Percy Schmeiser vs Monsanto

by Brian Dunning
December 22, 2020

It's the familiar tale of David vs Goliath: a small, independent farmer, struggling to make ends meet, gets sued by a gigantic multinational megacorporation. He heroically fights back as best he can with his limited resources, but inevitably cannot prevail. This basic plot is one that's emotionally appealing at multiple levels, and it's one that we've seen repeated throughout the history of storytelling ever since its Old Testament original. But in the case of the agricultural giant Monsanto suing farmers, the story brings an additional appeal: that of evil technology profaning and polluting nature. It's little wonder that among nearly everyone who's heard of these lawsuits, Monsanto is considered the antagonist, and the small farmer is the virtuous and blameless victim. Today we're going to look into the most famous of these, the case of Monsanto Canada Inc v Schmeiser, heavily dramatized in a Hollywood movie starring Christopher Walken, and find out how closely its popular narrative may (or may not) track the truth.

A very common conversation I'll have with fellow science enthusiasts is that they love the benefits that genetic engineering of crops brings to the world — which is undeniable — but that they do have a problem with some of Monsanto's business practices (Monsanto being the poster child for GMO seed producers and the only one whose name most people know, even though it's now a part of Bayer AG and the brand name no longer even exists). Whenever I've inquired into whatever these shady business practices might be, the answer's usually pretty vague. It's generally on the pattern of one or more of the following: Monsanto forces farmers to buy seeds instead of just using the seeds from each year's crop like every other farmer gets to; Monsanto patents life forms and I think that's unethical; or most often, Monsanto sues farmers every time their patented seeds accidentally blow onto their property. None of those are true, but I've learned to just keep my mouth shut. The narrative of a Big Evil Corporation savagely attacking the small fry who can't fight back is simply too popular. It strokes too many people's preferred worldview. The idea that any wealthy corporation might not be the most evil of all possible entities is one that's simply too challenging for many people to even consider. For them, the preservation of that narrative is more important than the search for science-based answers to feeding a growing population.

So it should be no surprise that when the 2020 movie Percy came out, telling the story of a small farmer sued into oblivion by Monsanto for nothing more than having had someone else's seed accidentally blow onto his field, it was roundly acclaimed. City-dwelling reviewers with no direct knowledge of agriculture lauded it for finally revealing what they believed was the truth. When the movie appended the tired old line "Based on actual events", that (as much as anything) cemented the Monsanto-hating public's belief that this most popular storyline not only confirmed their preferred narrative that big companies are inherently and consistently evil, but that it was also gospel truth.

Before digging into the actual facts of the Monsanto Canada Inc v Schmeiser case, let's look at those three popular beliefs that lay so much of the foundation of public opinion on genetically engineered crops: first, that the GMO industry is what prevents farmers from saving this year's seeds to plant next year; second, that it's unethical for the GMO industry to patent crops; and finally, that Monsanto sues farmers for accidental contamination. Let's take them in order.

Myth #1: The GMO industry prevents farmers from using their own seeds

There are lots of reasons that farmers can't (or don't) simply keep the seeds from the crop they grew this year to plant next year, and none of those reasons have anything to do with GMOs. This is just the way agriculture works.

When a farmer keeps the seeds from part of his crop, there's a lot wrong with them. They're dirty, they're intermixed with lots of weed seeds and seeds from other plants, they have fungus infections, and (unlike many purchased seeds) they aren't pre-treated with a starter fertilizer. So when farmers want to do this, they have to use a seed cleaning service. It's a process requiring special equipment and storage space that farmers don't usually have. At the end of the day, the price is usually a wash compared to simply buying new seed that's almost always going to be better. Re-using their own seeds is not the free, wonder-solution that many armchair experts seem to think it is. It works best for small or family farms, but is not practical for most commercial growers.

And even this only goes for farmers who are practicing monoculture and replanting the exact same crop. Many farmers don't do that; they have no choice but to buy seeds for whatever new crop they're going to plant. Even if it's the same crop, conditions often compel them to switch to different varieties that may be more or less drought tolerant or pest resistant.

Furthermore, biology throws up another barrier to saving seeds for many crops. Since the 1950s, a lot of important crop species have all been hybrids. Called F1 hybrids, they express what's called hybrid vigor, which means they grow faster, have a higher yield, and express certain desired traits. Unfortunately, the birds and the bees have decreed that the seeds produced by hybrid species do not retain hybrid vigor. Traits expressed in the resulting crop will be unpredictable and all over the map, and unacceptable for commercial agriculture. Seed manufacturers, every year, have to produce new F1 hybrid seeds to allow farmers to benefit from these crops. Economically, it's always a win-win.

