What does this mean for exporters? Here are a few items to keep in mind. First, grain segregation is key. Ensure you have systems and regulations in place to keep GE feed and grain segregated from non-GE feed and grain, if you source or store both. If you are receiving grain from growers, knowing what is coming in and when is key to ensure proper storage. Second, understand your supply chain. Know where your feed and feed ingredients are sourced from, and work with the suppliers to ensure that records are properly kept and where appropriate, that refuges were properly used if GE crops were grown nearby. Third, evaluate your testing protocol. If you are exporting grain and feed products to Europe, ensure that you have proper protocols in place to test for the presence of GE organisms in the feed and that you maintain the proper documentation to support those results.

For growers, record keeping is likely going to be of even more importance, as the feed and grain industry is seeing increased regulation, not just on the GE plant issue. Ensure that you are maintaining the necessary records so your buyers can verify the type of seed used, and also that proper planting guidelines were observed, if necessary. While grain traceability is difficult, and is currently not required, increased regulation is continuing to make traceability more of a necessity than an option likely down the road.

Deregulation Litigation

The past year has seen a rise in litigation related to genetically modified crops as advocacy groups continue to push for increased regulation and federal oversight of GE crops. Two major cases involved the use of Round-Up Ready Sugar Beets and Alfalfa.

Both lawsuits involved USDA’s decision to deregulate, or partially deregulate, the crop in question. Deregulation is essentially USDA’s determination that the crop is safe to plan and in many cases, growers may start using that GE plant with little to no restrictions. As part of the deregulation process, USDA first does an initial environmental assessment, accompanied by a plant pest risk assessment. If USDA determines the GE plant/trait in question has no significant impact, it can move it to deregulated status; however, if USDA determined there is a likelihood of significant environmental impact, it must complete a more thorough environmental study. In many cases, USDA has the option to partially deregulate the plant/trait while it completes the second study.

The deregulation process is often hotly contested by environmental, pro-organic, and often even some consumer groups. This was most definitely the case when it came to alfalfa and sugar beets.

Alfalfa, an important feed crop, became the first GE crop considered in a case before the U.S. Supreme Court. This case, Monsanto v. Geertson, involved a challenge to USDA’s decision to partially deregulate GE alfalfa. In June 2010, the Court held that courts could not prevent USDA from partially deregulating GE crops while it completed the final studies. This set important precedent, as it clearly established that USDA has the role of determining what restrictions should apply to GE plants at every state of the regulatory process. In early 2011, USDA fully deregulated GE alfalfa. With this decision, farmers are free to plant and move GE alfalfa without further oversight by USDA, now bound only by restrictions set by the seed company. USDA’s decision has now spawned further litigation, which remains unresolved.

A similar issue was the focus of a case involving GE sugar beets, Center for Food Safety v. Vilsack. This case out of California closely followed the Supreme Court’s alfalfa decision, as the court considered USDA’s decision to deregulate GE sugar beets. The court held that USDA had abused its discretion by not conducting the secondary environmental study, vacated the decision to fully deregulate the plant, and referred the case back to USDA for further consideration and review. Shortly thereafter, in early 2011, USDA partially deregulated GE sugar beets, allowing farmers to continue to grow and distribute the crop under certain restrictions. USDA’s decision again led to more litigation, this time from both environmental groups opposing the plant, who contend the restrictions are insufficient, and GE supporters, who contend the restrictions are too burdensome. This round of litigation is still ongoing, and is likely a sign of things to come as USDA moves forward considering the deregulation of additional GE crops.

100% Natural?

Recent lawsuits have also been filed challenging the labeling claim of “100% Natural” when the product in question contains oils derived from genetically modified plant materials. Class action lawsuits were filed in July 2011 in New York, California and New Jersey alleging various causes of action including fraud and misrepresentation, claiming that products were falsely labeled 100% natural when the oils contained within were derived from GE plants.