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Mississippi farmer fights for the right to save seed

by Robert Schubert
Cropchoice.com editor

(April 6, 2001 --Cropchoice news) -- The Scruggs family has been farming in North America for eight generations.

"And we've been saving seed that long," says Mitchell Scruggs, a Mississippi soybean, cotton and wheat farmer. "It's a God given right that was passed on to us by our ancestors. It's never been disputed until now, when big corporations are misusing patents to take those rights away from American farmers. The reason they're doing this is to control all the food and fiber in the world. They do this by controlling seed."

He is one of hundreds of farmers Monsanto has investigated. The St. Louis-based biotechnology giant alleges that they've saved and replanted its transgenic seeds, an infringement of its patents.

Scruggs admits that he saves the seed from Roundup Ready and Bt soybeans and cotton. As far as he's concerned, once he's paid for seed, it's his to do with as he pleases.

The majority of farmers involved argue that their crops are testing positive for the presence of Monsanto's transgenic traits because of widespread and increasing contamination, not because they're saving the seed.

Although he acknowledges that genetic contamination of conventional crops is a growing and serious problem, Scruggs is focusing his fight on protecting the right of farmers to save seeds.

To that end, he helped to found Farmers Save Our Seed, better known as Farmers S-O-S. So far, he says, hundreds of growers have phoned the organization's toll-free phone number (1-877-727-6207).


Transgenics, or genetic engineering, describes the process in which scientists insert a gene construct into one plant species to create a different one. It's unlike conventional breeding in that the gene(s) originate in a species with no close relationship to the resulting plant.

Biotechnology companies such as Monsanto and Pioneer Hi-Bred International have used it to create varieties of major commercial crops -- soybeans, cotton, corn and canola -- to resist herbicides and insects. They contend that the technology will enhance the profitability of farm operations by increasing yields and reducing the application of herbicides.

Critics argue that the technology is failing.

Monsanto engineered Roundup Ready crops to resist its herbicide Roundup (glyphosate). This means that farmers can plant resistant soybeans, for example, in a field of weeds. Roundup will kill the weeds, but not the soybeans.

Monsanto also has a line of Bt corn and cotton that features the insecticidal gene of the bacterium Bacillus thuringiensis to kill tobacco budworm, corn borers, bollworms and other pests.

To protect these genetically modified seeds, Monsanto got utility patents under section 101 of the Patent Act (Title 35 of the U.S. Code). This means that farmers can't legally save and replant them. Instead, they have to repurchase the seed each year at considerable expense.

Scruggs pays $24.50 for a 50-pound bag of Roundup Ready soybeans. That's enough to plant one acre. Of the 13,000 acres of soybeans he grew last year, 75 percent were Roundup Ready.

By comparison, it cost him $7.50 per acre to sow the other 25 percent of that acreage with conventional varieties.

To illustrate what he sees as Monsanto profiteering at the expense of farmers, Scruggs says that if he were to save a bag of soybean seed and sell it to the local elevator, he'd get about $4.

It's a similar story with cotton. Last season, he planted 4,700 acres of cotton, half of which were transgenic. The seed cost him $40 per acre. Conventional seed is $10 per acre.

Monsanto and other biotechnology companies are resorting to patent protection instead of certificates under the 1970 Plant Variety Protection Act. Although the PVPA protects the rights of creators of plants that reproduce sexually (with seeds), such as soybeans, corn and wheat, it includes an exception that honors farmers' centuries-old practice of saving seed for their own use.

The case against Scruggs involves the relationship between the Plant Variety Protection Act and utility patents, says attorney Sosamma Samuel-Burnett of Waide and Associates in Tupelo, Miss. The firm represents Scruggs and other farmers in patent infringement lawsuits that the company has brought. These growers have filed counterclaims asserting patent misuse and anti-trust violations against Monsanto.

"Even if a utility patent protects the patent holder in terms of the first generation of seed," Samuel-Burnett explains, "there is considerable question as to whether that same patent can extend to the progeny of that seed."

