How Monsanto Wrote and Broke Laws to Enter India

How Monsanto Wrote and Broke Laws to Enter India

Originally published on VandanaShiva.com.

Decades before there was a “debate” over GMOs and Monsanto’s PR and law firms became the busiest of bees, India was introduced to this corrupting, corporate giant that had no respect for the laws of the land. When this massive company did speak of laws, these laws had been framed, essentially, by their own lawyers.

Citizens of the United States are being denied the right to know what they are feeding their families. Despite the fact that 90% of American citizens want GMO labeling on their food, big business is doing everything it can to prevent people from accessing their rights. Representative Pompeo’s bill, popularly known as the DARK Act (Denying Americans the Right to Know), has been written almost entirely by the biotech industry lobby. While American citizens are advocating for their rights to knowledge and healthy, affordable food, Monsanto’s legal team is busy on every legislative level trying to prevent this from happening.

Monsanto’s subversion of democratic legal processes is not new. In fact, it is their modus operandi, be it the subversion of LA’s decision to be GMO free by amending the California Seed Law—equating corporations with persons, and making seed libraries and exchange of seed beyond 3 miles illegal— or suing Maui County for passing a law banning GMOs.

Decades before there was a “debate” over GMOs and Monsanto’s PR and law firms became the busiest of bees, India was introduced to this corrupting, corporate giant that had no respect for the laws of the land. When this massive company did speak of laws, these laws had been framed, essentially, by their own lawyers.

Today, Indian cotton farmers are facing a genocide that has resulted in the death of at least 300,000 of their brothers and sisters between 1995 and 2013, averaging 14,462 per year (1995-2000) and 16,743 per year (2001-2011). This epidemic began in the cotton belt, in Maharashtra, where 53,818 farmers have taken their lives. Monsanto, on it’s own website, admits that pink bollworm “resistance [to Bt] is natural and expected” and that the resistance to Bt “posed a significant threat to the nearly 5 million farmers who were planting the product in India”. 84% of the farmer suicides have been attributed to Monsanto’s Bt Cotton, placing the corporation’s greed and lawlessness at the heart of India’s agrarian crisis.

There are three outright illegalities to Monsanto’s existence in India.

First, Monsanto undemocratically imposed the false idea of “manufacturing” and “inventing” a seed, undermining robust Indian laws—that do not allow patents on life—and by taking patents on life through international trade law. Since 1999, Monsanto has had the US government do its dirty work, blocking the mandatory review of the Monsanto Law in TRIPS (the Trade Related Intellectual Property Rights Agreement implemented through the WTO).

Second, since they do not have a patent for Bt-Cotton, Monsanto’s collection of royalties as “trait value” or as a “fee for technology traits” (IPR category that does not exist in any legal framework and was concocted by Monsanto lawyers to work outside of the laws of the land) is illegal. These illegal royalty collections have been collected from the most marginal farmers, pushing them to take their own lives.

Third, the smuggling of a controlled substance without approvals (and thus Monsanto’s very entry into India) is a violation and subversion of India’s Biosafety Regulations. This includes the illegal introduction of GMOs into the food system in India, which poses grave risks to the health of ordinary Indian citizens.

Illegal entry of Bt Cotton into India

The Genetic Engineering Appraisal Committee (GEAC), the apex body constituted in the Ministry of Environment and Forests, is solely entrusted with the responsibility of approving field trials of any genetically modified organisms (GMOs). India’s biosafety framework — one of the strongest in the world — is  governed by The Rules for the Manufacture, Use, Import, Export and Storage of Hazardous Micro Organisms, Genetically Engineered Organisms or Cells (notified under the Environment Protection Act, 1986).

ARTICLE (7) OF THE RULES STIPULATES:

APPROVAL AND PROHIBITIONS ETC.

(1) NO PERSON SHALL IMPORT, EXPORT, TRANSPORT, MANUFACTURE, PROCESS, USE OR SELL ANY HAZARDOUS MICROORGANISMS OF GENETICALLY ENGINEERED ORGANISMS/SUBSTANCES OR CELLS EXCEPT WITH THE APPROVAL OF THE GENETIC ENGINEERING APPROVAL COMMITTEE.

On 10 March 1995, MAHYCO (which became Monsanto-Mahyco in 1998) imported 100 grams of cottonseed that contained the MON531-Bt Gene into India without approval from the GEAC. MAHYCO, under undisclosed circumstances, had obtained permission from the RCGM (Review Committee of Genetic Manipulation under the Department of Biotechnology (DBT), which does not have the authority to approve such an import. Without the approval of the governing body responsible for the approval of the import (GEAC) Monsanto had smuggled a controlled substance into India.

