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195
Hunger and Equity in an Era of Genetic
Engineering
Rebecca M. Bratspies*
I. The Equity Crisis in Food Production and Distribution ...................................... 199
A. What Is Food Security? .............................................................................. 199
B. Will More Food Help? ............................................................................... 204
C. What the Past Teaches Us ......................................................................... 207
D. What Does Climate Change Do to Food Production? ..................... 209
II. Enter Genetically Engineered Crops ...................................................................... 212
A. What Are Genetically Modified Organisms? ........................................ 217
B. Can Genetically Engineered Crops Solve Food Insecurity? ............. 221
1. Do Genetically Engineered Crops Actually Increase Food
Production? ........................................................................................ 222
2. Can Genetically Engineered Crops Save Us from Climate
Change? ............................................................................................... 225
C. What Are the Equity Ramifications of Genetically Engineered
Crops? ......................................................................................................... 228
III. Some Additional Costs of Genetically Engineered Crops ................................ 233
A. Costs Due to Control over Production ................................................. 234
B. Costs Due to Control over Knowledge ................................................. 237
1. Direct Control over Research .......................................................... 238
2. Indirect Control over Research ....................................................... 240
Conclusion ........................................................................................................................ 243
“[ T]he question is not whether we can end hunger. It’s whether we will.”
1
Our food system is profoundly inequitable. There is a shockingly unequal
distribution of food among the earth’s 7.3 billion human inhabitants. The privileged
throw away vast amounts of food while millions go hungry. Despite a theoretical
* Professor CUNY School of Law, Director CUNY Center for Urban Environmental Reform. This
article benefited from discussions at the UC Irvine Food Equity Symposium. Thanks to Professor Sarah
Lamdan for her help tracking down hard-to-locate sources.
1
. Hillary Clinton, Attacking Hunger at Its Roots, HUFFINGTON POST ( July 12, 2009),
http://www.huffingtonpost.com/hillary-clinton/attacking-hunger-at-its-r_b_214351.html [https://
perma.cc/G69K-SXVV].
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196 UC IRVINE LAW REVIEW [Vol. 7:195
“right to food,”
2
which ranks among the core human rights, nearly 800 million
people were undernourished in 2015.
3
That is one in nine people on the planet. An
even greater number were “food insecure,” meaning they lack reliable access to
sufficient amounts of safe and nutritious food.
4
On its face, this seems like a
problem of supply and demand—too much demand and too little supply. Yet, the
reality is more complex. The United Nation’s Food and Agriculture Organization
(FAO) estimates the average human needs to consume somewhere around 1844
calories
5
per day.
6
The good news is that in 2015, the world produced roughly 2900
kcal/person/day
7
—more than enough to meet demand.
8
Yet, in the face of plenty,
hundreds of millions face persistent undernourishment. This imbalance underscores
2
. See, e.g., International Covenant on Economic, Social and Cultural Rights [ICESCR] art. 11(1),
Dec. 16, 1966, 993 U.N.T.S. 3 (requiring states party to the ICESCR to respect, protect, and fulfill the
international right to food); G.A. Res. 217 (III) A, art. 25(1), Universal Declaration of Human Rights
(Dec. 10, 1948) (declaring that every person has a right to an adequate standard of living, including
access to food).
3
. U.N. FOOD AND AGRIC. ORG. [FAO], THE STATE OF FOOD INSECURITY IN
THE WORLD—MEETING THE 2015 INTERNATIONAL HUNGER TARGETS: TAKING STOCK OF
UNEVEN PROGRESS 4 (2015) [hereinafter FAO, THE STATE OF FOOD INSECURITY], http://
www.fao.org/3/a-i4646e.pdf [https://perma.cc/6EEX-4EJK]. That means that they were unable to
acquire sufficient food to meet their dietary energy requirements for at least an entire year. Id. at 53.
The cutoff point for undernourishment is based on calculations about the minimum dietary energy
requirement (MDER) associated with a representative individual of a population. See id. at 49. Because
these figures vary based on age, gender, and levels of physical activity, they vary with the age structure
and gender balance in a population. For that reason, the FAO regularly recalculates the MDER to
update it with new population data. Id. at 51.
4
. For example, in the United States alone, 14% of the population was food insecure in 2014.
U.S. DEP’T OF AGRIC. [USDA], ECON. RESEARCH SERV., ERR-237, HOUSEHOLD FOOD SECURITY
IN THE UNITED STATES IN 2016, at 7 tbl.1A, 9, 12 fig.3 (2017) [hereinafter USDA, HOUSEHOLD
FOOD SECURITY], https://www.ers.usda.gov/webdocs/publications/84973/err-237.pdf?v=42979
[https://perma.cc/HMF8-ZHVN] (providing a clear explanation of the difference between food
insecurity and undernourishment).
5
. A calorie is the amount of energy needed to heat a gram of water 1 degree Centigrade. A
kilocalorie is the amount of energy required to heat a kilogram of water. The energy quotient of food
is measured in kilocalories, even though common parlance typically refers to calories instead. This Paper
will use the terms kcal and calorie interchangeably.
6
. FAO, MINIMUM DIETARY ENERGY REQUIREMENT (2008), https://www.google.com/
url?q=http://www.fao.org/fileadmin/templates/ess/documents/food_security_statistics/
MinimumDietaryEnergyRequirement_en.xls&sa=U&ved=0ahUKEwiwlafbxdbRAhWGrlQKHUaBB
_cQFggGMAE&client=internal-uds-cse&usg=AFQjCNHOxisN0WV5GOMbxPCeuwcUyiRnIg.
The World average MDER was 1844 kcal/person/day. The number varies based on age and size. The
FAO also calculates minimum daily energy requirements for each country, based on population and
demographics. The range is fairly narrow—from a low of 1690 kcal/person/day in Timor-Leste to a
high of 1990 kcal/person/day in Oman. Id.
7
. FAO, STATISTICAL POCKETBOOK: WORLD FOOD AND AGRICULTURE 24 fig.42 (2015)
[hereinafter FAO, STATISTICAL POCKETBOOK], http://www.fao.org/3/a-i4691e.pdf [https://
perma.cc/X7BT-N4X6].
8
. For perspective, the FAO pegs the average minimum daily energy requirement at 1844 kcal/
person/day, more than 1000 kcal/person/day below global production. Id. at 48.
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Amartya Sen’s profound insight that the problem of hunger is a problem of food
distribution, rather than one of food scarcity.
9
A tragic irony embedded in this imbalance is that a very high percentage of the
world’s food insecure are also food producers—with food insecurity particularly
rampant among subsistence farmers in Southern Africa and South Asia.
10
Moreover,
the very act of food production often destroys ecosystems while simultaneously
jeopardizing the health of farmers and field workers, who are often exposed to
pesticide levels far exceeding the test amounts considered in making safety
assessments.
11
Sadly, climate change will surely exacerbate this situation.
Facing these seemingly intractable inequities, policymakers look for a way to
rewrite the script. It is very difficult to convince people, policymakers included, that
the answer is not simply producing more food. Solutions that claim to offer a way
to produce more food, on less land, with less effort hold an obvious attraction. This
Article focuses on one such solution—the oft-repeated assertion that one or all of
these food production inequities can be resolved through widespread adoption of
genetically engineered agricultural crops. Purveyors of genetically engineered crops
routinely make extravagant claims about their product’s ability to redress food
insecurity. They claim to have harnessed the power of science to feed the world,
12
all while reducing environmental degradation. Anyone standing in their way is a
Luddite. Some advocates of genetically engineered crops go further, accusing even
thoughtful opponents of ignoring the plight of hungry children, and choosing anti-
science over science.
13
There is certainly an anti-science strain in some opposition
to genetically engineered crops,
14
but the technology’s proponents often use the
9
. AMARTYA SEN, POVERTY AND FAMINES: AN ESSAY IN ENTITLEMENT AND DEPRIVATION
1 (1981).
10
. FAO, THE STATE OF FOOD AND AGRICULTURE 2015 IN BRIEF 2 (2015) [hereinafter
FAO, FOOD AND AGRICULTURE IN BRIEF], http://www.fao.org/3/a-i4953e.pdf [https://perma.cc/
8B4K-DK8R].
11
. Christopher Gerry, Feeding the World One Genetically Modified Tomato at a Time: A Scientific
Perspective, HARV. UNIV. GRAD. SCHOOL OF ARTS AND SCIENCES: SCIENCE IN THE NEWS (Aug. 9,
2015), http://sitn.hms.harvard.edu/flash/2015/feeding-the-world/ [https://perma.cc/7BPU-
MPNK].
12
. In 1998, for example, Monsanto spent $1.6 million on a European ad campaign under the
banner: “Worrying about Starving Future Generations Won’t Feed Them. Food Biotechnology Will.”
Claudia Parsons, Aid Agencies Say Biotechnology Won’t End Hunger, REUTERS (Sept. 25, 1998). Hoechst
ran a similar ad inviting readers to “imagine a world where harvests grew just as fast as the population.”
VANDANA SHIVA, STOLEN HARVEST: THE HIJACKING OF THE GLOBAL FOOD SUPPLY 96 (2016).
13
. See, e.g., ROBERT PAARLBURG, STARVED FOR SCIENCE: HOW BIOTECHNOLOGY IS BEING
KEPT OUT OF AFRICA (2008); Joel Achenbach, 107 Nobel Laureates Sign Letter Blasting Greenpeace
Over GMOs, THE WASH. POST ( June 30, 2016), https://www.washingtonpost.com/news/speaking-
of-science/wp/2016/06/29/more-than-100-nobel-laureates-take-on-greenpeace-over-gmo-
stance/ [https://perma.cc/9DA7-WP4C] (text of the signed letter can be found at http://
supportprecisionagriculture.org/why-greenpeace-is-wrong-about-gmos-and-golden-rice_rjr.html
[https://perma.cc/H7QA-753T]); William Saletan, Unhealthy Fixation, SLATE ( July 15, 2015),
http://www.slate.com/articles/health_and_science/science/2015/07/are_gmos_safe_yes_the_
case_against_them_is_full_of_fraud_lies_and_errors.html [https://perma.cc/MB8W-7PN9].
14
. See, e.g., Caitlyn Sheeterly, The Bad Seed: The Health Risks of Genetically Modified Corn, ELLE
( July 24, 2013), http://www.elle.com/beauty/health-fitness/advice/a12574/allergy-to-genetically-
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anti-science fringes to gloss over a legitimate, and fundamental critique of the
technology—one rejecting the proposition that, in a world already awash with food,
food insecurity should be framed as a problem amenable to technical solution. This
critique does not reject the technology per se, but instead rejects its relevance to food
equity and food security.
15
This Article tests the notion that genetically engineered crops are a tool in the
fight against hunger. The question is posed in the context of a world in flux—with
a rapidly increasing human population and a growing potential for agricultural
disruption from climate change. To try to produce an answer, the Article uses two
criteria: first, does the proposed solution address the actual problem of hunger; and
second, does the solution contribute to food equity. In doing so, this Article
highlights how narratives about science and equity are deployed both by the pro-
agricultural biotechnology forces and by their opponents.
Part I offers a brief overview of the equity crisis in food production and
distribution, and describes how the twin challenges of a growing population and
climate change are expected to deepen this crisis. Part II situates genetically
engineered crops in a broader dialogue about food security. The Part begins with a
brief introduction to the development and use of these crops. It then critically
examines some of the oft-repeated arguments that biotech crops are indispensable
for solving the problems of undernourishment and food insecurity in a rapidly
warming world. In Part III, the focus then turns to the power dynamics that underlie
promotion and adoption of genetically engineered crops, notably the struggles for
control over food production and farmer choice, over public and private research
agendas, and over public access to information.
The key working assumptions for this analysis are that viable solutions must
offer the possibility of access to adequate and culturally appropriate food; must
promote food production that empowers rather than exploits producers; and must
not degrade the environment or threaten human health. With those criteria in mind,
this Article concludes that although the technical potential embodied by genetic
engineering might contribute to a transformation in food production, the economic
and political power structures in which that technical potential is being realized
modified-corn/ [https://perma.cc/K5NX-HGV5] (attributing a host of health symptoms to a GMO
allergy); Vani Hari, The United States of GMOs—Keeping Us in the Dark, FOOD BABE (Sept. 26, 2012),
http://foodbabe.com/2012/09/26/the-united-state-of-gmos-keeping-us-in-the-dark [https://
perma.cc/TTC3-DD3S] (asserting that “GMOs are foods biologically manufactured in laboratories—
injected with new DNA, viruses, herbicides, insecticides and/or other chemicals”).
15
. Indeed, one major critique of these crops is the role they play in normalizing an economic
and political system that has consolidated seed ownership and agricultural production in the hands of
few, largely Western, multinational corporations, even as the rhetoric focuses on the desperate poor in
developing countries. See, e.g., Wangari Maathai, Let Nature’s Harvest Continue: African Counter-
Statement to Monsanto, 25 REV. OF AFRICAN POL. ECON., 529, 529 (1998). See generally Dominick
Glover, Made by Monsanto: The Corporate Shaping of GM Crops as a Technology for the Poor 4 (STEPS
Centre, Working Paper 11, 2008) (analyzing the “simultaneous production of a technology widely
recognized as having limited relevance to poverty alleviation alongside a narrative that strongly implied
it was intended and designed to achieve that goal . . . .”), for a full evaluation of this theme.
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2017] HUNGER AND EQUITY 199
instead underscore existing imbalances, and thus work against promoting or
achieving equity in this context. In doing so, this Article sheds light on some core
questions of accountability for food insecurity in an era of climate change.
I. THE EQUITY CRISIS IN FOOD PRODUCTION AND DISTRIBUTION
Every man, woman and child has the inalienable right to be free from hunger and
malnutrition in order to develop fully and maintain their physical and mental faculties.
16
Roughly 2 billion people are employed in agriculture, many of them poor.
17
To address food insecurity and undernutrition, agriculture has what the World Bank
calls “a special power,”
18
because it has the potential both to raise incomes and to
make food more available. But, it will only do so if agriculture develops and grows
in ways that provide economic opportunities to the poor. Women make up the
majority of agricultural workers in many developing countries.
19
Raising women’s
income has disproportionate benefits for alleviating hunger,
20
so assisting women
farmers is a particularly effective way to reduce poverty and enhance food security.
A. What Is Food Security?
The FAO defines food security as a “situation that exists when all people, at
all times, have physical, social and economic access to sufficient, safe and nutritious
food that meets their dietary needs and food preferences for an active and healthy
life.”
21
In the United States, the U.S. Department of Agriculture (USDA) similarly
defines food security as having “access at all times to enough food for an active,
healthy life for all household members.”
22
Food insecurity is the absence of this
situation. The most severe form of food insecurity is undernourishment, which
means a person is not able to acquire enough food to meet the daily minimum
16
. G.A. Res. 3180 (XXVIII), Universal Declaration on the Eradication of Hunger and
Malnutrition (Nov. 16, 1974).
17
. See THE WORLD BANK, AGRICULTURE AND POVERTY REDUCTION (2008), http://
siteresources.worldbank.org/INTWDR2008/Resources/2795087-1191440805557/4249101-
1191957549239/Brief_AgPovRedctn_web.pdf [https://perma.cc/WE2N-4XNE]; see also WORLD
RESOURCES INSTITUTE, CREATING A SUSTAINABLE FOOD FUTURE: A MENU OF SOLUTIONS TO
SUSTAINABLY FEED MORE THAN 9 BILLION PEOPLE BY 2050, at 2 (2014), http://www.wri.org/sites/
default/files/wri13_report_4c_wrr_online.pdf [https://perma.cc/J8JU-5SLJ].
