Syngenta might look to put Viptera controversy "to bed" after Chinese authorization, says lawyer

18-Dec-2014 - Last updated on 18-Dec-2014 at 17:36 GMT

China’s long awaited approval for Syngenta’s contentious GM corn strain, MIR 162, may see that biotech firm settle the multiple lawsuits against it, which were triggered by allegations of damages from the sale of the seed into the US prior to Chinese trait authorization, say a legal expert.

US Agriculture secretary, Tom Vilsack, said China had given import clearance for Syngenta’s Viptera corn, also known as MIR 162, as well as approval for biotech soy beans developed by DuPont Pioneer and Bayer CropScience.

The US official told reporters about the development at a US/China trade forum in Chicago yesterday.

Syngenta had, in fact, applied for import approval of MIR 162 back in 2010.

Legal action

Last month saw ADM sue the Swiss biotech firm, alleging it sold corn seed with traits not approved in all major export markets and didn’t take “reasonable stewardship practices” to stop the resulting crop from contaminating the rest of the US corn supply.

The move followed legal action against Basel-based Syngenta brought by US farmers in October, as well as lawsuits against it filed by agribusiness giant, Cargill and livestock feed exporter, Trans Coastal Supply, in September, claiming losses in millions linked to China’s rejection of US crops containing the controversial strain.

Putting controversy to bed

James Pizzirusso, a lawyer representing corn farmers alleging Syngenta hurt their profits, told FeedNavigator today:

“We believe Viptera approval is not only important for our farmers as China has been an increasingly large importer of our corn and dried distiller grains, but also because it may help provide an end date for measuring damages in the farmer class actions.

This is not to say that Syngenta has reached out to us to settle the cases, but we would welcome such an opportunity.”

He said those cases have only recently been consolidated in front of Judge Lungstrum in the District of Kansas, and that it may take a couple of months before the litigation gets organized and starts progressing.

“Perhaps more importantly, Syngenta has settled its dispute with Bunge. We are optimistic that this settlement, as well as Chinese approval, may mean that Syngenta is looking to put this controversy to bed,” added Pizzirusso.

Legal liability

Syngenta said previously that the various lawsuits were without merit. It claims it was fully compliant with all US laws and regulations, and that it cannot be held responsible for the actions of a foreign government.

But Andrew Torrance, professor of law at the University of Kansas, told this publication in October:

“It may seem outlandish that a company could trigger legal liability for selling GM seeds in the US that are fully compliant with US domestic laws.

However, it is important to consider the context here. The market for many agricultural commodities, especially staples like wheat, corn, and soybean, is now largely global. Seed companies understand this fact well, and routinely apply in major markets like Europe, China, and India for regulatory approval to sell their GM products there.

These companies are also quite familiar with the storage and shipping infrastructure that leads to the mixing together of many farmers’ crops. So, it is foreseeable that when seed companies supply domestic US farmers with seeds, their resulting GM crops will end up being exported to other countries,” said Torrance.

Risk assessment

But Anastasia Telesetsky, law professor at the University of Idaho, argued that users of GM products and participants in an industry where GM products are common must “share the risk” that a certain market may still not be available to them when they are ready to sell.

“Essentially, Cargill and others are arguing that the GM seeds and products that they purchased came with some sort of implied warranty of merchantability that the grain could be sold anywhere in the world.

The consumers of GM seeds and users of GM crops have to be aware that there are different legal regimes in the world and different levels of comfort in terms of permitting GM crops into a domestic market.

Not every country needs to operate on the same regulatory time line.

And, thus, because all markets are not created exactly equal, there must be some degree of due diligence on the part of consumers of GM seeds or parties that rely on products from such seeds to investigate the market implications of seed choice.

These are simple business risk assessment decisions,” said Telesetsky.