Who Wrote the Monsanto Protection Act? April Fools

Editor’s Note: This post was an April Fools Day joke. See the note below the post for more information.

On March 20 this year, the US Congress passed a interim budget bill, H.R. 933, which essentially enabled the government to continue to operate while they continue to debate such important issues as fiscal cliffs, sequester, and Michelle Obama’s Easter Sunday outfit. But contained within the bipartisan bill was a small section which upset a great number of foodies: Section 735, called the Farmer Assurance Provision. It has taken on many nicknames, such as the Monsanto Rider, and and Monsanto Protection Act. Its presence and origins have been the subject of much heated discussion among opponents of biotechnology, who have declared that it is “a dangerous earmark” that ” undermines the federal courts’ ability to safeguard farmers and the environment from potentially hazardous genetically engineered (GE) crops.”

Everyone has been trying to figure out who wrote this provision, why they wrote it, and when they slipped it into the bill signed by President Obama a week ago. Well, I have a confession to make. It was me. How, why, and when you ask? Read on and I will explain.

In 2010, the Supreme Court heard a case involving genetically engineered alfalfa, where the lower court had both “vacated” the deregulation of the crop back to the USDA to go through the approval process again, and enjoined the USDA from allowing it to be grown. It was a confusing tangle of legalese, but essentially the lower court had double-banned the crop, and the Supreme Court recognized this as an overstep of judicial authority and removed the injunction – the second ban. While news organizations called it a victory for Monsanto, their opponents also called it a victory. Maybe it was low self-esteem?

In any case, the regulation status of GE alfalfa had remained unchanged. Similarly, GE sugar beets were also caught up in court challenges, and the sugar beet growers were afraid they would not have enough seeds to plant. (Apparently swiss chard wasn’t a good substitute) So the USDA stepped in and said, hey, the Supreme Court just said we can do our job as a regulator of these plants – who wants to grow some stecklings for seeds? After all, the USDA has the power to approve individual plantings of regulated plants, which includes genetically engineered crops. In the following spring, the USDA went further and partially deregulated the sugar beets on an individual permit basis – which, again, they have the authority to do.

Fast forward another year, and then I got this ominous email. At first I thought it was a joke or a scam. My country needs me, the call of public service, reducing dependence on foreign oil, Change we can Belieber in, etc. But it linked to our blog, so I thought that I was the target of some bizarre army recruiting experiment and deleted it. Then a few days later I got several more, and a phone call from the office of a public official. They saw the impending budget crisis coming up, and were hard at work trying to figure out ways to bring Democrats and Republicans together to agree on something. They found my blog post about GE alfalfa and the Supreme Court and asked me to craft some legislation about genetically engineered crops.

I’m not a lawyer, I told them. I don’t know the first thing about how to write laws – it took me forever to understand the legal issues involved in that case and write about it. They said that didn’t matter. They didn’t want a law that made much sense, “heck, we want something that changes almost nothing but has something in there for both parties. And can you write it as one big run-on sentence?” Apparently they have read my work. So I prepared to do my duty for King Corn and Country.

I thought long and hard, consulting with both R’s and D’s to find out what they like in a law. Apparently D’s like regulations – anything that sounds like the government is in control of everything is good, unless it is your personal life. And R’s like something that sounds like farmers are safe and cozy in their homesteads raking in the dough. Yet, it had to be something that essentially changed nothing. I figured it out – how about something that states exactly what the USDA already has the powers to do, and is doing already? Thus, Section 733 of the 2013 Agricultural Appropriations Bill(pdf) was born. This super-secret bill didn’t pass, so it was later included in H.R. 933 as Section 735. Here it is in all its glory!

Sec. 735. In the event that a determination of non-regulated status made pursuant to section 411 of the Plant Protection Act is or has been invalidated or vacated, the Secretary of Agriculture shall, notwithstanding any other provision of law, upon request by a farmer, grower, farm operator, or producer, immediately grant temporary permit(s) or temporary deregulation in part, subject to necessary and appropriate conditions consistent with section 411(a) or 412(c) of the Plant Protection Act, which interim conditions shall authorize the movement, introduction, continued cultivation, commercialization and other specifically enumerated activities and requirements, including measures designed to mitigate or minimize potential adverse environmental effects, if any, relevant to the Secretary’s evaluation of the petition for non-regulated status, while ensuring that growers or other users are able to move, plant, cultivate, introduce into commerce and carry out other authorized activities in a timely manner: Provided, That all such conditions shall be applicable only for the interim period necessary for the Secretary to complete any required analyses or consultations related to the petition for non-regulated status: Provided further, That nothing in this section shall be construed as limiting the Secretary’s authority under section 411, 412 and 414 of the Plant Protection Act.

Did you get what it does? That’s right, it tells the USDA to grant temporary permits or partial deregulation of genetically engineered crops if a court tells the USDA to regulate them again. Which is exactly what the USDA is already doing. A huge part of this provision re-emphasizes the existing laws on regulating GE crops(pdf), and explicitly states that the Secretary of Agriculture’s powers under these laws are not limited in any way. And I did it all without putting any periods in the middle. Victory achieved?

