Monsanto: Secret Genetically Modified Food

In 2013, people in the state of Washington brought a citizens’ initiative to the ballot to enforce their right to know if their food contained genetically modified organisms, known as GMOs. As with 93 percent of Americans, they thought food containing GMOs ought to be labeled so that people can make their own choices. With 93 percent favorability, victory might seem assured. Not after Citizens United.

The year before the Washington initiative, Monsanto, DuPont, PepsiCo, Nestle, and a few other corporations had spent $46 million to defeat citizen initiative for GMO labeling in California. The millions of corporate dollars saturated the state with a false and misleading portrayal of the initiative as a “deceptive scheme” and “a blank check paid by the taxpayers” that would “increase food costs by billions.”

In 2013, the chemical and GMO industry used the same playbook in the Washington State initiative, spending more than $20 million. Led by Monsanto, five international corporations alone contributed $14 million of the total. The GMO labeling proposal failed by a narrow margin. Of the $20 million funding that defeat, only $600 came from individuals or businesses in the state.

People are not giving up on the right to know what is in our food and to preserve the right to choose what kind of farming and economy we wish to support. When a citizen initiative to label GMO food eventually prevails though, litigation about corporate rights to strike down the law is sure to follow. After all, that’s exactly what happened to farmers and other people in Vermont.

When the people in Massachusetts were battling for the right to stop cigarette corporations from targeting children, people in Vermont were in a fight of their own. As in Massachusetts, the people of Vermont were about to learn that the rules had changed and winning the debate and overcoming corporate lobbyists in the legislative process is not enough anymore.

Monsanto is a transnational chemical, biotech, and industrial corporation with more than $14 billion in annual global sales. Monsanto’s products have included DDT, saccharine, aspartame, sulfuric acid, Agent Orange, and various plastics and chemical products. Now Monsanto focuses on genetically engineered agriculture and an array of pesticides and herbicides. In response to questions about safety, Monsanto’s spokesperson says, “Monsanto should not have to vouchsafe the safety of biotech food. Our interest is in selling as much of it as possible. Assuring its safety is the FDA’s job.”

In the 1990s, Monsanto started selling a genetically engineered drug to be injected into the blood of dairy cows to force them to produce more milk. The drug was rBST (also called rBGH by some and labeled Posilac by Monsanto). Monsanto had used recombinant (meaning artificially created) DNA to fabricate rBST. BST stands for bovine somatotrophin, a naturally occurring hormone in cows, and BGH refers to “bovine growth hormone.” The r in rBST and rBGH stands for “recombinant DNA” and refers to the Monsanto drug, which is not natural.

Because of safety and other concerns, most free, democratic countries in the world banned the use of rBST in any dairy product intended for human consumption. Canada prohibited the drug after “more than nine years of comprehensive review of the effects of rBST on animal and human safety, and consideration of the recent findings by two independent external committees.” All twenty-seven countries of the European Union, as well as New Zealand and Australia, banned rBST. In the United States, Monsanto got its way. The Food and Drug Administration (FDA) quickly approved the use of rBST in 1993, brushing aside the views of farmers, mothers and fathers, scientists, and other people who had opposed approval.

Dexter Randall, a sixty-five-year-old dairy farmer who has lived and worked in Vermont all his life, had joined others in trying to stop the FDA from approving Monsanto’s drug. They presented studies showing elevated antibiotic residues in milk (increased antibiotics were needed because rBST increased disease in cows). They pointed to other studies showing higher levels in rBST milk of an insulin-like growth factor linked to breast cancer in humans, as well as other dangers. They cited the absurdity of forcing cows to produce more milk, driving milk prices lower, at a time when family dairy farms all over the country were failing and taxpayers were paying millions of dollars to keep milk prices high enough to prevent a collapse of farm communities.

“Organic dairy farmers were already not getting paid enough for their milk, and when rBGH went on the market they suffered even more,” says Randall. “But in addition to these economic concerns there were the health impacts of the product—the possible harm it could cause to livestock and humans. No long-term studies had been done. None of the truth was brought out. Our government let corporations override everything that made sense to the people.”

The Vermont farmer says, “Zillions of studies were presented to the FDA, but anything they saw they just turned the other way.” The FDA claimed that it lacked the authority to consider “social” or “economic” factors or to require a label on rBST dairy products. The FDA also reported that “a State that has its own statute requiring food labeling based on a consumer’s right-to-know would not be preempted by FDA from requiring rBST labeling.”

Randall and many other people in Vermont went to work to ensure that Vermont law would protect the people’s right to know. “We lobbied our state senators and representatives, sent letters to the editor, talked all over the place, made people aware of the problem,” Randall says. “We basically held a protest in front of the statehouse, just to get our legislators and the public to take notice. We tried talking to our commissioner of agriculture and to other officials there.”

Monsanto pushed back, and progress was slow. Randall says, “There was always money overriding us—the industry rules. The Grocers’ Association was screaming bloody murder, having to put labels on their products. Is it such a crime? People were still going to buy their products, but now they had a choice. I’ve always been a person for choice—you need to choose what size pants you’re going to buy, don’t you?”

