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Syngenta Lawsuit Now in Court

Plaintiffs Charge Lack of Chinese Approval for Agrisure Viptera Caused Losses for U.S. Corn Farmers

Litigation revolving around Syngenta and its Agrisure Viptera trait surfacing in corn imported by China before import approval has moved to the courtroom.

The trial that started last Monday (June 7) in Kansas City, Kansas, will be a bellwether trial, says Kristine Tidgren, assistant director of the Iowa State University Center for Agricultural Law and Taxation. Tidgren gave a summary of the lawsuit at ISU’s Soil Management Land Valuation Conference last month. If the trial is unsuccessful for the plaintiffs, it doesn’t bode well for the numerous other lawsuits that have been filed against Syngenta. Another trial was supposed to start in Minneapolis state court at the end of April. At the very minute, though, the trial was pushed back into July.  

“A lot of people talk about this trial and point to settlements (last decade) in lawsuits like StarLink and genetically modified rice litigation,” Tidgren says. One difference, though, is that those traits were not approved in the U.S. “They also ended up in food supply,” she says. These lawsuits are different in that a trait approved in the U.S. — Agrisure Viptera – was sold to a foreign country that had not approved it.

Background

Agrisure Viptera was approved for sale in the U.S. in 2010, with Syngenta selling the seed for planting in the 2011 crop year. It contains the MIR 162 insecticidal trait, a genetically modified trait stack that controls lepidopteran pests like European corn borer, corn earworm, cutworm, and armyworm.

“When farmers began planting it, the Chinese market for U.S. corn exploded,” says Tidgren. In the 2010-2011 marketing year, China imported 979,000 metric tons of corn from the U.S. During 2011-2012, that number increased to 5.2 million metric tons. All went well until November 2013, when China stopped accepting U.S. imports. It argued that U.S. corn contained trace amounts of the then unapproved (by China) Agrisure Viptera trait. (China approved the trait in December 2014.)

“The average price of corn per bushel dropped by more than half between the summer of 2012 and the fall of 2014,” she says. “Soybean prices also dropped, although not as dramatically.” In September of 2014, plaintiffs included a proposed class of grain farmers and grain exporters Cargill and Trans Coastal Supply. This and subsequent lawsuits allege that Syngenta “irresponsibly” chose to commercialize Agrisure Viptera before China approved it for import. The first lawsuits alleged that China’s rejection of U.S. corn pegged Syngenta as being responsible between $5 billion and $7 billion in economic harm.

However, Syngenta officials have countered that at the time the trait was launched, the industry did not consider China to be a key market for U.S. corn. Thus, they decided to launch Viptera when Chinese approval for corn containing the Viptera trait had not occurred. Syngenta officials also say corn prices were already dropping before China rejected the load. Thus, U.S. corn responded to a change in the supply and demand situation, and not the Chinese situation.

Main Legal Claims

Initially, plaintiffs charged that Syngenta violated the Lanham Act. Passed in 1946, the Lanham Act prohibits a number of activities, including trademark infringement, trademark dilution, and false advertising. A Kansas City, Kansas, federal court dismissed this claim earlier this year, saying there was no evidence of this. However, the negligence claim remains.

Who’s Involved

A nationwide class and eight state classes were certified on September 16, 2016. Even if you didn’t plant Agrisure Viptera corn, producers who priced corn after November 18, 2013, are part of this class. It can include landlords who rent out their land on a share basis and meet certain definitions. They do not include cash-rent landlords. She notes that producers who didn’t opt out of this class are in it.

Attorneys have also peeled off farmers from the class action suits for their own groups of plaintiffs to represent. “This has caused a lot of confusion among producers,” she says.

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