In landmark case, Australian court rejects organic farmer’s claim of GMO “contamination”

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Steve Marsh, center, after losing the case. Image via News Corp Australia

In a landmark court decision on genetically modified (GM) canola and property rights, the Western Australian Supreme Court has rejected claims by farmer Steve Marsh that his organic certified farm was “contaminated” by a neighboring farmer growing GM canola.

Marsh sued his neighbor and former friend, Michael Baxter, claiming that GM canola from Baxter’s land drifted onto his organic oats, rye and sheep farm in Kojonup, Western Australia. The National Association of Sustainable Agriculture Australia (NASAA) temporarily suspended Marsh’s organic certification on about 70 percent of his Kojonup property in late 2010. Marsh wanted financial compensation of $85,000 from Baxter, as well as a permanent injunction issued by the Western Australia Supreme Court banning Baxter from planting GM crops.

Unlike the United States, the European Union and Japan, which allow trace amounts of GMO crops in organic foods in acknowledgement of cross-pollination by wind or pollen transfer, Australia maintains a zero threshold.

Anti-GMO groups have gotten a lot of traction by branding cross-pollination as “contamination.” Cross-pollination occurs naturally but is considered unacceptable to organic purists, who want organic crops to be completely free of pollen from GM crops and want those demands incorporated into legislation. Recently, voters in two southern Oregon counties approved measures to ban the cultivation of GM crops based on “contamination” concerns. The Marsh versus Baxter case has attracted global attention as it sheds light on how “contamination” claims by organic farmers might be received in other courts.

In the 150-page judgment summary, Justice Kenneth Martin wrote there had been no unreasonable interference with Marsh’s crops. He found that the decision to withdraw organic certification was made by the Australian organic certifying bodies NASAA/NCO and it was that decision that cost Marsh about $85,000 in reduced income.

“Mr. Baxter was not to be held responsible as a broadacre farmer merely for growing a lawful GM crop and choosing to adopt a harvest methodology (swathing), which was entirely orthodox in its implementation,” he wrote. “Nor could Mr. Baxter be held responsible, in law, for the reactions to the incursion of the Marshes’ organic certification body, NCO, which in the circumstances presented to be an unjustifiable reaction to what occurred.” Martin added there was “a very strong body of evidence in this trial to suggest that there was no legitimate contractual basis for NCO to decertify” Marsh’s farm.

During the 11-day hearing in February, scientists testified that Roundup Ready canola swathes were harmless to animals, people and land even if consumed.

The court case has highlighted contradictions in current Australian farming and organic certifying regulations. Professor Rick Roush from Melbourne University’s School of Land and Environment said he believes the case is unique to Australia, because the Australian organics industry has a zero tolerance to the presence of any GM material in certified organic products.

“In other countries, there is a tolerance for very small levels of legally approved seeds, or pollen, or whatever, to be found in a crop, even in organics,” he said. “In the United States, for example, there are broad-scale examples of GM and organic crops being grown in close proximity. In fact, in some farming operations in the United States the same farmer will be using both GM and organic production.”

The Australian court ruling has no direct impact upon U.S. law. While similar concerns and fears of “GMO contamination” are also widespread among organic farmers in the US, there has been no case in which an organic farmer has lost organic certification because of cross pollination. The US Department of Agriculture handles the concern as such:

Unlike many pesticides, there aren’t specific tolerance levels in the USDA organic regulations for GMOs. As such, National Organic Program policy states that trace amounts of GMOs don’t automatically mean the farm is in violation of the USDA organic regulations. In these cases, the certifying agent will investigate how the inadvertent presence occurred and recommend how it can be better prevented in the future.

During a major review in 2011-12, the USDA Advisory Committee on Biotechnology and 21st Century Agriculture (AC21) endorsed coexistence between farmers growing conventional, organic and genetically modified crops and rejected calls by organic activists for “zero tolerance”:

Many commenters suggested that we establish a “threshold” for the unintended or adventitious presence of products of excluded methods in organic products. Some commenters argued that a threshold is necessary because, without the mandatory labeling of biotechnology-derived products, organic operations and certifying agents could not be assured that products of excluded methods were not being used. Others argued that, without an established threshold, the regulations would constitute a “zero tolerance” for products of excluded methods, which would be impossible to achieve.

We do not believe there is sufficient consensus upon which to establish such a standard at this time. Much of the basic, baseline information about the prevalence of genetically engineered products in the conventional agricultural marketplace that would be necessary to set such a threshold-e.g., the effects of pollen drift where it may be a factor, the extent of mixing at various points throughout the marketing chain, the adventitious presence of genetically engineered seed in nonengineered seed lots-is still largely unknown. Our understanding of how the use of biotechnology in conventional agricultural production might affect organic crop production is even less well developed.

Also, as was pointed out in some comments, the testing methodology for the presence of products of excluded methods has not yet been fully validated. Testing methods for some biotechnology traits in some commodities are becoming commercially available. Without recognized methods of testing for and quantifying of all traits in a wide range of food products, however, it would be very difficult to establish a reliable numerical tolerance.

That’s similar to the policy adopted by the International Federation of Organic Agricultural Movement (IFOAM):

Organic certification shall not imply it is a ‘GE-free’ certification. Rather it shall be presented as guaranteeing ‘production without GE/GMOs’.  As there is no guarantee that organic products are 100% free … Organic producers and associations shall actively inform the consumers of this fact to insure fair marketing claims and to avoid future debates about consumer deception.

Ben Copeman, general manager with Australian organic certifying organization NASAA, said his organization is working with farmer groups to figure out how different types of farming, including GM and organic farming, can co-exist in harmony. He added that he is not opposed to a review of organic standards, including the zero tolerance on GM organisms, provided it takes into consideration what organic consumers want.

Anti-GM campaigners reacted in outrage, claiming that the verdict sets a dangerous precedent because it leaves the use of GM crops largely unrestricted. Scott Kinnear, director of the Safe Food Foundation which funded Marsh’s campaign, said he is very disappointed and gravely concerned for the farmer, his family and farm, and for the future of organic and non-GM food in Australia remaining GM-free. Marsh said that he is considering an appeal.

John Snooke, director of Pastoral and Graziers Association in Western Australia, welcomed the court’s decision, as there were more than 1,000 GM farmers in the region. He added that Marsh should have pursued the organic certification process, and not his neighbor. “What it means is the grains industry has certainty, that the protocols and the regulations we operate under cater for every type of farming in Australia,” he said. “The court has vindicated all farmers who choose to grow GM canola.”

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