Ooh, so scary, boys and girls!

Are GMO soybeans another “New Coke (TM)”  It’s midnight in the garden of good and evil, and I’m not sure anyone really knows beans.

After 40-ish years of being told that soybeans are very good for me, I am being told that they are now very bad for me, specifically because so many of them are GMOs (genetically modified organisms).  Being the stickler that I’ve been taught to be (and being interested in crop-plant genetic IP), I went looking for reliable primary sources.*  I found out:

• In the US. about 94% of the planted soybean acreage was given over to GMO strains in 2011 – up from about 9% in 1996.  Well, that just means the US crop has gone largely GMO; no more. no less.
• However, “[n]inety-eight percent of the soybean meal produced by U.S. farmers is fed to animals such as pigs, cows and chickens.”  That means all the GMO soy could be going for animal feed, in which case vegetarian consumers of US soy products could just be getting non-GMO soy.  This doesn’t necessarily mean it’s a fact, just that it’s possible.  As an analogy, consider “This garage is big enough for that truck to fit inside;” it’s not the same as being able to say “That truck IS inside this garage,” but it does eliminate the argument that “That truck CANNOT POSSIBLY BE inside this garage.”
• Soybeans for human consumption, including as tofu or soy-milk, are from a different family of cultivars (“vegetable” or “garden” cultivars) than soybeans for oil production (“field” cultivars).  Vegetable cultivars are much more expensive to grow in large quantity because mechanical combine harvesters shatter the pods, and because they often  must be harvested before reaching maturity which does not produce viable, “saveable” seeds for the following year.  Besides, vegetable cultivars are known to have very few problems with weeds or pests.  The particular cultivars used in “soyfoods” are produced in boringly low volumes and and nothing about them “is broken” that GMOs could “fix.”  These are two other strong suggestions that soyfoods are unlikely to be GMO.  In our truck/garage analogy, we now see some tire tracks of about the right type leading to the garage door.
• Compared to non-GMO soybeans, GMO soybeans require less pesticide for the same yield and are more adaptable to no-till agriculture.  Gosh, that sounds kind of green.
• Lest any single strain of soy “take over,” the USDA maintains “a collection of over 10,000 accessions of soybean seeds.”
• Last July, the European Food Safety Authority concluded that Monsanto’s Roundup-Ready (TM) strain, the most common and longest-established GMO bean, “ is as safe as its conventional counterpart with respect to potential effects on human and animal health and the environment in the context of its intended uses.” This is particularly interesting because it was the EU’s previous fussiness about GMOs that convinced many Americans that something must really be wrong with them (the GMOs, that is).
• As far back as 2003, Oxford researchers concluded “Current GM crops, including soybean, have not been shown to add any additional allergenic risk beyond the intrinsic risks already present. . . Biotechnology has been used to remove a major allergen in soybean demonstrating that genetic modification can be used to reduce allergenicity of food and feed.” The UK has been presented as spearheading the no-GMOs movement in the EU, but this casts at least a shadow of doubt.
• The “Soy Bad” articles on many of what I’ll (with all the charity I can muster) call “opinion sites” seem to focus on the badness of ALL soy, not GMO soy as distinct from non-GMO soy.  This even includes a “soy bad” article from a site called “Genetically Modified Foods, The Silent Killer.”** Some authors conditioned the badness on processing or non-fermentation (i.e., a type of “lack of processing.”)*** Several are dedicated to soy’s suboptimality as baby formula,**** including one that says it’s turning little boys gay.  Ohhh-kayyyy. . .  Most of the worries about GMOs in particular is “nobody knows what they’ll do long-term,” NOT “there is evidence that GMOs are unhealthier to consume than regular soy and here it is.”
• Meanwhile, many, many producers of vegetable-cultivar soybeans and the associated products say they now use only “identity-preserved”***** non-GMO beans (predictably their product is more expensive, but don’t you just feel better now?).  Monsanto, the producer of Roundup-Ready and other GMO beans, has even jumped on the bandwagon!  Recall that from the references above, it’s entirely possible that most or all of the vegetable cultivars used in soyfoods never were GMO in the first place.

To me, this whiffs suspiciously of the “New Coke (TM)” marketing game.******  For those too young to remember, that one goes like this:

1. Take a popular product.
2. Introduce a new version and quit producing the old one.
3. Make sure the consumers who loved the old product the most will hate or fear the new one.*******
4. When the black market for the old one shows sufficient profit to finance its own space program, grudgingly-but-magnanimously re-introduce the old product to a public who will be too relieved-and-exhilarated to notice, e.g., a higher price or any other side effect you’d like to sneak in.

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*E.g., articles with titles like “GM-Soy: Destroy the Earth and Humanity for Profit” did not make the first cut.^  Oh, P.S.: Any site that pops a “Give me all your contact info and Subscribe Now!!!” window up in my face, before I have a chance to skim even one paragraph, I rebuttably presume not to be a reliable primary source.  Just sayin’.

