The “Monsanto Protection Act”

April 4, 2013

Last week, Congress passed the Consolidated and Further Continuing Appropriations Act, 2013. The bill was a continuing resolution whose purpose was to avoid a government shutdown. The bill includes a provision called the “Farmer Assurance Provision” but has popularly being dubbed the “Monsanto Protection Act.” Section 735 of the Act says this:

SEC. 735. In the event that a determination of non-regulated status made pursuant to section 411 of the Plant Protection Act *232 is or has been invalidated or vacated, the Secretary of Agriculture shall, notwithstanding any other provision of law, upon request by a farmer, grower, farm operator, or producer, immediately grant temporary permit(s) or temporary deregulation in part, subject to necessary and appropriate conditions consistent with section 411(a) or 412(c) of the Plant Protection Act, which interim conditions shall authorize the movement, introduction, continued cultivation, commercialization and other specifically enumerated activities and requirements, including measures designed to mitigate or minimize potential adverse environmental effects, if any, relevant to the Secretary’s evaluation of the petition for non-regulated status, while ensuring that growers or other users are able to move, plant, cultivate, introduce into commerce and carry out other authorized activities in a timely manner: Provided, That all such conditions shall be applicable only for the interim period necessary for the Secretary to complete any required analyses or consultations related to the petition for non-regulated status: Provided further, That nothing in this section shall be construed as limiting the Secretary’s authority under section 411, 412 and 414 of the Plant Protection Act.”

The provision essentially permits the USDA to grant temporary permits for the farming of genetically-engineered crops despite a court’s holding that the USDA’s original approval violates the Plant Protection Act.    Critics jumped on the provision, arguing that “[e]liminating judicial power to halt the selling or planting of them essentially cuts off their course to ensuring consumer safety should health risks emerge.”
An NPR interview provides some background on the provision which might have been drafted to appease farmers and the bio-tech industry.  They were outraged by the outcome of two recent cases which resulted in the temporary removal of genetically-engineered crops from the market.  In 2007, a genetically engineered alfalfa was removed from the market because of a court action.  In 2009, sugar beets were similarly taken off the market. The case law “back story” referenced in the NPR interview can be found with the following WestlawNext search:

adv: DA(2007 2009) and san-francisco and u.s.d.a. and sugar-beets alfalfa

Critics have argued though,  that the provision may be unenforceable because it preempts judicial review.  Additional criticism of the legislation includes disappointment at how the language was added to the resolution.  It has been described as a “hidden backroom deal” that was “slipped in anonymously” while being considered in the Senate Appropriations Committee.  The bill was not brought in front of the Agricultural or Judiciary Committees, an amendment removing the provision was never voted on, and there were no hearings on the language.  The bill’s legislative tracking information can be found with this Westlaw citation: 2011 FD H.B. 2112 (NS).

Monsanto’s Public Affairs office maintains that the provision “has enjoyed bipartisan support in Congress since June 2012” and that the purpose of the provision “is to strike a careful balance allowing farmers to continue to plan and cultivate their crops subject to appropriate environmental safeguards, while USDA conducts any necessary further environmental reviews.”