Finally, after organizing, researching, testifying at hearings, and letter writing, the people persuaded the Vermont legislature to pass, and the governor to sign, a law to protect the right to know about our food. The Vermont law said, “If rBST has been used in the production of milk or a milk product for retail sale in this state, the retail milk or milk product shall be labeled as such.”

In deciding how to implement the law in a balanced way, the Vermont Department of Agriculture held four hearings around the state, including one with interactive television. Ninety-nine speakers took the time from work and home to participate in the hearings, and 152 written comments were filed. Monsanto and the industrial dairy and grocery groups certainly weighed in, but according to the commissioner of agriculture in Vermont, “Most individuals expressed that they felt they had a right to know what they wanted to purchase for themselves and their families.”

Monsanto and the industrial dairy corporations lost the public debate, lost the debate in the legislature, and failed to persuade the commissioner of agriculture to keep people in the dark about rBST. They were not done, though. Monsanto had Covington & Burling, a corporate law firm in Washington, D.C., to lead the attack.

For years, Covington & Burling had serviced the drive to shelter corporations from public oversight by creating new theories of “corporate speech.” According to Judge Kessler in the federal racketeering trial of the cigarette corporations, Covington & Burling took a leading role among corporate lawyers in furthering the illegal cigarette industry scheme: “Two of those law firms,” she said, “in particular Covington & Burling, became the guiding strategists for the Enterprise and were deeply involved in implementation of those strategies once adopted.” She added, “What a sad and disquieting chapter in the history of an honorable and often courageous profession.”

In Vermont, Covington & Burling represented the interests of Monsanto and the industrial dairy lobby in trying to stifle knowledge and disclosure about milk products derived from rBST-treated cows. They claimed that corporate speech rights entitled the industry to disregard the new right-to-know law. They insisted that Monsanto and the industry could refuse to disclose when milk and dairy products came from cows treated with Monsanto’s genetically engineered rBST.

The industry claimed that giving information to people would only cause “fear and uncertainty.” Employing odd euphemisms, the corporate lawyers called cows injected with the Monsanto drug “supplemented cows,” while natural cows became “unsupplemented cows.” Covington & Burling explained why “fear and uncertainty” would result from the truth: “Mandatory labeling of milk products derived from supplemented cows will have the inherent effect of causing consumers to believe that such products are different from and inferior to milk products from unsupplemented cows.”

What about farmers or dairies that did not want to use the Monsanto drug; they should be free to tell people about the natural way they make their milk, right? Oh, no, said the corporate lawyers: “The industry’s experience in recent months demonstrates that voluntary ‘rBST-free’ type labeling of milk and milk products has a high potential for misleading consumers and for sowing the seeds of uncertainty, distrust, and fear about the quality and safety of milk and milk products.” According to Monsanto, it is your right to know about your food—not Monsanto and its drug that is banned in most of the world—that sows the “seeds of uncertainty, distrust, and fear.”

Monsanto not only threatened to sue Vermont but also began to intimidate and silence farmers, dairies, and stores that tried to sell “rBST-free” milk. Monsanto even filed a federal lawsuit against a Maine dairy to force it to stop stating on its labels, “Our Farmers Pledge: No Artificial Growth Hormones.”

Nevertheless, people such as Dexter Randall stood up to the intimidation, and Vermont went ahead with its right-to-know law. Covington & Burling and the industry then followed through on the threat to sue. Now that Vermont law supported the people’s right to know about rBST, the cry of “Free corporate speech!” became the cry of “Corporations are like people and have the right not to speak!” Covington & Burling argued that the “public right to know” must fall to “a manufacturer’s right to decide when to speak and when to remain silent.” According to Covington & Burling’s legal brief, “Corporations have the same rights to remain silent as individuals.”

At first, Vermont had some success in the case. The chief judge of the federal court in Vermont concluded that corporate rights do not overpower the people’s right to know:

Apparently, a majority of Vermonters do not want to purchase milk products derived from rBST-treated cows. Their reasons for not wanting to purchase such products include: (1) They consider the use of a genetically-engineered hormone in the production unnatural; (2) they believe that use of the hormone will result in increased milk production and lower milk prices, thereby hurting small dairy farmers; (3) they believe that use of rBST is harmful to cows and potentially harmful to humans; and, (4) they feel that there is a lack of knowledge regarding the long-term effects of rBST.

The industry appealed to the same federal Court of Appeals that had decided the Bad Frog beer label case. Once again the court sided with corporations, striking down the Vermont law. The appellate court decreed that the lower court judge had “abused his discretion” by failing to agree with the corporations that the law violated corporate speech rights. According to the Court of Appeals, the people of Vermont had caused a “wrong” to the industrial dairy manufacturers’ “constitutional right not to speak.”

That was the end of the line for the Vermont law and for disclosure laws around the country. “It was a long, hard battle getting the legislation passed, and it wasn’t in place for any length,” says dairy farmer Dexter Randall. “We saw the end coming before it happened. I learned a lot about the power of corporations—about Monsanto’s power.”