18
. WORLD BANK, supra note 17, at 1.
19
. See SOFA Team & Cheryl Doss, The Role of Women in Agriculture (FAO,
Agric. Dev. Econ. Div. [ESA], Working Paper No. 11-02, 2011), http://www.fao.org/docrep/
013/am307e/am307e00.pdf [https://perma.cc/E2F2-LRSX].
20
. See REKHA MEHRA & MARY HILL ROJAS, INT’L CTR. FOR RESEARCH ON WOMEN,
WOMEN, FOOD SECURITY AND AGRICULTURE IN A GLOBAL MARKETPLACE (2008), http://
www.icrw.org/wp-content/uploads/2016/10/A-Significant-Shift-Women-Food-Security-and-
Agriculture-in-a-Global-Marketplace.pdf [https://perma.cc/ACN4-LEHB].
21
. FAO, THE STATE OF FOOD INSECURITY, supra note 3, at 53.
22
. USDA, HOUSEHOLD FOOD SECURITY, supra note 4, at i.
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200 UC IRVINE LAW REVIEW [Vol. 7:195
dietary energy requirements, over a period of one year.
23
The United States deploys
slightly different terminology, using the term “very low food security” to mean that
normal eating patterns of one or more household members were disrupted and food
intake was reduced at times during the year because they had insufficient money or
other resources for food.
24
In 2014, 14% of U.S. households were food insecure,
with 5.6%, or roughly 6.9 million Americans, suffering from very low food
security.
25
At the same time, more than 40% of all food in the United States is
thrown away uneaten.
26
It would be difficult to even conceive of a more graphic
example of food inequity in action.
The year 2015 was supposed to be a watershed for resolving food insecurity.
That is because 2015 was the designated endpoint for two major hunger-related
initiatives—the World Food Summit target
27
and the Millennium Development
Goals.
28
Under these two major initiatives, the global community committed to
halving both the absolute number of people who were undernourished
29
and the
proportion of the human population suffering from undernourishment.
30
While
many parts of the world came close to reaching the latter, less ambitious Millennium
Development Goal, attempts to meet the World Food Summit target fell short by
more than a quarter of a billion people (265 million to be precise).
31
23
. FAO, THE STATE OF FOOD INSECURITY, supra note 3, at 53. FAO defines hunger as being
synonymous with chronic undernourishment. I will use the two terms interchangeably in this Article.
24
. USDA, supra note 4, at i.
25
. Id. at 7.
26
. Suzanne Goldenberg, The US Throws Away as Much as Half Its Food Produce, WIRED ( July
14, 2016), https://www.wired.com/2016/07/us-throws-away-much-half-food-produce/ [https://
perma.cc/L3EX-5BPB].
27
. See Monitoring Progress Since the World Food Summit, FAO (2005), http://www.fao.org/
monitoringprogress/index_en.html [https://perma.cc/M442-9P28], for details of the World Food
Summit target.
28
. See Millennium Development Goals and Beyond 2015, UNITED NATIONS [hereinafter
Millennium Goals, UNITED NATIONS], http://www.un.org/millenniumgoals/poverty.shtml [https://
perma.cc/5BTD-T286] (last visited Jan. 15, 2017), for information about the Millennium Development
Goals.
29
. As part of the 1996 Rome World Food Summit, representatives of 182 governments
pledged “to eradicate hunger in all countries, with an immediate view to reducing the number of
undernourished people to half their present level no later than 2015 . . . .” FAO, Rome Declaration on
World Food Security and World Food Summit Plan, World Food Summit, U.N. Doc. W3613 (Nov. 13,
1996) [hereinafter FAO, Rome Declaration], http://www.fao.org/DOCREP/003/W3613E/
W3613E00.HTM [https://perma.cc/FD27-ZNXH].
30
. At the 2000 Millennium Summit, 189 nations called for recognizing that every individual
has the right to dignity, freedom, equality, and a basic standard of living that includes freedom from
hunger and violence. This pledge led to the formulation of eight Millennium Development Goals
(MDGs) in 2001. In adopting Millennium Development Goal 1, the nations of the world committed
to “eradicate extreme poverty and hunger.” Millennium Goals, UNITED NATIONS, supra note 28. This
Goal was then made operational through the establishment of three distinct targets: Target 1A: halving
global poverty, Target 1B: achieving full and productive employment, and Target 1C: halving the
proportion of people who suffer from hunger by 2015. Id.
31
. FAO, THE STATE OF FOOD INSECURITY, supra note 3, at 9. However, since the global
population increased by about 1.9 billion over that same period of time, the initiative achieved more
than is suggested by simply comparing starting and ending levels of undernourishment. Id. at 8.
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And, this World Food Summit target itself represented diminished global
ambition in tackling food insecurity. The first global initiative responding to hunger
and food insecurity was the 1974 World Food Conference.
32
At this Conference,
the 135 country-attendees
33
adopted the Universal Declaration on the Eradication
of Hunger and Malnutrition, which articulated a much more ambitious goal—the
complete eradication of food insecurity and undernutrition within a decade.
34
The
Declaration defined food security as a common responsibility of the international
community,
35
and proclaimed that governments had the fundamental responsibility
to both increase food production and more equitably distribute existing food
supplies.
36
No less a personage than United States’ Secretary of State Henry
Kissinger proclaimed that “within a decade no child will go to bed hungry, that no
family will fear for its next day’s bread, and that no human being’s future and
capacities will be stunted by malnutrition.”
37
The United Nations General Assembly
endorsed this goal, and established the World Food Council to operationalize its
proposals.
38
In conjunction with the Conference, the U.S. Congress adopted a
resolution declaring “every person throughout the world has the right to a
nutritionally adequate diet.”
39
At the time, roughly 500 million people were suffering
food insecurity,
40
but there was reason for optimism. The FAO reported that food
supplies exceeded demand, and that both energy and protein requirements were
32
. THE U.N. WORLD FOOD CONFERENCE, REPORT OF THE WORLD FOOD CONFERENCE,
(1974).
33
. Id.
34
. Universal Declaration on the Eradication of Hunger and Malnutrition, supra note 16, at 2
(connecting, explicitly, food insecurity to colonialism and announcing that “[s]ociety today already
possesses sufficient resources, organizational ability and technology and hence the competence to
achieve this objective”).
35
. FAO Council Res. 1/64, World Food and Agriculture Situation: International Undertaking
on World Food Security (Nov. 1974), http://www.fao.org/docrep/meeting/007/F5340E/
F5340E00.htm [https://perma.cc/7FTM-LD32].
36
. Id. ¶ 46.
37
. Henry Kissinger, U.S. Sec’y of State, U.S. Dep’t of State, Address at The World Food
Conference (Nov. 5, 1974), in DEP’T ST. BULL., Dec. 1974, at 829.
38
. G.A. Res. 3348 (XXIX), World Food Conference, at 7 (Dec. 17, 1974).
39
. H.R. Con. Res. 737, 94th Cong. (1976).
40
. Report of the Preparatory Committee for the World Food Conference on its Third Session,
E/Conf. 65/6 Annex X, Draft Declaration prepared by the Secretariat in Compliance with the request
made by the Preparatory Committee at its Third Session; see also, FAO, The State of Food and Agriculture
1974, at 108 (1974) [hereinafter FAO, 1974], http://www.fao.org/docrep/017/f3350e/f3350e.pdf
[https://perma.cc/W6WX-DTQK] (indicating that 460 million people were undernourished in 1971–
1973, but acknowledging that this number was likely to be an underestimate). In 1992, the FAO
retroactively revised its calculations to estimate that 941 million had in fact been food insecure in the
early 1970s. FAO, The State of Food and Agriculture 1992, at 21–22 (1992) [hereinafter FAO, 1992],
http://www.fao.org/3/a-t0656e.pdf [https://perma.cc/7PYL-GATN]. Since that time, FAO has
continued to retroactively revise its estimates of food insecurity, making comparisons across time
difficult. See, e.g., Mark Carapparós, Counting the Hungry, N.Y. TIMES (Sept. 27, 2014), https://
www.nytimes.com/2014/09/28/opinion/sunday/counting-the-hungry.html?mcubz=3 (describing
the shifting baselines for success in global efforts at hunger eradication). For purposes of this analysis,
the key point is that in 1974, global leaders believed the scale of the crisis they faced was that 500 million
people were food insecure.
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202 UC IRVINE LAW REVIEW [Vol. 7:195
“well in excess of requirement.”
41
Rather than a production issue, the FAO defined
the problem as one of “far from equitable” distribution of that food.
42
Two decades later, when representatives of 182 governments reconvened for
the 1996 World Food Summit, the number of food insecure had increased to 949.5
million.
43
More than 200 million children were going to bed hungry.
44
This dramatic
rise in food insecurity happened even though food production increased significantly,
in both absolute terms and on a per capita basis. More than a decade after the World
Food Conference deadline for eradicating food insecurity, the world produced
much more food, but food security remained a vexing problem. Hunger alleviation
had foundered by failing to address inequitable distribution.
In response, the assembled representatives at the World Food Summit took a
dramatic step away from the ambitious hunger eradication goals they had embraced
at the World Food Conference. Instead, the Rome Declaration that emerged from
this meeting adopted a much more modest goal of halving the number of people
suffering food insecurity by 2015.
45
Given that roughly a billion people were
suffering food insecurity in 1996, success on that point would have brought that
number down to roughly 500 million—a far cry from the World Food Conference
goal of eradicating hunger. In two short decades, ambition and optimism had
dwindled. Success was redefined away from eradicating food insecurity to tolerating
numbers of food insecure people on par with those that in 1974 sparked the
international institutional efforts for food security in the first place. Of course,
population had increased significantly over those two decades. But so had food
production. Even with the increased population, global food production was well
in excess of the level necessary to not just feed, but overfeed every single human
being on the planet. Just take a moment to contemplate the imbalance and inequity
inherent in electing such a modest goal in the wake of those numbers. In a world
awash with food, the “ambitious” 2015 goal, the one that was not met, would still
41
. FAO, 1974, supra note 40, at 104.
42
. Id.
43
. Food Security Indicators, FAO (Dec. 16, 2016) [hereinafter Food Security Indicators],
http://www.fao.org/economic/ess/ess-fs/ess-fadata/en/ [https://perma.cc/VCE4-SABZ]. See also
FAO, World Food Summit Technical Background Document 5 (1996) http://www.fao.org/docrep/003/
w2612e/w2612e5a.htm [https://perma.cc/DS2H-PHSG] (indicating that the lion’s share [841 million]
of those suffering food insecurity were in developing countries); FAO, The State of Food and Agriculture
1996, at 272 (1996), http://www.fao.org/docrep/003/w1358e/w1358e00.htm [https://perma.cc/
TFY2-9FTK].
44
. See Boutros Boutros-Ghali, Secretary-General of the U.N., Statement at the World Food
Summit (Nov. 13, 1996), in REPORT OF THE WORLD FOOD SUMMIT, Nov. 1996, http://www.fao.org/
WFS/begin/speech/boutro-e.htm [https://perma.cc/5VGH-P2FK]; UNICEF, The State of the
World’s Children 1998, at 6 (1998), https://www.unicef.org/sowc/archive/ENGLISH/The%
20State%20of%20the%20World’s%20Children%201998.pdf [https://perma.cc/Z487-AEGJ].
Indeed, 11,000 children were dying each day as a result of malnutrition, a rate of one every eight
seconds. Celestine Bohlen, Rome Talks to Examine Aid to Hungry, N.Y. TIMES (Nov. 13, 1996).
45
. FAO, Rome Declaration, supra note 29.
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2017] HUNGER AND EQUITY 203
have left the combined populations of the United States, Germany, France, and
Poland
46
suffering from food insecurity.
A few years later, the 2000 Millennium Summit lowered the bar even further.
Rather than striving for eliminating hunger, or for halving the number of people
living with food insecurity, the Millennium Development Goals instead proposed
halving the percentage of people suffering from food insecurity by 2015.
47
Given that
population was expected to rise to 7.2 billion in 2015, and that in 2000, 15% of the
world’s population (924 million people)
48
were food insecure, the Millennium
Development Goal defined success as only 576 million people suffering food
insecurity.
49
Thus, the new goal left more people suffering food insecurity than the
number that in 1974 had been deemed a global crisis, and only marginally improved
on the FAO’s 1999 projections that, under a “business as usual,” scenario 600
million people would suffer food insecurity in 2015.
50
What makes this goal
particularly inequitable, is that when the global community adopted it in 2000, world
food production (2721 kcal/person/day) was already enough to provide adequate
nutrition to every person on the planet.
51
Food production continued to increase more rapidly than population. In 2015,
the endpoint for both the World Food Summit and the Millennium Development
Goals, world food production amounted to 123% of global demand.
52
Nevertheless, the global community was only able to declare partial success in
reaching the less ambitious Millennium Development Goals,
53
and fell far short of
meeting the World Food Summit targets.
54
The FAO report summarizing progress
toward these goals took stock of both successes and failures, but characterized the
46
. World’s 50 Most Populous Countries: 2015, INFOPLEASE ( July 2016), http://www.
infoplease.com/world/statistics/most-populous-countries.html [https://perma.cc/FGX2-33Q2].
47
. Millennium Goals, UNITED NATIONS, supra note 28 (proposing, in Target 1.C, to reduce by
half the proportion of people who suffer from hunger by 2015). This goal used the 1990–1992 years as
a baseline for the number of hungry people.
48
. These figures represent a three-year average from 1999–2001. Suite of Food Security
Indicators, FAO (Feb. 9, 2016), http://www.fao.org/faostat/en/#data/FS [https://perma.cc/BH3R-
33MF].
49
. FAO, ECON. AND SOCIAL DEP’T, THE STATE OF FOOD INSECURITY IN THE WORLD:
2005, at 6 (2005) ftp://ftp.fao.org/docrep/fao/008/a0200e/a0200e.pdf.
50
. FAO, The State of Food Insecurity in the World 1999, at 4 (1999), http://www.fao.org/
NEWS/1999/img/SOFI99-E.pdf [https://perma.cc/P4SW-LSPN].
51
. Food Security Indicators, supra note 43. FAO provides this food availability data in three year
increments: the dietary energy supply for 1999–2001 was 2717 kcal/person/day, and for 2000–2002
was 2721 kcal/person/day. According to FAOSTATs, global production was 116% of demand. Suite
of Food Security Indicators, supra note 48.
52
. Food Security Indicators, supra note 43, at v1.1, http://www.fao.org/economic/ess/ess-fs/
ess-fadata/en/ [https://perma.cc/4N2Y-XDDF].
53
. Id. (noting that 72 of the 129 countries monitored under the Millennium Development
Goals had reached the target of halving the percentage of hungry people, a record the FAO
characterized as “almost” meeting the Millennium Development Goal).
54
. Id. (noting that 29 of 129 countries reached the “more ambitious” World Food Summit
goals).
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204 UC IRVINE LAW REVIEW [Vol. 7:195
lingering food insecurity as “unacceptable.”
55
It noted the importance of social
protection policies for achieving food security.
56
In designing a plan forward, the 2016 Sustainable Development Summit
turned away from the 1996 World Food Summit’s incremental approach to food
security, an approach that had built in specified levels of persistent
undernourishment. Instead, by adopting the Sustainable Development Goals, the
United Nation’s 193 member states committed themselves to “end hunger, achieve
food security and improve nutrition” by 2030.
