The real story of the Monsanto Protection Act of 2013
“The “Monsanto Protection Act” was actually a budget bill that expired after about six months. It occurred in 2013. The essence of the controversial bill had to do with a small section which enabled the USDA to ignore any potential court order that had to do with GMOs:
“If a biotech crop had already been approved (or deregulated) by the USDA and a court reversed that approval, the provision directed the Secretary of Agriculture to grant temporary deregulation status at the request of a grower or seed producer, to allow growers to continue the cultivation of the crop while legal challenges to the safety of those crops would still be underway.”1
The Animal and Plant Health Inspection Service (APHIS) is the branch of the USDA that is responsible for this.2
“The USDA’s regulation of genetically engineered crops is limited to the narrow question of whether the genetically engineered crop ‘will itself pose a conventional plant pest risk when introduced into the environment and/or interstate commerce.’ A ‘plant pest’ is defined as ‘any living organism that directly or indirectly injures, or causes disease or damage, to a plant.’ If the USDA decides that the genetically engineered crop is not a plant pest, the crop is assigned ‘nonregulated status’ by the USDA. The first step to obtaining nonregulated status is for the developer of a genetically engineered crop to notify the USDA that it intends to conduct a field trial of the crop. The USDA must either approve or disapprove the proposed field trial within ten to thirty days. After the field trial is complete, the developer can petition the USDA for ‘nonregulated status and approval for commercial sales.’ Under the National Environmental Policy Act (NEPA), the USDA must also conduct an environmental assessment of the genetically engineered crop before deciding that it is not a plant pest and granting it nonregulated status.”3 [Citations omitted]
Note that after this product is classified as ‘nonregulated’ (more accurately referred to as deregulated), the USDA has no further role in monitoring it in real world conditions – no matter how many acres may be grown or where.
Using Monsanto and a GMO sugar beets brand an example, the company must submit a notice4 to APHIS that they want to do field trials of GM sugar beets, and the department is required to approve the field tests (or not) within 10-30 days.
After the field trials are complete, they submit a petition to the USDA to de-regulate this brand of GMO sugar beets. APHIS-USDA deregulates GMOs “[w]hen a developer has collected enough evidence that a GE organism poses no more of a plant pest risk than an equivalent non-GE organism, the developer may petition APHIS to determine non-regulated status for the GE organism. If the petition is approved by APHIS, the GE organism may then be introduced into the United States without any further APHIS regulatory oversight.”5
When Monsanto receives deregulation, it is therefore approved for commercial sale in the marketplace. Before APHIS can deregulate a GMO brand, it must conduct an Environmental Assessment (EA) first. This leads to either a statement that the product in question is not a significant risk (of being a plant pest) or that it is or may be a risk; if they conclude that the brand poses a risk, they must submit an Environmental Impact Statement (EIS). Although it is worth nothing that (as of 2012): “APHIS has conducted only two full Environmental Impact Statements (EIS)—both of which were court-ordered.” (See: “Genetically Modified Plants and Regulatory Loopholes and Weaknesses under the Plant Protection Act,” by Emily Montgomery, Vermont Law Review, Vol. 37; 2012 – 30 pages).
“NEPA [National Environmental Policy Act] requires federal agencies, such as APHIS, to prepare a detailed EIS for all ‘major Federal actions significantly affecting the quality of the human environment.’ NEPA ensures that an agency will carefully consider impacts on the environment and will make relevant information available to the public. The ‘threshold question in a NEPA case is whether a proposed project will ‘significantly affect’ the environment, thereby triggering the requirement for an EIS.’ The agency must conduct an Environmental Assessment [EA] to determine if an action may cause a significant impact. If no significant impact is found, it must issue a statement explaining its Finding Of No Significant Impact [FONSI]; if a significant impact is found, the agency must conduct an EIS.” 6 [Citations omitted].
