The Schmeiser story
How a Canadian farmer lost his battle with Monsanto - but achieved star status among European environmentalists.
Percy Schmeiser, the Canadian farmer turned environmentalist prophet, recently lost his appeal against the biotech company Monsanto, in a case that sparked debate across Canada and Europe about GM crops.
On 4 September 2002, a panel of three Federal Court judges in Canada unanimously rejected all 17 of Schmeiser’s appeal grounds, and confirmed that the farmer had violated Monsanto’s patent on Roundup Ready canola. Monsanto issued a cross appeal for the farmer to pay back a larger amount of the profits that he had gained from the patented crops, but this was also dismissed (1).
The Monsanto v Schmeiser case raises interesting scientific and legal questions about agricultural biotechnology. But there is a striking difference between the issues raised by the case and the way Schmeiser has been represented in sections of the German media – which indicates that, in the GM debate in Europe, scaremongering often has more purchase than science.
The Monsanto v Schmeiser case
Percy Schmeiser is a 71-year-old farmer in Bruno, in the Canadian province of Saskatchewan. For around 50 years he has cultivated crops continually improved through his own selection process, on around 650 hectares of land. When he took on the seed producer Monsanto in 1997 he became a famous critic of biotechnology and biotech companies, and the darling of environmentalist movements like Greenpeace, Friends of the Earth and the Canada-based green campaign group, ETC.
In 1996, the agricultural company Monsanto received its first market permit in Canada for Roundup Ready canola (oilseed rape), which has a genetically engineered tolerance to herbicides (2). Farmers who wanted to plant their fields with the seed had to sign ‘technology agreements’ at the time of purchase. These forbade them, inter alia, to retain seed from their own Roundup Ready harvest for re-sowing the following year.
To monitor the proper market introduction of this new product, Monsanto employed detectives, and encouraged farmers to inform on their neighbours if they suspected them of infringing the rules. Samples were also taken from Schmeiser’s fields – and laboratory tests found transgenic plants for which the farmer was unable to present a licence.
Schmeiser, who had never purchased Monsanto seed, said he was shocked to be accused of having illegally cultivated Monsanto canola. He subsequently accused the agricultural group of having ‘contaminated’ his crops, arguing that crossovers of ‘genetically manipulated’ plants in neighbouring Roundup Ready fields via pollen flight, bees and drifts from vehicles had ‘destroyed’ the genotype of his own cultivation varieties. Schmeiser also claimed that the detectives hired by Monsanto had followed him with the aim of intimidating him.
David’s fight against Goliath finally wound up in court. Monsanto filed suit for patent infringement and demanded compensation, punishment as well as the payment of the suit costs – in total a hefty sum of around 175,000 Canadian Dollars. Schmeiser prepared a countersuit for environmental contamination, destruction of seed stuff and character assassination (3).
In March 2001, the federal court in Ottawa passed judgement against Schmeiser in the case brought by Monsanto. Judge Andrew MacKay refused to believe Schmeiser’s initial assertion that so much transgenic canola pollen had drifted on to his field solely via wind and bees. During the trial, Schmeiser had already admitted ‘experimenting’ with Monsanto’s Roundup Ready seed on his field. Herbicide-tolerant plants with a purity grade of 95 to 98 percent in relation to the patent-protected characteristic had been found in large areas of Schmeiser’s canola cultivation area. Various experts testified in court that unintentional mixing via pollen flight from neighbouring fields could not have caused the discovery of this much Roundup Ready (4).
The purity grade of the transgenic canola plants in Schmeiser’s field suggests the use of the Roundup herbicide on one of his canola stocks in 1997. This stock may have comprised a mixture of herbicide-tolerant canola plants and conventional plants, and herbicide-tolerant seeds may actually have found their way into Schmeiser’s field via pollen flight. It was at this stage that the pesticide Roundup probably did its work, by allowing only those canola plants to survive that possessed genetically engineered resistance to its active ingredient, glyphosate.