57
This more ambitious goal was
actually a return to the commitment embraced by the 1974 Universal Declaration
on the Eradication of Hunger and Malnutrition.
58
To achieve this Sustainable
Development Goal, the United Nations adopted the Zero Hunger Challenge,
59
which
calls for actualizing the right to food,
60
and for transforming the global food system.
It identifies five integrated steps necessary for achieving this goal: (1) making all
food systems sustainable; (2) ending rural poverty; (3) adapting food systems to
eliminate waste and loss; (4) ensuring access to healthy and adequate diets for all
people, all year round; and (5) ending malnutrition in all its forms.
61
B. Will More Food Help?
As we look forward to 2050, global population is expected to reach 9.7 billion
people
62
—a staggering 2 billion more mouths to feed. Despite the Zero Hunger
Challenge’s emphasis on structural inequality, far too much of the public rhetoric
still focuses on increasing food production to satisfy this burgeoning population. It
makes intuitive sense that the solution to hunger rests in producing more food, but
it simply is not the case.
We already produce enough food to feed every man, woman, and child on the
planet,
63
as well as those expected over the next decades.
64
Food production has
55
. FAO, THE STATE OF FOOD INSECURITY, supra note 3, at 8.
56
. Id. at 10, 18.
57
. U.N. Dep’t of Econ. & Soc. Aff., SDG 2: End Hunger, Achieve Food Security and Improve
Nutrition and Promote Sustainable Agriculture (Dec. 1, 2014), https://sustainabledevelopment.un.org/
?page=view&nr=164&type=230&menu=2059 [https://perma.cc/5XNW-MYYT].
58
. Universal Declaration on the Eradication of Hunger and Malnutrition, supra note 16.
59
. U.N. DEP’T OF ECON. & SOC. AFF., ZERO HUNGER CHALLENGE ( June 15, 2016),
http://www.un.org/en/zerohunger/pdfs/ZHC%20-%20Pathways%20to%20Zero%20Hunger.pdf
[https://perma.cc/8RD3-7QHN].
60
. Id. at 3 (“The Zero Hunger Challenge is guided by a set of core principles that are grounded
in . . . the right of everyone to have access to safe and nutritious food, consistent with the right to
adequate food and the fundamental right of everyone to be free from hunger.”).
61
. Id. at 2.
62
. World Population Projected to Reach 9.7 Billion by 2050, U.N. DEP’T OF ECON. &
SOC. AFF. ( July 29, 2015), http://www.un.org/en/development/desa/news/population/2015-
report.html [https://perma.cc/R4WX-KDW5].
63
. FAO, STATISTICAL POCKETBOOK, supra note 7, at 16 (providing, in chart 24, that there
was an average of approximately 122% production of the necessary dietary energy supply for the world
in 2015).
64
. Id. at 24 fig.42. Therein, the FAO states that global food production was approximately
2900 kcal/person/day in 2015, more than the USDA daily recommendations for even those with
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2017] HUNGER AND EQUITY 205
outpaced population growth for quite some time now. We just do not use that food
to feed the people who are food insecure. Instead, an increasing percentage of grains
that would otherwise be available for human consumption has been diverted into
livestock production
65
and biofuels.
66
Biofuels currently claim 40% of the U.S. corn
crop, and 23% of the soy crop. Animal feed takes a comparable share. That leaves
only 20% of the corn and 50% of the soy available for human consumption. There
is no reason to think that increased production alone will change this dynamic.
The United States alone raised nearly 90 million cattle for food in 2015,
67
resulting in production of 23.69 billion pounds of beef.
68
Across the globe there
were roughly 1.5 billion cattle, 19.6 billion chicken, and 977 million pigs.
69
It takes
2 and 4 pounds of grain to produce one pound of chicken,
70
3.5 pounds of grain to
produce one pound of pork,
71
and 6 pounds of grain to produce one pound of
the highest caloric demands. Estimated Calorie Needs Per Day by Age, Gender, and Physical Activity
Level, USDA [hereinafter, Estimated Calorie Needed Table], https://www.cnpp.usda.gov/sites/
default/files/usda_food_patterns/EstimatedCalorieNeedsPerDayTable.pdf [https://perma.cc/
SFT4-GK8D] (last visited Feb. 9, 2017). With a global population of roughly 7.3 billion people, that
means current production is 2.117 trillion kcal/day. See Robert Schlesinger, The 2015 U.S. and World
Populations, U.S. NEWS (Dec. 31, 2014, 12:00 P.M.), http://www.usnews.com/opinion/blogs/robert-
schlesinger/2014/12/31/us-population-2015-320-million-and-world-population-72-billion [https://
perma.cc/JC8M-DG5A]. Divide that by 9.6 billion or 10 billion people, and the resulting production is
2205.76 or 2117 kcal/person/day—enough to meet the nutritional needs of a global population that
range from 1000 kcal/person/day per day for young children up to 2800 kcal/person/day for the most
active adult males. See Estimated Calorie Needed Table, supra.
65
. See FAO, WORLD LIVESTOCK 2011: LIVESTOCK IN FOOD SECURITY 78, 83 (2011),
http://www.fao.org/docrep/014/i2373e/i2373e.pdf [https://perma.cc/UDU5-ZYD2]. By 2050,
demand for meat and dairy products is expected to rise by 58% and 63%, respectively. This growth is
driven not only by population increase but also by changing consumption patterns linked to increasing
wealth. See id. at 79 tbl.15.
66
. U.S. Bioenergy Statistics, USDA, ECON. RES. SERV. tbls.5, 6, http://www.ers.usda.gov/
data-products/us-bioenergy-statistics.aspx [https://perma.cc/2U9P-MKHA] (last updated Aug. 8,
2017). In 2015, approximately 40% of the corn and 23% of the soy produced in the United States were
used to produce ethanol. Id. Another 45% of the corn crop went into animal feed. James Conca, It’s
Final—Corn Ethanol Is of No Use, FORBES (Apr. 20, 2014), http://www.forbes.com/sites/
jamesconca/2014/04/20/its-final-corn-ethanol-is-of-no-use/#7a1b0bc22ca2 [https://perma.cc/
FX3V-45NH].
67
. USDA, NAT’L AGRIC. STAT. SERV., AGRICULTURAL STATISTICS 2015, at VII-1 (2015),
https://www.nass.usda.gov/Publications/Ag_Statistics/2015/Chapter07.pdf [https://perma.cc/
U62A-2EGW].
68
. Beef Industry Statistics, NAT’L CATTLEMEN’S ASS’N, http://www.beefusa.org/
beefindustrystatistics.aspx [https://perma.cc/5D2S-TCRY] (last visited Nov. 11, 2016).
69
. Brad Plumer, These Maps Show Where All the World’s Cattle, Chickens, and Pigs Are, VOX
(Feb. 5, 2015), http://www.vox.com/2014/6/20/5825826/these-maps-show-where-all-the-worlds-
cattle-chickens-and-pigs-live [https://perma.cc/E3MA-6LQQ] (providing that the earth had about
19.6 billion chickens, 1.4 billion cattle, and 980 million pigs in 2015). Populations of sheep and goats
raised for food are much smaller, with farmers raising just over a million each in 2013 (the latest data
available at FAO, STATISTICAL POCKETBOOK, supra note 7, at 30 tbl.5).
70
. Feed Conversion Ratio, U.K. POULTRY SECTOR, https://www.gov.uk/government/
uploads/system/uploads/attachment_data/file/448965/ghgindicator-7poultrysector-29jul15.pdf
[https://perma.cc/E4P4-26JQ] (last visited Nov. 11, 2016).
71
. Dan W. Shrike, Beef Cattle Feed Efficiency, UNIV. OF ILL. AT URBANA-CHAMPAIGN 3
(2013), http://lib.dr.iastate.edu/cgi/viewcontent.cgi?article=1027&context=driftlessconference.
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206 UC IRVINE LAW REVIEW [Vol. 7:195
beef.
72
And, that is not even to consider the loss of habitat, generation of wastes
(including greenhouse gases), and water resources invested in meat production.
73
As a result, projections for the amount of food needed from agriculture in the future
diverge widely depending on what kinds of assumptions about meat consumption
are made.
In addition to food diverted into biofuels or animal feed, an astonishing
amount of food is simply wasted. According to the FAO, roughly one-third of all
food produced for consumption worldwide, 1.3 billion tons, gets lost
74
or wasted
75
rather than consumed.
76
When this figure is converted to calories, this means that
about one in four calories intended for consumption is never actually eaten. Not
only is the food itself wasted, but so are all of the resources invested in producing
that food, and the greenhouse gas emissions generated by producing it. The causes
of food loss and waste range from inadequate refrigeration and lack of processing
facilities in developing countries to rigid appearance standards and consumer waste
in wealthier countries.
77
This makes reducing food waste an obvious target for
attempts to reduce both food insecurity and agricultural impact on the global
environment.
The FAO reports that in 2014 (the most recent data available), global
agriculture produced enough food to meet 123% of demand.
78
In other words,
farmers in 2014 produced enough food to feed all 7.3 billion people currently on
earth. Yet, that same year, nearly 11% of the human population was
undernourished.
79
This disconnect between available food supplies and levels of
food insecurity is a function of poverty and inequality. For example, the United
States, which is consistently rated a food secure country
80
and is home to a
population that routinely throws away roughly 40% of all available food,
81
pegs its
72
. Id.
73
. For example, it takes about 1500 liters of water to produce a kilogram of wheat and ten
times that much (about 16,000 liters) to produce a kilogram of beef. Charles Ebikeme, Water World,
SCITABLE: EYES ON ENVIRONMENT ( July 25, 2013), http://www.nature.com/scitable/blog/eyes-on-
environment/water_world [https://perma.cc/PWK4-CS3F].
74
. “Food loss” refers to the decrease in edible food mass throughout the supply chain. It can
refer to losses during production, postharvest or processing. FAO, GLOBAL FOOD LOSSES AND FOOD
WASTE—EXTENT, CAUSES AND PREVENTION 2 (2011) [hereinafter FAO, GLOBAL FOOD LOSSES],
http://www.fao.org/docrep/014/mb060e/mb060e00.pdf [https://perma.cc/4LGV-UXED].
75
. “Food waste” refers to the behavior and choices of retailers and consumers. Id.
76
. FAO, FOOD LOSS AND FOOD WASTE (2016), http://www.fao.org/food-loss-and-food-
waste/en/ [https://perma.cc/623C-DKGK].
77
. FAO, GLOBAL FOOD LOSSES, supra note 74, at 11–14.
78
. FAO, STATISTICAL POCKETBOOK, supra note 7, at 48.
79
. Id.
80
. See id. at 15 fig.6.
81
. See JEAN C. BUZBY, HODAN F. WELLS, & JEFFREY HYMAN, USDA, ECON. RESEARCH
SERV., EIB-121, THE ESTIMATED AMOUNT, VALUE, AND CALORIES OF POSTHARVEST FOOD
LOSSES AT THE RETAIL AND CONSUMER LEVELS IN THE UNITED STATES 18 (2014), https://
www.ers.usda.gov/webdocs/publications/43833/43680_eib121.pdf [https://perma.cc/QH4G-
C8GH]. For perspective, that amounts to 1,249 calories of food wasted per day for every man, woman,
and child in the United States. Id.
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domestic food insecurity rate as 14%.
82
That means one in seven Americans suffers
food insecurity,
83
while the other six out of seven each throws away more than 1250
calories worth of food per day.
84
If even a small percentage of that wasted food
were diverted to feeding the food insecure, the problem could easily be resolved.
What is lacking is not the food but some kind of institutional or social mechanism
for accomplishing this diversion.
The United States is not alone in tolerating hunger in the face of food
abundance. Nor is this a new phenomenon. Indeed, even as it abandoned the goal
of eradicating food insecurity, the 1996 World Food Summit Plan of Action
specifically noted that “[t]he 5.8 billion people in the world today have, on average,
15 percent more food per person than the global population of 4 billion people had
20 years ago.”
85
It is the phrase “on average” that causes all the problems because
food is not distributed on average—there is no equal share allotted on a per capita
basis. National-level food security does not mean that all individuals living within
that state will be food secure.
86
C. What the Past Teaches Us
More than three decades ago, Amartya Sen convincingly demonstrated that
food insecurity is a problem of food distribution not a food production problem.
87
Even in the midst of famine, farmers have produced enough food. For example,
during the nineteenth century Irish Potato Famine, Ireland was exporting food to
various other English colonies.
88
There was a crisis with the potato crop, and the
British landlords prevented reallocation of other crops to fill the gap. During the
Great Indian Famine of 1876–78, grain merchants exported record quantities of
grain out of India, rather than diverting the grain to relieve local starvation.
89
They
did so under the strict instructions of the British Viceroy. There were definitely
weather problems that affected the crops, but even at the time, it was clear that this
famine, and the 1899–1902 famine that followed, were not caused by food
82
. ALISHA COLEMAN-JENSEN, MATTHEW P. RABBITT, CHRISTIAN GREGORY &
ANITA SINGH, U.S. DEP’T OF AGRIC., ERR-194, HOUSEHOLD FOOD SECURITY IN THE
UNITED STATES IN 2014, at v (2015), https://www.ers.usda.gov/webdocs/publications/45425/
53740_err194.pdf?v=42515 [https://perma.cc/KK2Y-4VG2].
83
. See id.
84
. Cf. BUZBY ET AL., supra note 81.
85
. FAO, Rome Declaration, supra note 29, ¶ 5.
86
. See Josef Schmidhuber & Francesco N. Tubiello, Global Food Security Under Climate
Change, 104 PROC. NAT’L ACAD. SCI. 19703, 19703 (2007) (noting that “national self-sufficiency is
neither necessary nor sufficient to guarantee food security at the individual level”).
87
. SEN, supra note 9, at 1–7.
88
. CECIL WOODHAM-SMITH, THE GREAT HUNGER: IRELAND 1845–1849, at 75–77 (1962).
89
. See, e.g., B.M. BHATIA, FAMINES IN INDIA: A STUDY IN SOME ASPECTS OF THE ECONOMIC
HISTORY OF INDIA (1860–1945), at 37–39, 137–38 (1963) (showing that grain exports more than
doubled during the famine years, and tripled during the worst years). British colonial rulers’ twin
insistence on noninterference in grain export markets and a refusal to provide relief to those unable to
purchase food combined to create crisis after crisis.
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208 UC IRVINE LAW REVIEW [Vol. 7:195
shortages.
90
There was enough food available to feed all the people.
91
It was just
exported instead. These famines were a manifestation of the colonial political
structure.
92
The (British) Famine Commissions instituted to investigate these famines
were clear in their understanding that the massive Indian death toll was not due to
a lack of food availability.
93
Thus, the official Famine Commission investigation of
the 1899–1902 famine emphasized that “supplies of food were at all times
sufficient, and it cannot be too frequently repeated that severe privation was chiefly
due to the dearth of employment in agriculture (arising from the drought).”
94
The
Famine of 1873–74 was similarly deemed to be one of “high prices rather than of
scarcity of food.”
95
These famines, which produced tens of millions of deaths,
96
were caused not
by lack of food per se, but by the interactions between an agricultural crisis and a
colonial political system that had other priorities. The real problem was that the
hungry could not afford to eat, and their governments took no action to help.
Indeed, famine has always been about distribution—about who has access to the
food that is produced.