**Wherein, the author writing about beans missed a golden opportunity to incorporate the phrase “Silent but Deadly.”

***At least one fairly scholarly-looking paper concludes that fermented soy is better for digestive flora than unfermented soy.  This is distinct from “fermented soy is healthy but unfermented soy would just as soon kill you as look at you.”  And it also doesn’t say anything about GMO vs. non-GMO.

****Thankfully this is not a law review article, so I can say things like “Well, du-uh.”

*****Confusingly abbreviated “IP!” This will probably hurt the producers’ case with the particular consumer sector convinced that any plant with a patent, trademark, or copyright^^ is bound to kill us all.  And because of the multiple language-and-logic barriers involved, neither side may ever figure out where the problem started.  Unless they read this blog, of course.

******Coca-Cola(TM) is an IP wonder.  Its formula is possibly the most successful trade secret in the world.

*******Humans’ built-in change-resistance Gripe-O-Matic may do most of the job for you if you calculate the type of change well enough.

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^I mean, if I were to destroy the earth and humanity it would at least be for FUN and profit.

^^No, I don’t believe it’s possible to copyright a plant (as distinct from a picture, sculpture, poetic description, or interpretive dance about one).  Others apparently believe it is.

That sip of wine goes around, then it comes around, then you have to either swallow it or spit it out. Similarly, the U.S. has finally come around, at least a little, to the European perspective on identifying wines with place names – because recently our vintners have, figuratively, walked a mile in the Europeans’ vats.

Remember “New York champagne” and “California burgundy”? You don’t see them around anymore, because they’re illegal. Not the wines themselves, just the names. The U.S. acceded to wine trade treaties that reserved the names of European wine-producing regions for wines that actually come from those regions (Champagne and Burgundy are parts of France).

The countries of the European Union pioneered a sui generis class of intellectual property known as a protected geographical indication (GI). If a product becomes known for qualities attributable to the region where it was produced or processed or prepared (terroir), a producer group may register a GI for that product. The process is similar to a trademark registration; the application is examined for fit to regulatory requirements, and issued if it passes. The E.U.’s stated legislative purposes in draftling GI laws were to encourage agricultural diversity, to inform consumers, and to protect local products’ reputations from being tarnished by imitations from elsewhere.

The U.S. found European GIs unpalatable and hard to swallow at first. On the practical sales level, a large body of U.S. consumers who could not afford the European wines had come to depend on American analogues when the menu called for a certain flavor. On the statutory level, U.S. trademark law discourages attempts to monopolize geographical names on the grounds that they are insufficiently distinctive to identify an individual producer. (US producer groups can register geographical names as collective and certification marks under some circumstances; “Idaho potatoes” and “Florida oranges” are examples). Finally, on the deep-IP-policy level, one rock-bottom US principle is that once a term is generic in the public domain (as “champagne” and “burgundy” were), it stays there; a certain level of ubiquity in public discourse is where trademark law ends and free speech begins.

Eventually, however, the squished grapes were on the other foot. At least a dozen winemakers outside the U.S. are using our own “Napa” or “Napa Valley” in their product names, and we don’t like it one bit. Some of the offending wineries were in the E.U. (for example, in England and Spain); others were as far-flung as Chile, China, and Tahiti, but exported to the E.U. So Napa Valley Vintners, a nonprofit trade group, applied to register “Napa” and “Napa Valley” as GIs in the E.U. This was a reasonable approach – after all, U.S. inventors, authors, and business owners routinely protect their IP rights in Europe by securing patents, copyrights, and trademarks those countries. However, Napa Valley Vintners’ application was denied intially, one reason being that the E.U. had no process for registering GIs from non-member countries. Then, beginning in April 2006, the E.U. Commission on Agriculture began directly accepting GI applications from such “third countries” (producer groups in the E.U. must first apply to their national offices).

The Napa GIs were the very first GIs granted to a non-E.U. country. Coincidence? Probably not. The U.S. and E.U. have spent the last three decades trying to squeeze out workable arrangements for wine trade. We agreed to stop using a whole list of European place names on our wine. They agreed to accept wine from us that was made by other-than-traditional-European methods (for example, wine fermented on a layer of wood chips in an aluminum barrel, rather than in an all-wood barrel). Nobody wants to mess up that relationship now.

Now that the GI is issued, E.U. wineries are subject to legal penalties if they call their wine “Napa,” and E.U. customs agents can seize shipments of foreign fake-Napa wine at the borders. Ah, the sweet smell of success – with undertones of cloudberry, Laotian teak, and cured stingray skin, perhaps. But Napa Valley Vintners’ struggle to hold onto its region’s name isn’t over yet: “Next we focus on China, where we have some real problems,” said Linda Reiff, the trade group’s executive director.

