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June 2009 Updates

Victory for Biowatch in Landmark Legal Case

June 3, 2009

Johannesburg - Constitutional Court Justice Albie Sachs today handed down judgment in the Biowatch case. Calling the case "a matter of great interest to the legal profession, the general public, and bodies concerned with public interest litigation", Justice Sachs set aside the costs order awarded against Biowatch in favour of Monsanto and further awarded legal costs in the High Court hearings in favour of Biowatch and against the state. The bench of eleven judges was unanimous in its decision.

Biowatch is a small South African non-governmental organisation campaigning in the public interest for sustainable agriculture, biodiversity, biosafety and farmers' rights. For many years it has been opposing the rapid spread of genetically modified (GM) crops in South African agriculture. It argues that there are health and environmental risks resulting from this technology, and that it diminishes food security and food sovereignty.

The judgement in the Constitutional Court was the culmination of a nine-year legal battle. In 2000, the state had consistently refused to provide Biowatch with requested official information about the planting of GM crops in South Africa. Biowatch was forced to take legal action to exercise its constitutional right to this information. In the High Court Biowatch won the right to 8 out of 11 categories of requested information. The acting judge, however, felt that Monsanto - a giant multinational pushing GM crops onto the South African market - had been forced to join the case and that Biowatch should therefore pay its legal costs. This anomaly seemed to fly in the face of justice, but even so, Biowatch lost its appeal in the same court to set aside this costs order. Biowatch was also refused leave to appeal in the Supreme Court of Appeal in Bloemfontein. Exercising the costs order would have weakened if not destroyed Biowatch as an organisation, something which Monsanto seemed bent on doing.

The Constitutional Court was able to hear the appeal, as the case involved constitutional rights. Justice Sachs stated that the High Court had "misdirected itself in the whole matter of costs" through failing to consider the constitutional implications. This enabled the Constitutional Court to pronounce on costs matters in the High Court in cases of constitutional import. Normally High Court judges assume full discretion in the matter of costs awards. Justice Sachs said that the High Court's decision was "demonstrably inappropriate on the facts, and unduly chilling to constitutional litigation in its consequences."

The case has important implications for South African justice. It means that organisations acting in the public interest will be able to litigate to gain their rights without necessarily expecting the "chilling effect" of costs orders against them. This bodes well for public confidence in the South African legal system.

The case clarifies for the legal profession that constitutional rights need to be taken into account when costs orders are made. The Biowatch case is already being discussed widely in legal circles.

"This verdict is a victory for Biowatch but also sets an important precedent for all those promoting the public interest", said Rose Williams, Biowatch's director. "Biowatch activities can now continue without the threat of Monsanto putting an end to them. We wish to thank the many hundreds of individuals and organisations who have supported us during the course of the case, as well as the Legal Resources Centre for representing us so ably."


Government Set to Approve Planting of a Quarter Million Genetically Engineered Eucalyptus Trees in U.S. South

Press Release
STOP GE Trees Campaign
June 11, 2009

Hinesburg, VT, U.S. - The U.S. government is set to approve a request from ArborGen, the genetically engineered (GE) tree research and development giant, for permission to plant 260,000 GE cold tolerant eucalyptus trees in 29 "field trials" across seven southern U.S. states. Approval of such a large-scale planting of these dangerous flowering GE forest trees in the U.S. is completely unprecedented. The GE eucalyptus, to be planted in Texas, Louisiana, Mississippi, Alabama, Georgia, Florida and South Carolina, would be allowed to flower and produce seeds, enabling them to potentially escape into native ecosystems and forests.

The STOP GE Trees Campaign, an international alliance of organizations that has banded together with the goal of globally banning the open-air release of genetically engineered trees, this week issued an "Urgent Action Alert" about ArborGen's potentially disastrous plans, with information about how the public can make comments to the government to help stop this large-scale release of GE trees.

"This is absolutely unprecedented--the government wants to approve the mass release of 260,000 flowering GE forest trees in so-called "field trials," stated Dr. Neil Carman who works with the Sierra Club in Texas. "You cannot call over a quarter of a million trees over 330 acres "field trials." These are experimental forests being planted outdoors under the disguise of "field trials" as a loophole. The government must produce an Environmental Impact Statement to carefully review all of the potential environmental threats from this large-scale GE tree release," Dr. Carman continued.