“After a period of field testing, GE crop developers can petition for nonregulatory status. Upon application for deregulation, APHIS conducts an environmental assessment and opens the matter for public comment. If APHIS decides that the crop is not a plant pest, it reaches a ‘finding of no significant impact’ (FONSI), and the crop may be grown under less restrictive conditions. Certain GE traits, such as the production of pharmaceutical agents, are always considered plant pests and are, therefore, subject to more intense regulation. Once a GE crop is deregulated, it can be sold and grown like its conventionally bred counterparts.”7
After a GMO brand has received ‘nonregulated status’ (more accurately referred to as deregulated), if a lawsuit were filed against the USDA (that calls into question the assessment by APHIS and related actions), then a court could halt any further cultivation of that brand, and potentially require those crops to be pulled up. The ‘Monsanto Protection Act’ prevented any court from having a legal mandate. So if a lawsuit had been filed that questioned the safety or other concerns about a brand, the ability of the court to enforce such an order were circumvented by that legislation.
According to Montana Senator John Tester, “The provision says that when a judge finds that the USDA approved a crop illegally, the department must re-approve the crop and allow it to continue to be planted – regardless of what the judge says.”
He added: “Think about that. The United States Congress is telling the Agriculture Department ‘Even if a court tells you that you failed to follow the right process and tells you to start over, you MUST disregard the court’s ruling and allow the crops to be planted anyway.’ Not only does this ignore the Constitution’s idea of separation of powers, but it also lets genetically-modified crops take hold across the country – even when a judge finds it violates the law. It’s a dangerous precedent… It will paralyze the USDA by putting the department in the middle of a battle between Congress and the courts. And the ultimate loser will be our family farmers going about their business and feeding America the right way.”8
The law expired about 6 months later on September 30, 2013. It was essentially a funding/budget issue (that included funding the farm bill; the majority of those funds are geared towards programs like SNAP or food stamps). There were concerns that a government shut-down could occur if the budget bill had not been passed.
This originated in the House and was passed on March 4, 2013 and sent to the Senate which passed the bill on March 20, 2013. (The full bill was called H.R.933 – “Consolidated and Further Continuing Appropriations Act, 2013”9). It was amended in the Senate, and so procedure required that it be sent back to the House in its revised form for another vote.
The problem centered around one small but potent paragraph called Section 735:
Sec. 735. In the event that a determination of non-regulated status made pursuant to section 411 of the Plant Protection Act is or has been invalidated or vacated, the Secretary of Agriculture shall, notwithstanding any other provision of law, upon request by a farmer, grower, farm operator, or producer, immediately grant temporary permit(s) or temporary deregulation in part, subject to necessary and appropriate conditions consistent with section 411(a) or 412(c) of the Plant Protection Act, which interim conditions shall authorize the movement, introduction, continued cultivation, commercialization and other specifically enumerated activities and requirements, including measures designed to mitigate or minimize potential adverse environmental effects, if any, relevant to the Secretary’s evaluation of the petition for non-regulated status, while ensuring that growers or other users are able to move, plant, cultivate, introduce into commerce and carry out other authorized activities in a timely manner: Provided, That all such conditions shall be applicable only for the interim period necessary for the Secretary to complete any required analyses or consultations related to the petition for non-regulated status: Provided further, That nothing in this section shall be construed as limiting the Secretary’s authority under section 411, 412 and 414 of the Plant Protection Act. (Source: “Text of H.R. 933 (113th): Consolidated and Further Continuing Appropriations Act, 2013 (Passed Congress/Enrolled Bill version)” by GovTrack
Another name associated with this section is the “Farmer Assurance Provision rider.” According to various sources, this small section was basically written by Monsanto and inserted discretely into the bill – without anyone immediately taking credit for doing so.10 Later it was revealed that Senator Roy Blunt (R-MO) had been the culprit. Records indicated he had received a legal political donation of $60,000 from Monsanto.11
As the bill was set to expire, an extension of the bill with the same provision was introduced in the House, and after it was passed, it made its way to the Senate. During this time, protesters not only took to the streets, 12 but they campaigned against the bill using other means as well, including meeting with Senator Jeff Merkley (D-OR) to kill the bill: “After constituents brought their concerns to Senator Merkley at town hall meetings in March, he waged a campaign against the Monsanto Protection Act, leading an online petition and offering an amendment to the farm bill that would have killed it. After his amendment was blocked, Senator Merkley worked with legislative leaders to seek to ensure that the provision would expire at the end of the month.” (See: “Merkley Praises Senate Plan to End Monsanto Protection Act – Press Release,” via U.S. Senator Jeff Merkley of Oregon; September 24, 2013).