So, in most cases, simply re-using their own seeds is not a viable option for most farmers. This is a biological fact of agriculture that has nothing at all to do with Monsanto or GMOs.

Myth #2: The GMO industry created the unethical patenting of life forms

Totally false. The patenting of novel new plant varieties has been a foundation of the agriculture industry since the United States' Plant Patent Act of 1930. This became a necessity once the agriculture industry really started to boom and it became clear that seed producers needed to protect their intellectual property. Hybrid crops, sexual and tuber propagated crops, they were all new and unique and valuable, and in high demand; and could only be developed if agriculturists knew their invention wouldn't be stolen by everyone the next day.

By patenting their new and unique crops, Monsanto and the other GMO seed producers are following a nearly century old agriculture tradition. The ability to create and protect intellectual property is a linchpin of how nearly all business works.

Myth #3: Monsanto has sued farmers for accidental contamination

It's such a common belief, and it's absolutely false, and easily verified. Monsanto has publicly stated that it "never has and has committed it never will sue if our patented seed or traits are found in a farmer's field as a result of inadvertent means." This was put to the judicial test in 2011 when Monsanto was sued by the Organic Seed Growers and Trade Association to make them stop suing farmers who had seeds accidentally blow onto their fields — "contaminated" was the term they used. The Association lost, in no small part because they failed to produce even a single example of Monsanto doing this. But even further, because Monsanto argued that they don't do that, they are legally prevented from ever doing it in the future. No problem, since they never did and never planned to.

This popular belief is simply a false slander against Monsanto. Don't fall for it. Whether you love Monsanto or hate them, surely you don't want any of what you know about them to be false.

So what did Percy Schmeiser do?

So if it wasn't for growing seeds accidentally deposited onto Percy Schmeiser's field — as the movie claims — what did Monsanto sue him for?

The facts of this case are quite clear. They can be easily looked up in the court documents, and in the references below. Percy was a canola farmer, and like most farmers, he used the weed killer Roundup. Somehow, he found in 1997 that a number of his canola plants were resistant to it. They were, in fact, Monsanto's Roundup Ready® canola. How those plants got there was never at issue in the lawsuit; in fact, Percy never even made a defense that the seeds were on his property accidentally. Maybe they were accidental (though that seems unlikely since they constituted about 60% of his field); maybe he bought them; maybe someone secretly planted them; maybe the commercial canola seed he bought somehow contained them. According to Monsanto's policy, he was even free to sell those crops. Doesn't matter how they got there.

What does matter is what Percy did next. He took all the Roundup Ready canola plants that survived his Roundup application — which was several acres worth — and saved their seeds. He had the seeds commercially cleaned. Then, in 1998, he planted 1,000 acres of Roundup Ready canola that he hadn't paid for. He did it with full knowledge that what he was doing was in violation of Monsanto's licensing agreement. It was only because the seed cleaning facility realized what was going on and sent samples to Monsanto that Percy ever got caught. Monsanto offered him a licensing agreement, he refused, and so they went to court.

If an installer disk for Microsoft Word somehow appears on your desk, and you then knowingly install it and use it, Microsoft is entitled to the cost of their product. Doesn't matter how the disk got there, whether your friend left it, whether a burglar snuck in and placed it there, or whether you stole it. By the same token that Microsoft is owed the value of their product, a seed manufacturer is owed the contractual value of their seeds when a farmer grows and sells an entire crop of it. This is not a novel or exceptional concept.

Percy Schmeiser rightfully lost the case, which went all the way to Canada's Supreme Court, though no damages were awarded since he didn't really make any money off the crop. But the case — and others like it — have inspired much discussion. The conversation of whether patent laws are fair or need to be overhauled is a perfectly valid one. It's also justified to debate whether seed producers, or companies who form many of the other links in the long chain of processes that constitute the agriculture industry, should be exempted from those patent protections due to very real issues like food security. However, I argue that such policy debates are most productive when they are informed by facts that are true, rather than by falsehoods. I can't think of any reason that anybody who takes an interest in food security would want policy to be based on anything less than real data and correct facts. Consequently, I can't think of any good reason that any person with a genuine moral interest in food security would support false narratives against Monsanto or any other seed producer, no matter how popular those narratives might be.

By Brian Dunning
Follow @BrianDunning