Toxic Tort Litigation Blog : Toxic Tort Lawyer & Attorney : Epstein Becker Green Law Firm : Product Liability, Contamination, Pollution

The publication of “Diet for a Small Planet” in 1971 by Francis Moore Lappé was a conscious-raising event for many Americans. The book makes the case that grain-fed meat production is wasteful and a contributor to global food scarcity. The author argues that eating a planet-centered diet means choosing what is best for the Earth and our bodies – a daily action that reminds us of our power to create a more rational world. The book’s most significant conclusion is that world hunger is not caused by a lack of food but by ineffective food policy. A vegetarian diet can  produce sufficient protein for one’s nutrition, according to the book.

Fast forward some forty years to today. The organic food movement has transformed the way many Americans think about food and has had a significant impact on food shopping. Organic food has become a multi-billion dollar industry with significant influence in education and public policy, and on law makers. We have certainly become more educated consumers by understanding how food products are manufactured and processed, which is an important part of the organic food industry's message. But as Business Week put it, the organic food industry is a "far cry from the old food co-ops, wheatgrass, tofu, and alfalfa sprouts options, organic food and the industry supporting it has grown up".

There is a certain romanticism about the organic farming, which leads some to ask why can’t we just go back to the way we farmed in the 19th century? From a societal standpoint, what are the pros and cons of organic food vs. “genetically modified” food? How can we differentiate between the myths about the food we eat and the facts? In an article in the Wall Street Journal on December 24, 2012, John R. Block, the former secretary of the Department of Agriculture (1981-1985) tackles this issue head on.

Food Safety  According to Mr. Block, there has never been a single instance in which genetically modified food has caused an illness or contributed to a contaminated product. Nevertheless, you can open a newspaper or a website on any given day and be barraged by scientific-sounding warnings that gene-altered substances can enter our bodies and wreak genetic havoc.  One such article is titled, "Is Genetically Modified Food Killing Us?" or another simply "Genetic Roulette".  

 In fact, America’s farmers and ranchers have built a sophisticated food-safety infrastructure to improve the health of their animals and deliver fresh, clean produce. There is no evidence that organic food is “better for you” from a safety perspective. As a result of the use of biotechnology in agriculture, genetically modified crops taste better, take less time to mature, provide increased nutrients, yields and stress tolerance, and have improved resistance to disease, pests, and herbicides.  According to the Human Genome Project, on the horizon are bananas that produce human vaccines against infectious diseases such as hepatitis B and cows that are resistant to Mad Cow Disease. 

Crops from biotech seeds are identical to those from non-biotech seeds. In addition, organic foods are identical in nutritional value to non-organic foods.   Numerous studies have shown no nutritional difference between commercially available GMO (short hand for "genetically modified organisms") and non-GMO foods.

Food Choices  Not that long ago, what Americans ate depended on the farmer’s skill, the weather and other unpredictable variables. Pre-industrial agricultural yields were low before the introduction of machines, fertilizers, plant and animal breeding, pesticides and genetic engineering. We are no longer limited to a small variety of local and seasonal food. Modern agriculture is simply more productive, providing more variety at lower prices. As romantic as it would be to only eat food grown on a farm where two horses pulled a two-row corn planter, it probably wouldn’t feed the world's population for all that long.

Environmental Stewardship  Today’s farmers use agricultural practices that improve the sustainability of the land and limits the use of herbicides, pesticides and fertilizers. The goal of the much of the research into genetically engineered crops is higher yield with less water and chemical use.

Sustainability  Most significantly, the large scale sophisticated farming of today is better equipped to sustain the world’s growing population.

According to Mr. Block, America’s farmers grow five times as much corn as they did in the 1930’s on 20% less land. To meet the goal of helping to feed a global population of what the United Nations estimates will be eight billion people in 2030, our farmers and ranchers will have to use the latest and most effective technologies to produce more with less.  

I support organic and conventional farming. I love shopping at Whole Foods. I shop at every Farmer's Market I come across.  Thanks to the organic farming movement, our collective consciousness about food  has been heightened.  However, a higher consciousness alone cannot meet the world’s food demands. The underlying assumptions are different than they were forty years ago, but the basic premise holds true today.  Effective food policy remains the key to feeding the planet. A strong first step in developing effective food policy is separating fact from fiction when it comes to biotechnology and American agriculture.
 