Eucalyptus are internationally known for their devastating impacts--from invasiveness to wildfires to their ability to worsen droughts. Massive wildfires in Australia earlier this year were fueled by eucalyptus, which contains a highly volatile oil. These wildfires moved at 100 km/hr and killed 173 people, who literally did not have time to escape. Additionally, eucalyptus grandis, one of the species in the GE eucalyptus hybrid, is also a known host to Cryptococcus gattii, a fungus that can cause fatal fungal meningitis in people and animals that inhale its spores. C. gattii was recently found in the U.S.

"In Brazil, eucalyptus plantations are known as 'green deserts' because they do not allow anything else to live," stated Camila Moreno, an attorney and Global Justice Ecology Project staff consultant in Brazil. "No understory plants, no wildlife, no communities--only eucalyptus trees can survive there. They are a disaster for Brazil, which is why there exists a large social movement against eucalyptus in Brazil and many hectares of plantations have been destroyed by communities," Moreno continued.

"ArborGen and their corporate owners, International Paper, Mead Westvaco and Rubicon could not be more irresponsible. The large-scale planting of these GE eucalyptus would spell disaster," added Danna Smith, Executive Director of the North Carolina based Dogwood Alliance. "Already millions of acres of land in the South have been converted to pine plantations. We cannot afford to lose any more of the precious native forests of the South--and especially not to eucalyptus plantations, which could make kudzu look tame by comparison," she continued.

Official comments on the government's plans to approve the planting of 260,000 GE eucalyptus trees are being accepted until 6 July 2009 at 5 pm eastern U.S. time. Also as a Public Service, the STOP GE Trees Campaign has created a sign-on Comment Letter demanding rejection of ArborGen's request to which members of the public can add their name. That Comment Letter with signatures will be submitted to the government.


U.S. Supreme Court Delves Into What Is and Isn't Patentable

By Eliot Marshall
June 12, 2009

For more than a decade, two entrepreneurs have been battling without success to win a U.S. patent on their method of doing commodity deals. Last week, the U.S. Supreme Court agreed to hear their plea, signaling that it may pounce on the case to clarify rules about what is, or is not, patentable. Patent attorneys say a decision could affect not just business methods but some biotech claims and process inventions.

The business duo, Bernard Bilski and Rand Warsaw, have been jousting with the U.S. Patent and Trademark Office (PTO) since the late 1990s because it refuses to award them a patent on their idea for buying and selling bulk materials, such as coal, while hedging their bets with contracts at different prices. PTO rejected this "invention" as too abstract\u2014it doesn't even include an algorithm\u2014and the top U.S. patent court, the Court of Appeals for the Federal Circuit (CAFC), upheld the rejection.

The news that the Supreme Court has agreed to hear this case jolted legal experts last week. Hans Sauer, associate counsel for the Biotechnology Industry Association (BIO) in Washington, D.C., says it's a "big deal" and has snapped "most patent attorneys in the country" to attention. For BIO members, Sauer sees a risk that the Supreme Court\u2014which hasn't ventured into the territory of what is patentable in a couple of decades\u2014could come up with a new definition that excludes certain diagnostic procedures or techniques to analyze genes, chemicals, or other natural phenomena. Physicians' groups, on the other hand, view such restrictions more favorably because they fear patents may limit access to diagnostics.

The biotech industry's concern is justified, says Christopher Holman, a law professor at the University of Missouri, Kansas City, and former pharma biochemist. He notes that the Bilski patent was rejected by CAFC because the judges said it did not involve a machine or a process that transforms a material from one thing to another. Since then, this logic has been used by a lower court to reject a biotech patent on vaccination scheduling; the court said simply that it violated the Bilski rule. Now CAFC is poised to decide about another biotech patent, this one held by Prometheus Laboratories of San Diego, California, on setting doses for the immune suppressant drug azathioprine. It's been challenged on grounds that it violates Bilski and is based on natural phenomena.

Holman has joined four academics in an amicus brief to CAFC saying that judges need to be cautious in knocking down such patents: They should not call a person's response to azathioprine a natural phenomenon, for example, because the drug itself isn't natural. BIO also weighed in with a brief to CAFC, arguing that "significant and important sectors of the biotechnology industry" could be harmed if the Bilski logic is applied too broadly. Meanwhile, the American Medical Association and six other medical groups have filed a brief on the opposite side, arguing that the Prometheus patent should be rejected because it is abstract and based on natural phenomena.

The Supreme Court's review of the Bilski case could set the ground rules for deciding this case and others involving biotech and analytical process inventions. The court hasn't set a date for accepting briefs but could do so as soon as this fall.


