Over the past several years I have spent a great deal of time in high-security, limited-access genetic modification laboratories. While researching my latest book, I peered at glow-in-the-dark grapes (their seeds spiked with jellyfish genes), inspected attempts to create square tomatoes (a yet-to-be-decoded DNA sequence may dictate the shape of all fruit), and marveled at rice plants engineered to be immune to Asia’s deadliest rice blight. None of the GMO cornucopia I ogled is commercially available—yet. But even if these laboratory specimens never make it to the shelves, about 70 percent of processed foods in U.S. supermarkets already contain genetically modified ingredients.
Should you be concerned about the healthfulness of such foods? This question monopolized a good deal of the recent diatribes deployed in the lead-up to last month’s vote on California’s Proposition 37, which would have mandated labeling on GM foods.
But this is the wrong question.
Here’s why: GM foods’ effect on health is uncertain, but their effect on farmers, scientists, and the marketplace is clear. Some GM foods may be healthy, others not; every genetic modification is different. But every GM food becomes dangerous—not to health, but to society—when it can be patented. Right now, the driving force behind the development of new genetic crop modifications is the fact that they possess the potential to be enormously profitable, and the source of those potential profits is a seemingly innocuous bit of legal code:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor.
That’s the gist of early American patent law (originally with the word art in place of the word process)—and the reason why molecular biologists are spiking grapes with jellyfish genes and pulling all-nighters in pursuit of the square tomato. Originally, patent law applied only to nonedible inventions, but since the Plant Patent Act of 1930 was passed, genetically altered food has been subject to intellectual property protection, and the creation of new foods has become a reliable way to ensure profit streams for whoever patented them first. In 1930, genetically modified food meant apples grafted from one tree onto another, but 40 years later the statute was extended beyond the fruits of grafted saplings to plants that grow from seeds, like corn. “Utility patent” protection came later, in 1985, and expanded intellectual property rights to methods of engineering a plant, including genetic sequences inserted into a species’s genome.
The impact of these laws has been enormous. In essence, plant patent laws created the industrial food system that the modern food movement rightly decries.
Monsanto, the most reviled agricultural corporation in the world, has committed manifold ethical sins that have been widely reported in foodie media. What isn’t widely reported is that plant patent laws are the legal framework that enables these sins. It was utility patent protection that opened the door for Monsanto’s present-day global seed and insecticide portfolio, including rights to its infamous “terminator” or “suicide seed” technology (which effectively sterilizes second-generation plants and makes it not only futile but a legal violation for farmers to gather seeds for next year’s crop). Monsanto has prosecuted farmers who discover GM corn or soy sprouts growing on their land after the wind carries seeds over from neighbors’ GM fields. The basis for such ridiculous lawsuits? Plant patent laws: These farmers are inadvertently violating Monsanto’s intellectual property rights. Worst of all, Monsanto has deviously developed an insecticide technology (specifically, a weed-killer known as “Roundup,” discovered and patented by a Monsanto chemist in 1970) that works best when applied to the corporation’s patented GM seeds. Patent laws, in essence, have allowed the corporation to establish a vertical monopoly—if you want Monsanto’s high-yielding Roundup Ready seeds, you’ll need Monsanto’s Roundup insecticide; and if you buy Roundup insecticide, you’ll need Roundup Ready seeds. (Since large-scale corn and soybean farmers want the highest yields they can get, they tend to go ahead and buy both.)
The sum total effect of these actions on the global food system has been overwhelmingly negative.
Take the case of Dr. Pamela Ronald, a professor of plant genomics at UC-Davis. Like many scientists, Dr. Ronald’s primary motivation is not profit, but insight into the workings of nature. After seeking to decode the rice genome for a decade, Ronald and her team came up with a genetically altered version that resists Xanthomonas, Asia’s worst rice blight. What better, more socially beneficial use for genetic modification could there be? Ronald and UC-Davis filed the gene with the U.S. Patent and Trademark Office, so that the genetic sequences for Xanthomonas immunity would become their intellectual property, and soon after that filing, Monsanto and Pioneer asked to license the gene.
But as the UC-Davis Office of Technology Transfer negotiated terms of the deal, Monsanto and Pioneer lost interest, and the commercial development of Ronald’s rice stalled. Disease resistance, it turned out, did not possess the same attractions for multinational food producers as it did for Dr. Ronald and UC-Davis, perhaps because the potential profits of blight-resistant rice couldn’t compare to those of Roundup Ready corn. Pamela Ronald’s rice held the promise of saving lives in Asia—but because of legal wrangling her grains remained in the greenhouse.
Eventually, Dr. Ronald effected her own patent protest by making the genetic information she discovered freely available to developing countries. And Ronald’s attitude toward the legal framework surrounding crop genetics is not atypical among scientists. Many of the molecular biologists I’ve interviewed over the last several years say that food patent laws stand in the way of their research, as molecular innovations become the intellectual property of the company or university that owns the lab that created it. The right to own your innovation sounds like a great thing—except for the fact that the overall effect stifles large-scale collaborative work, which has often been the foundation of scientific advancement. In fact, scientists interested in a freer exchange of ideas might be allies of the food movement in this battle against Monsanto and Big Ag, and rally behind reform of plant patent laws—if foodies took a step back from campaigning to label GM foods and looked at the big picture.
Intellectual property laws need to be rethought. A copyrighted movie or book remains the same movie or book, but when food becomes a legal construct or an intellectual property right, it stops being food. Of course, you can eat patented popcorn the same way you can consume its unpatented cousin. But unlike an iPhone or a flatscreen TV, everyone needs food, and we need it every day. The world’s largest purveyors of industrial agriculture would like to convince the rest of us that the global food market is as free as the market for any other widget—even though no one can opt out of purchasing breakfast, lunch, or dinner for any extended period of time, or in any meaningful way. Since everyone must participate in the food market to the tune of 2,700 or so calories a day, food property rights allow those who hold food patents a guaranteed portion of profits from a guaranteed purchase, which is fundamentally unfair. Why should Big Ag possess privileges beyond any other sort of business on earth? The rules that govern patents for electronics and entertainment should not be the same rules that govern the most vital element of human life.
More than eight decades’ worth of plant patent protection has formed one of the agricultural industry’s strongest bulwarks—and that’s why patent laws are exactly what the food movement should be targeting. The most direct and efficient way to undermine the food industrialist monopoly of the molecular seed business is to reform these laws (particularly the utility patent law of 1985), and make food property rights less exclusive, less lucrative, and less enduring.
If the goal of the American food movement is to offer an alternative to Big Food, if the goal is to foster small farmers worldwide, to develop better connections between rural and urban environments, and to support sustainable farming techniques—then labeling GM foods, as California’s Proposition 37 would have done, will not come anywhere close to doing the job. In order to overhaul the food system, the food movement must think strategically. To the Monsantos of the world, food has become a source of wild profit and a legal construct to be defended at all costs in court. That means the time has come for the food movement to take on patent laws. Instead of tilting at the windmill of food labels, food nonprofits should hire a fleet of I.P. lawyers and send them to Washington to demand reform of the Plant Patent Act. When there’s less profit in genetic modification, things will get better for consumers, farmers, and scientists—pretty much everyone except corporate executives.
Slate’s coverage of food systems is made possible in part by the W.K. Kellogg Foundation.