ARTICLE (4) OF THE RULES STIPULATES:

(4) GENETIC ENGINEERING APPROVAL COMMITTEE (GEAC)

THIS COMMITTEE SHALL FUNCTION AS A BODY UNDER THE DEPARTMENT OF ENVIRONMENT FORESTS AND WILDLIFE FOR APPROVAL OF ACTIVITIES INVOLVING LARGE SCALE USE OF HAZARDOUS MICROORGANISMS AND RECOMBINANTS IN RESEARCH AND INDUSTRIAL PRODUCTION FROM THE ENVIRONMENTAL ANGLE. THE COMMITTEE SHALL ALSO BE RESPONSIBLE FOR APPROVAL OF PROPOSALS RELATING TO RELEASE OF GENETICALLY ENGINEERED ORGANISMS AND PRODUCTS INTO THE ENVIRONMENT.

Open field trials are a deliberate release of GMOs into the environment and, under the above Indian law, require approval by the GEAC. Eager to get to market and establish a monopoly in the cotton sector of India in 1998, Monsanto-Mahyco, without the approval of the sole agency allowed to grant permission for open field trials – the GEAC – started large scale, multi-centric, open field trials of Bt Cotton in 40 locations spread across nine states of India.

The eventual clearance, long after the commencement of these field trials, came once again from the Review Committee of Genetic Manipulation (RCGM), which is not authorised to grant clearance for field trials. RCGM’s mandate is restricted to guidelines for lab research. Without approval from the GEAC, Monsanto’s open field trials of Bt Cotton in 1998 were blatantly illegal and an act of biological warfare against India through genetic pollution.

Furthermore, no post harvest management and safety was ensured in these trials by Monsanto-Mahyco. Monsanto was not concerned with the findings of the trials at all; they just wanted GM seeds to be introduced into Indian soil and they did so without due process. GMO traits, once released into the environment, cannot be contained or recalled. In fact, genetically engineered cotton was sold in open markets. In some states, the trial fields were replanted the very next season with crops including wheat, turmeric, and groundnut, violating Para-9 on “Post harvest handling of the transgenic plants” of the Biosafety Guidelines (1994), according to which,the fields on which GMO trials were conducted should be left fallow for at least one year.

It was in the face of these violations of Indian laws and the risks of genetic pollution India faced, that the Research Foundation for Science, Technology and Ecology (RFSTE) filed a petition in the Supreme Court of India in 1999 against Monsanto and MAHYCO. Clearly, Monsanto and MAHYCO had violated the 1989 rules for the use of GMOs under the Environmental Protection Act (1986). The government had allowed Monsanto to carry out field trials without the mandatory scientific biosafety tests.

Without waiting for the outcome of the petition pending in the Supreme Court – around President Bill Clinton’s visit to India – in March 2000 the Department of Biotechnology gave biosafety clearance to Monsanto’s Bt Cotton, and in July 2000 the GEAC cleared large-scale field trials of Bt Cotton despite the pending Supreme Court case. This was two years after Monsanto first started illegal trials. CD Mayee, Co-Chairman of the GEAC, also became the first Indian board member of ISAAA, a biotech evangelist group, in 2006. He is the chairman of the sub-committee on Bt Cotton of the GEAC, and interestingly, also sits of on the Agriculture Ministry’s Committee on Endosulfan, an insecticide with acute neurotoxin properties developed by Bayer CropScience, which is a major funder — along with Monsanto — of ISAAA.

Monsanto Bt Cotton seeds had not yet been cleared for commercial release. While the RFSTE case against Monsanto was still in the Supreme Court of India, Monsanto reported to the GEAC, in 2001, that Navbharat Seeds Pvt. Ltd., a company in Gujarat, was selling Navbharat 151 seeds, which had the MON531 Bt gene. This was not a cowboy company selling on the black market. This was a company with enough Bt Cotton seeds for the 10,000 Hectares of Navbharat 151 planted at the time. On Monsanto’s complaint, the GEAC started an investigation, carried out by the two-member team of CD Mayee and T.V. Ramanaiah (from the Department of Biotechnology (DBT)), who found Bt traits in the cotton. A case was filed in Gujarat against Navbharat Seeds Pvt. Ltd.