97
The Indian Famine Commission of 1878–80 underscored
this point, when it approvingly noted the political calculation behind a decision not
to provide food to famine victims:
[T]he doctrine that in time of famine the poor are entitled to demand
relief . . . would probably lead to the doctrine that they are entitled to such
relief at all times, and thus the foundation would be laid of a system of
90
. J. RAMSAY MACDONALD, THE AWAKENING OF INDIA 163 (1910).
91
. BHATIA, supra note 89, at 8–10 (quoting report contemporaneous with the famine that
acknowledged that food was “always purchaseable (sic) in the market though at high and in some
remote places at excessively high prices.”); MACDONALD, supra note 90, at 161–64; LALA LAJPAT RAI,
ENGLAND’S DEBT TO INDIA 274–81 (Hindustan Books 2012) (1917).
92
. MIKE DAVIS, LATE VICTORIAN HOLOCAUSTS: EL NIÑO FAMINES AND THE MAKING OF
THE THIRD WORLD 156–64 (2001) (reporting contemporaneous accounts of the famine). See generally
ROMESH C. DUTT, OPEN LETTERS TO LORD CURZON ON FAMINES AND LAND ASSESSMENTS IN
INDIA vii-xvi (1900) (making the case that colonial over-taxation of Indian farmers caused mass
starvation).
93
. RAI, supra note 91, at 294–305.
94
. GOV’T OF INDIA, REPORT ON THE FAMINE IN THE BOMBAY PRESIDENCY 1899-1902
para. 4 (1903), http://dspace.gipe.ac.in/xmlui/handle/10973/38215 [https://perma.cc/KC2U-
3CYH].
95
. See, e.g., ARDASEER DINSHAWJI CHINOY, CENSUS OF INDIA, 1901 paras. 75–76 (1902),
http://dspace.gipe.ac.in/xmlui/handle/10973/18819 [https://perma.cc/W2JS-GQAF].
96
. DAVIS, supra note 92, at 7 tbl.P1 (citing an estimate by The Lancet of 19 million deaths in
the 1896–1902 famine).
97
. SEN, supra note 9. But see Amrita Rangasami, Failure of Exchange Entitlement’s Theory of
Famine: A Response, 20 ECON. & POL. WKLY., Oct. 12, 1985, at 179 (critiquing Sen’s theory as
insufficiently attuned to social forces).
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general poor relief, which we cannot contemplate without serious
apprehension.
98
Amartya Sen summed it up clearly, writing that “[s]tarvation is the
characteristic of some people not having enough food to eat. It is not the
characteristic of there being not enough food to eat.”
99
A century later, that fundamental dynamic has not changed. For example, in
the mid-2000s food production exceeded the population’s nutritional requirements
across Latin America and the Caribbean by over 40%.
100
Nevertheless, some 45
million people still did not have access to sufficient food, and 4 million children
under the age of five were underweight.
101
Yield alone was not enough. In 2008, at
the height of a global economic meltdown, food insecurity rates shot up alarmingly,
to roughly 1 billion.
102
Yet, even as more people than ever before in history were
hungry, global agriculture produced enough food to provide every person on earth
with 2811 calories of food per day,
103
a figure well in excess of the levels necessary
to avoid undernourishment. Every major region of the globe, including the least-
developed and low-income-food deficit countries, had food enough to supply more
than the estimated average daily energy requirements to all inhabitants.
104
Summing
up the situation, U.S. Secretary of State Hillary Clinton commented that it was not
a question of whether we could solve hunger but whether we would.
105
D. What Does Climate Change Do to Food Production?
Even granting that past (and current) food insecurity is not a function of
production, there are real questions about how climate change will affect agriculture
going forward. Over the next three decades, as human population is projected to
98
. GOV’T OF INDIA, REPORT OF THE INDIAN FAMINE COMMISSION: PART I. FAMINE
RELIEF ¶ 181 (1880), https://archive.org/details/FamineCommission [https://perma.cc/2C3V-
N6RU].
99
. SEN, supra note 9, at 1.
100
. See FAO, Minimum Dietary Energy Requirement, http://www.fao.org/ [https://
perma.cc/DGT5-FQKD] (search “Minimum Dietary Energy Requirement” from the homepage)
(showing average dietary energy supply in Latin American nations exceeded 1,900 kcal/person/day
during the 2000s).
101
. Rodrigo Martinez et al., Food and Nutrition Insecurity in Latin America and the Caribbean,
at 7, U.N. Doc. LC/W.274 (Oct. 2009).
102
. Oxfam, A Billion Hungry People, 127 Oxfam Briefing Paper ( Jan. 2009), https://
www.oxfamamerica.org/static/oa3/files/a-billion-hungry-people.pdf [https://perma.cc/C546-
27AQ].
103
. Dietary Energy Supply Spreadsheet, FAO, http://www.fao.org/ [https://perma.cc/
DGT5-FQKD] (search “Dietary Energy Supply Spreadsheet” from the homepage).
104
. Average Dietary Energy Supply Adequacy Spreadsheet, FAO, http://www.fao.org/
[https://perma.cc/DGT5-FQKD] (search “Average Dietary Energy Supply Adequacy Spreadsheet”
from the homepage). However, fifteen states reported inadequate average daily energy supplies, with
North Korea and Haiti at the bottom (with food supplies sufficient to meet only 88% of their average
daily energy supply).
105
. Clinton, supra note 1.
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reach 9.6 billion, global mean temperature is expected to increase by nearly 2
○
C.
106
The attendant changes in the global climate will depress agricultural productivity,
just as population hits a new peak. For this reason, the Asian Development Bank
identified climate change as “the greatest threat to food security.”
107
More than twenty years ago, the 196 Parties to the United Nations Framework
Convention on Climate Change (UNFCCC), committed themselves to stabilizing
greenhouse gas concentrations in the atmosphere at a level that “would prevent
anthropogenic interference with the climate system,” while at the same time
“ensur[ing] that food production is not threatened.”
108
Yet in 2014, the
Intergovernmental Panel on Climate Change (IPCC) stated with high confidence that
climate change is already negatively affecting agriculture around the world.
109
The
severity of these impacts is expected to increase during the course of this century.
This is not merely a hypothetical, or a matter for future concern. The global plant-
based agricultural system is already “being disrupted by climate change.”
110
In terms of how climate change will affect agriculture, we are in uncharted
territory. There is growing evidence that increased temperatures and erratic weather
are already depressing yield. How that will play out as temperatures continue to rise
is unclear. Climate change affects atmospheric CO
2
levels, temperature and
precipitation patterns, all of which impact agriculture. Because under laboratory
conditions rising CO
2
levels have been shown to increase photosynthesis, there were
some hopes that as atmospheric CO
2
levels climb, agricultural production might
increase.
111
However, it is becoming increasingly clear that the yield drag from rising
temperatures will overcome any boost from elevated CO
2
levels.
112
106
. World Res. Inst. [WRI], Creating a Sustainable Food Future: A Menu of Solutions to
Sustainably Feed More Than 9 Billion People by 2050, at 2, 12 (2013).
107
. Asian Dev. Bank [ASD], Food Security and Poverty in Asia and the Pacific, at 21 (Apr. 2012).
108
. United Nations Framework Convention on Climate Change art. 2, May 9, 1992,
U.N. Doc. FCCC/INFORMAL/84.
109
. John R. Porter et al., Food Security and Food Production Systems, in CLIMATE
CHANGE 2014: IMPACTS, ADAPTATION, & VULNERABILITY. PART A: GLOBAL AND SECTORAL
ASPECTS. CONTRIBUTION OF WORKING GROUP II TO THE FIFTH ASSESSMENT REPORT OF THE
INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE 485, 488 (C.B. Field et al. eds., 2014).
110
. Elizabeth Grossman, Climate Change Poses Serious Threats to Food Distribution,
EARTH ISLAND NETWORK (Mar. 4, 2015), http://www.earthisland.org/journal/index.php/elist/
eListRead/climate_change_poses_serious_threats_to_food_distribution [https://perma.cc/4HGP-
D8LM] (quoting New School Food Policy Professor Nevin Cohen); see also David Lobell, Wolfram
Schlenker & Justin Costa-Roberts, Climate Trends and Global Crop Production Since 1980, 333 SCIENCE
616, 617–18 (2011); Shaobing Peng et al., Rice Yields Decline with Higher Night Temperature from
Global Warming, 101 PROC. NAT’L ACAD. SCI. 9971, 9974 (2004).
111
. Elizabeth A. Ainsworth & Stephen P. Long, What Have We Learned from 15 Years of Free-
air CO
2
Enrichment ( FACE)? A Meta-Analytic Review of the Responses of Photosynthesis, Canopy
Properties and Plant Production to Rising CO
2
, 165 NEW PHYTOLOGIST 351, 357–60 (2005) (showing
that in the absence of climate change, crops respond positively to elevated CO
2
levels).
112
. Caroline C. Ummenhoffer et al., How Climate Change Affects Extremes in Maize and Wheat
Yield in Two Cropping Regions, 28 J. CLIMATE 4653, 4655 (2015); Lobell et al., supra note 110;
Christopher J. Kucharik & Shawn P. Serbin, Impacts of Recent Climate Change on Wisconsin Corn and
Soybean Yield Trends, 3 ENVTL. RES. LETTERS 1, 1–10 (2008).
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2017] HUNGER AND EQUITY 211
As temperatures rise above 32
○
C (90
○
F), many widely grown crops experience
heat stress, which negatively affects flowering, fruit set, and seed production.
113
Unfortunately, even under the most optimistic UNFCC projections, we can expect
significantly more days above 32
○
C/90
○
F.
114
At higher emissions scenarios, most
of July will exceed 32
○
C/90
○
F across the United States.
115
Because the
U.S. heartland is one of the most agriculturally productive regions (producing 36%
of the global corn crop,
116
and about 15% of global wheat exports),
117
repercussions
from any climate-related decreases in the United States’ production would be felt
widely. And, the United States is not alone in feeling this negative effect of climate
change. Experts warn that reduced global yields are likely under all UNFCC
scenarios.
118
At the same time that increased temperatures depress crop yield, climate
change also adversely affects growing conditions by producing more extreme
precipitation events. Extreme weather is already delaying spring plantings, flooding
fields (and destroying standing crops),
119
and increasing run off. Somewhat
paradoxically, in conjunction with more extreme precipitation, droughts will also
become more common. Together, the twin challenges of drought and flood will
negatively, albeit unpredictably, affect yield.
These climate-induced production decreases could not come at a worse
time—not only will population increase by 2 billion, but because of changing
consumption patterns, resource use is projected to triple.
120
The combined impact
of climate, population, and consumption will threaten planetary boundaries
121
and
113
. See David Lobell, Nonlinear Heat Effects on African Maize as Evidenced by Historical Yield
Trials, 1 NATURE CLIMATE CHANGE 42 (2011); Wolfram Schlenker & Michael J. Roberts, Nonlinear
Temperature Effects Indicate Severe Damages to U.S. Crop Yields Under Climate Change, 106 PNAS
15594, 15594 (2009); see also Zhongwen W. Rang et al., Effects of High Temperature and Water Stress on
Pollen Germination Spikelet Fertility in Rice, 70 ENVTL. & EXPERIMENTAL BOTANY 58 (2011).
114
. JERRY HATFIELD ET AL., CLIMATE CHANGE IMPACTS IN THE UNITED STATES:
THE THIRD NATIONAL CLIMATE ASSESSMENT 155 (U.S. Gov’t Printing Office 2014),
https://data.globalchange.gov/file/86b13591-508e-4257-abf0-0e3ef7ca2454 [https://perma.cc/
7HL6-49F9].
115
. Id. at 337.
116
. See U.S. DEP’T OF AGRIC., FOREIGN AGRICULTURAL SERVICE, GRAIN: WORLD
MARKETS AND TRADE 3 (Oct. 2016), http://www.fas.usda.gov/data/grain-world-markets-and-trade
[https://perma.cc/4RDV-W6XL].
117
. Id. at 6.
118
. See generally Martin L. Parry et al., Effects of Climate Change on Global Food Production under
SRES Emissions and Socio-Economic Scenarios, 14 GLOBAL ENVTL. CHANGE 53, 66 (2004).
119
. See Assaf Anyamba et al., Recent Weather Extremes and Impacts on Agricultural Production
and Vector-Borne Disease Outbreak Patterns, 9 PLoS ONE 1, 7 (2014), http://journals.plos.org/
plosone/article?id=10.1371/journal.pone.0092538 [https://perma.cc/KBS8-G689].
120
. United Nations Env’t Programme, Decoupling Natural Resource Use and Environmental
Impacts from Economic Growth, at xi (UNEP 2011), http://wedocs.unep.org/handle/20.500.11822/
9816 [https://perma.cc/T7PD-6YAR].
121
. The nine planetary boundaries are the stratospheric ozone layer; biodiversity; chemical
dispersion; climate change; ocean acidification; freshwater consumption and the global hydrological
cycle; land system change; nitrogen and phosphorous inputs to the biosphere and oceans;
and atmospheric aerosol loading. For more detail, see Johan Rockström et al., Planetary
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212 UC IRVINE LAW REVIEW [Vol. 7:195
global food security.
122
Agriculture must meet the nutritional demands of a growing
population increasingly interested in consuming resource-intensive foods like
meats, while simultaneously providing economic opportunities for hundreds of
millions of rural poor farmers currently mired in desperate poverty. And, all this
must happen while agricultural practices simultaneously reduce their ecological
footprint to decrease ecosystem degradation and greenhouse gas emissions.
The Intergovernmental Panel on Climate Change warns that climate change is
already compromising global agriculture, and some experts view a potential
breakdown of the food system as among climate change’s biggest threats.
123
The
problems climate change poses for agricultural production are clear, but the severity
of their impact is less certain. It all hinges on the ability of agricultural producers to
adapt to changing growing conditions. Facing a potentially catastrophic climate
shift, agricultural policymakers often assume that technology will save the day.
Official reports blithely assert (typically in the passive voice) that new crops will be
developed to meet these climate change-induced drought and heat challenges.
124
The
assumption is that new technologies can and will be materialize in response to
identified needs. It is at this point that genetically engineered crops come in to the
story.
II. ENTER GENETICALLY ENGINEERED CROPS
Genetically engineered crops are the latest iteration of an approach to
agriculture that dates back to the Green Revolution of the mid-twentieth century.
125
During the Green Revolution, agronomists used selective breeding techniques to
transform global agriculture into a resource-intensive, technology-driven
industry.
126
Led by plant pathologist Norman Borlaug and funded by the
Rockefeller Foundation, the Green Revolution emerged from efforts to develop
Boundaries: Exploring the Safe Operating Space for Humanity, 14 ECOLOGY & SOC. 32 (2009). Loss of
biodiversity from habitat destruction associated with all three of these phenomena has already
become so extreme that researchers are calling it the “sixth mass extinction.” See generally Gerardo
Ceballos et al., Accelerated Modern Human-Induced Species Losses: Entering the Sixth Mass Extinction,
1 SCI. ADV. 1, 4 (2015), http://advances.sciencemag.org/content/1/5/e1400253.full [https://
perma.cc/ATN7-PFBA].
122
. See generally David Tilman et al., Global Food Demand and the Sustainable Intensification of
Agriculture, 108 PROC. NAT’L ACAD. SCI. U.S. 20260, 20264 (2011).
123
. Tim Folger, The Next Green Revolution, NATIONAL GEOGRAPHIC 1, 2, http://
www.nationalgeographic.com/foodfeatures/green-revolution [https://perma.cc/GT27-6NH4] (last
visited Nov. 4, 2016) (quoting Michael Oppenheimer, a lead author of the IPCC report).
