enviado Julio 29, 2006 04:50 AM               

To combat these pests and diseases, potato growers use an assortment of fungicides (to control blight), insecticides (to kill aphids and the Colorado potato beetle), and fumigants (to control soil nematodes). Although some of these chemicals are quite hazardous to farm workers, forgoing them could jeopardize the sustainability and profitability of the entire potato industry. Standard application of synthetic pesticides enhances yields more than 50 percent over organic potato production, which prohibits most synthetic inputs.

Consider a specific example. Many growers use methamidophos, a toxic organophosphate nerve poison, for aphid control. Although methamidophos is an epa-approved pesticide, the agency is currently reevaluating the use of organophosphates and could ultimately prohibit or greatly restrict the use of this entire class of pesticides. As an alternative to these chemicals, the Monsanto Company developed a potato that contains a gene from the bacterium Bacillus thuringiensis (Bt) to control the Colorado potato beetle and another gene to control the potato leaf roll virus spread by the aphids. Monsanto’s NewLeaf potato is resistant to these two scourges of potato plants, which allowed growers who adopted it to reduce their use of chemical controls and increase yields.

Farmers who planted NewLeaf became convinced that it was the most environmentally sound and economically efficient way to grow potatoes. But after five years of excellent results it encountered an unexpected snag. Under pressure from anti-biotechnology organizations, McDonald’s, Burger King, and other restaurant chains informed their potato suppliers that they would no longer accept gene-spliced potato varieties for their french fries. As a result, potato processors such as J.R. Simplot inserted a nonbiotech-potato clause into their farmer-processor contracts and informed farmers that they would no longer buy gene-spliced potatoes. In spite of its substantial environmental, occupational safety, and economic benefits, NewLeaf became a sort of contractual poison pill and is no longer grown commercially. Talk about market distortions.

Now, let us assume that a farmer who is required by contractual arrangement to plant nonbiotech potatoes sprays his potato crop with methamidophos (the organophosphate nerve poison) and that the pesticide drifts into a nearby stream and onto nearby farm laborers. Thousands of fish die in the stream, and the laborers report to hospital emergency rooms complaining of neurological symptoms.
This hypothetical scenario is, in fact, not at all far-fetched. Fish-kills attributed to pesticide runoff from potato fields are commonplace. In the potato-growing region of Prince Edward Island, Canada, for example, a dozen such incidents occurred in one 13-month period alone, between July 1999 and August 2000. According to the un’s Food and Agriculture Organization, “normal” use of the pesticides parathion and methamidophos is responsible for some 7,500 pesticide poisoning cases in China each year.

In our hypothetical scenario, the state environmental agency might bring an administrative action for civil damages to recover the cost of the fish-kill, and a plaintiff’s lawyer could file a class-action suit on behalf of the farm laborers for personal injury damages.

Who’s legally responsible? Several possible circumstances could enable the farmer’s defense lawyer to shift culpability for the alleged damages to the contracting food processor and to the fast-food restaurants that are the ultimate purchasers of the potatoes. These circumstances include the farmer’s having planted Bt potatoes in the recent past; his contractual obligation to the potato processor and its fast-food retail buyers to provide only nonbiotech varieties; and his demonstrated preference for planting gene-spliced, Bt potatoes, were it not for the contractual proscription. If these conditions could be proved, the lawyer defending the farmer could name the contracting processor and the fast-food restaurants as cross-defendants, claiming either contribution in tort law or indemnification in contract law for any damages legally imposed upon the farmer client.

The farmer’s defense could be that those companies bear the ultimate responsibility for the damages because they compelled the farmer to engage in higher-risk production practices than he would otherwise have chosen. The companies chose to impose cultivation of a non-gene-spliced variety upon the farmer although they knew that in order to avoid severe losses in yield, he would need to use organophosphate pesticides. Thus, the defense could argue that the farmer should have a legal right to pass any damages (arising from contractually imposed production practices) back to the processor and the fast-food chains.