Post investigation, the GEAC ordered all standing crops of Navbharat 151 to be uprooted and destroyed along with seed production plots due to the major risks posed by Bt. In a submission to the court, the GEAC stated:

“12 (I) THE CROP WHICH IS STANDING MAY PASS TO THE SOIL THAT MODIFIED GENES WHICH IT CONTAINS. THE EFFECT ON SOIL MICROORGANISMS CAN NOT BE ESTIMATED AND MAY CAUSE AN IRREVERSIBLE CHANGE IN THE ENVIRONMENT STRUCTURE OF THE SOIL. IT IS A STANDARD PRACTICE TO UPROOT CROPS WHICH POSE SUCH A THREAT. THE DESTRUCTION BY BURNING IS TO ENSURE SAFETY TO ENVIRONMENT AND HUMAN HEALTH AND TO OBVIATE ANY POSSIBILITY OF CROSS-POLLINATION.

(II) THE DESTRUCTION OF THE COTTON PRODUCE AS WELL AS SEEDS HARVESTED FROM THIS PLANT IS ALSO EQUALLY NECESSARY. THE COTTON WHICH HAS BEEN PRODUCED IS GENETICALLY MODIFIED COTTON, THE EFFECT OF WHICH I.E. ALLERGENICITY AND OTHER FACTORS ON MAMMALS ARE NOT TESTED. THE PRECAUTIONARY PRINCIPLES WOULD REQUIRE THAT NO PRODUCT, THE EFFECT OF WHICH IS UNKNOWN BE PUT INTO THE MARKET STREAM. THIS COTTON WHICH IN APPEARANCE IS NO DIFFERENT FROM ANY OTHER COTTON WILL INTERMINGLE WITH ORDINARY COTTON AND IT WILL BECOME IMPOSSIBLE TO CONTAIN ITS ADVERSE AFFECT. THE ONLY REMEDY IS TO DESTROY THE COTTON AS WELL AS THE SEEDS PRODUCED AND HARVESTED IN THIS MANNER.

(III) SINCE THE FARMERS ARE BEING PUT TO A LOSS, THE FURTHER PROCESS TO DETERMINE THE COMPENSATION PAYABLE TO FARMERS, WHO HAVE UNWITTINGLY USED THIS PRODUCT HAS TO BE DETERMINED AND UNDERTAKEN.

13. I WOULD RESPECTFULLY SUBMIT THAT EVERY DAY OF DELAY IN THIS MATTER POSES A THREAT TO THE ENVIRONMENT.”

Having just concluded that Bt was dangerous and all of it had to be uprooted and burned, a few weeks later the GEAC approved the commercial release of Monsanto-Mahyco Biotech (MMB) Bt Cotton.

The national farmers unions made a joint petition to the GEAC and asked for an inquiry committee to be set up and liability and compensation fixed on the basis of the “polluter pays” principle. Since Monsanto-Mahyco is admittedly the source of the GM pollution, they, along with Navbharat Seeds Pvt. Ltd, which has further spread the pollution, are jointly liable for the pollution caused.

Monsanto’s Bt Cotton has also found its way into edible vegetable oils in India.

In a government document, the Department of Biotechnology states:

COTTON SEEDS CAN BE TOXIC IF INGESTED IN EXCESSIVE QUANTITIES BECAUSE OF THE PRESENCE OF ANTI-NUTRITIONAL AND TOXIC FACTORS INCLUDING GOSSYPOL AND CYCLOPROPENOID FATTY ACIDS.

but then goes on to say in the next sentence:

THE OIL AND LINTERS ARE USED AS PREMIUM VEGETABLE OILS AND AS CELLULOSE DIETARY ADDITIVES FOR HUMAN CONSUMPTION, RESPECTIVELY. TRADITIONALLY, WHOLE COTTON SEED IS USED AS CATTLE FEED IN INDIA. HOWEVER, THE INCREASE IN DEMAND OF EDIBLE OILS HAS NECESSITATED PROCESSING OF COTTON SEED FOR ITS OIL. THEREFORE, COTTON SEED OILCAKE/MEAL AFTER EXTRACTION IS NOW USED AS CATTLE FEED.

Monsanto’s Bt Cotton, without the support of necessary precautions and scientific studies, has illegally found its way into the Indian food chain, endangering the health of 1.26 billion Indians. The health effects of Bt Cotton seed oil in “premium vegetable oil”(as the DBT calls it) must be investigated, and the damage to people’s health must be compensated by Monsanto.