124
. See generally C.L. Walthall et al., Climate Change and Agriculture in the United States:
Effects and Adaptation, USDA-ARS Technical Bulletin No. 1935, at 13 (2013) (“[D]eveloping drought
and heat resistant crops will improve the ability of farmers to cope with increasing frequency of
temperature and precipitation variability . . . .”).
125
. Indeed, these crops are widely referred to, by both critics and supporters as the next green
revolution. See Folger, supra note 123 (quoting Robert Fraley, Monsanto’s CTO, for the proposition
that “the next green revolution will supercharge the tools of the old one”).
126
. Id. at 2, 5.
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2017] HUNGER AND EQUITY 213
new varieties of corn, wheat, and rice.
127
Scientific breeding techniques allowed
researchers to select for plants that produced more grain on shorter stalks. With
more of energy diverted into seed production and less into plant growth, per plant
grain yields were dramatically higher. The Green Revolution was hailed as an
unalloyed success, winning Norman Borlaug a Nobel Peace Prize
128
and the epithet
“the man who saved a billion lives.”
129
The Rockefeller Foundation and the
Eisenhower Administration heavily backed these new crops as a foreign policy tool,
on the theory that “[w]here hunger goes, Communism follows.”
130
The yield gains from the new Green Revolution crops were dramatic,
131
and
as Borlaug often noted, had an important ecological benefit—less land was
converted to agriculture, thereby preserving ecosystems that might otherwise have
been destroyed.
132
The Nobel Committee, and Borlaug himself expected that this
increased yield would create new social structures to more equitably spread income
and support rural communities, thereby ending cycles of grinding poverty.
133
Sadly,
these expectations of social transformation lagged behind increases in yield.
Expensive input requirements, like fertilizer and pesticides, together with seeds that
must be purchased annually, meant that poorer farmers were often unable to
participate in the gains from the Green Revolution. Many were pushed off their
land, joining the millions of their fellow citizens unable to afford enough to eat.
134
Because these crops relied heavily on fertilizers, pesticides, and irrigation,
135
some
127
. Lowell S. Hardin, Meetings That Changed the World: Bellagio 1969: The Green Revolution,
NATURE 470–71 (September 25, 2008); John H. Perkins, The Rockefeller Foundation and the Green
Revolution 1941–1956, 7 AGRICULTURE AND HUMAN VALUES 6 (1990).
128
. In presenting the Nobel Peace Prize to Borlaug, the Chair of the Nobel committee
proclaimed that, “more than any other single person of this age, he has helped provide bread for a
hungry world.” Aase Lionaes, Chairman, Nobel Comm., The Nobel Peace Prize 1970—Presentation
Speech (Dec. 10, 1970), http://www.nobelprize.org/nobel_prizes/peace/laureates/1970/press.html
[https://perma.cc/E9MQ-Z9TU].
129
. Gregg Easterbrook, Forgotten Benefactor of Humanity, THE ATLANTIC, Jan. 1997, at 1–2;
Vishnu V.J., Why is Norman Borlaug Known as the Man Who Saved a Billion Lives? QUORA (Aug. 10,
2014), https://www.quora.com/Why-is-Norman-Borlaug-known-as-The-Man-Who-Saved-A-Billion-
Lives.
130
. David Rieff, Where Hunger Goes: On the Green Revolution, THE NATION, Feb. 17, 2011,
http://www.thenation.com/article/158676/where-hunger-goes-green-revolution [https://perma.cc/
763Q-UAJJ].
131
. Raj Patel, The Long Green Revolution, 40 J. PEASANT STUD. 6 (2013) (citing statistics and
sources).
132
. See generally Lionaes, supra note 128, at 2.
133
. Id.
134
. See generally NICK CULLATHER, THE HUNGRY WORLD 70, 128, 160 (2010).
135
. “Between 1970 and 1990, fertilizer applications in developing countries shot up by 360
percent while pesticide use increased by 7% to 8% per year. The amount of land under irrigation
increased by one-third. The gains in production were dramatic,” but so was the social and economic
toll these production methods created. FOOD & AGRIC. ORG. OF THE U.N., Towards a Green
Revolution, http://www.fao.org/docrep/x0262e/x0262e06.htm [https://perma.cc/2M4A-Z7XE]
(last visited Nov. 11, 2016).
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214 UC IRVINE LAW REVIEW [Vol. 7:195
of their environmental and social impacts were devastating.
136
Pesticide use
skyrocketed.
137
Demands for irrigation meant that water was pumped water at
unsustainable rates, depleting aquifers, and salinizing fields. The Green Revolution’s
reliance on irrigation, chemical fertilizers, and pesticides laid the groundwork for
widespread ecological and social damage.
138
Yet, famines, even devastating Indian famines, were not only, or even
predominantly about a failure of food production. They were about a lack of access
to food. The Green Revolution’s focus on technology produced impressive yield
gains, but was not responsive to that core problem of access. Even as harvests
increased, the Green Revolution laid no foundation for more equitable distribution
of the resulting food. Inequitable land distribution and insecure land tenure, coupled
with subsidies that discriminated against small holders, meant that the Green
Revolution’s benefits often bypassed the very poor they were intended to help.
139
Indeed, as early as 1974, the FAO was cautioning that the Green Revolution
disproportionately benefitted large farmers, and that agrarian reform was a
necessary precondition for successful eradicating food insecurity.
140
136
. These advances arguably created an “agricultural treadmill” in which the relationship
between technological innovations and increased productivity create a social trap for farmers. WILLARD
COCHRANE, FARM PRICES: MYTH AND REALITY 85–103 (1958).
137
. See generally FOOD & AGRIC. ORG. OF THE U.N., supra note 135.
138
. Borlaug resisted the social and environmental complexity of his legacy, instead asserting
that these were the elite concerns of Western environmentalists who had “never experienced the
physical sensation of hunger.” He claimed: “If they lived just one month amid the misery of the
developing world, as I have for 50 years, they’d be crying out for tractors and fertilizer and irrigation
canals and be outraged that fashionable elitists in wealthy nations were trying to deny them these
things.” Gregg Easterbrook, The Man Who Diffused the Population Bomb, WALL STREET J., Sept. 16,
2009, at 1.
139
. Prahbhu L. Pingali, Green Revolution: Impacts, Limits and the Path Ahead, 109
PROC. NAT’L ACAD. SCI. U.S. 12302, 12304 (2012).
140
. FAO, 1974, supra note 40, at 97.
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2017] HUNGER AND EQUITY 215
Fifty years later, the epicenters of the Green Revolution—Pakistan,
141
India,
142
Sri Lanka,
143
Bangladesh,
144
the Philippines,
145
and Indonesia
146
remain among the
most undernourished nations in the world. Collectively these countries account for
300 of the 795 million undernourished,
147
with sky-high levels of childhood
stunting. In fact, the FAO ranks all these countries as high food insecurity countries
that made slow or no progress toward achieving the World Food Summit goals.
148
Overall, the region’s collective share of the world’s food insecure grew from 28.8%
in 1990 to 35.4% in 2016.
149
Technology did not solve this problem.
150
The fact that high levels of food insecurity remain is not, in itself, an
indictment of the Green Revolution. Yet it does call into question some of the
sweeping claims made on behalf of the Green Revolution. Pointing to famines that
were presumably averted, and to projections about the cost of food but for the
increased yields associated with Green Revolution technology,
151
advocates often
paint a picture in which continued embrace of technological solutions to hunger are
imperative. However, this framing relies on the assumption that the only alternative
to Green Revolution’s actual track record is a dystopian world where agricultural
practices stagnate. But, these are not the only possible scenarios.
141
. Sixty percent of the population faces food insecurity, and 44% of children are chronically
malnourished. World Food Program, Pakistan Country Brief (Sept. 2016), http://documents.wfp.org/
stellent/groups/public/documents/ep/wfp272142.pdf?_ga=1.131469199.1842053973.1468854187
[https://perma.cc/NYC2-WK4N].
142
. One-fourth of all the undernourished people in the world, and one-third of the stunted
children live in India. See generally 10 Facts About Food and Nutrition in India, WORLD FOOD
PROGRAMME ( Jul. 26, 2016), http://www.wfp.org/stories/10-fact-about-food-and-nutrition-india
[https://perma.cc/7A5F-KYHP]. Overall economic growth has failed to benefit the poor.
143
. In Sri Lanka, a third of the population cannot afford a nutritious diet, and 23%
are undernourished. World Food Programme, Sri Lanka Country Brief (Sept. 2016), http://
documents.wfp.org/stellent/groups/public/documents/ep/wfp273248.pdf?_ga=1.131943183.
1842053973.1468854187 [https://perma.cc/5YJ9-MH6H].
144
. One quarter of the population suffers food insecurity, with 36% of children stunted. World
Food Programme, Country Report: People’s Republic of Bangladesh (Sept. 2016), http://
www.wfp.org/countries/bangladesh [https://perma.cc/JYY9-THPF].
145
. In the Philippines, 33% of children suffer from chronic malnutrition. World
Food Programme, Philippines Country Brief ( June 2016), http://documents.wfp.org/stellent/
groups/public/documents/ep/wfp269064.pdf?_ga=1.230139676.1842053973.146885418 [https://
perma.cc/2F89-A3RN].
146
. In Indonesia, 37% of children—more than one in three—are stunted, with nearly 10
million children undernourished. 10 Facts About Malnutrition in Indonesia, WORLD FOOD
PROGRAMME (Dec. 22, 2014), https://www.wfp.org/stories/10-facts-about-malnutrition-indonesia
[https://perma.cc/T3RY-8KBL].
147
. See generally FAO, THE STATE OF FOOD INSECURITY, supra note 3, at 4, 46.
148
. See id. at 45.
149
. Id. at 10.
150
. For a lay description of some of these reasons, see Daniel Pepper, In India Farmers Find
that Benefits of Pesticides and Herbicides May Come at a Tragically High Cost, U.S. NEWS ( July 7, 2008,
4:15 P.M.), http://www.usnews.com/news/world/articles/2008/07/07/the-toxic-consequences-of-
the-green-revolution [https://perma.cc/3FJZ-3C4N].
151
. Pingali, supra note 139, at 12303–08.
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Among its key messages in 1974, the FAO asserted that social protection
programs would be critical to progress in reducing undernourishment.
152
Had the
international community taken this key message to heart, it might have made social
protection the focus of its efforts, perhaps by taking steps to actualize the human
right to food. Had food insecurity been recognized as primarily a distribution
problem, rather than a production problem, the international community might not
have invested so heavily in the technology-intensive, resource-guzzling production
of Green Revolution crops. That same level of investment and attention might
instead have been poured into building more equitable food distribution networks,
and more effective public institutions—resulting in societies with greater access to
food, with real educational opportunities for the rural poor, and where women
farmers receive the same services as their male counterparts.
The overlooked possibility that the world might have instead chosen an
alternative path toward ending undernourishment matters because the Green
Revolution continues to shape policy decisions going forward. At the 1996 World
Food Summit, U.S. Agriculture Secretary Dan Glickman espoused what was
standard rhetoric in the halls of the U.S. government, that technology, and especially
agricultural biotechnology was essential to solving food insecurity.
153
Indeed, the
focus of much of the conference was on increasing production to match a growing
population, even though the FAO identified “a more equitable sharing of
opportunities and entitlements to widen the access to adequate food” alongside
“faster growth in available food supplies” as necessary for progress.
154
It was left to
Pope John Paul II to decry the “intolerable” gap and profound global inequality that
has the wealthy enjoying a glut of food while the poor starve,
155
and to Lester Brown
to call out the emphasis on production as “playing into the game plan of the
agribusiness industry, which, like any industry, thrives on increased demand.”
156
Twenty years later, not much has changed. Even though the FAO made it
clear in 1996 that the production increases necessary to meet demand were “really
very small,”
157
food security policy remains focused on increasing food supply
rather than on a more equitable sharing of existing supplies. And biotechnology is
still being touted as the key to solving the problem. Increasingly, backers of
genetically engineered crops not only claim that these crops play a critical role in
hunger alleviation, but also that climate change makes their adoption even more
152
. Id.
153
. Rone Tempest, Ending Hunger Takes on New Complexity, L.A. TIMES (Nov. 18, 1996).
154
. Assessment of Feasible Progress in Food Security, FAO (1996), http://www.fao.org/docrep/
003/w2612e/w2612e14a.htm [https://perma.cc/6V3Z-3YX9].
155
. His Holiness Pope John Paul II, Special Message at the World Food Summit (Nov. 13,
1996), http://www.fao.org/WFS/begin/speech/papa-e.htm [https://perma.cc/9VGQ-SSBW].
156
. Rick Nichols, At Summit, Food Wasn’t the Only Issue on the Table, PHILLY.COM (Nov. 17,
1996), http://articles.philly.com/1996-11-17/news/25647718_1_world-hunger-food-shortages-
world-food-summit [https://perma.cc/6G3E-Z7L9].
157
. Assessment of Feasible Progress in Food Security, supra note 154, ¶ 2.12.
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critical.
158
Before delving into the strengths and weaknesses of this claim, this Part
will first provide a general introduction to genetically modified organisms.
A. What Are Genetically Modified Organisms?
Proponents of genetically modified organisms like to claim that humans have
been genetically modifying plants (and animals) for millennia.
159
This superficially
true statement has intuitive appeal. One need only compare corn stalk with its wild
ancestor teosinte,
160
to see the incredible differences that human interventions have
wrought on the plant. Advocates regularly point to beer brewing and bread rising
as ancient forms of biotechnology.
161
As a rhetorical flourish, this is very effective.
Who could be against beer? How could bread, the staff of life, be new or
threatening? Opponents of the technology are thus Luddites, or part of a
“pernicious anti-science movement.”
162
However, attempts to fold modern
biotechnology into the warm embrace of comfort foods deceive more than they
inform. The problem is that these statements, which might be technically accurate
depending on how expansively one defines biotechnology, capture only part of
reality.
There is no question that human beings spent much of the Holocene Epoch
modifying plants to enhance agronomically desirable traits and suppress less
desirable ones. After Gregor Mendel’s work with pea plants, insight into the
mechanisms of genetic inheritance
163
allowed a more systematized form of selective
breeding. As farmers gained experience with controlling pollination, their selection
processes improved. Many fruits and vegetables were bred for appearance,
164
158
. Thomas Lee, Monsanto Official: Climate Change Makes Genetic Crops More Urgent,
S.F. CHRON. (Mar. 3, 2015) (quoting Monsanto’s Chief Technology Officer Robert Fraley).
159
. Henry I. Miller and Frank E. Young, “Old” Biotechnology and “New” Biotechnology: A
Perspective, in INTERAMERICAN STUDY GROUP OF THE NEW BIOTECHNOLOGY IN AGRICULTURE
AND HEALTH, 12 (1988).
160
. For a simple explanation of selective breeding, using teosinte as a case study, see The Other
Green (R)evolution (Feb. 2007), http://evolution.berkeley.edu/evolibrary/news/070201_corn
[https://perma.cc/K7MF-3XLD].
161
. See, e.g., Miller & Young, supra note 159, at 3; KESHAV TREHAN, BIOTECHNOLOGY 19–
20 (1990); REV. FR. DR. S. IGNACIMUTHU, BASIC BIOTECHNOLOGY xi (2007); The Maureen &
Mike Mansfield Ctr. for Ethics & Pub. Affairs, Introduction to the Biotechnology Debate,
http://www.umt.edu/ethics/debating%20science%20program/odc/Biotechnology/Introduction/
default.php [https://perma.cc/XJ23-KES2].
