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June 19, 2012 The Honorable Harold Rogers Chair, Committee on Appropriations U.S. House of Representatives H-307 Capitol Washington, D.C. 20515

The Honorable Norm Dicks Ranking Member, Committee on Appropriations U.S. House of Representatives 1016 Longworth House Office Building Washington, D.C. 20515

U.S. House of Representatives Should Strike the Deceptive “Farmer Assurance Provision” (Sec. 733) Provision Would Undermine USDA’s Oversight of Genetically Engineered Crops, Be a Precedent-Setting Limitation on Judicial Review and Could be Unconstitutional. Dear Chairman Rogers and Ranking Member Dicks: The undersigned thirty-eight food businesses and retailers, consumer, family farm, environmental and public interest groups, representing hundreds of thousands of members across the United States, are writing to express our opposition to the so-called “farmer assurance provision” (Sec. 733) in the FY 2013 Agriculture Appropriations bill. The provision represents a serious assault on the fundamental safeguards of our judicial system and would negatively impact farmers, the environment and public health across America. Reeling from federal court decisions that have found approvals of several genetically engineered (GE) crops to be unlawful, the biotech industry has quietly slipped a policy rider into the FY 2013 Agriculture Appropriations bill now being debated in the House Appropriations Committee. The provision would strip federal courts of the authority to halt the sale and planting of an illegal, potentially hazardous GE crop while the U.S. Department of Agriculture (USDA) assesses those potential hazards. Further, it would compel USDA to allow continued planting of that same crop upon request, even if in the course of its assessment the Department finds that it poses previously unrecognized risks. Far from safeguarding farmers, the only parties whose interests are “assured” by this rider are those of GE crop developers. Overriding Vital Judicial Safeguards that Protect Farmers and the Public Congress invested primary authority for regulation of GE crops in the USDA, acting under the Plant Protection Act. In approving various GE crops for commercial cultivation, USDA has repeatedly ignored the legitimate concerns of farmers, the business community and civil society regarding their environmental and interrelated economic impacts. These concerns include transgenic contamination of conventional and organic crops and fostering the spread of herbicide-resistant “superweeds.” Yet USDA has never denied a GE crop approval request, nor (of its own accord) set a single limitation on their cultivation. In several recent lawsuits, federal courts have ruled for farmers, businesses and public interest plaintiffs, finding that USDA had violated federal law by failing to adequately consider the potential harms of GE crops it had approved. In reversing USDA’s decisions, these courts have quite reasonably barred or restricted sales and planting of such unlawfully approved crops pending further review, while allowing continued cultivation of those already planted. This rider is specifically intended to prohibit courts from imposing such reasonable restrictions in the event of similar cases in the future, undermining judicial authority in the interests of maximizing biotech industry seed sales. This outlandish provision would prevent a court from putting in place court-ordered

restrictions, even if the approval were fraudulent or involved bribery. This Provision Could Cause Substantial Harm to Farmers and the Agricultural Economy The Plant Protection Act requires USDA to regulate GE crops so as to protect “the agriculture, environment, and economy of the United States.” Many markets for agricultural produce around the world demand food grown without the use of GE technology. Seed, crops and foods that are contaminated with GE material cannot be sold in many international markets. Agricultural commodities contaminated by GE crops that have not been legally deregulated (approved for commercial use) in the U.S. are particularly shunned. Both conventional (non-biotech) and organic farmers have suffered substantial losses due to such transgenic contamination. With this provision in place, USDA would be severely hampered from preventing costly contamination episodes which result in market rejection, loss of foreign and domestic markets and untold millions of dollars in lost revenue. One past example of severe market loss is the StarLink corn contamination episode. First commercialized in the U.S. in 1998, StarLink approval was limited to animal feed and industrial uses due to concerns of leading allergists that StarLink might cause food allergies in humans. Despite restrictions, StarLink massively contaminated the U.S. food supply. By the year 2000, half of Iowa’s corn crop showed traces of contamination, although StarLink had been planted on only 1% of Iowa’s cornfields.i The StarLink fiasco caused the recall of over 300 food products, representing tens of millions of supermarket items. Corn exports to Japan and other leading corn markets dropped precipitously, and U.S. farmers suffered a steep decline in corn prices. Seventeen state attorneys general filed suit against StarLink’s developer for losses their farmers incurred. In 2003, a group of farmers was awarded a $110 million settlement due to the loss of foreign markets because of StarLink contamination.ii In 2006, Bayer CropScience’s unapproved GE rice varieties, LibertyLink 601 and 604, contaminated the U.S. long grain rice supplies, massively disrupted U.S. rice exports and caused economic damages of over $1 billion.iii Bayer’s irresponsibility resulted in contamination of over 40% of the U.S. rice supply and threatened the livelihoods of the farmers growing that rice. Following the announcement of contamination, Japan banned all long-grain rice imports from the U.S., and U.S. trade with the EU and other countries ground to a halt. Rice farmers and cooperatives were forced to engage in five long years of litigation against Bayer CropScience in an attempt to recoup some of their losses. Bayer denied culpability for the episode, blaming farmers themselves and calling it “an act of God.” After losing multiple cases, Bayer and its global affiliates agreed to pay U.S. rice farmers $750 million in damages to settle all legal actions. In both episodes, the relevant oversight agencies (EPA for StarLink, USDA for LibertyLink rice), wielded regulatory authority over the GE crop, but still failed to prevent enormously damaging contamination from occurring. Hundreds of other lesser transgenic contamination incidents have hurt organic and conventional farmers. If this provision were to become law, USDA would be forced to immediately approve all permits for continued planting of an “unapproved” biotech crop, potentially exposing other farmers to substantial damages and putting our nation’s sensitive agricultural markets at risk. Unnecessary and Deceptive The “farmer assurance provision” has very little to do with farmers and everything to do with the developers of GE crops. It would strip the Judiciary of its authority to fully adjudicate violations of law by USDA and compel USDA to take actions that might harm farmers and the environment – all to “assure” the profits of a handful of biotech companies, including Monsanto, Dow and Bayer CropScience. Every court that has reversed a USDA decision to approve a GE crop has carefully weighed the interests of all affected farmers, as is already required by law. No farmer has ever had his or her crops destroyed. USDA already has working mechanisms in place to allow partial approvals, and the Department has used them,