Beyond this challenge to the validity of patents on sexually reproducing plants, Scruggs' attorneys will argue that Monsanto is also violating anti-trust laws by selling its transgenic seeds to foreign markets, such as Argentina, for half the cost. The company also allows these farmers to save the seed and doesn't require technology agreements.

At a 2000 hearing following Monsanto's filing of an injunction to keep him from saving seed, Scruggs says company representatives testified under oath that it was directly selling Roundup Ready soybeans and cotton seeds in Argentina at lower cost.

Monsanto hasn't specified the amount of money it wants from Scruggs, Samuel-Burnett says. In past cases, it has sought as much as 120 times the royalty fees.

Apparently, the effort to stop Scruggs from saving seed has gone beyond the courtroom.

"They're trying to make an example of me," he says, pointing out that the company installed surveillance cameras across from his house and used helicopters and airplanes to monitor his activities.

Monsanto would not return repeated phone calls for its side of the story.


Colorado wheat and alfalfa farmer David Dechant has researched seed saving in U.S. agriculture. He learned that, prior to the creation of the USDA, the Patent Office freely distributed seeds and cuttings to farmers.

An 1855 Patent Office "Report on Agriculture" discussed this work:

"The time for believing that the exclusive possession of any benefit contributes solely to the privilege or prosperity of any particular country or kingdom has gone by; and the principles of free and universal intercourse and exchange are now conceded to constitute the surest foundation for the happiness of nations."

Dechant sees a world of difference between then and now.

"How things change," he says. "Where the patenting of seeds was once unheard of and unimaginable, the Patent Office now grants patents on seeds and cuttings acquired from abroad, even those grown and used for centuries by indigenous peoples, which ensures exclusive possession of any benefit to countries and kingdoms, and to virtual kingdoms like the multinational corporations. Moreover, Intellectual Property Rights have replaced free and universal intercourse."

Biotechnology began its rapid growth in the mid-1970s, with the incorporation of Genentech.

Four years later, the U.S. Supreme Court ruled that General Electric Company's oil-eating bacterium -- developed for use in cleaning up oil spills -- could be patented.

In 1987, the U.S. Patent and Trademark office announced that nonhuman animals could be patented; a year later it awarded the first patent to a transgenic mouse prone to cancer.


Scruggs says that patents are helping Monsanto's monopolization of the agricultural industry.

"Monsanto is a very farmer-unfriendly company and when the American people realize that it's trying to control all the food, they'll dislike them as well," he says. "They won't want a corporation to control all their food. Monsanto has 36 paid lobbyists in Congress and put millions of dollars into the Democratic and Republican House and Senate campaigns. Monsanto is misusing patents to monopolize the seed industry."

He remembers farmers walking out of grower meetings in 1996 and 1997 after Monsanto representatives talked about the company's ambitions.

To illustrate his point, Scruggs points to the increasing difficulty of avoiding transgenic seeds. It doesn't help that the industry is now patenting even non-transgenic seeds, such as Pioneer Hi-Bred's 9594 soybean.

Monsanto inserted its Roundup resistant and Bt traits into the best cotton varieties that the largest seed companies -- Stoneville, Delta and Pine Land, and Ellis Brothers Sure Grow -- offer. The DPL 50, in Scruggs opinion among the best conventional cotton, was dropped in favor of transgenic varieties. Of course, Monsanto receives royalties on every bag of transgenic seed these companies sell.

The same goes for soybeans. Monsanto owns DeKalb, Hartz and Asgrow, and has agreements with other seed companies, as well.

Bob Young, the owner and operator of Memphis-based Seeds, agrees with Scruggs's assessment.

"Monsanto has a stranglehold on this industry," he says. "They have the technology. Ninety five percent of what we sell will be Roundup Ready soybeans and corn. A lot of the corn is Bt."


The lawsuit aside, Scruggs likes Monsanto's Roundup Ready cotton and soybeans.

Scruggs generally plants them only on acreage with a weed called sicklepod, a problem for southern growers. In his experience, only Roundup will control it. Over a period of time, he admits, sicklepod will become resistant to Roundup just as it did to the growth inhibitors he used to apply.