Landraces are naturally occurring hybrids of cultivated crop plants and their wild relatives. They grow on the edges and in the interstices of farming communities past and present. A crop’s related landraces reflect multiple shufflings and reshufflings of a larger genetic deck. Compared to this year’s crop, one landrace might thrive in drier conditions, another in wetter. One might grow more quickly, another more slowly. Grasshoppers might eschew chewing on one landrace, toads another. If all these landrace seeds were available next year, farmers could choose those likely to succeed even if they expect a drought, a shortened growing season, or too many toads.

“People have been farming for thousands of years,” a curmudgeon might argue, “without worrying about any of this agro-biodiversity business.” The easy answer (“well, crops have been failing for thousands of years too”) aside, it used to be much less of an issue. Agro-biodiversity used to just happen, as a natural side effect of traditional farming. Now it often doesn’t happen because:

• Traditional crops were usually variants of local wild plants, and the two groups could cross-pollinate to create landraces. Many modern crops are imports from other parts of the world, too different from local wild species to cross-pollinate.
• Traditional farmers often “intercropped” -grew a variety of crops in close proximity, producing landraces in similar variety. When large areas became devoted to a single crop in modern agribusiness, landrace evolution in that area became confined to one crop (or none, see above).
• Many traditional local farmers saved seeds from each harvest. They would store some for replanting, and trade some informally with other farmers at market gatherings. The traded seeds were another source of diverse genes. Now, many farmers get seeds from commercial and institutional sources, under contracts or regulations that restrict informal trading or even saving of seeds from the harvest.
• Paving, motor vehicle exhaust, and weedkillers make things easier for farmers, but tougher for landraces growing in exposed places.

Conserving biodiversity in wild lands is straightforward, at least on the surface: just keep people out. (Below the surface: well, naturalists have to get in, to study the species. And bio-prospectors, looking for new medicines. And certain locals, in their traditional medical and ceremonial pursuits. And law enforcement officers to make sure nobody unauthorized gets in. And . . .). Agrobiodiversity conservation is trickier because human activity – farming, with at least some traditional features – is an indispensable ingredient of landrace development.

Forcing farmers to universally go back to low-tech methods and local wild-derived crops isn’t an attractive solution because many of these modern developments have vastly improved the quality of life for farmers and consumers. Fields yield more for trade, and some of the import crops have added dietary variety and better nutrition to the community food supply. Collecting samples of landraces for storage in ex situ gene banks has met with some success, but these centers are often far from the farmers who need the resources, and the stored samples are “frozen in time” and unable to produce new sub-strains. In situ conservation of some limited areas under conditions that encourage landraces has the advantage of allowing the landraces to continuously adapt to changes particular to their locale.

In situ conservation of agrobiodiversity areas raises several issues. Back when it “just happened,” no one had to pay for it. Now, reserving some land for traditional or quasi-traditional crop areas and adjacent wild-relative areas may render that land less economically profitable than planting modern monoculture fields, at least in some circumstances. Since the short-term free market is unlikely to furnish agro-biodiversity incentives, governments are experimenting with creating some, such as cost reduction, market channel development, prizes, and limited IP rights..

The two most common forms of IP in plants would not fit landraces well. Patents are not available for “products of nature,” but for “anything under the sun made by man;” landraces are something in between. Furthermore, patentable plants must generally be capable of asexual reproduction, which individual landraces may or may not be. Plant Variety Protection (PVP) under the International Union for the Protection of New Varieties of Plants (UPOV) convention is only available for cultivars that are distinct, uniform, and stable, with more than minor differences from existing cultivars; many landraces would be hard pressed to meet these criteria either.

Other IP issues may rear their ugly heads if crop plants from commercial seed do happen to cross-pollinate with local strains and spawn landraces. Traditional regional crop varieties, such as quinoa and jasmine rice, are enjoying heightened economic value as “specialty foods” in urban/industrialized areas, so commercial companies are moving into these niches. Institutions and farmers may agree to licensing contracts, but pollinators (insects, birds, animals, and wind) couldn’t care less. Can a company that owns rights in the commercial crop also claim rights in any landrace it spawns? In a country where farmers have rights in landraces, how will those rights be split?

If you want to read more about the interaction between agro-biodiversity and IP law, authors to look up include Susan Bragdon, Devra Jarvis, Toby Hodgkin, and Stephen B. Brush.

1. Go someplace that has flora or fauna with unusual or unknown characteristics.  In a lot of these places, the people who live there are poor.  Possibly, given more money, the locals would have already paved over the flora, killed off the fauna, and built modern roads, houses, and stores.  At least, when I visited the Peruvian Amazon a few years ago, that’s what a couple of the local folks I met said they’d prefer to do.
2.  Ask local healers which plants or animal parts are medicinal, and for what, and exactly how to prepare them and how they work. 
3. Go home with the collected knowledge and materials and lab-tweak them into a mass-producible, marketable, globally shippable product.
4. Patent it and make a lot of money.
5. Never pay the so-helpful locals one thin dime.