The Wall Street Journal reported today that Texas Governor Rick Perry signed into law Friday a bill that will require companies to make public the chemicals they use on every hydraulic fracturing job in the state.  Texas' law is significant because the oil and gas drilling industry, which is powerful in Texas, vocally supported the measure.  Opponents to fracking in the Marcellus Shale region of  New York and Pennsylvannia have long accused the drilling companies of secrecy for failing to disclose the chemicals used in hydrofracking.  Widespread support for this measure, and similar measures in other states, provide some indication of just how untenable the industry's former stance had been.  Fracking involves blasting millions of gallons of water, sand and chemicals into the ground to break up oil and gas-bearing rocks.  Environmentalists and residents in drilling areas fear that the fracking process may result in chemical contamination of drinking water aquifers.  Until now, industry's argument that fracking is safe has been hamstrung by drillers' refusal to disclose the chemicals used.  Going forward, the fracking debate can now refocus on the important issues, such as the likelihood that faulty well construction may result in contamination of an aquifer.  According to industry spokespersons, tens of thousands of wells have been drilled with relatively few problems.  In those rare instances where a problem has been reported, the industry believes that the problem is most likely attributable to an improperly constructed well.  Earlier this year, some of the larger gas producers, notably Chesapeake, Chevron and BP, announced that they would voluntarily begin to publicize the chemicals they use online at FracFocus.org. This website is a joint project of the Ground Water Protection Council and the Interstate Oil and Gas Compact Commission.

BNA Toxics Law Reporter reports that on August 3, 2009, the First Circuit affirmed the dismissal of the American Chemistry Council ("ACC"), formerly known as the Chemical Manufacturers Association, in a case arising from a plaintiff's long-term exposure to vinyl chloride. The First Circuit's decision in June Taylor et al v. ACC, et al is attached. The ACC is the chemical industry's trade association.  The ACC has been effective in improving the image of the chemical industry in the United States and in promoting safety and environmental initiatives within its membership.  The family of Claude Taylor alleged in federal district court in Massachusetts that ACC, along with several chemical manufacturers, should be found liable for failure to warn, conspiracy and fraud for helping to produce false and misleading warnings that were adopted by the PVC industry.  The plaintiff focused on an ACC publication entitled, "Chemical Safety Data Sheet SD-56", which was first published in 1954 and later revised in 1972, claiming that the publication downplayed the danger of VC exposure.  In upholding the trial court's dismissal of the claims against the ACC, the First Circuit held that there was no evidence that the trade association had the "unlawful intent" necessary to establish "substantial assistance liability" under MA law.  The court held that it would have been necessary for plaintiff to prove that ACC was aware of Monsanto's tortious conduct and that it intended to assist or encourage that conduct.  The wide dissemination of SD-56 within the industry was not sufficient to support the claim that the ACC was aware that Monsanto was incorporating SD-56 into its own literature.  ACC's lawyer, Tim Couglin of Thompson Hine, successfully convinced the appeals court that: (1) ACC did not provide "substantial assistance" to Monsanto; (2) ACC had no knowledge of Monsanto's activities; and (3) there was no record evidence to support the underlying conspiracy claim. 

Trade associations do not manufacture or market products, but they have been the targets of toxic tort and product liability plaintiffs nonetheless.  The threshold issue in these cases is whether the association owed a duty of care to the plaintiff.  In cases in which the trade association is alleged to have promulgated a safety standard, the issue often comes down to the degree of control the trade association has over its members.  In the absence of control, the trade association is not as likely to be held liable for failure to warn.  What about a trade association that endorses products?  If a plaintiff's injury is due to a defect in a product bearing the "Good Housekeeping Seal of Approval", for example, is the association potentially liable?  One California court replied in the affirmative if it could be demonstrated that the association obtained economic gain from the endorsement and encouraged the public to purchase the product, and that  the plaintiff relied on the representation to his detriment.  Courts appear to recognize that it is not in the public interest to hold trade associations liable for injuries to remote plaintiffs in tort litigation.  The AAA might rank hotels on the basis of service and cleanliness.  Should the AAA be subject to liability for injuries allegedly resulting from its failing to warn its members that a hotel was located in a bad neighborhood?