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Comment Number: AGW-14129
|From:||firstname.lastname@example.org on behalf of |
|Sent:||Wednesday, December 30, 2009 2:19 PM|
|Subject:||Comments on Competition Issues in the Agricultural Industry|
Legal Policy Section, Antitrust Division December 30, 2009
U.S. Department of Justice
450 5th Street, N.W., Suite 11700
Washington, D.C. 20001
RE: Competition Issues in the Agricultural Industry
While these comments will arrive near the deadline, I trust they will
be fully considered.
They go beyond standard antitrust issues and clearly suggest the need
for further analysis and discussion of the links between issues of
concentration and new sources of monopoly - especially monopolistic
technologies such as genetic modification and current patent and trade
regimes which create very strong national and international incentives
for developing oligopolies and monopolies.
When I testified before Congress in 1979 against H.R. 999: Plant
Variety Protection Act Amendments - which was designed to greatly
extend and expand the limited protection given ornamental plant
breeders to agricultural plant breeders - I asserted that roughly 90%
of the value of crop seeds was their genetic endowment, that another
9.9 % derived from the 10,000 years of domestication and improvement
carried out by our ancestors, and that at best only .1% could be
attributed to modern crop breeding and/or genetic modification. My
conclusion was that this did not give plant breeders any legitimate
claim to ‘ownership.’
Even the passage of these amendments in 1980, farmers still had the
right to save their own ‘seed corn’ for the next crop year from a
current year’s newly protected varieties.
It should be noted that the corn hybrids developed in the 1930’s had a
‘natural’ protection which required farmers to buy seeds from the
hybridizers each year since planting the corn grown from hybrid would
break down into the components of the hybrid, lowering the yield
below the best standard open pollinated varieties.
It should be noted that in Europe, seed companies there seeking to
protect their patents were forcing the loss of many traditional
varieties of vegetables by lobbying European and international
organizations to ‘standardize’ their varieties as those approved for
sale and growth. These anti-competitive measures were further
incorporated into a quasi-international agency - WIPO (the World
Intellectual Property Organization) which along with the FAO/WHO Codex
Alimentarius were - and still are - strongly influenced by the
European and increasingly the US seed oligopolies. WIPOs jurisdiction
over seed patents issues were later transferred to WTO.
The few farmer protection measures in the US Plant Variety Protection
Act of 1979 were eliminated by later amendments and especially by the
Diamond v. Chakrabarty Supreme Court decision allowing patenting of
life forms - a decision which almost cavalierly ignored the
Constitution’s language on patents and well as the normal court
practice of referring a legal dispute over a fundamental expansion of
a constitutional provision to Congress for further consideration and
The history of the seed industry since then has ranged from large
companies buying independent seed companies to control the sources of
the seeds that they further want to control through the monopolistic
technology of genetic modification which is now protected by both
patents and the proprietary genetic technologies, to companies like
Monsanto effectively shifting the burden of proof from them to farmers
they claim had grown its GMO seeds illegally, forcing farmers - if
they had the legal resources - to try to demonstrate that they their
seeds had been ‘contaminated’ from adjacent GMO fields.
Additionally, there has been little protection for organic growers
losing their valuable USDA certification because of GMO genetic drift
from adjacent fields.
When I was in Australia on sabbatical, my host was on the Australian
New Zealand Food Authority and it was preparing regulations which
would have required that the shipping, processing, and distribution
streams of GMO plants be kept separate. Before these were issued,
Monsanto - evidently pursuing a ‘facts on the ground’ strategy -
shipped in cargo shiploads of G MO seeds, despite appeals not to do so.
One of the most egregious abuses of plant patenting involves attempts
made to patent common property plants in developing countries that
have important food and/or medicinal uses, such as the neem tree in
India, in order to try to expropriate and monopolize these common
biological resources. Many of these countries have since sought to
inventory such traditional plants and protect them from patenting.
These are but a few examples of how large corporations use favorable
patent, IPR, and trade rules and combine them with technologies that
are essentially monopolistic since only large and wealthy corporations
(or governments) have the resources to develop and deploy them.
My strong recommendation is that the Legal Policy Section expand the
current set of hearing to include the above issues which underlie and
cross-cut all of the currently scheduled sectoral workshops. While
these sector workshops are valuable and important, there is also the
need to examine how our larger legal/constitutional frameworks have
become biased towards monopolistic control once combined with today’s
monopolistic technologies and institutional regimes.
I would be willing to expand on the above history and examples if that
would be useful in pursuing the larger issues described above.
Kenneth A. Dahlberg
Professor Emeritus of Political Science and Environmental Studies
Western Michigan University
Kalamazoo, MI 49008
[Mailing address: 2427 Kensington Dr., Kalamazoo, MI 49008]