Monsanto’s illegal collection of super-profits as royalties

India’s laws do not permit patents on seeds and in agriculture. But that hasn’t stopped Monsanto from collecting close to USD 900 million from small farmers in India, pushing them into crushing debt. This is roughly the same amount of money Monsanto spent buying The Climate Corporation — a weather big data company — in a bid to control climate data access in the future.

Monsanto-Mahyco Biotech Ltd collected royalties for Bt Cotton by going outside the law and charging “technology fees” and “trait value”. These are just clever names for royalty collection. In 2006, out of the INR 1600 (per 450 grams) price tag, INR 1250 — almost 80% — was charged by MMB as the trait value. Compared to Bt Cotton, local seeds used to cost INR 5-9 per kg before Monsanto destroyed alternatives, including local hybrid seed supply, through licensing arrangements and acquisitions.

In January 2006, the Andhra Pradesh Government filed a complaint with the Monopolies and Restrictive Trade Practices Commission (MRTPC) against Monsato-Mahyco Biotech (MMB), accusing MMB of overpricing genetically modified Bt Cotton seeds. The Research Foundation for Science Technology and Ecology had to intervene in the MRTPC case. In its submission, the Andhra Pradesh Government pointed out that Monsanto charged only about INR 400 for the same packet of seeds in China and only about INR 200 in the US – 9 times less than the amount they were forcing Andhra Pradesh farmers to pay. MMB said the royalty it charged reflected its research and development costs for Bt Cotton, admitting that they were charging Indian farmers royalty and that for some reason, Indian farmers owed them more for their research and development than farmers in the US.

On 10 May 2006, the MRTPC ruled in favour of the Andhra Pradesh government and directed MMB to reduce the trait value it was unfairly charging the farmers of Andhra Pradesh. Following this, on 29 May 2006, the Andhra Pradesh Agricultural Commissioner fixed the price of Bt Cotton seeds at INR 750 for a 450-gram packet, and directed MMB and its sub-licensees to comply with its order. Monsanto challenged the Andhra Pradesh Government and the MRTPC’s decision in the Supreme Court, saying that the government’s move was illegal and arbitrary. The Supreme Court did not stay the MRTPC’s order, but while the appeal was pending before it, five states — Karnataka, Tamil Nadu, Gujarat, West Bengal, and Madhya Pradesh (now Maharashtra as well)— followed Andhra Pradesh’s lead and ordered that Bt Cotton should be sold at a reduced price, dealing a blow to the inflated profits Monsanto was taking from Indian peasants and repatriating to their headquarters in St Louis.

To side-step price control measures and avoid any regulation that had been applied to Bt Cotton, which was marketed in India as Bollgard, Monsanto introduced Bollgard II, its apparently ‘upgraded’ version with two Bt proteins. Monsanto’s intentional scientific ignorance (despite the availability of scientific studies at the time) is obvious. GMOs which release the Bt toxin in high doses in every cell of every plant are highly toxic to pollinators and friendly insects and are a recipe for creating super pests through the emergence of resistance. The pink bollworm underwent what every intelligent being does – it evolved – it became resistant to Bt. On it’s website, Monsanto admits,

“Measures to delay resistance are critically important” and “application of insecticide sprays during the crop season, and proper management of crop residue and unopened bolls after harvest will help limit insects in cotton fields”.

What are farmers being made to pay for if normal bollworm control measures are still required, they are still expected to buy and spray insecticides, and 80% of the cost of the seed goes for failed R&D?

monsantoweb01

http://www.monsanto.com/newsviews/pages/india-pink-bollworm.aspx

Monsanto admitted that the pink bollworm was resistant to Bollgard and claimed Bollgard II, with it’s two Bt proteins would control the bollworm epidemic. This allowed Monsanto to continue looting marginalised small farmers. By claiming Bollgard II was better technology than the first version, Monsanto was able to mislead farmers and charge even higher prices. (Oblivious to it’s earlier Bt failures, Monsanto is currently working on a 3-protein Bt variety to continue it’s looting)

And Monsanto still claims Bt Cotton is resistant to Bollworm, and have all their hired mouthpieces claim that there is reduced pesticide usage due to this inherent trait. In reality, requirements of pesticide increase every year with Bt Cotton. Clearly misrepresenting their lacklustre product, the only reason for the existence of Bt Cotton is royalties. Monsanto itself is on record at the 52nd Meeting of the GEAC (held on 4 March 2005) saying that Bt is not resistant to Bollworm.

