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Down to Earth: Q&A with CFS Attorney George Kimbrell

Environmental health attorney George Kimbrell discusses the food safety implications of genetically modified crops, which aren’t labeled in the United States and are poorly regulated.

Length: 26 min 29 sec

Recorded: June 2011

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Earthjustice staffer Jessica Knoblauch speaks with George Kimbrell, a staff attorney at the Center for Food Safety.

Kimbrell is currently serving as co-counsel in Earthjustice’s genetically modified sugar beet and alfalfa cases. In 2006, the Center for Food Safety challenged the USDA’s approval of genetically modified alfalfa, a case that went all the way to the U.S. Supreme Court and resulted in the ban of the GE crop.

Jessica Knoblauch: As an organization, the Center for Food Safety works to protect human health and the environment by stopping harmful food production technologies. What is it about genetically modified foods that make them unsafe?

George Kimbrell: It’s part of the industrial paradigm, industrial food system. Right now in our country there’s an awakening of sustainability and agriculture and people are recognizing the benefits of organic and local and humane. Genetically engineered food is part of the factory farming system that is the antithesis of those philosophies. I also think people are understanding the connection between our food system and the environment and how connected what we eat is to how we live on our planet and what those impacts are.

But more specifically to your question, I think the answer breaks down twofold. First, with regards to health, this is a novel technology that is an ongoing experiment on our health, unfortunately. Basically we have a lot more unknowns than knowns with regards to the potential human health impacts of genetically engineered food. You’re taking a gene from a species that could never cross in nature and you’re crossing it with a very foreign species. So you’re taking a gene from, for example, a flounder, and you’re inserting it using a gene gun into a tomato to make it more cold resistant. A flounder and a tomato are never going to get together in the natural world. It’s very different than conventional breeding when you’re breeding two types of corn to try to improve the different traits in your corn crop. That’s the first fundamental distinction.

So it’s kind of an ongoing experiment on the population, in that way. And because we don’t have any labeling unfortunately, we really don’t really have any connection to potential toxicity concerns or health concerns that might arise. Two-thirds of the world labels genetically engineered foods. We’re really the outlier in that regard and we don’t give our public the choice and the ability to choose the source. Unless you buy organic; that’s one way you can know since organic prohibits genetic engineered ingredients.

I’m an attorney, so the science aspects and human health aspects are kind of a little beyond my field of expertise but I do know that you have novel allergenicity concerns. That’s one of the biggest things people always raise. In other words, if you’re allergic to fish, for example, and I’m selling tomatoes, and you don’t know my tomato is genetically engineered, you could have a really bad allergic reaction if you ate it because it could have a transgene substance from a species that you’re allergic to without knowing. That’s just one example.

But I think the main thing for your readers and for the public to know is that we don’t have any independent testing that’s done by our agencies on this food. Monsanto and the other companies that produce it, they have what’s called a voluntary consultation with the [U.S.] Food and Drug Administration. They provide the Food and Drug Administration (FDA), behind closed doors, the testing they have done on the food. And that’s it. FDA either allows it and has no further questions or doesn’t, although they’ve never not allowed one on the market. And that’s it. That testing does not become public. It’s confidential business information. FDA does none of their own testing, there’s no independent testing whatsoever. So it’s on market shelves and we’re eating it. That’s the human health side.

Most of what the Center for Food Safety does in litigation, as you probably are aware, these cases are about the environmental impacts of this industrial system. These cases are why growing these crops are harmful for the environment, which people also care about. People want to eat things that are not harmful for the environment, that are produced sustainably. Of those, the most important thing to understand is that this technology is a one-trick pony. These crops are pesticide-promoting crops. Eighty-five percent of them do one thing. They’re engineered to be immune to a pesticide. So the companies that make them, which by the way are chemical companies that make pesticides, Monsanto, Syngenta, Bayer, DuPont and Dow, they’re the same companies, so those companies can sell more of their flagship products, more pesticides. They’re really good at one thing, engineering the crops to be resistant to pesticides. They don’t help us feed the world, there are no crops that increase yields or help us feed the hungry, they don’t help us fight climate change, there are no crops that are drought-resistant or tolerant, and they don’t help us better the environment. They just increase pesticides. That’s what they do.

Jessica: There are a lot of common misconceptions that people have about genetically modified foods. You mentioned quite a few, drought-resistant, more nutritious crops. Is this just a product of the companies’ marketing them that way? Is that how these misconceptions have happened?

