GMO Reform Is Coming...But Not in the Right Places

At the beginning of July the White House Office for Science and Technology Policy issued a memorandum announcing a plan to improve the transparency around the health and environmental safety regulations of biotechnology products, such as GMOs.  

The public’s wariness around GMOs often stems from these points. People are worried about modified genes causing disease in their bodies, or GMO crops hybridizing with wild species and creating genetically enhanced “super weeds.”


It’s a good start that the White House says it will be addressing these concerns through transparency. But these are not the issues that worry me about GMO technology. 

It’s the patent law they’re governed by.

Currently, in the United States and Canada, GMOs are governed by the same patent law that any other non-biological invention is. That means that laws governing ownership and use of a mechanical device, like a new airplane engine, and a biological organism, like herbicide-resistant soy, are the same.

A key and obvious difference between the two, is that the soy, left to its own devices in a suitable environment will reproduce and make copies of itself. An airplane engine will not without a human purposely assembling it. 

The self-reproducing nature of living things has raised legal questions around ownership of progeny. And with patent law to guide them, supreme courts in both the United States and Canada have taken the position that GMO seed saving, and contamination of a conventional or organic field by GMOs, can be considered patent infringement.

These rulings have impacted the autonomy of farmers to produce crops the best way they see fit. For example, the inability to save GMO seeds makes farmers more susceptible to GMO seed price increases, or changes in the seeds’ terms of use agreements they may not want to abide by.

They have also raised questions of liability in non-GMO farmers who have their crop contaminated. In the famous case Schmeiser vs. Monsanto Canada, canola farmer Percy Schmeiser was successfully sued by biotech giant Monsanto for patent infringement after the court ruled that Schmeiser had knowingly allowed GMO canola to grow in his field without paying for the license to do so; Schmeiser said the GMO canola came from seeds that were produced by contaminants that appeared in his field a year prior, but was still found to be in the wrong because he "knew or ought to have known" the GMO plants required a license to grow.   

The case showed that patent law trumped property rights and raised questions about the future of farming near GMOs. In the words of Gabriela Pechlander, in her book Corporate Crops

"Schmeiser brought to light the nontechnological changes that biotechnology brought to farming and raised the prospect that ordinary farmers, farming in the same manner that they always had, could find themselves liable for patent infringement." 

The option to just reject GMOs for non-modified varieties is becoming less and less feasible—conventional seeds require more labor and pesticide/herbicide products than GMOS, making them less profitable. And as the Schmeiser case shows, farmers may potentially be held liable for failing to uproot GMO crops that end up growing in their field due to cross contamination. The contamination factor also puts in question the viability of non-GMO farms to even exist alongside GMO farms.

In this light, I think patent law surrounding GMOs is in dire need of an update. The ability for life to reproduce and spread without human intervention makes it distinct from all other patentable items. We need a legislative reform that considers this distinct ability and holds patent holders accountable when a seed ends up somewhere it wasn’t intended to be (such as tacos on a grocery store shelf or a famer’s field) as well as puts limitations on what a company can require a patent-user to abide by.

Otherwise, these cases will be slanted in favor of patent-holders before they even get to the courthouse.