Agriculture Workshop Comment Number: AGW-14129

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Comment Number: AGW-14129

From: on behalf of
Ken Dahlberg
Sent: Wednesday, December 30, 2009 2:19 PM
To: ATR-Agricultural Workshops
Cc: Ken Dahlberg
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 
possible legislation.

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.

Yours sincerely,

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]

Updated April 7, 2016

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