162
. Miller & Young, supra note 159, at 12.
163
. .
Gregor Mendel, Experiments in Plant Hybridization (1865), http://www.mendelweb.org/
MWpaptoc.html [https://perma.cc/89KW-P4ZX]. Working with pea plants, Gregor Mendel
conclusively demonstrated some key principles of genetic inheritance. His insights about the heritability
and independent assortment of traits have become known as the Mendelian Laws. See DNA from the
Beginning, COLD SPRINGS HARBOR LABORATORY, (2002), http://www.dnaftb.org/dnaftb/ [https:/
/perma.cc/5FCK-9EPK]. For a good explanation of these principles in lay terms, see ROBIN
MARANTZ HENIG, THE MONK IN THE GARDEN: THE LOST AND FOUND GENIUS OF GREGOR
MENDEL, THE FATHER OF GENETICS (1999).
164
. Nick Stockton, The Genetic Quest to Make Strawberries Taste Great Again, WIRED ( June
2015), https://www.wired.com/2015/06/genetic-quest-make-strawberries-taste-great/ [https://
perma.cc/9ZZ7-HAH2].
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delayed ripening,
165
increased yield,
166
prolonged shelf life, and disease resistance.
167
Among the most commercially desirable were traits that facilitated long-distance
shipping and post-harvest ripening. These new techniques made possible all kinds
of hybrid crops tailored to specific market or culinary demands. Hybrids had the
additional characteristic of not breeding true, thus farmers growing crops from
hybrid seeds had to buy new seeds for each growing season. A business model was
born.
Modern genetic engineering
168
is both a continuation and a break with this
tradition. Where selective breeding can only enhance or suppress traits already
present in a species,
169
genetic engineering frees plant breeding from this constraint.
Through a process called transformation, researchers can transfer genes across all
barriers of species, class, phylum, and kingdom.
170
These techniques literally
recombine the genes themselves. Thus we have corn with bacteria genes,
171
goats
with spider genes,
172
and bacteria with human genes.
173
As such, modern genetic
engineering creates organisms that would not—and could not—exist without such
intervention.
174
165
. Amolkumar U. Solanke & P. Anada Kumar, Phenotyping of Tomatoes, in PHENOTYPING
FOR PLANT BREEDING 193 (Siva Kumar Panguluri & Ashok Kumar, eds. 2013).
166
. Case Study: History of Selective Corn Breeding 313, http://www.polytechpanthers.com/
ourpages/auto/2014/11/21/55598352/SGI%207a%20History%20of%20Selective%20Corn%
20Breeding.pdf [https://perma.cc/57VV-NS2M] (last visited on Nov. 19, 2016).
167
. Stockton, supra note 164.
168
. By modern genetic engineering, I mean plants (or animals) whose cells have been modified
through the use of molecular genetic techniques that insert, remove, or silence one or more genes from
an unrelated species in order to express or suppress specific traits. For a more detailed explanation, see
Scott Reid, Transgenic Crops: An Introduction and Resource Guide, http://cls.casa.colostate.edu/
transgeniccrops/faqpopup.html [https://perma.cc/4NUS-ETJM].
169
.
This constraint is actually less restrictive than it might seem on first glance. Variety is
ubiquitous in nature. Plus, breeders have developed an array of mutagenic techniques to create new
traits within a species. Some of these techniques, like irradiation, would probably shock anti-GMO
advocates clinging to a more romantic notion of selective breeding as somehow “natural” or “organic.”
170
.
Watson and Crick’s 1953 discovery of the structure of DNA ushered in the era of modern
biotechnology. See James Watson & Fredrick Crick, A Structure for Deoxyribose Nucleic Acid, 171
NATURE 737 (1953); see also J. Schell, Transgenic Plants as Tools to Study the Molecular Organization of
Plant Genes, 237 SCIENCE 1176–83 (1987); Stanley Cohen et al., Construction of Biologically Functional
Bacterial Plasmids In Vitro, 70 PROC. NAT. ACAD. SCI. 3240–44 (1973).
171
. One of the most common genetic modifications commercially available are Bt corn and
cotton, which have been genetically modified by insertion of genes from the soil bacteria Bacillus
thuringiensis.
172
. Miles O’Brien & Marsha Walton, Got Silk? Researchers are Spinning Spiders Silk from
Goats Milk, NAT’L SCI. FOUND. (May 3, 2010), http://www.nsf.gov/news/special_reports/
science_nation/spidersilk.jsp [https://perma.cc/GE5C-8E63].
173
. Suzanne White Junod, Celebrating a Milestone: FDA’s Approval of First Genetically-
Engineered Product, FDA (Apr. 9, 2010), http://www.fda.gov/AboutFDA/WhatWeDo/History/
ProductRegulation/SelectionsFromFDLIUpdateSeriesonFDAHistory/ucm081964.htm [https://
perma.cc/L6H7-Q2BR] (describing the approval process for recombinant insulin production in
E. coli).
174
. NORMAN CARL ELLSTRAND, DANGEROUS LIAISONS? WHEN CULTIVATED PLANTS
MATE WITH THEIR WILD RELATIVES 171–73 (2003).
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2017] HUNGER AND EQUITY 219
Since the 1990s, companies like Monsanto have invested heavily in using
genetic engineering to develop new crop varietals.
175
Despite soaring rhetoric about
improved nutrition, drought resistance and other benefits from this new
technology, two kinds of modification make up the overwhelming majority of
genetically engineered crops to date: insect resistance and herbicide tolerance. These
modifications address traits of interest to farmers, rather than consumers.
176
Crops
engineered for insect resistance have been modified with bacterial genes that enable
these plants to produce proteins toxic to many common Lepidoptera pests.
Engineering for herbicide tolerance enables farmers to spray broad-spectrum weed
killers on their crops without killing the crop plant, thereby simplifying herbicide-
based weed management systems.
Widespread planting of these genetically engineered crops began in 1996 with
the introduction of Monsanto’s Roundup Ready Soybeans and Bt corn.
177
Since
then, there have been 400 different approvals for genetically engineered crops
around the world,
178
with transgenic corn, cotton, soybean, and canola varietals
making up the lion share of approvals and plantings.
179
In the United States,
genetically engineered crops are ubiquitous, making up the overwhelming majority
175
. The other major so-called “life science companies” are DuPont, Syngenta, Bayer
CropScience, and Dow. For a distribution of the permits and authorizations for releasing genetically
engineered crops in the United States, see USDA, ECON. RESEARCH SERV., GENETICALLY
ENGINEERED CROPS IN THE UNITED STATES 7 (2014).
176
. Recently, both Canada and the United States have “approved” a genetically engineered
apple modified to resist browning. Because of the unique structure of the U.S. regulatory system, the
only “approval” the developer actually needed to obtain was a decision that the trees themselves did
not pose a plant pest risk. See USDA, ANIMAL AND PLANT HEALTH INSPECTION SERV.,
DETERMINATIONS OF NON-REGULATED STATUS FOR OKANGAN SPECIALTY FRUIT’S GD742 AND
GS784 APPLES (May 29, 2014), https://www.aphis.usda.gov/brs/aphisdocs/10_16101p_det.pdf
[https://perma.cc/76C8-U8HR]. The FDA has interpreted its authority to preclude any requirement
for pre-market food safety review or approval. Thus, the FDA’s participation in the regulatory process
was limited to reviewing the purveyor’s conclusion that FDA approval was not required, in light of
whatever information the purveyor voluntarily supplied, and issuing a letter indicating that it
had “no further questions.” See FDA Letter to Okanagan Specialty Fruit Inc., (Mar. 20,
2015), http://www.fda.gov/Food/FoodScienceResearch/GEPlants/Submissions/ucm436163.htm
[https://perma.cc/CVR4-59AU].
177
. See Monsanto, Company History, http://www.monsanto.com/whoweare/pages/
monsanto-history.aspx [https://perma.cc/E3UB-DSLV]. Although most of the public discourse
about genetically engineered plants has focused on commodity crops like maize, soybeans and cotton
that have been genetically engineered either to be resistant to glyphosate or to endogenously produce
various Bacillus thuringensis (Bt) toxins, the first transgenic food was actually a tomato. Calgene’s Flavr
Savr tomato hit the markets in 1994. However, the transgenic tomato was a commercial failure and has
been withdrawn from the market. See G. Bruening & J. M. Lyons, The Case of the FLAVR SAVR
Tomato, CAL. AGRIC., July 1, 2000, at 6, http://calag.ucanr.edu/Archive/?article=ca.v054n04p6
[https://perma.cc/8QXA-LUL9].
178
. GM Approval Database Advanced Search for GM Crop Events Approved in
Any Country, Commercial Trait, Developer, Type of Approval, ISAAA (International Service for
the Acquisition of Agri-Biotech Applications) http://www.isaaa.org/gmapprovaldatabase/
advsearch/default.asp?CropID=Any&TraitTypeID=Any&DeveloperID=Any&CountryID=
Any&ApprovalTypeID=Any [https://perma.cc/7SLQ-P79W] (last visited Jan. 22, 2017).
179
. Id.
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220 UC IRVINE LAW REVIEW [Vol. 7:195
of the soybean, corn, canola, cotton, and sugar beet crops.
180
Over 180 different
genetically engineered crop lines have been approved for planting.
181
Introduction of these crops paralleled an important development in global
trade—the founding of the World Trade Organization (WTO).
182
One of the
WTO’s component agreement, The Agreement on Trade-Related Aspects of
Intellectual Property
183
(the TRIPS agreement), for the first time required that states
recognize patent or patent-like protections for plants and living organisms.
184
Selling
seeds suddenly became a global industry, sparking a wave of consolidations.
185
Within two decades, there were six massive “life science” companies
186
—
Monsanto, Syngenta, DuPont, Dow, Bayer, and BASF—that owned virtually every
seed company. That number is in the process of shrinking even further because of
recently announced mergers.
187
180
. USDA, Econ. Research Serv., Adoption of Genetically Engineered Crops in the United
States, Recent Trends in GE Adoption (2016), http://www.ers.usda.gov/data-products/adoption-of-
genetically-engineered-crops-in-the-us/recent-trends-in-ge-adoption.aspx [https://perma.cc/ZS6Y-
XKJM] (noting that for the 2016 planting season, genetically modified varietals made up 94% of
soybean crop, 93% of cotton, and 92% of corn). The figures for canola and sugar beets are comparable.
See Catherine Greene, Seth J. Wechsler, Aaron Adalja & James Hanson. Economic Issues in the
Coexistence of Organic, Genetically Engineered (GE), and Non-GE Crops, 11–12, EIB-149, U.S. DEP’T
OF AGRIC., ECON. RESEARCH SERV. (Feb. 2016).
181
. GM Crop Events Approved in the United States, ISAAA (International Service for
the Acquisition of Agri-Biotech Applications), http://www.isaaa.org/gmapprovaldatabase/
approvedeventsin/default.asp?CountryID=US&Country=United%20States%20of%20America
[https://perma.cc/9FKH-CPEK] (last visited Jan. 22, 2017).
182
. See WORLD TRADE ORG., https://www.wto.org [https://perma.cc/HWC9-DDP9] (last
visited Jan. 22, 2017).
183
. Agreement on Trade Related Aspects of Intellectual Property Rights, Apr. 15, 1994,
Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, Legal Instruments-
Results of the Uruguay Round, 1869 U.N.T.S. 299, 33 I.L.M. 1197 (1994).
184
. Id. at art. 27(3)(b).
185
. See Philip H. Howard, Visualizing Consolidation in the Global Seed Industry: 1996–2008,
1 SUSTAINABILITY 1266, 1267 (2009) (providing background on consolidation in the seed industry).
186
. Civil society groups have coined the term “the Big Six” to refer to Dow, DuPont, Bayer,
Monsanto, Syngenta and BASF. See e.g., Big Six Pesticide and GMO Corporations, SourceWatch
http://www.sourcewatch.org/index.php/%22Big_6%22_Pesticide_and_GMO_Corporations
[https://perma.cc/6RXH-3MTY]; Hope Shand, The Big Six: A Profile of Corporate Power in
Seeds, Agrochemicals, and Biotech, SeedSavers (2012) http://www.seedsavers.org/site/pdf/
HeritageFarmCompanion_BigSix.pdf [https://perma.cc/LS7S-YLEC]. The term has been picked
up by the popular press.
187
. In December 2015, Dow and DuPont announced plans to merge. The combined company
will control 40% of the U.S. corn-seed and soybean markets. See Drew Harwell, Dow and DuPont, Two
of America’s Oldest Giants, to Merge in Jaw-Dropping Megadeal, THE WASH. POST, Dec. 11, 2015,
https://www.washingtonpost.com/news/business/wp/2015/12/11/dow-and-dupont-two-of-
americas-oldest-giants-to-merge-in-job-dropping-megadeal/?utm_term=.62abde2ecb04 [https://
perma.cc/D4Z2-CTYU]. This news was rapidly followed with the announcement that Bayer and
Monsanto would also merge, News Release, Bayer and Monsanto to Create a Global Leader in Agriculture
(Sept. 14, 2016), http://news.monsanto.com/Bayer-Monsanto-acquisition [https://perma.cc/2MYF-
4V85], and that Syngenta would combine with Chinese chemical giant ChemChina. Syngenta
International AG, ChemChina Cash Offer to Acquire Syngenta at a Value of Over US $43 Billion,
CISION PR NEWSWIRE (Feb. 3, 2016). For an analysis of these mergers and their impact on food
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The industry is even more consolidated than this might suggest because
companies cross license their technologies. For example, in 2013, Monsanto entered
cross-licensing agreements with Dow AgroSciences
188
and Bayer,
189
dramatically
extending its reach. Indeed, 90% of the seeds currently marketed in the United
States include a Monsanto patented trait,
190
giving the company inordinate market
reach and making it the face of agricultural biotechnology in the public’s eye. And
Monsanto, along with its fellow agbiotech giants, has spent the past two decades
deploying its patent rights to obtain market dominance through adhesion licenses.
Farmers can no longer purchase seeds outright, but can only license seeds for a
single growing season.
191
Among the license conditions are clauses barring seed
saving
192
and limiting any warranties to use of associated brand-named herbicides.
193
The fact that Monsanto is also the major supplier of glyphosate,
194
the primary
herbicide for which resistance has been bred, gives the company unprecedented
control over agricultural markets.
B. Can Genetically Engineered Crops Solve Food Insecurity?
The challenge of resolving food insecurity as populations continue to grow is
often framed as a binary choice: either farmers will have to glean higher yield from
existing farmland under new less favorable conditions, or more land will be
converted to agriculture.
195
The latter option has obvious negative environmental
security, see Rebecca Bratspies, Owning All the Seeds: Consolidation and Control in Ag-Biotech, 47
ENVT’L L. 583 (2017).
188
. Press Release, Monsanto, Dow AgroSciences, Monsanto Cross-License Advanced Corn
Trait Technology, Designed to Provide Exceptional New Tools for Weed and Insect Management
(April 11, 2013) http://news.monsanto.com/press-release/corporate/dow-agrosciences-monsanto-
cross-license-advanced-corn-trait-technology-desig [https://perma.cc/W38S-PMLH].
189
. Press Release, Monsanto, Bayer CropScience and Monsanto Enter into Cross-
Licensing Agreements for Next-Generation and Enabling Technologies (April 16, 2013) http://
news.monsanto.com/press-release/corporate/bayer-cropscience-and-monsanto-enter-cross-
licensing-agreements-next-generat [https://perma.cc/Y99A-NRPN].