George: The common myths, just to recap, are the ones that we discussed. The first one is that it’s the exact same thing as conventional breeding. It’s not. It’s fundamentally different. A flounder and a tomato don’t get together in nature. The second misconception is that there are benefits for consumers, for the public, for public health or for farmers even from these crops. There aren’t. It’s basically a failed technology. Monsanto and the others that promote it have patented these crops and the vast majority of them do one thing.

Why are those misconceptions out there about other failed promises? Good question. I think the overarching answer is money. You’re talking about very powerful corporate entities that spend hundreds of millions of dollars lobbying our government annually and probably more than that on advertising. If you listen to NPR [National Public Radio], you’ll hear, “Brought to you by Monsanto.” They’re ubiquitous with their advertising. There is a tough row to hoe. There’s quite a lot of advertising to that extent. I think part of what we do and what we have done for many years now is to try to correct the record on that and to explain that the reality is far different from the hype. There is a great difference between hype and reality with regards to these crops.

Jessica: In 2006, the Center challenged the USDA’s [U.S. Department of Agriculture] approval of genetically modified alfalfa. There are so many GE foods out there, why did the Center decide to take on this case?

George: That’s a good question. Alfalfa was a shift in the types of crops that had been genetically engineered in a number of ways. It was a significant new threat to the environment and to the food system in that the crops that are engineered right now are essentially fourfold: corn, soy, canola and cotton.

Alfalfa is different. First of all, it’s a perennial crop that grows three to eight years, as opposed to an annual crop that only grows one year. It can survive in nature by itself wild or feral. It’s ubiquitous across the American West for that. If you go anywhere out where I live in the Pacific Northwest you drive around and alfalfa is growing wild in roadside ditches, in fallow fields, on roadsides, by phone poles. It’s also a bee-pollinated crop. So bees are wild and managed and there’s many varieties of them and they can fly and cross-pollinate between sources many miles distant. Six miles for honey bees, for example. And bees don’t read signs. They cross-pollinate between fields. So you have this threat of the movement of this transgene of contamination, of not just farmers’ fields, but also contamination of wild sources in the natural world where alfalfa grows through bee pollination. That’s one of the issues that was unique to alfalfa as opposed to some of the row crops that are wind-pollinated. The threat of contamination was different, agronomically-speaking. The other issue is that alfalfa is the key component of the dairy industry. It’s the key forage feed for many of our livestock industries, but in particular dairy and milk and cheese and organic. So you have a real issue there if you have alfalfa that is contaminated. It’s a real threat to the organic dairy industry and to the dairy industry that wants to stay GMO-free because their main source of feed, even if they don’t want it to be genetically engineered, is very likely to be contaminated. Then, of course, their foodstuffs that come from that forage source are going to include that genetically engineered variety.

Jessica: One other thing that I though was interesting with alfalfa is that most alfalfa actually grows just fine without any pesticides. Meanwhile, genetically engineered alfalfa is engineered to withstand toxic doses of Monsanto’s Roundup Ready pesticide. Is that correct?

George: You know it’s the fourth most widely grown crop in the country. There’s twenty million acres of it. It’s grown in every state in the country. And it’s generally a pesticide-free crop. Only about 10 or 15 percent of any alfalfa, conventional or organic, is grown with pesticides. Most farmers use cultural practices. They’ll intersperse oats or something else to keep the weeds down instead of spraying pesticides. And so the approval and potential replacement of that with a pesticide-promoting cropping system would be a dramatic accumulative increase in pesticide exposure to the environment in many different ecosystems. So unlike other crops, soy, corn, and cotton that generally use more pesticides, alfalfa does not. So the replacement of it with a pesticide cropping system is a great danger to the environment, in our view.

This technology is a one-trick pony … They don’t help us feed the world, there are no crops that increase yields or help us feed the hungry, they don’t help us fight climate change, there are no crops that are drought-resistant or tolerant, and they don’t help us better the environment. They just increase pesticides. That’s what they do.

Jessica: So, the alfalfa case made it all the way to the [U.S.] Supreme Court in 2010, which was a first for genetically modified food issues. What was the outcome of that court’s decision?

George: The case was brought in 2006 and we prevailed in early 2007 in District Court. The Department of Agriculture was required by the court to prepare an environmental impact statement assessing the potential environmental and socioeconomic impacts of Roundup Ready alfalfa on farmers and the environment, including many of the ones that we just talked about: contamination as well as increase in pesticide use. USDA began that document. Remarkably, in 15 years of approving different types of these genetically engineered crops, the USDA had never undertaken any environmental impact statement for any of them before. So this was the first one that they’d ever done in the alfalfa case. And subsequently they were ordered to do one in the sugar beets case. That’s only the second one they’ve done.