Many people feel that this was a deliberate act by Obama which amounted to a handover of power to Monsanto. Dave Murphy and Lisa Stokke (‘Food Democracy Now!’) reported that 250,000 people signed a letter “asking that [Obama] use his executive authority to veto H.R. 933 and send it back to Congress to remove the Monsanto Protection Act from the bill.” (See: “Obama signs Monsanto Protection Act! Betrays America – It’s Time to Label GMOs!” by Food Democracy Now!; March 27, 2013).
It’s important to look at this in a historical context. At the time during Obama’s administration, there were constant threats from the Republican Party that said they were intent on shutting down the government if all of their demands were not met. Part of those threats included preventing the passage of any budget bills – which if blocked, would shut the government down. Since this was really a budget bill, it was signed in the context that Republicans had previously refused to compromise, and this bill was a sign of cooperation.
The bill as presented originally was 587 pages in its original format. Section 735 was a relatively small paragraph that almost went completely unnoticed. (Later the bill was published using a different format, reducing the number of pages to 2409).
Furthermore, the duration of the legislation was only six months, and it had no impact on any court case at all; see: “Center for Food Safety Denounces Dangerous ‘Biotech’ Earmark in Senate-passed Spending Bill,” by Center for Food Safety; March 20, 2013
Excerpt: “Once the bill takes effect on March 28th, the rider will only be in effect for the life of the 6 month CR [Continuing Resolution]. CFS intends to launch a major campaign to make sure this deception is not included in the next round of appropriations bills. CFS and its allies are confident that the food movement will ensure that this abusive rider is absent from any future legislation.”
In addition, there was a strong reaction against this bill because of previous attempts by members of Congress to change federal law which would have given more power to the biotech industry by negating various regulations. For example, according to SourceWatch, the name “Monsanto Protection Act” originated from an earlier attempt to slip the rider into a bill that failed: “The rider was initially placed in H.R. 5973: Agriculture Appropriations Bill, Section 733 in 2012. The House Agriculture Appropriations bill, sponsored by Rep. Jack Kingston (R-GA), was introduced and passed out of committee on June 20, 2012. It did not become law.” (See: “Monsanto Protection Act” by SourceWatch)
Also see: “House Farm Bill’s ‘Backdoor Biotech Riders’ Engineered to Give Industry Unprecedented Control, Curb Regulation,” by Center for Food Safety; July 10, 2012
Excerpt: “This is yet another chilling example of the chemical industry’s ongoing campaign to irreversibly alter and control our food supply while they pad their pockets,” said Andrew Kimbrell, executive director of Center for Food Safety. ‘Every member of the Agriculture Committee has something to lose here if they don’t cut through the deception and reject this direct assault on USDA’s authority and the long-term integrity of our food supply.’ … ‘The House Farm bill currently under consideration would take the USDA’s review process for genetically engineered crops from woefully inadequate to virtually non-existent, making contamination of the food supply or harm to endangered or threatened species almost certain,’ said Sarah Saylor, Senior Legislative Representative for Earthjustice. “Automatic approval of genetically altered crops is particularly alarming.’”
Center for Food Safety listed some notable objections to the bill which included:
“Even if USDA has not analyzed, let alone agreed to approve a GE crop, unreasonably short deadlines will be established, creating approval and commercialization by default when the agency misses a target date … The bill would place strict limitations on what USDA can meaningfully consider when conducting environmental reviews of GE crops, and prohibit USDA from using funds to conduct any additional assessments. Further, all requirements of the National Environmental Policy Act or Endangered Species Act, would be banned, even if a crop approval would harm protected species … Removes farmer protections, including cross-contamination losses: With the lack of empowered USDA oversight, U.S. farmers, exporters and food businesses would be opened up to risky circumstances similar to the StarLink corn and Liberty Link rice GE crop cross-contamination episodes that cost U.S. farmers and the nation billions of dollars in losses.”
