Last week, the Ninth Circuit ruled in favor of the producers of alfalfa that has been genetically modified to withstand herbicides. Traditionally herbicides that kill weeds could not be used in alfalfa farming because they killed the alfalfa crops as well; the engineered alfalfa seeds (known as “Roundup Ready Alfalfa” or RRA in the farming industry) are sold by the defendants as a crop system together with Roundup herbicide and are marketed to farmers looking for more efficient ways of growing alfalfa. The plaintiffs are environmental and organic food advocacy groups, who argued that RRA would cross-pollinate with traditional alfalfa plants and potentially lead to the contamination of all alfalfa crops in the U.S., ultimately destabilizing the organic food industry and the ability of U.S. farmers to sell their products to countries with bans on genetically modified foods, not only with respect to organic alfalfa but also organic meats produced from animals who graze on it.
The plaintiffs previously sought an injunction to prohibit the production of RRA pending investigation by the USDA’s Animal Plant and Health Inspection Service (“APHIS”). APHIS, however, has refused to regulate RRA since it is not a plant pest, and plaintiffs appealed on the grounds that APHIS did not follow proper administrative procedure in examining all potential adverse effects of RRA or consdering the option of partial deregulation. The Ninth Circuit affirmed summary judgment on behalf of defendants (who included APHIS as well as the producers of RRA and other industry members with interests in the outcome who had intervened in the case) on the grounds that neither APHIS, nor the FDA or EPA are actually required to address the types of environmental and economic harms at interest in this case. Specifically, the Ninth Circuit explained that the FDA is authorized only to remove “adulterated” food from the the national food supply, a category that could potentially include genetically modified foods if they are found unsafe for consumption, but right now the FDA does not have any guidelines for reviewing these types of foods; the EPA is authorized to regulate genetically modified plants only indirectly, through its regulation of herbicides which are evaluated only for “unreasonable environmental risks;” and APHIS regulates only plant pests, which are defined as plants that cause injury, damage, or disease to other plants, and noxious weeds which are defined as aggressive and invasive weeds that have significant negative impacts and are difficult to control. APHIS investigated RRA and f0und that it could not injure or damage other plants in a way that would qualify it as a plant pest and therefore deregulated alfalfa; the Ninth Circuit opinion holds that this was proper and also that APHIS need not have consulted further with other organizations about RRA’s potential threats.
This is a very interesting ruling in that it does not say that the federal regulatory agencies actually evaluated RRA for the types of adverse effects cited by the plaintiffs, namely those stemming from cross-contamination, but rather that there is really no such federal oversight of these issues at all at this time. As domestic and international concerns about genetically modified foods rise alongside with the demand for and growth of the U.S. organic food industry, this may become an area for new legislation, with the field ripe for lobbying on both sides. And the issues at stake, which include individual consumers, public health, the economy, the environment, and international trade, are wide enough to reach all interest groups. We will continue to monitor.