To help with the development of other chemicals and management techniques to deter weeds, Scruggs favors more public research.

"We don't need all our research in the hands of one corporation," he says.

As far as weed-free fields are concerned, Scruggs says he likes to stick with conventional varieties because they yield more.

Scruggs is not the only farmer to experience lower productivity with Monsanto's transgenic crops. Take North Dakota soybean farmer Rodney Nelson, for example. In February, he told Cropchoice:

"We don't like gmo (genetically modified organisms) here because it yields less," says Nelson, noting Pioneer Hi-Bred data showing that no genetically modified or conventional seed out produces its 9071 soybeans, a conventionally bred variety.

"I don't know of any farmer growing gmo soybeans if they don't have a weed problem," he says. He can't understand why Monsanto keeps pitching the technology as a big producer. "No farmers are buying into the higher yields stuff."

A two-year study at the University of Nebraska Institute of Agriculture and Natural Resources found that Roundup Ready soybeans produced 6 percent less than their closest relatives and 11 percent less than high-yielding soybean varieties. That averaged to three fewer bushels per acre - or 480 fewer bushels on a 160-acre field.

The University of Arkansas in 1998 found that non-transgenic soybeans were its top performers.

Lower productivity isn't the only disappointment. Since 1996, when industry first created transgenic crops for widespread commercialization, herbicide use has increased, says agricultural economist and consultant Charles Benbrook. As weeds develop resistance to Roundup, farmers have to use other herbicides, such as 2,4-D.

"Of course Roundup resistant weeds can be sprayed with other herbicides," Benbrook says. "If that is the solution, what about those cost-savings to farmers and reductions in soybean herbicide use?"

"2,4-D goes on soybeans at about 0.4 pounds (active ingredient) per acre," he says. "Add in two applications of Roundup at the average 0.7 pound rate, and a grower is applying just under 2 pounds of herbicide per acre." No-till growers and some others apply Roundup three times. Add to that the .2 to .5 pound of herbicide that most growers are applying per acre just before or when they sow their seeds

In 1999, biotechnology and chemical conglomerates aggressively marketed 13 combinations of low-dose herbicides for use on conventional soybean plants, he says. (The average application rates for these herbicides are less than 0.1 pounds active ingredient per acre, based on 1999 USDA chemical use survey data for soybeans). One of the very low dose herbicides - thifensulfuron -- is applied at 0.002 pounds active ingredient per acre; growers sprayed it on 5 percent of the nation's soybean acreage in 1999.

In 1998, he says, growers applied an average of 1.4 pounds of herbicides (.92 pounds of glyphosate and .5 pounds of other herbicides) to genetically modified soybeans. Plus, Roundup Ready soybeans required about 40 percent more active ingredient per acre, measured by weight, than conventional soybeans.

In contrast, the average acre of conventional soybeans in 1998 required about 1 pound of herbicides.

Benbrook's conclusion is that Roundup Ready soybeans, on average, require much more herbicide per acre than non-bioengineered varieties.

"Roundup Ready technology has its virtues but sustainability and reducing herbicide use are not among them," he said.

Rodney Nelson concurs.

When he sprays conventional soybean fields with herbicides such as Raptor, Nelson uses 2 to 4 ounces per acre. During his brief experience growing Roundup Ready soybeans, he had to spray two quarts of Roundup per acre.

"So, I don't know how Monsanto is getting away with saying that we're using less pesticides," he says.

Purchasing expensive genetically engineered seeds and herbicides has increased the cost of production for farmers, says E. Ann Clark, a pasture and grazing specialist at the University of Guelph in Ontario, Canada. The problem is not the crops themselves, but the way that we're growing them. Planting corn, soybeans, and corn, year after year, and then spraying them with the same herbicides at the same time leaves a niche for weeds to grow and develop resistance.

She suggests that grain and livestock producers should instead plant winter cereals as part of a more complex crop rotation. This, combined with lessening or eliminating the use of herbicides, will reduce their production costs, widen their margins, and yield a higher net profit.

"Overreliance on any single method of weed control will select for individuals tolerant to that method of weed control and Roundup is no exception," Clark says.