Liability for Genetically Modified Food: Are GMOs a Tort Waiting to Happen?

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In the area of genetically modified organisms (GMOs), the patent rights of biotech companies have long been established under U.S. law and beyond, reaching into international markets through treaties. However, with ownership comes great responsibility — and potential liability. In view of the scientific uncertainty, future harm from these bioengineered products — in which insecticide resistance and pest toxins are inserted into the cellular level of the plant including the resulting vegetable or fruit — has not been determined. Yet nearly all food products on the U.S. supermarket shelves now contain one or more GM ingredients (e.g., corn or soy derivatives) and, unlike in the international community, these products are not required to be specially regulated or even labeled. This article approaches the subject of these legal liability risks broadly, exploring patent infringement and expanding into other novel forms of tort liability such as contamination cases and potential product liability for injury to persons as well as property in the future. It includes analysis of recent court cases that establish the foundation for a new concept of economic loss — that the contamination of the crop caused a depressing effect on the prices of an entire crop market, and every farmer who sold any corn that year was in fact damaged because of depressed prices — a notion that could also apply when a genetically engineered crop is fully approved in the United States but is not approved in major export markets. In view of substantial potential liability, it would be in the best interests of the biotech industry to self-regulate proactively before state and federal regulators step in along with attorneys through the private tort system. So too should farmers be made aware of and carefully consider these legal liability risks in determining whether to plant GM crops and whether, indeed, they will in the long run be as profitable as the biotech companies would lead them to believe. As injuries and damages prove to be no longer theoretical but prohibitively expensive, the industry should come to realize ultimately that safety is good business.


Copyright American Bar Association Fall 2012

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SciTech Lawyer

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Strauss, Debra M. Liability for Genetically Modified Food: Are GMOs a Tort Waiting to Happen? SciTech Lawyer 9, no. 2 (2012): 8-13.

Peer Reviewed