Also see: “Statement by Center for Food Safety at National Press Club Event Challenging House Farm Bill Biotech Riders,” by Center for Food Safety; July 17, 2012
Excerpt: Speaking to journalists today, the Center’s regulatory policy analyst, Colin O’Neil provided the following statement:
… “Of paramount concern to those of us interested in the safety, protection and preservation of a healthy, sustainable U.S. food supply is a suite of industry-friendly riders — Section 10011, 10013, and 10014 — buried in the House Farm Bill that was reported out of committee last week. Together, they seek to severely weaken the U.S. Department of Agriculture’s (USDA) oversight of genetically engineered (GE) crops and fundamentally bypass science-based review and liability.
“In short, these riders have the potential to completely eliminate the critical role played by our most important environmental laws. They unreasonably pressure USDA with impossible deadlines for analysis and decision, while at the same time withhold funds to conduct necessary environmental reviews and limit the regulatory authority of other agencies, such as the Environmental Protection Agency (EPA). These riders create multiple backdoor approval mechanisms that would allow for the premature commercialization of untested biotech traits to enter our food system. Insulated from pushback, the industry riders also force USDA to adopt a controversial policy that would for the first time set allowable levels of GE contamination in crops and foods. It’s an unprecedented and dangerous path that is being carved out.
“If passed, these regressive riders would eliminate vital USDA safeguards that are currently protecting American farmers and the nation’s food supply. USDA would be ill-equipped and potentially incapable of preventing costly contamination episodes, such as the StarLink corn and Liberty Link rice fiascos, which have cost American farmers billions of dollars in losses and can damage vital U.S. export markets.”
With that historical background, it is understandable why the Monsanto Protection Act of 2013 (Section 735) created such outrage. It was seen as a blatant attempt by Monsanto to usurp the judiciary process through the powerful influence it exerts over the willing members of congress who are, in effect, nothing more than mere puppets for the biotech industry. They do the bidding of their corporate masters and in order to fulfill the will of that beast, they don’t just disregard the will of the American people, they spit in their faces. If there is any take away from this at all, it is that companies like Monsanto have far too much power and influence in our government, and as such, they are not only a threat to food security on a global scale, they are a threat to democracy itself.
1 “Farmer Assurance Provision,” by Wikipedia
2 “7 CFR Part 340” eCFR — Code of Federal Regulations
3 “When They Don’t Want Your Corn: The Most Effective Tort Claims for Plaintiffs Harmed by Seed Companies Whose Genetically Engineered Seeds Produced More Problems than Profits,” by Sarah Holm, Hamline Law Review, Vol. 38 Issue 3; 2015 (54 pages)
4 “Notifications” – USDA APHIS
5 “Permits, Notifications, and Petitions,” – USDA APHIS
6 “Using the Endangered Species Act to Preempt Constitutional Challenges to GMO Regulation,” by Caitlin Kelly-Garrick, Hastings Constitutional Law Quarterly, Vol. 43, Issue 1; 2015 (24 pages)
7 “Statutory Stones and Regulatory Mortar: Using Negligence Per Se to Mend the Wall Between Farmers Growing Genetically Engineered Crops and Their Neighbors,” by Joshua B. Cannon, Washington & Lee Law Review, Vol. 67, Issue 2; 2010 (39 pages)
8 “Tester slams ‘corporate giveaways’ in government funding bill,” by Jon Tester, U.S. Senator for Montana; March 13, 2013
9 “Consolidated and Further Continuing Appropriations Act, 2013” (Text of H.R. 933 (113th Congress); March 22, 2013 (240 pages)
10 “Did Congress Just Give GMOs a Free Pass in the Courts?” by Maria Godoy, The Salt – NPR; March 21, 2013 [“The provision was slipped into the legislation anonymously.”]
11 “Full Text of the just passed Monsanto Protection Act,” by Whiteout Press; April 2, 2013
12 “Anti-GMO Campaigners Claim Victory as ‘Monsanto Protection Act’ Stripped From Senate Bill,” by Jacob Chamberlain, Common Dreams; September 25, 2013
Also see: “‘Monsanto Protection Act’ To Expire, Won’t Be Part of Continuing Resolution,” by Ashley Alman, Huffington Post; September 26, 2013
13 [Original format] “Consolidated and Further Continuing Appropriations Act, 2013” (Text of H.R. 933 (113th Congress); March 22, 2013 (574 pages)