Agriculture Reference
In-Depth Information
continuing concern as more GM food products enter the marketplace
without rigorous scientific appraisal and pre-market review by FDA. If
such an incident occurs, there is a considerable body of prior court deci-
sions involving allergenic reactions and other harms to consumers caused
by conventional food products that would be applicable and persuasive.
In those prior cases, judicial application of Negligence and Strict Liabil-
ity (for defective products) theories has enabled injured consumers to
secure awards of compensatory and punitive damages against the prod-
uct makers and sellers, and been followed by product recalls and sanc-
tions by FDA and state agencies against the defendants. It seems rea-
sonable to assume that harms caused by GM foods would not be treated
differently by the courts, provided the plaintiffs are able to establish
causation.
The second scenario involves the growing of a GM crop from which
gene flow or pollen drift occurs and causes “GM contamination” of a
neighbor's conventional crop, and subsequently leads to cancellation of
orders for the conventional crop by customers in the United States or
abroad who have zero-tolerance for GM content in the crops they pur-
chase. In most states, the property damage and business loss incurred
by the neighbor provides the basis for a lawsuit against the GM grower
that could be based on liability theories such as Negligence for growing
the GM crop without a sufficient buffer zone or other means of contain-
ment, and Nuisance for intentionally carrying out an activity that inter-
feres with the neighbor's use and enjoyment of his property or harms his
property interests in the conventional crop.
In addition, in many states the neighbor may also seek damages under
several theories of liability from the maker of the GM seed that was used.
Under Negligence theory, the neighbor would have to establish that the
maker was negligent in designing or producing the seed product or sell-
ing it without appropriate warnings and instructions for its safe use, that
this negligence breached the standard of care the maker owed the neigh-
bor as a bystander, and that the breach was the proximate cause of the
harm that ensued. Under Strict Liability, the neighbor would focus not