Karl and Frank at the Capitol
Whip out a plush corn wearing an Uncle Sam hat and lawmakers will believe anything you say. Try it!

Not so fast. The congresspeople weren’t going for it. Apparently many lawmakers in the House of Representatives won’t budge on something unless their political opposites are against it. So I started sending emails to various anti-biotech organizations about the dangerous “Monsanto Rider” that would end the world as we know it. They bit harder than the Marquise de Sade coming down off of ecstasy. Blog posts, videos, and tweets pummeled the intertubes about this new ‘corporate welfare’ ‘earmark’, despite the fact that technically speaking, both of these involve the government actually spending money – which this did not. Petitions and press releases galore, it caught the attention of lawmakers who wanted to be for something that they were against. All of a sudden, the House was willing to pass a bill that they weren’t before.

To seal the deal, I went to Washington D.C. dressed in full plant regalia to talk to the few on the fence. I was afraid that commentators such as GM Watch would notice my announced trip to the Capitol on the eve of the voting for H.R. 933. I thought, obviously my  presence there would tip them off. Like how a couple tweets by other people several years ago mushroomed into claims about lobbyists and contest vote fixing. In any case my trip went unnoticed, and on the way back I heard that the bill was approved by both houses of Congress and was on its way to the President. Mission Accomplished. Now the provision that essentially changes nothing will be law for 26 weeks! Well, 25 now.

Very few commentators picked up on the correct interpretation of the provision.

“It’s not clear that this provision radically changes the powers USDA has under the law,” Greg Jaffe, director of the Biotechnology Project at the Center for Science in the Public Interest, tells The Salt.

If you read the provision closely (it’s on page 78, Sec. 735, of this PDF), you’ll see that it authorizes the USDA to grant “temporary” permission for GMO crops to be planted, even if a judge has ruled that such crops were not properly approved, only while the necessary environmental reviews are completed. That’s an authority that the USDA has, in fact, already exercised in the past.

Senate Agriculture Committee 1
Frank in the Senate Agriculture Committee room lobbying for a resolution that he’s the cutest plush plant in the lower 48.

But if you tried to read the provision or find out any information about it from the groups opposed to the provision, you would be hard-pressed to find the text. No links, no quotes, nothing. When I told them about it I didn’t even give them the text. Therefore, almost everyone who signed the petitions had no idea what they were in fact petitioning against. I figured out how the disinformation machine works, and what was at first a bizarrely complicated way to get different lawmakers making concessions on a big budget issue became my best April Fools prank ever, which is why I am telling you about it today. Next year, I’m going to see if I can get these groups to lobby in favor of something that they don’t like, like free “get out of regulated status” cards for crops that have passed Go. Now that I know they don’t read and interpret them before passing judgement I can do anything. Anything! (I must use these powers for good. I must use these powers for good. I must use… who am I kidding?)

So forget what you have heard about this provision. It wasn’t written by Monsanto, or Senator Blunt from Missouri, nor was it out in the open with previously-proposed legislation. It was entirely written in the back room (of my basement) and quietly added as part of an elaborate scheme – not to make sure that farmers who plant a GE crop that becomes regulated again by a court case can keep growing and sell that crop – no, but to test the limits of what people will make up to fear an “evil” temporary provision that outlines what is already accepted practice. Gotcha!

Note: April Fools! To be absolutely clear, I did not write Sec. 735, the Farmer Assurance Provision, aka the Monsanto Protection Act. I received no such email asking me to write it, and I was not in Washington D.C. to lobby for its passage – although the timing was a great coincidence for the purposes of this story. As the sources I quoted indicated above, the provision appears to have been written by Senator Blunt from Missouri, and the intended purpose was to ensure that farmers could continue to grow and sell their crops if another court case gums up the works. The difference between this provision and this current practice is that it specifically instructs the USDA to issue permits that it is already issuing. I stand by my opinion that the freakout that has occurred about this provision does not match its actual impacts, which may be, practically speaking, not different from what we have today. Here are some more links to commentary that has come out the same day about this act:

Genetic Literacy Project: Monsanto Protection Act? Separating the facts from the fury

Ag Professional: There is no Monsanto Protection Act\

Democracy Now Interview with Greg Jaffe and Wenonah Hauter

To repeat: I did not write Sec. 735, the Farmer Assurance Provision, aka the Monsanto Protection Act. Why was I in Washington D.C. on the 19th? I will explain all in an upcoming post.

Follow Karl Haro von Mogel:
Karl earned his Ph.D. in Plant Breeding and Plant Genetics at UW-Madison, with a minor in Life Science Communication. His dissertation was on both the genetics of sweet corn and plant genetics outreach. He recently moved back to his home state of California. His favorite produce might just be squash.