court would in a pesticide drift case, but let me explain why.
First, remember that negligence is simply failure to exercise a duty of care under the circumstances. Negligence has four elements which must be found in order to find a defendant liable. This means that you failed to act as a reasonable and prudent person would have in the same situation. The four elements are:
Party owed a duty of care to act reasonable under the circumstances to the Plaintiff;
Party breached that duty of care;
Breach was the proximate cause of the injury; and
Actual damages occurred.
As with pesticide drift, the issue will almost always exist in #3 or showing proximate cause.
Proximate cause is cause legally sufficient to find liability (Black’s Law Dictionary, 2004). Proximate cause is not always an easy concept to grasp, even for attorneys. Courts often utilize a “but for” test to determine proximate cause. For example, Charlie is out driving and talking on his cellphone at the same time. He doesn’t see Stacy walking along the road. Charlie hits Stacy as a result of distracted driving. Stacy is now suing Charlie for her injuries. To show proximate cause, Stacy would need to show that “but for” Charlie talking on his cellphone while driving, Stacy would not have been injured. Although my example is fairly straightforward, proximate cause can sometimes be tricky to find.
Proximate cause in cross-contamination negligence suits will potentially be the issue because the defendant(s) will almost always be able to point to another neighbor growing GMO crops as the potential source. If everyone around the organic grower is producing GMO crops, then it will be difficult for the organic grower to point to proximate cause of the cross-contamination.
This is the same issue seen in many pesticide drift cases when the damage comes from a commonly used pesticide (such as Roundup©) because it is hard to point to the exact culprit. For example, you are growing sweet corn which is damaged by drifting Roundup. Every neighbor is producing some form of Roundup Ready© crop and sprayed Roundup around the time your sweet corn was damaged. Who exactly caused the damage? It’s hard to say without witnesses who saw spray hit your sweet corn.
This is not to say that cross-contamination will never be found but that using a negligence theory will have potential issues. Currently few reported cases have dealt with GMO cross-contamination. But this could potentially change in the future especially as more and more producers switch to organic production. One way to limit many issues with cross-contamination is to use strategies promoting coexistence. USDA has released a fact sheet on best management practices for coexistence (USDA, 2015).
Goeringer, Paul. “A Quick Overview of Pesticide Drift Liability.” Maryland Risk Management Education Blog, Feb. 23, 2015. Internet site: www.aglaw.umd.edu/blog/a-quick-overview-of-pesticide-drift-liability.
Goeringer, Paul. “Understanding Pesticide Drift Liability for Landowners, Applicators, and Farmers.” Fact sheet, Univ. of Maryland (forthcoming 2015). Internet site: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2609359.
USDA. USDA Coexistence Factsheets Best Practices. Washington, DC: U.S. Department of Agriculture, Office of Communications, Fact Sheet, Feb. 2015. Internet site: http://www.usda.gov/documents/coexistence-best-practices-factsheet.pdf.