Drew L. Kershen

Anti-biotechnology activist groups and product recalls are placing increasing pressure on food companies and retailers to avoid using transgenic crops in their food or feed supplies, compelling some to commit to sourcing “non-GMO” ingredients to protect the reputation of their brands. Yet avoiding agricultural biotechnology carries risks that companies must carefully consider or unwittingly increase their legal liability and the impact of negative publicity.

Risk of Product Liability. Genetically enhanced crops have the potential to reduce or eliminate mycotoxins—suspected cancer-causing agents—in the food supply. Companies that intentionally avoid agricultural biotechnology may unintentionally increase the health risk for consumers.

Let us imagine a worst-case scenario: A consumer is diagnosed with cancer and believes the disease was caused by mycotoxins in a food product. The consumer’s lawyer alleges strict product liability based on contamination (by mycotoxins). This contamination claim is a manufacturing defect claim in product liability law because the food departs from its intended product specifications. In addition—and this is an underappreciated, important point—the liability lawyer may also allege a design defect in the food because the company knew of a food designed with less risky ingredients (an approved genetically modified crop) and purposefully chose to use the riskier design. If the company attempts to answer this design defect claim by saying that it was responding to consumer demand, the company encounters Comment g (risk-utility balancing) to the Restatement of Law, Third, Torts: Products Liability (1998), which blocks this defense.

The company may also attempt to respond to this design defect claim by arguing that if the non-GMO food is found not reasonably safe, consumers are denied choice. However, the consumer’s lawyer adds an additional claim for failure to provide an adequate label. The company could have labeled its non-GMO food as follows: “This product does not contain genetically modified ingredients. Consequently, this product has a very slight additional risk of mycotoxin contamination. Mycotoxins can cause serious diseases such as liver or esophageal cancer.” The label would provide consumers with information relevant to their choice of food products.

Risk of Personal Injury Liability. Under pressure from fast-food companies, many potato buyers have imposed a “non-GMO” mandate on their contract potato growers. By demanding “non-GMO” potatoes, these companies and buyers may have unintentionally increased their legal liability for environmental harm and worker injuries.

Potatoes are a booming crop, primarily because of the heavy consumption of French fries. However, Colorado potato beetles, aphid-spread viruses, and potato blight make growing potatoes difficult. To combat these problems, potato growers use an assortment of fungicides, insecticides, and fumigants, including methamidophos. While methamidophos is an approved pesticide, its toxicity warrants extreme caution during use.

Monsanto developed a potato called NewLeaf® that contains the Bacillus thuringiensis (Bt) gene to control the Colorado potato beetle and another transplanted gene to control the virus spread by aphids. Potato growers who planted NewLeaf from 1994 to 1999 were convinced that transgenic potatoes were an environmental and economic benefit to their farms. Farmers’ use of chemical controls was reduced and their yields increased.

Now let’s assume that a farmer who is required by contract to plant non-GMO potatoes sprays his crop with methamidophos. The pesticide drifts over farm workers and into a nearby stream. The fish in the stream die, and the farm workers report to a hospital emergency room. When the farmer is sued by environmental agencies for the fish kill and by a lawyer representing the workers, the farmer’s lawyer will join the potato buyer and the fast-food companies on a cross-claim stating that the farmer was required to use a more dangerous technology by contract. Consequently, the farmer will argue that the potato buyer and the fast-food companies should be jointly and severally liable for the damages to the environment and to worker health.

Risk of Scientific Ignorance. Seven academies of science and three governmental commissions (New Zealand, United Nations, and Ireland) have reached scientific consensus that agricultural biotechnology is safe and can produce quality food products necessary to feed the people of the world. Food companies that intentionally adopt scientific ignorance—i.e., refuse to pay attention to an overwhelming scientific consensus—by voluntarily avoiding genetically modified crops are choosing to forego food science research and development that can significantly advance the health and welfare of consumers. They may also have to reformulate a significant number of their products. 

Food companies should not respond to food scares about genetically enhanced crops by hurriedly banning them from their food ingredients. Companies that do so are placing themselves at significant legal and social risk. Companies should respond to food scares by educating consumers and offering reassurance. Anything other than information and calm leadership does a disservice to the consuming public, the company, and the society in which they exist.

by Drew L. Kershen is the Earl Sneed Centennial Professor of Law at the University of Oklahoma College of Law, Norman. This article is adapted from an article published in Oklahoma Law Review, Vol. 53, pp. 631-652, Winter 2000, also available on the United Soybean Board’s Web site at www.talksoy.com .