So then the question in that case became, what do we do in the interim while the agency goes back and does its homework? We argued that they should have to stop planting this stuff, that it shouldn’t be allowed to continue until and unless the agency complied with the court’s order and undertook this rigorous study. And then they should make a new decision. Monsanto and the agency argued that they should be allowed to continue to sell and plant the crop, even while the agency was undertaking the review. In our view that put the cart before the horse. The District Court agreed with us and stopped the planting and preserved the status quo, basically said nothing further can happen until the agency does this study. That decision was appealed to the 9th Circuit and was twice affirmed. And then in 2008/2009 it went to the Supreme Court.

Conventional breeding involves crossing similar species to improve traits; for example, breeding two different types of corn together.

The Supreme Court made an interesting decision, the result of which was that Roundup Ready alfalfa continued to be prohibited from being planted. I think most of the media that reported on it got the story wrong, which was that the ban on Roundup Ready alfalfa had been lifted. The Supreme Court did no such thing. What the Supreme Court said was, the District Court gave you two remedies, both of which independently stopped the planting of this crop. One is called an injunction and one’s called an vacatur. The Supreme Court said you don’t need both of them. Both of them is overkill. One is sufficient. So it took away one of them. The day after the Supreme Court issued its decision, no one could plant Roundup Ready alfalfa, just like before they issued their decision no one could plant it. So it was a victory for us in everything but name. Technically they were reversing but the result was that the environment remained safe from Roundup Ready alfalfa and our farmers remained safe from it. So we were very pleased with that decision and with that result.

Jessica: So, is the genetically engineered alfalfa still able to be planted right now?

[In GMOs,] you’re taking a gene from a species that could never cross in nature and you’re crossing it with a very foreign species.

George: That decision was in June 2010. All through the fall it was still prohibited. Then what happened was that in December of 2010 the USDA finished their study that was ordered by the court. And they made a new decision and under the new decision, unfortunately, they again decided that Roundup Ready alfalfa could be planted again, even after the EIS, which disclosed all of the environmental impacts we just discussed regarding pesticides and contamination of organic and conventional alfalfa. So that decision was made in January of this year. So as of January 2011, Roundup Ready alfalfa again became lawful to plant. As a consequence, we have filed a new lawsuit with Earthjustice, challenging that new approval, which we filed in March last month.

Jessica: So the USDA essentially agreed that there would be environmental impacts from the alfalfa, but then allowed it to be planted anyway? Were there any restrictions put on the planting?

George: Unfortunately, not. In their analysis, they considered three alternatives. One would be to prohibit it, not allow it to be commercially planted and sold. The second was for it to be commercially planted and sold, without any restrictions. The third was to allow it to be commercially planted and sold but with significant restrictions of isolation distances from organic and conventional crops and geographic zones so you would have parts of different states which would be GMO-free, where it couldn’t be grown basically. Those were the three alternatives and it chose the second one without any restrictions. We were obviously very disappointed and we believe that decision is unlawful on a number of grounds, violates a number of laws. It was a complete capitulation to the pressure of the biotech industry and the pressure they put on the USDA over the holidays to come to that decision.

Jessica: In terms of lobbying efforts?

George: Massive amounts of lobbying. Land of Lakes, who is the owner of Forage Genetics, which is Monsanto’s licensee for Roundup Ready alfalfa, spent tons of money lobbying, millions and millions of dollars. In our view there was quite a bit of politicking and pressure that went on and the decision was a political one, not based on science and not based on law.

Companies have attempted to introduce genes from flounders into tomatoes, in order to enhance the fruit's cold resistant properties.

Jessica: I noticed that a number of groups supported the Center’s efforts in the alfalfa case, from the Arkansas Rice Growers Association to the Humane Society of the United States. What is it about this issue that draws so many varied interests together?

George: The Supreme Court shown a spotlight on the issue and it was the first case of its kind to reach the Supreme Court and so to that extent it received a great amount of exposure as a high profile environmental case in front of the Supreme Court. I think there was quite a bit at stake, as there always is in such a case, so the people and the public became aware of it. But I also think that people are becoming more and more aware of the connections of their food system to the environment and the environmental impacts of how they shop and how they live and that agriculture is not this separate place from what we consider nature. But rather that it’s all a holistic, connected system and that happens to be ecologically the ways things are. I think it’s an important realization. I think in generations past we’ve had this view of farmland is over here and nature where I go hiking with my family is over here—they’re different. And really those things are very much part of the same place and planet. And so to the extent that this smaller issue of genetic engineering is a microcosm of the paradigm shift. People get that awareness, especially with pesticides. People understand pesticides. So when you tell people, these are pesticide-promoting crops, people get that and people are becoming more aware of that. So we saw quite a bit of that in recent years, with regards to all of the issues that we’ve brought.

