Group says Monsanto law skirts courts, requires approval of genetically engineered seeds

Have you heard of the Monsanto Protection Act?

That’s the name critics have assigned to a section of the continuing resolution which Congress passed and President Barack Obama signed on March 20, 2013, that keeps the federal government operating through the end of the fiscal year.

Tucked into Section 735 of the law is a provision relating to the regulation of genetically engineered crops that has food safety activists up in arms.

We’ve seen a number of claims about this legislation, on Facebook in particular. This one, from the group Grow Food, Not Lawns, caught our eye:

The law "requires the USDA to approve the harvest and sale of crops from genetically modified seed even if a court has ruled against the crop as being dangerous to public safety or the environment."

That’s a hefty statement about a hot issue. We decided to look further.

Sugar beets and the regulatory process

Missouri-based Monsanto is the world’s largest producer of genetically engineered seeds, which are regulated by the USDA. The agency is required, under the National Environmental Policy Act or NEPA, to study them for environmental impacts, such as their effect on other crops and their risk of becoming a pest plant. (The USDA does not assess the seeds in terms of food safety -- that’s the job of the FDA and is not addressed in this law.)

This process landed in court in 2009, when Monsanto petitioned for approval of a sugar beet genetically engineered to be resistant to a Monsanto brand of herbicide. The USDA conducted a preliminary environmental study that found that the beet’s introduction into agriculture would have no significant impact on the environment and gave its approval. The Center for Food Safety sued USDA, saying it had not completed an adequate NEPA review, and the courts agreed, sending USDA back to complete the study.

It’s important to note that the court ruling didn’t say the beets were unsafe; it simply said that an adequate environmental review hadn’t been done.

"It took USDA more than a year to do the analysis, but farmers were growing these sugar beets," said Greg Jaffe with the Center for Science in the Public Interest. "USDA issued temporary permits while they continued the analysis, with conditions to ensure it didn’t impact the environment. They had the discretion to do that."

Ultimately, Jaffe said, USDA finished its study and approved the crop.

So, what’s new?

The attachment in the budget bill, known as a "rider," essentially puts into law the practice described in the sugar beet case.

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"The language in Section 735 codifies existing USDA authority and elements of a 2010 Supreme Court ruling that lower courts should not automatically prohibit the planting of biotech crop varieties, or the harvest and sale of biotech crops already planted, if/when their commercial use is temporarily banned because of a lawsuit," said Karen Batra, spokeswoman for the Biotech Industry Organization. "This applies to products that have ALREADY gone through the approval process and already been deregulated by FDA and therefore deemed to be safe for human health and the environment. If the secretary believes that the crop at issue poses a risk in any way, he can forbid its use."

Jaffe added, "I don’t think it provides USDA with any new legal authority that they didn’t already have, although clearly it’s Congress telling USDA that they should use that authority wherever possible."

The text of the law says "In the event that a determination of nonregulated 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..."

The words -- "shall immediately grant" -- are alarming activists who are already suspicious of genetically modified products dominating the food supply.

"It goes a step beyond by forcing the agency to approve those permits or partial deregulation," said Colin O’Neil, director of government affairs at the Center for Food Safety, the group that filed suit in the sugar beet case. "There’s an urgency written into the law that is going to stifle sound science and science-based regulation."

"It kind of takes the courts out of the game," added Patty Lovera of the group Food and Water Watch.

Jaffe, however, noted that the USDA would still have to adhere to existing guidelines in the approval process, such as ensuring that products comply with the Plant Protection Act.

When we contacted the USDA about this claim, a spokesman sent us this statement:

"(Agriculture) Secretary (Tom) Vilsack has asked the Office of General Counsel to review this provision as it appears to pre-empt judicial review of a deregulatory action, which may make the provision unenforceable."

Our ruling

The group Grow Food, Not Lawns claimed that the budget bill "requires the USDA to approve the harvest and sale of crops from genetically modified seed even if a court has ruled against the crop as being dangerous to public safety or the environment."

We learned from experts that the USDA issuing temporary permits for products in litigation is not new with this law. That was already the agency’s practice. And in the sugar beet case that went to court, the dispute was not over the safety of the food but the environmental review procedure.

However, the language in the law saying the USDA "shall" issue permits escalates that policy, with one expert telling us it "compels" the agency to allow the use of disputed products while litigation proceeds. And now the USDA itself is now questioning whether that provision is enforceable.

The Facebook claim rightly describes the effect of the new provision, but lacks some important context. We rate it Half True.

Editor's note: This story has been changed after publication to clarify that Monsanto created a sugar beet that was resistant to an herbicide.