190
. Letter from Diana L. Moss, President, Am. Antitrust Inst. et al., to Renata Hesse,
Principal Deputy Assistant Attorney Gen., U.S. Dep’t of Just. Antitrust Div. (May 31,
2016), http://www.antitrustinstitute.org/sites/default/files/AAI%20F%26WW%20NFU_Dow-
Dupont_5.31.16_0.pdf [https://perma.cc/NK9F-AAKW] (citing Keith Fuglie, et al., Rising
Concentration in Agricultural Input Industries Influences New Farm Technologies , 10 AMBER WAVES 4, 4
(Dec. 2012)). See also, Dan Mitchell, Why Monsanto Always Wins, FORTUNE ( June 26, 2014), http://
fortune.com/2014/06/26/monsanto-gmo-crops/ [https://perma.cc/2Y4B-6DP9] (noting that
about 80% of U.S. corn and more than 90% of U.S. soybeans are grown with seeds containing
Monsanto’s patented seed traits).
191
. See, e.g., 2015 Monsanto Technology/Stewardship Agreement, Section 4(f ), www.
rispensseeds.com/Images/Monsanto.pdf [https://perma.cc/8FEW-EUPZ] (last visited Jan. 22,
2017).
192
. Id. at 4(g).
193
. Id. at 4(r).
194
. Howard, supra note 185, at 1271.
195
. RICHARD DOBBS ET. AL., MCKINSEY & CO., RESOURCE REVOLUTION: MEETING THE
WORLD’S ENERGY FOOD AND WATER NEEDS 39 (2011); Toughest Rome Food Summit Challenge Is
Not How to End Famine—but Preserving Wildlife, 18 Glob. Food Quarterly 1, 1 (1996) (asserting that
“[i]t’s not a question of whether 9 billion people will feed themselves . . . [but] how we protect the
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222 UC IRVINE LAW REVIEW [Vol. 7:195
ramifications, so policymakers focus on techniques designed to increase production
on existing croplands.
196
With this framing, genetically engineered crops are touted
as the clear answer. These claims about genetic engineering are built on a series of
contested propositions. First, that undernourishment is a production problem
susceptible to resolution by increased production. Second, that genetically
engineered crops are necessary to increase yield. Third, that only through genetic
engineering can we rapidly produce crop varietals able to thrive in the face of climate
change. If these propositions were true: if undernourishment were a production
problem, and genetically engineered crops increased yields, and these crops were the
best way to ensure continued or increased production as growing conditions
deteriorate, this would be virtually unanswerable moral claim. However, there is, as
yet, no reason to believe that any of these claims are accurate.
1. Do Genetically Engineered Crops Actually Increase Food Production?
Monsanto and other promoters of agricultural biotechnology claim that
genetically engineered crops must have a major role in attempts to solve
undernourishment in the face of an increasing population.
197
Over the past few
decades, genetically engineered crops have been touted as the answer to world
hunger,
198
to pesticide overuse,
199
and to negative environmental impacts of
agriculture more generally.
200
The assumption is that these crops are necessary to
meet the food security needs of a burgeoning human population.
201
As former
world’s wildlands . . . while they do it”). This claim echoes Green Revolution assertions that high-yield
crops were all that prevented rampant deforestation, and wholesale conversion of land to farming. See
Easterbrook, supra note 129.
196
. For example, in its 1998 “Let the Harvest Begin” ad campaign, Monsanto characterized
biotechnology as “one of tomorrow’s tools in our hands today” and cautioned that “[s]lowing its
acceptance is a luxury our hungry world cannot afford.” See “Monsanto Fact Sheet on the Green
Revolution Food Needs and Global Benefits” attachment to Letter from Dr. Donald B. Easum, Vice
President, Global Business Access Ltd., http://www.ukabc.org/gaiam2_1.htm [https://perma.cc/
54VZ-43A8].
197
. See Mark Leibman et al., Comparative Analysis of Maize (Zea Mays) Crop Performance:
Natural Variation, Incremental Improvements and Economic Impacts, 12 PLANT BIOTECH. J. 941
(2014).
198
. See, e.g., Press Release, Monsanto, Do GM Crops Increase Yields (Nov. 26, 2012) http://
www.monsanto.com/newsviews/Pages/do-gm-crops-increase-yield.aspx [https://perma.cc/A2BP-
S2BN]; Maggie Urry, Genetic Products Row Worsens, FIN. TIMES, June 20, 1997, at 4 (quoting former
USDA Secretary Dan Glickman for the proposition that “[g]rowing pest-resistant crops would alleviate
world hunger, reduce pesticide damage to the environment, and save rain forests from being cleared
for food production”).
199
. Graham Brookes & Peter Barfoot, GM Crops: Global Socio-Economic and Environmental
Impacts, PG Economics Ltd, UK, May 2015, at 80-2; See also Biotechnology, MONSANTO, http://
www.monsantoafrica.com/biotechnology/default.asp [https://perma.cc/DTF8-2GQA] (last visited
Nov. 16, 2016) (asserting that “other innovations” can contribute to decreased use of pesticides).
200
. Graham Brookes & Peter Barfoot, GM Crops: Global Socio-Economic and Environmental
Impacts 1996–2013, PG Economics Ltd, UK, May 2015, at 83–88.
201
. For example, Ismail Serageldin CGIAR Chief and World Bank Vice-President
characterized biotechnology as “a crucial part of expanding agricultural productivity in the 21st
century.” He characterized biotechnology as “a tremendous help in meeting the challenge of feeding
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Secretary of Agriculture Dan Glickman wryly described, the United States’
unofficial position toward agricultural biotechnology “was good and that it was
almost immoral to say it wasn’t good because it was going to solve the problems of
the human race and feed the hungry and clothe the naked.”
202
Opponents of the
technology were accused of fearmongering,
203
fraud,
204
and worse.
205
Yet, as demonstrated above, food insecurity flows from inequitable
distribution of food rather than from underproduction. Arguments about increased
yield alone are therefore not responsive to the actual contours of the food insecurity
problem. Indeed, this framing marginalizes the importance of more equitable
distribution of existing food, and of minimizing food waste.
Moreover, it is not at all clear that genetically engineered crops increase yield.
Reviewing the many dueling studies claiming that crop yields have either increased,
held steady, or decreased,
206
the National Research Council concluded that
genetically engineered crops “do not have greater potential yield than [non–
genetically engineered] counterparts.”
207
This conforms with USDA’s Economic
Research Service’s assessment which found the yield record for herbicide tolerant
crops to be at best a mixed bag, with some researchers finding increased yield,
others finding a decrease, while still others finding no effect on yields.
208
Nor is
an additional three billion human beings, 95 percent of them in the poor developing countries, on the
same amount of land and water currently available,” albeit with the caveat that for this to occur, the
technology must first be “safely deployed.” Monsanto capitalized on this notion in its ad campaign
titled “9 Billion, Now What.” Economic Issues, The GMO Question, https://sites.google.com/site/
thegmoquestion/home/economic-issues (last visited Nov. 16, 2016). Interestingly, even though this ad
was published on the back cover of The New Yorker magazine, it, like many others of the ads referred
to in this Article, is next to impossible to find online.
202
. Bill Lambrecht, Outgoing Secretary Says Agency’s Top Issue is Genetically Modified Food,
INST. FOR AGRIC. AND TRADE POLICY, Jan. 26, 2001, at 3.
203
. In a recent open letter by Nobel Laureates, opposition to genetically engineered crops is
characterized as a crime against humanity. Achenbach, supra note 13.
204
. Saletan, supra note 13.
205
. Some go so far as to allege that rejecting the technology is a crime against humanity. See
The Crime Against Humanity, Allow Golden Rice Now, http://www.allowgoldenricenow.org/the-
crime-against-humanity [https://perma.cc/Y579-ER8X] (last visited Nov. 16, 2016).
206
. DOUG CURIAN-SHERMAN, FAILURE TO YIELD: EVALUATING THE PERFORMANCE OF
GENETICALLY ENGINEERED CROPS, UNION OF CONCERNED SCIENTISTS 13 (Apr. 2009); B.L. Ma
& K.D. Subedi, Development, Yield, Grain Moisture and Nitrogen Uptake of Bt Corn Hybrids and their
Conventional Near-Isolines, 93 FIELD CROPS RESEARCH 199, 209 (2005). Contra Wilhelm Klümper &
Matin Qaim, A Meta-Analysis of the Impacts of Genetically Modified Crops, 9 PLOS ONE 1, 4 (2014)
(claiming that GMOs have increased yields). Similarly, conflicting research purports to show that
pesticide use has either dropped precipitously or skyrocketed. Compare Charles M. Benbrook, Impact of
Genetically Engineered Crops on Pesticide use in the U.S.—the First Sixteen Years, 24 ENVTL. SCIENCES
EUROPE 2012 1, 1 (2012) (finding that pesticide use has increased by approximately 404 million pounds
or 7%), with Klümper & Qaim, supra (reporting a 37% reduction in chemical pesticide use).
207
. NAT’L ACAD. OF SCI. ET AL., GENETICALLY ENGINEERED CROPS: EXPERIENCES AND
PROSPECTS 12 (2016) [hereinafter NAS, Genetically Engineered Crops].
208
. JORGE FERNANDEZ-CORNEJO ET AL., USDA-ERS, GENETICALLY ENGINEERED
CROPS IN THE UNITED STATES 16 (2014) (documenting the wide array of results in studies examining
the yield differential from crops genetically engineered for herbicide tolerance).
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224 UC IRVINE LAW REVIEW [Vol. 7:195
there a clear case for a net economic benefit to farmers for adopting these crops.
209
The National Research Council specifically noted there is virtually no difference in
gross margins between conventional and genetically engineered crops across most
of the world.
210
In short, the technology’s performance is much more tepid than the
extravagant claims made on its behalf.
One thing is clear: two decades of genetically engineered crops has done little
to solve the problem of food insecurity. The tantalizing prospect that genetic
engineering could help feed the world’s hungry
211
has so far “been a somewhat
empty promise.”
212
Indeed, the pattern has been one in which the benefits claimed
for these crops repeatedly fail to materialize. The National Academy of Science
cautions that, “given the uncertainty about how much emerging genetic-engineering
technologies will increase crop production, viewing such technologies as major
contributors to feeding the world must be accompanied by careful caveats.”
213
Many
experts continue to assert that conventional breeding, rather than genetic
engineering, offers the best hope for increasing yield.
214
Of course, the current array of genetically modified crops was not engineered
with reducing food insecurity in mind, so measuring them against that yardstick is
not entirely fair. But that is, in many ways, the problem. These crops were developed
by a few large multinational corporations as a tool for enhancing the scope, scale,
and profitability of industrial agriculture. They embody a vision agriculture built
around private ownership of patented seeds that are licensed, not sold, to farmers.
Because farmers can only purchase the right to use seeds for a single growing
season, farmers can no longer save seed. Moreover, because this business model is
built on trade secrets and patent rights, the free exchange of germplasm and
agronomic information—the intellectual cornerstone of agricultural research for
most of the past century—is inhibited.
215
That structure at best renders the poorest
209
. NAS, Genetically Engineered Crops, supra note 207, at 176–79.
210
. NAS, Genetically Engineered Crops, supra note 207, at 176 (citing a comprehensive, multi-
national meta-analysis done by Robert Finger et. al., A Meta-Analysis on Farm-Level Costs and Benefits
of GM Crops, 3 SUSTAINABILITY 743 (2011)). Dr. Fred Gould, chair of the committee drafting the
report, further asserted: “The expectation from some of the [GMO] proponents was that we need
genetic engineering to feed the world, and we’re going to use genetic engineering to make that increase
in yield go up faster. We saw no evidence of that.” Dan Charles, GMOs are Safe, But Don’t Always
Deliver on Promises, Top Scientists Say, NPR (May 17, 2016).
211
. For an example of the scope of these claims, see Monsanto: Identity, Video and Ad
Campaign, Condon+Root, http://www.condonandroot.com/work/view/monsanto-print [https://
perma.cc/WVP8-P8CL] (last visited Nov. 16, 2016).
212
. David Rotman, Why We Will Need Genetically Modified Foods, MIT TECH. REV., Dec. 17,
2013.
213
. NAS, Genetically Engineered Crops, supra note 207, at 275.
214
. Nat’l Acad. of Sciences, GE Crops: Meeting 1, Day 1, Major Goodman, VIMEO (September
15, 2014), https://vimeo.com/album/3051031/video/106866601 [https://perma.cc/EW8A-
L9QT]; World Resources Inst., Creating a Sustainable Food Future 6 (2014).
215
. See 2015 Monsanto Technology/Stewardship Agreement, supra note 186; 2017 Bayer
Grower Technology Agreement Terms & Conditions, https://www.cropscience.bayer.us/~/media/
Bayer%20CropScience/Country-United-States-Internet/Documents/Products/Traits/LibertyLink/
BGTA-Terms-and-Conditions.ashx [https://perma.cc/V9FC-7XUK]; Dow Agrosciences
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of the poor invisible to seed developers’ decision-making, and at worst, compounds
the problems of poverty and food insecurity associated with treating food as global
commodities.
2. Can Genetically Engineered Crops Save Us from Climate Change?
Climate change affects everyone. It jeopardizes all of conventional agriculture
by changing the biogeophysical conditions that underpin current productivity levels.
If the current level of food insecurity is grim, challenges that agriculture will face
because of climate change will make it even worse.
216
The rapidity of the change
seems to make a compelling case for embracing new technologies, including genetic
engineering. Backers insist that genetic engineering offers our best hope of creating
crops capable of maintaining yield in the face of climate change. Monsanto has
consistently described climate change-related agricultural impacts as a potential
“opportunity.”
217
The core of their argument is that we do not have the luxury of
time, and only genetic engineering can respond with the necessary rapidity.
218
Most assessments of climate change’s impact on agriculture are optimistic
about the role of new technologies.
219
Policymakers generally assume that growers
will adapt by switching to more heat-tolerant or drought-resistant varietals able to
thrive under the new climatic conditions.
220
Indeed, official reports and studies are
Technology Use Agreement, http://msdssearch.dow.com/PublishedLiteratureDAS/dh_091e/
0901b8038091ea46.pdf?filepath=mycogen/pdfs/noreg/010-12440.pdf&fromPage=GetDoc
[https://perma.cc/A668-2HXM]; Syngenta Grower Stewardship Agreement, http://www.syngenta-
us.com/seeds/vegetables/processor_sweet_corn/sweet_corn_attribute_agreement.pdf [https://
perma.cc/FLD5-VQWQ] (specifically prohibiting the purchaser from transferring any of the
purchased seeds).
216
. ASIAN DEVELOPMENT BANK, FOOD SECURITY AND POVERTY IN ASIA AND THE
PACIFIC: KEY CHALLENGES AND POLICY ISSUES 21 (2012) (identifying climate change as the greatest
challenge to food security).
217
. MONSANTO COMPANY, INVESTOR CDP 2013 INFORMATION REQUEST, https://
www.cdp.net/sites/2013/30/12330/Investor%20CDP%202013/Pages/DisclosureView.aspx
[https://perma.cc/LW7L-7A3R]; See also Kieron Monks, Getting Rich from Climate Change? How
Business can Thrive in Extreme Conditions, CNN, Nov. 17, 2014, http://edition.cnn.com/2014/11/
11/business/food-gets-rich [https://perma.cc/SR8W-JSFK].