A flounder and a tomato don’t get together in nature.

The rice farmers, their case was unique. They were contaminated themselves. What happened to the rice farmers was that in 2006 … we sell a lot of rice to Japan. And Japan, of course like most of the world, labels genetically engineered food and doesn’t allow them if they have a certain amount of contamination. So rice farmers in the Southeast were contaminated by a variety unknowingly that was being field tested at Louisiana State University and Japan shut down the border for them, shut down their markets, and cut off their contacts for two years. So hundreds of thousands of small family farmers in the South that grow rice lost their farms, lost their livelihoods, lost their businesses for that period. So obviously when we had our case about contamination with alfalfa, they could speak to that. They had been through that and they didn’t want to see the same thing happen for people that grow organic alfalfa or that export alfalfa because we do export a good amount of alfalfa overseas as well to markets that have no tolerance for GMO contamination, including Japan.

Jessica: I read a case a couple of months ago that farmers are actually suing the biotech companies back for this genetic contamination because it impacts crop prices, whether or not other countries will accept their crops if they’re contaminated by genetic ingredients. So it looks like the tables are being turned a bit.

The chemical companies that have created and patented GE crops are the same ones who are selling and profiting from the pesticides used with those crops.

George: Yes, that was a very important lawsuit that was brought earlier this year by the Public Patent Association, a nonprofit that does patent litigation on behalf of the public interest. [Editor's Note: The name of group is Public Patent Foundation.] A number of our members and allies are plaintiffs in that litigation. We are not technically [sic]. We’re not patent lawyers; we’re administrative law and environmental lawyers. But it’s an important case and I think it’s a just case, but it is about this issue of whether or not, because Monsanto patents these crops and the contamination happens and nature finds a way. Whether through bees or wind, cross pollination happens and then all of a sudden their patented crop is in some farmers’ field where he doesn’t want it.

In patent law, the farmer that was unknowingly and unwantingly contaminated, he could be held liable to Monsanto for patent infringement because he’s growing their patented variety and he didn’t pay them the contract fee to get that seed. What happens with these patented crops, and this is part and parcel of this shift to an industrial paradigm versus a more sustainable food system paradigm, you’ve got the privatization of a 10,000 year old right. For 10,000 years farmers have saved their seeds. My wife and I, we grow green beans or lettuce or whatever it is and we make sure we save our seed and next year we grow it again. Well, with these patented crops, you can’t do that. Monsanto will sue you. You have to go back every year and pay the annual fee to get the new seed from them. So that’s what that patent lawsuit is about, it’s about stopping that practice and preserving that right of farmers to save their seed and not have them be liable to Monsanto for patent infringement.

Jessica: There’s this growing awareness amongst consumers about genetically modified foods and how they affect the environment and ourselves. With that in mind, since the U.S. doesn’t require companies to label GE foods, what can people do to minimize their own exposure?

People are becoming more and more aware of the connections of their food system to the environment and the environmental impacts of how they shop and how they live, and that agriculture is not this separate place from what we consider nature. But rather that it’s all a holistic, connected system.

George: One thing that we mentioned right off the bat, you can buy organic or you can get to know your farmer at the farmers market or the co-op. Have a relationship with your food sources. Have a garden. That’s the best thing you can do for part of your food sourcing. That’s one way you can really know. But as far as going to the grocery store, organic means non-GMO. It has to be GMO-free under the National Organic Standards rule. So that’s one thing you can trust in.

But I think more generally it’s incumbent upon anyone who cares about this issue to increase public awareness pressure and their policy makers to get us labeling. Part of what Center for Food Safety has also worked on, one of our goals since the beginning is that there is this fundamental right of the public to choose what you feed yourself and your family. And that we should have labeling and that it’s wrong that we don’t. That decision is a political one again. It’s one that the Obama Administration, if the political will was there, if the people were loud enough, could change. As I said, most of the world labels these foods. And so to that extent, people should get involved, get activated, because labeling is a vital necessity.

The views and opinions expressed by guests on “Down to Earth” audio podcast series do not necessarily represent the opinion or position of Earthjustice, its board or funders.

Glyphosate, the main ingredient in Monsanto's Roundup herbicide, has spawned a new generation of superweeds that are spreading rapidly across the United States. Explore an interactive map documenting where superweeds have made their appearance: Alien Invasion: Glyphosate Resistant Weeds

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