Fourth Trial Over Genetically Modified Rice Begins in Arkansas

March 26, 2010

Bayer CropScience knew that if an experimental strain of its genetically modified rice got into the commercial market it would be disastrous, a lawyer for a dozen Arkansas rice farmers said March 24 as a civil trial on the issue got under way.

The trial is the fourth one on the matter. Bayer has lost in the three previous cases – two in federal court in Missouri and one in Woodruff County Circuit Court in Arkansas.

“Bayer knew that, if this stuff got out, it would be catastrophic” in its effect on prices paid to farmers, lawyer Scott Powell told the jury in Lonoke County Circuit Court.

The company’s attorney, Dick Ellis, countered that if the farmers suffered any damages, they were minimal, and that Bayer acted responsibly in its handling of the experimental rice.

“It had some impact, but it was a small impact and didn’t last very long,” Ellis said.

Bayer developed the rice in an effort to create a strain of the crop that would not be harmed by Liberty herbicide, a product made by the Germany-based company. As a result of testing in the U.S. of the rice known as Liberty Link, it got mixed with regular rice – something the farmers say significantly reduced the prices they got for their crops.

Rice futures plummeted by $150 million immediately after the contamination announcement in 2006. European nations quit accepting shipments of any rice from the U.S. that hadn’t been extensively tested to show it wasn’t contaminated, and Japan banned all American rice. Growers in Arkansas, California, Louisiana, Mississippi, Missouri and Texas filed lawsuits against Bayer for hurting their sales.

The U.S. testing required Bayer to agree to stringent standards drawn up by the U.S. Department of Agriculture “to keep this material confined and contained,” Powell said.

Beyond those standards, Powell said, Bayer should have used common sense. He said rice direct from a plant “is sticky stuff – it sticks to your boots, pants, cuffs and combines.”

“But they used the same people” to raise the Liberty Link rice as were used to raise standard rice being grown in fields 165 feet away, Powell said. “They didn’t use dedicated equipment – they used the same equipment in the experimental fields” and in the conventional fields, he said.

“Was that being careful?” he asked the jury.

Ellis countered that USDA required only a 10-foot separation between experimental and conventional rice plots.

The Arkansas farmers, in addition to seeking compensation for damages they say they suffered because of lowered prices for their crops, are seeking punitive damages. They argue that Bayer was not only negligent in its handling of Liberty Link rice, but acted with malicious intent by not announcing the contamination of the commercial rice-seed pool as soon as the company learned of it.

The suit claims Bayer knew of the contamination as early as January 2006, before that year’s crops were sowed. But Powell said farmers didn’t learn of the contamination until an announcement by the USDA in August 2006, when it was almost time to harvest crops they had just learned might be tainted.

Ellis, however, said that “when Bayer did determine that (Liberty Link had shown up in commercial rice), it was reported to the government.”

He also disputed the effect of the European reaction, saying “Europe was not a big … consumer of rice.” He said exporters quickly found new markets for the rice that would have gone to Europe, which he estimated at “maybe 5 percent” of the U.S. crop that year.

He said the evidence would show that farmers still “were getting probably record prices for rice.”

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