making this provision completely unnecessary. Unprecedented Assault on Judicial Safeguards This provision is not only an assault on the fundamental safeguards of our judicial system, but also will set a dangerous precedent for Congressional intervention in the Judiciary. The ability of courts to review, evaluate and judge an issue that impacts public and environmental health is a strength, not a weakness of our legal system. Our federal courts have long been the last resort for people seeking to challenge illegal actions by the government or its officials, including actions that may threaten freedom from discrimination, access to education, access to health care, property ownership and other important social benefits including clean air, clean water and the fair distribution of government resources. The loss of this safeguard could leave public health, the environment and livelihoods at risk for unchallenged consequences. If this provision were to become law, it would harm not only those who would otherwise challenge illegal government actions, but also all people and communities who benefit from efforts to root out government abuse and unlawful action. Congress should not meddle with the judicial review process or preemptively compel the Secretary of Agriculture to take actions that might harm farmers to serve the special interests of a few powerful firms. If Members feel the Plant Protection Act needs to be changed, let them propose to do it in a transparent manner, with full opportunity for public debate. For the foregoing reasons, we respectfully oppose the “Farmer Assurance Provision� and support any efforts to strike it from the FY 2013 Agriculture Appropriations bill. Respectfully submitted: ACLU Alliance for Humane Biotechnology Bluefestival Center for Biological Diversity Center for Food Safety CROPP Cooperative Cuatro Puertas Earthjustice Farm and Ranch Freedom Alliance The Federation of Southern Cooperatives Food and Water Watch Food Democracy Now Friends of the Earth Go Wild Campaign Institute for Responsible Technology Loka Institute Midwest Environmental Justice Organization National Cooperative Grocers Association National Family Farm Coalition i

National Organic Coalition Northeast Organic Dairy Producers Association Northeast Organic Farming Association Connecticut Northwest Atlantic Marine Alliance Northwest Center for Alternatives to Pesticides Organic Consumers Association Organic Seed Alliance Organic Trade Association Organic Valley Family Farms PANNA PCC Natural Markets Public Citizen Rural Vermont Sierra Club Sustainable Living Systems Truth in Labeling Coalition Union of Concerned Scientists United Natural Foods Inc. Former Congressman Jim Bates

Organic crop certifiers decry transgenic contamination. (2001, May 1). CROPCHOICE. Available at Paul E. (2003, February 7). Biotech firms pay $110 million to settle StarLink lawsuit. Associated Press. Available at iii GAO, GENETICALLY ENGINEERED CROPS: AGENCIES ARE PROPOSING CHANGES TO IMPROVE OVERSIGHT, BUT COULD TAKE ADDITIONAL STEPS TO ENHANCE COORDINATION AND MONITORING, Report to the Committee on Agriculture, Nutrition, and Forestry, U.S. Senate, November 2008, p. 3. ii

Mosanto Protection Act  

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