EU to Examine National Opt-Outs for GM Crop Growing

By Jeremy Smith
January 21, 2009

BRUSSELS - Eleven European Union countries will call next week for the right to opt-outs for growing genetically modified (GM) crops, to cut through complex EU decision-making and end years of stalemate on biotech policy.

The suggestion, to be floated at a meeting of EU environment ministers in Luxembourg on Thursday, would be for governments to restrict cultivation of specific GM crop types if they saw fit.

Even though there will be no decisions taken, the paper authored by the 11 countries is certain to spark a debate on Europe's GM policy. The European Commission, the EU's executive, has already started a review of the two main biotech approvals laws: on cultivation, and imports of GM food and feed products.

The paper was co-written by Austria, Bulgaria, Cyprus, Greece, Hungary, Ireland, Latvia, Lithuania, Malta, Slovenia and the Netherlands.

"Given the unsatisfactory situation and the negative attitude toward GMOs of large parts of the population in many member states, time has come to find a new approach to deal with the authorisation and use of GMOs in agriculture," it said. "The legally soundest solution we envisage is a set of minor amendments of relevant EU legislation, which should introduce the right of an individual member state to restrict or prohibit indefinitely the cultivation of authorised GMOs on its territory," said the paper, obtained by Reuters.

It would be straightforward to formulate such an 'opt-out' in legal terms and integrate into existing EU laws, it said.

National Self-Determination

The 11 countries also suggested drawing up a list of socio-economic criteria that national governments could use to "prohibit or regulate" GM crop cultivation on their entire territory, or certain defined areas of it.

But before then, EU environment ministers should consider options which "could enable national self-determination for cultivation, without changing the general authorisation procedure for placing GMOs and products thereof on the market."

At present, any EU license for import or cultivation of a GM product is for a 10-year period and always applies across all the bloc's 27 member countries.

Even though EU law provides under certain strict conditions for a country to restrict GM crop cultivation or GM product imports, authorisation licenses are valid across the bloc -- in accordance with the principles of the single EU internal market. However, only one GM crop may be grown at present, a maize type developed by U.S. company Monsanto. That has frustrated many pro-biotech EU states, as well as industry, which are keen to see far more European GMO authorizations.

But in practice, to change the EU's strict rules on regulating the internal market would be extremely difficult, diplomats say. It would probably involve EU finance ministers and ruffle the feathers of a number of EU governments.

The European Union has long been split on GM policy and its member states consistently clash over whether to approve new varieties for import -- but without ever reaching a conclusion.


Puerto Rico: Biotech Island

By Carmelo Ruiz-Marrero
June 23, 2009

In the global debate regarding genetically modified (GM) foods and organisms (GMO's), the little-known role of the Caribbean island of Puerto Rico in testing and propagating GM crops has gone largely unnoticed and unexamined. The agricultural biotechnology activity in this tropical US colony is simply massive.

"Puerto Rico attracts agricultural biotechnology companies because of the tropical climate that permits up to four harvests yearly and the willingness of the government to fast-track permits", according to professors Margarita Irizarry and José Rodríguez Orengo, of the University of Puerto Rico's Medical Sciences Campus. "Furthermore, the opposition to GM foods is almost non-existent on the island and no particular environmental group is protesting the presence of Dow, Syngenta Seeds, Pioneer HiBred, Mycogen Seeds, Rice Tech, AgReliant Genetics, Bayer Croposcience, and Monsanto."

Since 2004 we at the Puerto Rico Project on Biosafety have been trying to find out just what is going on in our land regarding GM crops. We have obtained very little information so far, but what little we have managed to get is quite worrying.

The most recent US Department of Agriculture Biotechnology Regulatory Services (BRS) data we have obtained show that as of January 2005 it had authorized 1,330 field releases for experimental GM crops in the island, which resulted in 3,483 field tests. Of the field releases, 944 were for corn, 262 for soy, 99 for cotton, 15 for rice, 8 for tomato, 1 for papaya and 1 for tobacco. According to the documentation, these releases were being authorized as early as 1987, almost a full decade before US authorities permitted GM foods for human consumption. Where in Puerto Rico exactly? What traits have been tested? The BRS says it's all "confidential business information".

With the sole exception of Hawai'i, no state in the USA has had so many GM crop experiments per square mile. The only ones that had more field tests than Puerto Rico's 3,483 were Hawai'i (5,413), Illinois (5,092) and Iowa (4,659). Keep in mind that Puerto Rico has less than 4,000 square miles, whereas Illinois and Iowa each have over 50,000 square miles. Puerto Rico surpassed California by far, which had only 1,964 field tests, although California is 40 times larger.