“TO A QUERY ON WHETHER THE BT VARIETY IS RESISTANT TO BOLLWORM COMPLEX OR ONLY EFFECTIVE AGAINST AMERICAN BOLLWORM IT WAS CLARIFIED THAT BT COTTON IS TOLERANT TO BOLLWORM AND NOT RESISTANT.”

SOURCE: MINUTES OF THE 52ND MEETING OF THE GEAC

WWW.ENVFOR.NIC.IN/DIVISIONS/CSURV/GEAC/GEAC-52.DOC

This ruthlessness is central to the crisis Indian farmers are facing. Farmers leveraged their land holdings to buy Bt Cotton seeds and the chemicals it demanded, but the golden promise of higher yield and lower input costs failed to deliver. They were left with no option but to take their own lives. (Incidentally, CD Mayee was the chair of the GEAC subcommittee on Bt Cotton, which still monitors the performance of Bt Cotton, and his reports on the performance of Bt Cotton were, and still are, very different from the real experiences of the farmers driven to suicide by failed harvests and inferior quality cotton yield.)

In 2007 Andhra Pradesh was forced to introduce the Andhra Pradesh Cotton Seeds Act to control the price of cottonseed, since Bollgard II prices were still astronomically high due to a majority royalty component.

The following Act of the Andhra Pradesh Legislature received the assent of the Governor in August 2007:

ACT NO.29 OF 2007

SHORT TITLE AND COMMENCEMENT

DEFINITIONS

AN ACT TO REGULATE THE SUPPLY, DISTRIBUTION, SALE AND FIXATION OF SALE PRICE OF COTTON SEEDS AND FOR THE MATTERS CONNECTED THEREWITH OR INCIDENTAL THERETO.

WHEREAS, COTTON SEEDS OF CERTAIN VARIETIES ARE NOT NOTIFIED UNDER SECTION 5 AND CONSEQUENTLY NO SALE OF SUCH SEEDS ARE REGULATED UNDER SECTION 7 OF THE SEEDS ACT, 1966;

AND WHEREAS, COTTON SEED IS NOT AN ESSENTIAL COMMODITY WITHIN THE MEANING OF THE ESSENTIAL COMMODITIES ACT, 1955 AS AMENDED BY THE ESSENTIAL COMMODITIES (AMENDMENT) ACT, 2006;

AND WHEREAS, THE PROVISIONS OF THE SEEDS (CONTROL) ORDER, 1983 ISSUED UNDER SECTION 3 OF THE ESSENTIAL COMMODITIES ACT, 1955 ARE NOT APPLICABLE IN SO FAR AS THEY RELATE TO THE COTTON SEEDS W.E.F. 12.2.2007;

AND WHEREAS, THERE IS NO PROVISION IN THE ENVIRONMENTAL PROTECTION ACT, 1986 TO REGULATE THE SUPPLY, DISTRIBUTION AND SALE OF TRANSGENIC AND GENETICALLY MODIFIED COTTON SEED AND TO CONTROL THE SALE PRICE OF SUCH COTTON SEED IN THE STATE;

AND WHEREAS, THE TRADERS IN COTTON SEED INCLUDING TRANSGENIC COTTON SEED ARE EXPLOITING POOR FARMERS BY COLLECTING EXORBITANT PRICES;

AND WHEREAS, THERE IS NO PROVISION TO REGULATE THE SUPPLY, DISTRIBUTION, SALE OF COTTON SEEDS AND TO CONTROL THE SALE PRICES OF SUCH COTTON SEEDS IN THE STATE;

AND WHEREAS, IT HAS BECOME IMPERATIVE ON THE PART OF THE STATE TO REGULATE THE SUPPLY, DISTRIBUTION AND SALE OF COTTON SEEDS BY FIXING THE SALE PRICE IN THE INTERESTS OF THE FARMERS IN THE STATE;

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ANDHRA PRADESH IN THE FIFTY-EIGHTH YEAR OF THE REPUBLIC OF INDIA AS FOLLOWS :- 1. (1) THIS ACT MAY BE CALLED THE ANDHRA PRADESH COTTON SEEDS

(REGULATION OF SUPPLY, DISTRIBUTION, SALE AND FIXATION OF SALE PRICE) ACT, 2007.
(2) IT SHALL BE DEEMED TO HAVE COME INTO FORCE ON AND FROM THE 28TH JUNE, 2007.

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