On Tuesday, the U.S. Supreme Court will hear a 75-year-old soybean farmer’s appeal against biotech giant Monsanto, in a case that could permanently reshape the genetically modified (GM) crop industry. Victor “Hugh” Bowman has been battling the corporation since 2007, when Monsanto sued him for violating their patent protection by purchasing second-generation GM seeds from a grain elevator. An appeals court ruled in favor of Monsanto, and despite the Obama administration’s urging to let the decision stand, the nine justices will hear Bowman make his case today.
Monsanto is notorious among farmers for the company’s aggressive investigations and pursuit of farmers they believe have infringed on Monsanto’s patents. In the past 13 years, Monsanto has sued 410 farmers and 56 small farm businesses, almost always settling out of court (the few farmers that can afford to go to trial are always defeated). These farmers were usually sued for saving second-generation seeds for the next harvest — a basic farming practice rendered illegal because seeds generated by GM crops contain Monsanto’s patented genes.
Monsanto’s winning streak hinges on a controversial Supreme Court decision from 1981, which ruled on a 5–4 split that living organisms could be patented as private property. As a result of that decision, every new generation of GM seeds — and their self-replicating technology — is considered Monsanto’s property.
Unfortunately, second- and third-generation seeds are very hard to track, which may explain why Monsanto devotes $10 million a year and 75 staffers to investigating farmers for possible patent violations. Seeds are easily carried by birds or blown by the wind into fields of non-GM seeds, exposing farmers who have never bought seeds from Monsanto to lawsuits. Organic and conventional seeds are fast becoming extinct — 93 percent of soybeans, 88 percent of cotton, and 86 percent of corn in the US are grown from Monsanto’s patented seeds. A recent study discovered that at least half of the organic seeds in the US are contaminated with some genetically modified material.
Bowman’s appeal gives the Supreme Court an opportunity to determine whether or not Monsanto is using patent enforcement to control their monopoly on a vital resource. As GM seeds become more ubiquitous, farmers who want to avoid Monsanto’s strict patents have few alternatives. As a recently released Center for Food Safety report notes, the concentration of market power among Monsanto and a handful of other companies has led to skyrocketing seed prices and less innovation by smaller firms:
USDA data show that since the introduction of GE seed, the average cost of soybean seed to plant one acre has risen by a dramatic 325 percent, from $13.32 to $56.58. Similar trends exist for corn and cotton seeds: cotton seeds spiked 516 percent from 1995–2011 and corn seed costs rose 259 percent over the same period.[…] USDA economists have found that seed industry consolidation has reduced research and likely resulted in fewer crop varieties on offer: “Those companies that survived seed industry consolidation appear to be sponsoring less research relative to the size of their individual markets than when more companies were involved… Also, fewer companies developing crops and marketing seeds may translate into fewer varieties offered.”
Furthermore, emerging evidence indicates that Monsanto has hardly perfected the technology. A core argument for GM seeds in the 1990s claimed they would reduce chemical pesticide use because the plants themselves would repel pests and weeds. But studies have confirmed the spread of so-called “superweeds” that have developed a resistance to Monsanto’s gene, leading farmers to deploy even heavier doses of herbicides like Monsanto’s own product, Roundup. Another new report debunked the company’s argument that GM seeds would have higher yields; in fact, two of Monsanto’s most popular genes caused yields to drop.
Despite the mounting evidence against their products, the biotech industry enjoys a cozy relationship with government regulators. In December, the Justice Department abruptly dropped their investigation into anti-competitive practices in the industry without so much as a press release. The stalled Farm Bill also contains generous provisions that would allow these companies to put their products on the market with cursory or no review by the USDA.
Today’s oral argument is a study in these intertwined interests: the Obama administration is presenting their own defense of Monsanto, and Supreme Court Justice Clarence Thomas was once a Monsanto lawyer (but will not recuse himself from Bowman’s case). Still, the same high court that enabled the current state of American agriculture in 1981 now finds itself in a position to check Monsanto’s power — or help them tighten their hold on the industry.