At this point, Schmeiser should have demanded that Monsanto remove the transgenic plants from his field. Instead, it appears that he retained seed from these plants for re-sowing purposes. Parts of the next harvest were consequently made up almost exclusively of the Roundup Ready plants. Other explanations for the high purity grade of the 1998 harvest seem highly implausible.
Numerous farmers and agricultural experts share this view, as did the judge, who pronounced: ‘I have found that he [Schmeiser] seeded that crop from seed saved in 1997 which he knew or ought to have known was Roundup tolerant, and samples of plants from that seed were found to contain the plaintiffs’ patented claims for genes and cells.’ (5)
Both parties lodged appeals against the judgement, which were heard on 15 and 16 May 2002. Both have now been rejected. Schmeiser primarily questioned the validity of the crop samples used as evidence in the first trial, but the judges felt that the evidence was very clear (6). Schmeiser is now preparing to take his case before Canada’s Supreme Court.
As expected, Monsanto has welcomed the appeal court decision. Company spokesperson Andreas Thierfelder said that: ‘A constitutional state has to defend the rights of all its people and parties, and this of course is also valid for patents and licences.’ (7) He emphasised that Schmeiser has not been convicted – as it has been often argued by critics of biotechnology – because of pollen flow on to his field, but because he had knowingly broken the protection of a patented technology.
Schmeiser, by contrast, warns of the increasing dependency of farmers upon multinational agricultural companies. However, farmers in Canada seem to have a generally positive attitude towards herbicide-tolerant genetically engineered crops. Around 30,000 Canadian farmers are now cultivating Roundup Ready canola and are prepared to pay licence fees for it.
Observers on the ground were not surprised by the first or the second judgment against Schmeiser. But these judgements provoked varying reactions in other quarters.
While many farmers were outraged, others took a different view. Dale Adolph, president of the Canola Council of Canada (8), declared that many canola producers had expected Schmeiser’s defeat in March 2001: ‘It might have been a feeling by a lot of people that Schmeiser’s story was too unbelievable.’ (9) Ray Hilderman, a farmer and currently president of the Canola Growers Association in the Saskatchewan region, said that farmers who have been paying Monsanto to use the Roundup Ready varieties were pleased to see that Schmeiser ‘would not get away with not paying for the technology’ (10).
Farmers who used Roundup technology claimed in the Canadian newspaper Globe&Mail that they found Schmeiser’s assertion that the transgenic plants were ‘spreading like wildfire’ over his fields laughable (11).
The controversy between the farmer and the seed manufacturer has raised some explosive questions. One is the issue of how licensing agreements or patent registrations for modern plant technologies can be regulated in a reasonable manner. Roundup Ready canola counts as one of the first commercially applied discoveries of green biotechnology. Monsanto has invested millions in its development, and aims to generate additional profits via the licensing fees. The exclusive marketing rights run out in February 2010, at which point the use of the technology will be open to other firms.
Unfortunately, many of the questions raised by the Monsanto-Schmeiser controversy seem to have been irrelevant to the European discussion. While Schmeiser lost much of his reputation in Canada after the first verdict against him, in Europe he has successfully presented himself as the victim of a big company. Over the past few months, anti-biotech campaign groups have taken Schmeiser to tell his story on podiums across the world. He has also achieved celebrity in the German media.
In March 2002, the German news magazine Focus published an article titled ‘Gegenwind für biopiraten’ (Headwind for bio-piracy) (12), in which the author used Schmeiser’s story to express his own scepticism about big businesses and their patent policies. Before that, the TV production Tote Ernte (Dead Harvest), by Kai Krueger and Bertram Verhaag, condemned Roundup Ready canola as a ‘proper Frankenstein’ (13).
Tote Ernte was initially shown in Germany on 26 November 2001 on the WDR3 channel. The previous month, it had been honoured with the ‘Golden Lynx’ award at the Environmental Film Festival ‘Ökomedia’, and was shown at the conferences of several environmental groups. But in December 2001 Monsanto questioned some of the facts presented in the programme. The WDR3 editorial staff temporarily withdrew the film from circulation in order to alter several passages. A film showing due to take place in April 2002, organised by the Environment Office in Hesse, had to be cancelled.