These data, of course, must be updated. We have been walking around with these and showing them to everyone for four years now. But we do not see any reason to believe that the situation has significantly changed since 2005.

It must be pointed out that not all the GM crop activity in our territory is experimental. There is also commercial GM production, about which we know even less. Commercial GM crop production is exported to the US- and who knows where else- for use as seed.

Most of these crops are planted in the southern plains, between the municipalities of Juana Díaz and Guayama, and especially concentrated in the stretch of land between the towns of Santa Isabel and Salinas, south of expressway 52 and north of route 1. Various eyewitnesses have told us that security in these lands is extreme. You cannot even stop your car alongside these fields without having policemen show up and ask you what your business is. And no, you cannot film or even take photos. They claim to be concerned about theft of crops. While we acknowledge that theft- of both produce and machinery- is one of the most serious problems facing Puerto Rican agriculture today, we also note that no other farming operations in the island enjoy such dilligent police protection.

GM crops can also be found in the northwest town of Isabela, where Monsanto Caribbean has an experimental station right on the south side of highway #2. Plus, we would not be surprised at all to find more of these crops in the fertile and bountiful Lajas valley, in Puerto Rico's southwest, possibly the very best farmland in the whole island.

Successive governments of both major political parties, the Popular Democratic Party (PDP) and the New Progressive Party (NPP), have put biotechnology at the center of their strategies for attracting investment. From the Cold War days of the manufacture boom, known as "Operation Bootstrap", we have moved on to biotechnology, both agricultural and pharmaceutical, with pompous slogans like "The Knowledge Economy" and "Mentes a la Obra" (Operation Mindstrap?). The Puerto Rico Industrial Development Corporation markets Puerto Rico as the "Bio-Island" and agressively sells investors on the advantages and desirability of setting up biotech operations in the island.

The life sciences industry, which is how the biotech corporate giants like to call themselves, are very grateful for Puerto Rico's fine investment climate. In 2006, then-governor Aníbal Acevedo-Vilá (PDP) was named "governor of the year" by the Biotechnology Industry Association in its annual convention in Chicago.

In January 2009 senator Berdiel Rivera (NPP) introduced bill #202, which aims to promote agricultural biotechnology. As if the biotech corporations needed any more support than they have already gotten from the PR government in the last 20+ years!

Mr. Rivera and his fellow senators who support Senate bill 202 should take notice of GM-related developments outside the island. Just in May, the American Academy of Environmental Medicine declared that GM foods pose a serious health risk. Referring to a number of studies, the Academy concluded that "there is more than a casual association between GM foods and adverse health effects" and that "GM foods pose a serious health risk in the areas of toxicology, allergy and immune function, reproductive health, and metabolic, physiologic and genetic health."

And 2008 saw the release of the International Assessment of Agricultural Knowledge, Science and Technology for Development report (IAASTD), a unique, unprecedented and definitive report on the state of world agriculture. It was authored by over 400 international experts, subjected to two independent peer reviews, and was the product of an inclusive and participatory process in which industry, governments and civil society participated as equal partners, with the support of UN agencies and the World Bank.

The report concluded, in a nutshell, that the model of industrial, corporate, globalized agriculture cannot continue, as it is unsustainable and is literally eating up the planet's patrimony, and favors in its stead small-scale agroecological production that uses local resources and minimizes the use of fossil fuel-based inputs- precisely what environmentalists and organic farmers had been advocating for decades.

With regards to biotechnology and GM crops, the IAASTD report was cautious and unenthusiastic. Instead of the uncritical cheering one hears from governments and the mainstream media, the report counseled caution and called for further studies regarding GM foods' safety.

And while all over the world the safety and necessity of GM crops and foods is increasingly questioned, over here in Puerto Rico our government is selling us this technology as if it were the last coke bottle in the desert.

Some well-intended folks have argued to us that Senate bill 202 will regulate GM crop activity in Puerto Rico and that this is preferrable to having these crops without any regulation or control. But this technology cannot be controled. Once planted outdoors, GM crops cannot be controlled or recalled. They proliferate and multiply, as living things will. No country that has allowed the entrance of GM crops has been able to control them. Therefore, bill #202 will only further legitimize and entrench this dangerous and unnecessary technology in Puerto Rico.

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