Did Syngenta receive any warnings not to sell its GMO seed to American corn farmers?

  • Before it ever began marketing its GMO seeds to American corn farmers in 2010, Syngenta promised the U.S. Government it would prevent it from getting mixed in with other corns
  • On August 26, 2011, Syngenta was warned its actions concerning its GMO seed sold as Viptera Agrisure could cause the American corn farmer up to $2.9 billion in losses during crop year 2013
  • In a lawsuit against Bunge North America, Syngenta was put on notice of the harm its actions could cost the American corn farmer, yet took the position in September, 2011 that mixing of the grains was inevitable
  • On April 16, 2014, Syngenta was again warned that its actions concerning its GMO seed sold as Duracade Agrisure could cost the American corn farmer up to $3.4 billion in losses during crop year 2014

Syngenta developed a GMO corn strain known as MIR 162. When Syngenta sought permission to sell MIR 162 in the U.S., it had not yet received approval from a number of U.S. corn export partners. Syngenta knew it needed to convince the government that its new, unapproved seed would not get mixed in with other approved corns.

In its August 31, 2007 “Petition for Determination of Nonregulated Status for Insect-Resistant MIR 162 Maize,” Syngenta promised the United States Department of Agriculture that its GMO strain MIR 162 would not be mixed in with other corns approved for export abroad:

There should be no effects on the U.S. maize export market since Syngenta is actively pursuing regulatory approvals for MIR 162 maize in countries with functioning regulatory systems for genetically modified organisms and that import maize from the U.S. or Canada…. Syngenta’s stewardship agreements with growers will include a term requiring growers to divert this product away from export markets (i.e., channeling) where the grain has not yet received regulatory approval for import. Syngenta will communicate these requirements to growers using a wide-ranging grower education program (e.g., grower Stewardship Guide). As noted in the context of the IRM program, these procedures are not hypothetical.

Syngenta failed to receive approval from China for MIR 162, and knew its GMO corn could not be exported there. Corn exporter Bunge North America learned that China had not approved MIR 162, and consequently put up signs outside its grain elevator in Monticello, Iowa telling farmers that it would not accept Viptera Agrisure corn. Syngenta sued Bunge, claiming product disparagement and seeking a court order to make Bunge take the signs down.

On August 26, 2011, the National Grain and Feed Association (“NGFA”) and the North American Export G
rain Association (“NAEGA”) issued a “Joint Statement… on Media Reports of Lawsuit Involving Syngenta’s

Agrisure Viptera Biotech Corn (MIR 162),” wherein Syngenta was specifically warned as follows:

U.S. farmers, as well as commercial grain handling and export industry, depend heavily upon biotechnology providers voluntarily exercising responsibility in the time of product launch as part of their product stewardship obligation. Technology providers must provide for two critical elements: First maintaining access to key export markets like China, or for that matter any market like China that has a functional, predictable biotech-approval process in place; and second, proactive transparency to all stakeholders when there is a potential for restructured marketability of their products based upon approval status in major markets. The negative consequences of overly aggressive commercialization of biotech-enhanced events by technology providers area numerous, and include exposing export companies to financial losses because of cargo rejection, reducing access to some export markets, and diminishing the United States’ reputation as a reliable, often-preferred supplier of grains, oilseeds and grain products. Premature commercialization can reduce significantly U.S. agriculture’s contribution to global food security and economic growth.

The Joint Statement specifically warned that “[p]utting the Chinese and other markets and risk with such aggressive commercialization of biotech-enhanced events is not in the best interest of U.S. agriculture or the U.S. economy.” Damage to U.S. corn farmers in crop year 2013 was estimated to be as high as $2.9 billion; recent data suggests that damage was in fact much greater than original estimates.

While embroiled in the litigation with Bunge, in September, 2011, Syngenta took the following position while arguing that Bunge should have to take its signs down:

Syngenta also argues that Bunge’s Policy of refusing to accept Viptera corn is unfair and unreasonable, because it is not likely to achieve the desired result of Viptera-free corn stores, where there is a reasonable possibility of accidental delivery of Viptera corn…[1]

Thus, despite telling the U.S. Government that it should be allowed to sell Viptera corn here because it would keep it segregated from other corns, Syngenta later argued to a U.S. court that such segregation was not possible. The Court rejected Syngenta’s request for an order to require Bunge to take its signs down, reasoning, “I find that the public interest strongly favors allocating the risks of a decision to introduce a new transgenic grain into the commercial market on the company that decided to commercialize the grain before obtaining all import approvals, not on the party that is simply confronted with that decision and his reasonable countervailing business interests in not accepting the grain.”

On January 23, 2014, the NGFA and NAEGA released another Joint Statement concerning Sygenta’s new GMO corn seed being sold as Duracade Agrisure. The NGFA and NAEGA specifically referenced China’s zero tolerance policy concerning unapproved GMO products, and warned Syngenta as follows:

NAEGA and NGFA are gravely concerned about serious economic harm to exporters, grain handlers and, ultimately, agricultural producers – as well as the United States’ reputation to meet its customers’ needs – that has resulted from Syngenta’s current approach to stewardship of Viptera. Further, the same concerns now transcend to Syngenta’s intended product launch plans for Duracade, which risk repeating and extending the damage. Immediate action is required by Syngenta to halt such damage….[G]iven the zero-tolerance policy for unapproved biotech-enhanced traits enforced by China and other foreign countries, there are no guarantees – despite best efforts – that some level of Duracde 5307 will not become present in U.S. corn export shipments. The expansive geographic area in which Duracade 5307 seed is being marketed, the number of acres and producers believed to be involved in planting such seed, and the potential for pollen drift, cross-pollination and commingling make achieving a zero tolerance virtually impossible. In fact, private tests conducted when Viptera 162 was commercialized showed a significant risk for low-level detections of that trait in corn harvested from fields where it was not planted…. We therefore seek assurances from Syngenta that it will follow suit by publicly announcing that it will suspend immediately its commercialization of Viptera and Duracade products in the United States until such time as China and other U.S. export markets have granted required regulatory approvals and authorizations.

Damage to U.S. corn farmers in crop year 2014 was estimated to be as high as $3.4 billion; however, recent data suggests that damage was in fact much greater than original estimates.

Written by*:
Mikal C. Watts
WATTS GUERRA, LLP
Four Dominion Drive, Bldg. Three, Suite 100
San Antonio, Texas 78257
[1] September 26, 2011 Court order entitled “Memorandum Opinion and Order Regarding Plaintiff’s Motion for Preliminary Injunction,” p. 26.

* This information is provided to supply relevant information concerning the GMO corn lawsuit, and should not be received as legal advice. Legal advice is only given to persons or entities with whom Watts Guerra LLP has established an attorney-client relationship. If you have another lawyer in the GMO Corn lawsuit, you should consult with your own attorney, and rely upon his or her advice, rather than the information contained herein.

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