Terms such as ‘contaminated’ ran through Tote Ernte, leaving the viewer in no doubt that, as the jury responsible for awarding the 2001 Ökomedia award reasoned, Monsanto wants ‘to hold hostage not only the whole global food industry but also, at the same time, each and every single consumer’. Scientifically based statements are dismissed as ‘typical arguments of the industry’.
That journalists should be sceptical about large firms is no bad thing. But the primary purpose of Tote Ernte seemed to be to destroy the viewer’s trust in modern plant science. And the viewer learns little about the original legal case of Schmeiser v Monsanto, except that it ended in a ‘scandalous judgement’.
Maybe now the Schmieser case has been resolved in court, journalists, scientists and others can pay a little more attention to the real issues raised by GM technology, and a little less to the prejudices of our times.
Thomas Deichmann is editor of Novo magazine, and co-author with Thilo Spahl of Das Populäre Lexikon der Gentechnik: Überraschende Fakten von Allergie über Killerkartoffel bis Zelltherapie (The Popular Lexicon of Genetic Engineering: Surprising Facts from Allergy and Killer Potatoes to Cell Therapy), Eichborn Verlag, Frankfurt 2001. Buy this book from Novo.
How anthraxiety infected Europe, by Thomas Deichmann
(1) ‘Schmeiser loses again; will the rest of us?’, Benjamin Chapman, Food Safety Network (Canada), 6 September 2002; ‘Court upholds Monsanto win over genetically-modified canola’, Dow Jones Business News, 6 September 2002; ‘Saskatchewan farmer violated patent, court rules’, Globe&Mail, 6 September 2002
(2) Herbicide-tolerant canola: Oilseed rape is an artificially constructed plant cross of the wild plant turnip rape and another artificially created vegetable. Modern oil seed rape and turnip rape varieties in Canada are called canola. The Roundup Ready crops from Monsanto show a tolerance against the Monsanto herbicide Roundup. This technology allows effective weed control. A similar product line has been developed by Aventis, called Liberty Link. Weeds can cause severe losses in yields because they compete with other plants for nutrients in the soil, water and sunlight. But chemical herbicides can harm cultivated plants, and can usually only be applied before the seed is planted. Herbicide-tolerant canola resists the herbicide Roundup, which contains glyphosate. This substance is harmless to humans and is easily biologically deconstructed in the soil, but it blocks the production of a certain protein in plants. Plants exposed to glyphosate therefore die. Roundup Ready varieties tolerate glyphosate, which means that the herbicide Roundup can also be used after sowing. In Canada Roundup Ready crops are cultivated in more than half of the total canola farmland. The Canola Council of Canada estimated that for 1999, farmers gained approximately 200 extra kilos per hectare, and a total of $66million extra income.
(3) See Percy Schmeiser’s website
(4) Saskatchewan farmer ordered to pay Monsanto damages, CBC News, 24 May 2001; Percy Schmeiser vs Monsanto – The real story, The Life Sciences Network, 2 July 2002
(5) See the Monsanto v Schmeiser verdict
(6) See the Monsanto v Schmeiser Appeal Court Decision
(7) Bundesrichter weisen Berufung von kanadischem Bauern im Patentsverletzungsfall einstimmig zurück (Federal Court judges unanimouslydismiss appeal in Schmeiser vs. Monsanto Canada Inc. patent infringementcase), Monsanto Germany, Press release, 6 September 2002
(8) See the Canola Council of Canada
(9) ‘Few surprised by GM canola ruling’, Ed White, The Western Producer, 5 April 2001
(10) ‘Canola ruling causes few ripples’, Murray Lyons, The Star Phoenix, Saskatoon, 30 March 2001
(11) ‘Canola case preposterous’, Lynn and Ute Thacker, Globe&Mail (letters to the editor), 3 April 2001
(12) ‘Gegenwind für Biopiraten’ (Headwind for Bio-Piracy), Michael Odenwald, Focus, No.12/2002
(13) See Krueger and Verhaag’s DENKmal Film Production website
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