- Herbicide and seeds
- Drift Issues
- Legal Liabilities
The creation of Round Up Ready crops began as a good idea. It was spawned when Monsanto genetically modified seed groups to be resistant to the Round Up weed killer that is so widely known.One of the main concerns about genetically engineered crops such as Round Up Ready crops is the development of weeds and other plants that are also resistant to Round Up (glyphosate). An article recently published in Science Daily suggests that farmers are becoming too reliant on Round Up. The use of Round Up Ready crops has become ubiquitous. This has resulted in weeds such as giant ragweed that are resistant to Round Up, when Round Up was the herbicide developed explicitly to combat these weeds. If a farmer were to grow only Round Up Ready crops, they would have to use Round Up to treat their fields, increasing resistance to the herbicide.
In the beginning, there was no choice. Round Up was effective and the yield increase due to the weed resistance was impressive. Planting a seed that was Round Up resistant was a no brainer. Now, with the reduced effectiveness associated with the general resistance to the product, there becomes a problem.
Neighboring property owners who might consider planting a non Round Up resistant seed as an economic alternative have a challenge; the drift. Neighboring properties will be contaminated, to one extent or another by the drifting Round Up application, thereby affecting neighboring crops. This creates a series of question of legal liability for such a scenario. Does the neighbor spraying the questionably effective herbicide assume some liability for the drift? Is the neighbor who plants a non Round Up resistant seed do so at his own peril? Does Monsanto potentially have some responsibility for this situation?
These are involved legal questions that cannot be addressed in any detail in such a short paper; however, the answer to each of these questions is generally, yes. There are some state statues dealing specifically with liability for herbicide drift. Some, such as the Illinois Pesticide Act creates monetary penalties and standards that can make a less than prudent applicator legally responsible for damages. Additionally, it can cause the applicator to lose his or her license. Generally, the negligence standard of the actions of a reasonable and prudent applicator is in play.
The question of the commensurate responsibility of the planter of the non-resistant seeds is a little more nebulous. There is a situation where the comparative responsibility of the damaged neighbor might be prevalent. For example, if all neighbors in a certain region historically planted Round Up resistant seeds, and the neighbor has knowledge of such and chooses to plant a non Round Up resistant seed, without notification to the others, there might be some contributory responsibility for failing to advise his or her neighbors of his change in seed selection. It sounds strange, but a jury might be in a position to judge the comparative fault of each neighbor.
Monsanto’s responsibility for this scenario has yet to have been fully tested. It seems that there may lie some responsibility for the declining effectiveness of the product to the consumer. Label and company representations made in the marketing process might create legal exposure. Additionally, the fact that this product has become so widely used might give rise to some anti-trust type exposure; however, such liability would have to be handled on a case-by-case basis.
Farmers have found themselves stuck between Monsanto and a hard place. It has become increasingly difficult for farmers to grow non-genetically engineered crops, as contamination has become a big issue. If you have a question about Round Up resistant seeds and legal liability therefrom, give us a call.
Written by:
Brian Berryman
Watts Guerra LLP
4 Dominion Drive, Bldg 3, Suite 100
San Antonio, TX 78257
Phone (210) 447-0500
© Watts Guerra LLP 2015
