The question of liability is being contested by both sides. Insurance companies covering crop losses say their policies will not cover genetic drift. That reflects not only the novelty of the problem but also a sense that studies are still lacking on the scope of drift -- how far pollen can travel, for instance, and how big farmers' losses might be.
In 1998, cross-pollination was suspected of carrying a genetically engineered variety of corn to an organic farm in Texas. The contamination was not discovered until the corn had been processed and shipped to Europe as organic tortilla chips. When testing revealed traces of biotech corn, the shipment of 87,000 bags was recalled, costing the company more than $150,000.
In 2001, a US judge last month ruled in favour of Monsanto in its demand that a Canadian farmer pay for the company's genetically engineered canola plants found growing on his field. He claims his crop was contaminated after pollen blew onto his property from nearby farms. Similar lawsuits have been filed against US farmers, but the Canadian case was the first to go to trial.
Aventis CropScience, meanwhile, is the target of several lawsuits over the mingling of its StarLink corn with other varieties. StarLink, engineered to produce a protein toxic to insect larvae, was approved in 1998 only for animal use out of concern it could cause allergic reactions in people. It was later detected in taco shells, forcing a recall of more than 300 corn-based products and an ongoing and costly attempt to contain StarLink still in the market. A class-action federal lawsuit argued that cross-pollination by StarLink has hurt farmers' ability to export corn and to sell it to food processors. With cross-pollination possible and even likely, Aventis itself has acknowledged the StarLink problem could persist for years, even though the seed was planted on less than 0.02 percent of cropland in 2000.
2. You patent it, you license it, you're liable for any contamination you deliver from it.
3. There might be a scenario in which genetic drift is treated like pesticide drift, a longstanding problem in agriculture and one in which courts have ruled against the farmer or company spraying the pesticides. A court case might look at issues of trespass, nuisance, or negligence, all of which have applied in similar cases. Because the area remains so grey, though, legal experts say it is far from clear which way a court might rule.