Some have argued that this business model is just fine.  After all, the visitors end up spending a huge (and readily calculable) sum of money to develop their products, and have to subsidize the projects that don’t pan out.  The money equivalent of the locals’ prior work is nearly impossible to quantify, and the normal human reaction is to ignore what one doesn’t understand.  At least one American legal scholar even proposes that, not only should the materials be fair game as the “common heritage of mankind,” but traditional knowledge should not be protected or compensated because it is “already in a public domain of sorts, albeit perhaps a very small” local one; all this flap about biopiracy is just poor people being greedy.  (Oh – and he proposes in the same paper that people who aren’t skinny are “obscene” and could easily become properly skinny if they weren’t simply lazy and lacking in willpower).

A counterargument goes like this: 

1. Without access to local knowledge, a researcher would have to evaluate, on average, 10,000 plant species to find one with promising medicinal qualities.  By contrast, 75% of traditional botanical cures are proven valid after scientific study. 
2. Whether or not the sources of materials used in the cures are a “common heritage of mankind,” the knowledge that the materials are cures, and how to prepare and use them (after all, many are poisonous in the wrong doses or without correct pre-processing), is a product of human effort, often over several generations. 
3. Sometimes the whole local community knows about the cures, but often the knowledge is restricted to certain individuals or closed societies of healers.  Even if that does constitute a “public domain,” things in the public domain aren’t necessarily free for the taking.  If you want a book whose copyright has expired, you still have to buy it (unless it’s been uploaded to a free-access Website somewhere). 

In short, locals’ knowledge is something they and their forebears worked to develop, it has economic value to the researchers, and the locals have a right to compensation for it.  Their poverty doesn’t figure in this argument; if researchers happened to discover that a Beverly Hills garden club had developed a potentially lucrative cure, those pearl-bedecked ladies who lunch would be entitled to compensation too.

The international Convention on Biodiversity is working to make sovereign governments responsible for protecting both their genetic resources and their traditional knowledge, and ensuring that local knowledge-holders get some share of the benefits when a cure is developed and widely marketed.  The US is not a member.  The approach has its critics, who point out that, among other things:

1. Many of the national governments now accountable for policing bioprospecting cannot afford the infrastructure to watch and intervene in the far-flung stretches of back-country where these activities often take place.
2. Many of the individuals and communities holding traditional knowledge are minorities that have not traditionally been well-served by their national governments.  They have understandably become reluctant to attract governmental attention, much less ask for help against prestigious visitors with money.
3. If national governments collect the shared benefits, the percentage that reaches those who actually contributed the knowledge is not necessarily guaranteed.
4. No one will be able to afford to develop new medicines anymore if traditional knowledge costs ANYTHING AT ALL, and then everyone in the world will get sick and die, and then they’ll be sorry.  This is the usual rhetorical refusal to recognize any middle ground between opening the floodgates and dying of thirst.

Still, CBD has raised a lot of international consciousness about the alternative of fair trade for traditional knowledge.  This is good.  However, some of the consciousness isn’t as accurate as it could be.  Many otherwise authoritative people keep going around claiming that if someone patents a product based on a traditional cure, the people who developed the traditional cure can’t use it anymore.  THIS IS NOT WHAT PATENTS DO in any country I know of.   Neither products of nature (like the raw materials) nor prior art (like the traditional knowledge) is patentable, because patents are only granted for new inventions.  Let’s be fair; the learned, albeit fat-bashing, fellow professional I cited above points this out too.  But it really can’t be said enough.

There is a potential loophole, using U.S. patent law as an example, but it’s not as wide as it looks.  To be “prior art” under U.S. patent law, something either has to be known in the U.S. or published anywhere in the world.  Many local communities don’t publish their traditional knowledge.  However, “known in the U.S.” covers the whole geographical area over which a U.S. patent can be enforced, so U.S. residents’ traditional knowledge is protected as prior art.  An unpublished foreign traditional cure is not prior art in the U.S., but neither can a U.S. patent prevent the traditional cure from being used outside the U.S. (though it can prevent the original knowledge-holders from exporting their cure TO the U.S.).

The net happiness of the human world would almost increase if products that kept people (or human-friendly animals and plants) healthy were readily available.  If biopiracy ever worked, it doesn’t work anymore now that the whole world is watching.  On my trip to Peru, my hardest-working traveling companion managed to fax LA from a town with no paved streets, two days down the Amazon from Iquitos.  Give fair trade a try.  It’s, well, fair.