218
. Beth Kowitt, Can Monsanto Save the Planet, FORTUNE ( June 6, 2016), http://
fortune.com/monsanto-fortune-500-gmo-foods/ [https://perma.cc/J7VN-898T]. But see WORLD
RESOURCES INST., CREATING A SUSTAINABLE FOOD FUTURE 6 (2014) (cautioning that “more
fundamental crop improvements from genetic engineering, such as improved uptake of nutrients and
reduced losses of water, are uncertain and will take decades to come to fruition . . . .” Thus the report
argues that conventional breeding is more likely to offer near-term responses to climate change.).
219
. See John R. Porter et al., Intergovernmental Panel on Climate Change, Food Security and Food
Production Systems, in Contribution of Working Group II to the Fifth Assessment Report of the
Intergovernmental Panel on Climate Change at 485–533 (2014); C.L. WALTHALL ET AL., USDA, CLIMATE
CHANGE AND AGRICULTURE IN THE UNITED STATES: EFFECTS AND ADAPTATION 6 (2013); Heleen
de Coninck et al., International Technology-Oriented Agreements to Address Climate Change, 36 ENERGY
POLICY 335 (2008); W. Neil Adger et al., Adaptation to Climate Change in the Developing World, 3
PROGRESS IN DEV. STUDIES 179 (2003).
220
. Porter et al., supra note 219, at 485–533.
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226 UC IRVINE LAW REVIEW [Vol. 7:195
replete with claims that (unspecified) new crops and technologies will emerge to
meet challenges of climate change.
221
This is where genetic engineering usually comes in. Monsanto explicitly makes
the claim that food security in an era of climate change will require agricultural
biotechnology.
222
One recent ad campaign, titled Produce More, Conserve More,
makes the case that biotechnology is the core of sustainable production in an era of
climate change.
223
Indeed, the company’s 2014 sustainability report proudly claims
that its business “revolves around delivering agricultural innovations . . . [to]
address . . . climate change, resource conservation and, ultimately, how we will
collectively feed a global population of more than 9.6 billion by the year 2050.”
224
Others second the claim that genetic engineering is “critical” for meeting increasing
demand in an era of climate change,
225
and that there is “a ‘desperate need’” for the
technology.
226
Some go so far as to suggest that rejecting the technology is akin to
a crime against humanity.
227
This “save the world” rhetoric is certainly lofty, but there is scant evidence
that genetically engineered crops can actually deliver results. One major
international report characterized many of the claims made for these crops
as “unproven.”
228
The FAO wryly noted that successful development of
drought resistant crops through genetic engineering has “been anticipated several
times . . . [but] has had very limited impact so far.”
229
For example, the Bill and
Melinda Gates Foundation
230
has been pouring billions of dollars into a project
221
. Id.; see also WALTHALL ET AL., supra note 219; de Coninck et al., supra note 219; Adger et
al., supra note 219.
222
. Margaret Zeigler, Climate Change Is Another Obstacle to Global Food Security, MONSANTO,
http://www.monsanto.com/improvingagriculture/pages/climate-change-an-obstacle.html.
223
. Hugh Grant, Our Commitment to Produce More, Conserve More: Remarks at The Future of
Agriculture Seminar, MONSANTO ( June 9, 2008), http://www.monsanto.com/newsviews/pages/
ourcommitmenttoproducemore.conservemore.aspx.
224
. MONSANTO, FROM THE INSIDE OUT: MONSANTO 2014 SUSTAINABILITY REPORT
8 (2015), http://www.monsanto.com/sitecollectiondocuments/csr_reports/monsanto-2014-
sustainability-report.pdf.
225
. Nina V. Fedoroff, et. al., Radically Rethinking Agriculture for the 21st Century, 327
SCI. 833, 833 (2010).
226
. Philip Clarke, Lack of GMOs Costs Lives, Claims Leading Scientist, FARMERS WEEKLY,
Jan. 20, 2010 (on file with author) (quoting Sir David King, a former Cambridge University professor
and the former Chief Scientific Advisor to the British Government).
227
. The Crime Against Humanity, supra note 205.
228
. E. Toby Kiers et al., Agriculture at a Crossroads, 320 SCI. 320 (2008) (explaining the Report
conclusions).
229
. HUGH TURRAL ET AL., FAO, CLIMATE CHANGE, WATER, AND FOOD SECURITY xxiii
(2011), http://www.fao.org/3/a-i2096e.pdf [https://perma.cc/GM5T-VC5N].
230
. Press Release, Bill & Melinda Gates Foundation, African Agricultural Technology
Foundation to Develop Drought Tolerant Maize Varieties for Small-Scale Farmers in Africa
(Mar. 2008), http://www.gatesfoundation.org/Media-Center/Press-Releases/2008/03/African-
Agricultural-Technology-Foundation-to-Develop-DroughtTolerant-Maize-for-SmallScale-Farmers-in-
Africa [https://perma.cc/47VB-APNT].
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2017] HUNGER AND EQUITY 227
called Water Efficient Maize for Africa (WEMA).
231
The explicit intention of this
project is to harness genetic engineering to alleviate poverty and to better equip
poor farmers to respond to climate change.
232
In 2014, WEMA announced great
preliminary success in developing new drought-resistant seeds. However, the seed
was produced not through genetic engineering but through conventional
breeding.
233
The WEMA experience is not an isolated incident. DuPont recently
used conventional breeding to produce a drought resistant corn (Optimum
Aquamax) that it markets as an alternative to genetically engineered drought
resistant crops.
234
Similarly, researchers recently introduced a widely adopted flood-
resistant rice developed not by genetic engineering, but through conventional
breeding.
235
These crops drew on the techniques and insights of molecular genetics
to facilitate more rapid conventional breeding—thereby harnessing modern science
without creating genetically engineered seeds.
The recent International Assessment of Agricultural Knowledge, Science and
Technology for Development (IAASTD)
236
report Agriculture at a Crossroads neatly
captured this nuanced view of the technology. Characterizing genetic engineering’s
potential to contribute to food security as “unfulfilled,” the Report concluded that
genetically engineered crops were “appropriate in some contexts, unpromising in
231
. Monsanto, Water Efficient Maize for Africa, http://www.monsanto.com/improving
agriculture/pages/water-efficient-maize-for-africa.aspx [https://perma.cc/T6KF-TKCN] (last
visited Jan. 22, 2017). A public/private partnership, WEMA is led by the Kenyan-based African
Agricultural Technology Foundation (AATF). Additional funding comes from the Howard G. Buffett
Foundation and USAID.
232
. See Raj Patel et al., Ending Africa’s Hunger, THE NATION (Sept. 2, 2009), http://
www.thenation.com/article/ending-africas-hunger [https://perma.cc/B725-QA6A].
233
. See Press Release, African Agricultural Technology Foundation, First Harvest of New
Drought-Tolerant Seed Shows Strong Promise of Improved Maize Crops for Smallholder Farmers of
Africa (May 16, 2014), http://www.aatf-africa.org/media-center/First-Harvest-of-New-Drought-
Tolerant-Seed-Shows-Strong-Promise [https://perma.cc/5KT8-P3LM].
234
. See DuPont’s New Drought Tolerant Corn Can Help Improve Yields and Gain Market Share,
TREFIS (March 14, 2013), http://www.trefis.com/stock/dd/articles/173705/duponts-drought-
tolerant-corn-can-help-improve-yields-and-gain-market-share/2013-03-14 [https://perma.cc/QFW3-
UWLW].
235
. Gina Kolata, A Proposal to Modify Plants Gives GMO Debate New Life, N.Y. TIMES (May
28, 2015), https://www.nytimes.com/2015/05/29/health/a-proposal-to-modify-plants-gives-gmo-
debate-new-life.html?_r=0.
236
. The IAASTD is a multithematic, multispatial, multitemporal global collaboration. It was
initiated by the World Bank and the United Nations, with a multi-stakeholder Bureau cosponsored by
the FAO, various United Nations organs, the World Bank and World Health Organization (WHO). Its
governance structure is a unique hybrid of the Intergovernmental Panel on Climate Change (IPCC) and
the nongovernmental Millennium Ecosystem Assessment (MA). International Assessment of
Agricultural Knowledge, Science and Technology for Development [IIASTD], AGRICULTURE AT A
CROSSROADS, SYNTHESIS REPORT: A SYNTHESIS OF THE GLOBAL AND SUB-GLOBAL IIASTD
REPORTS, at vii (2009), https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=
2&cad=rja&uact=8&ved=0ahUKEwiFuOimq5zWAhWjxVQKHU9mD0oQFggyMAE&url=http%3
A%2F%2Fapps.unep.org%2Fpublications%2Fpmtdocuments%2F-Agriculture%2520at%2520a%
2520crossroads%2520-%2520Synthesis%2520report-2009Agriculture_at_Crossroads_Synthesis_
Report.pdf&usg=AFQjCNFwCucKqOmj030lwqvwTU8H62VtbQ.
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228 UC IRVINE LAW REVIEW [Vol. 7:195
others, and unproven in many more.”
237
The authors went on to note that these
crops have, so far, not offered solutions to the broad, socioeconomic dilemmas
posed by poverty and food insecurity.
238
Despite the urgent picture painted by the
technology’s backers, genetic engineering is just one option among a growing array
of techniques intended to adapt agricultural production to climate change. Rejecting
hyperbole is not the same as rejecting science.
C. What Are the Equity Ramifications of Genetically Engineered Crops?
If we recognize, as we must, that food insecurity and undernutrition are not
just functions of food production, we are left with questions of equity and power—
why do people starve or suffer food insecurity amidst plenty? How do we change
the patterns of distribution and consumption that produce these dismal results?
Those are not questions of science or of production. They hint at a problem that is
not amenable to a technical solution. Yet, purported technical solutions abound.
The decade-long Golden Rice saga is a good illustration of what happens when
decision-makers insist on pursuing purely technical solutions to problems created
by poverty and inequity. Golden Rice is rice that has been genetically engineered to
contain beta carotene in an attempt to ward of vitamin A deficiencies that leads to
blindness and death. In 2000, Time Magazine profiled Golden Rice on its cover,
proclaiming This Rice Could Save a Million Kids a Year.
239
Golden Rice instantly
became the poster child for biotechnology, a life-saving negation of the assertion
that agricultural biotechnology only generated benefits for multinational
corporations.
240
Monsanto and other agricultural biotech companies mounted a
slick ad campaign using Golden Rice to stake out moral high ground in debates over
genetic engineering.
241
These ads sought to inextricably link “the dream of a
tomorrow without hunger” to biotechnology as “the science that promises
hope.”
242
Critics found themselves accused of perpetuating a “nutritional
237
. Kiers et al., supra note 228.
238
. Id.
239
. See J. Madeline Nash, This Rice Could Save a Million Kids a Year, TIME ( July 31. 2000),
http://content.time.com/time/magazine/article/0,9171,997586,00.html.
240
. See Dan Charles, In a Grain of Golden Rice, A World of Controversy Over GMO Food,
NPR, March 7, 2013, http://www.npr.org/sections/thesalt/2013/03/07/173611461/in-a-grain-of-
golden-rice-a-world-of-controversy-over-gmo-foods.
241
. Under the auspices of the Council for Biotechnology Information, Monsanto and other
biotechnology companies built a $50 million marketing campaign around a series of ads claiming that
biotechnology could help end world hunger. See, e.g., Marion Nestle, Safe Food: The Politics of Food
Safety 181, fig. 17 (2010) (reproducing ad claiming that biotechnology is “helping provide ways for
developing countries to better feed a growing population”); See e.g., Glenn D. Stone and Dominic
Glover, Disembedding Grain: Golden Rice, The Green Revolution, and Heirloom Seeds in the Philippines ,
J. AGRICULTURE, FOOD, AND HUMAN VALUES (2016) (reprinting Council for Biotechnology
Information Golden Rice Advertisement, proclaiming “Biotechnology researchers call it ‘golden rice.’
For the color. For the opportunity.”).
242
. See Monsanto Fact Sheet, supra note 196.
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2017] HUNGER AND EQUITY 229
holocaust,”
243
and of condemning poor children to suffer and die.
244
Recently, an
open letter from 104 Nobel Laureates demanded, “How many poor people in the
world must die before we consider [opposition to Golden Rice] a ‘crime against
humanity?’”
245
To say that Golden Rice has failed to live up to this “world changing” hype
would be a significant understatement. When it was featured on Time’s cover, an at-
risk child would have had to eat fifteen pounds of Golden Rice per day to obtain
the benefits described in the article.
246
Responding to that disconnect, Michael
Pollen called it “the world’s first purely rhetorical technology” designed “to win an
argument rather than solve a public-health problem.”
247
Greenpeace, a staunch
opponent of genetic engineering, called Golden Rice an “overpriced public relations
exercise.”
248
Even the Rockefeller Foundation, which bankrolled the Golden Rice
project, acknowledged that the industry advertisements and public relations
campaigns built around Golden Rice had “gone too far,” and were promising
benefits that the technology could not, and might never be able to deliver.
249
There is no question that Vitamin A deficiency is a major public health crisis.
Affecting 250 million children a year, vitamin A deficiency causes up to half a
million cases of childhood blindness annually.
250
Not only is vitamin A deficiency
the leading cause of preventable blindness,
251
but a disturbingly high percentage of
children who lose their sight to vitamin A blindness die within a year.
252
Pregnant
243
. See Biofortified rice as a contribution to the alleviation of life-threatening micronutrient
deficiencies in developing countries, GOLDEN RICE PROJECT (last visited Jan. 22, 2017), http://
www.goldenrice.org/index.php (suggesting that technophobes are perpetrating a “Nutritional
Holocaust” by opposing GMOs).
244
. Ingo Potrykus, The Golden Rice Tale, 10 (2001), http://www.goldenrice.org/PDFs/
The_GR_Tale.pdf [https://perma.cc/J962-LLXH] (asserting that “GMO opposition has to be held
responsible for the foreseeable unnecessary death and blindness of millions of poor every year”).
245
. Laureate Letter Supporting Precision Agriculture (GMOs), SUPPORT PRECISION
AGRIC. ( June 29, 2016), http://supportprecisionagriculture.org/nobel-laureate-gmo-letter_rjr.
html [https://perma.cc/AS9K-YSZR]. See ALLOW GOLDEN RICE NOW SOCIETY, http://
www.allowgoldenricenow.org/ [https://perma.cc/BB3L-ZNAD] (last visited Jan. 22, 2017). The
British Minister of the Environment characterized opponents of golden rice as “wicked.” Matt
McGrath, GM Golden Rice Opponents Wicked, Says Minister Owen Paterson, BBC (Oct. 14, 2013),
http://www.bbc.com/news/uk-politics-24515938 [https://perma.cc/8M2R-YZAF].
246
. Michael Pollan, The Way We Live Now: The Great Yellow Hype, N.Y. TIMES, March 4,
2001, http://www.nytimes.com/2001/03/04/magazine/the-way-we-live-now-3-04-01-the-great-
yellow-hype.html.
247
. Id.
248
. Lorraine Chow, Greenpeace to Nobel Laureates: It’s Not Our Fault Golden Rice Has “Failed
as a Solution,” ECOWATCH ( July 7, 2016), http://www.ecowatch.com/greenpeace-to-nobel-laureates-
its-not-our-fault-golden-rice-has-failed-1896697050.html [https://perma.cc/S8X7-WPZJ].
249
. Letter from Gordon Conway, President, Rockefeller Foundation, to Dr. Doug Parr,
Greenpeace ( Jan. 22, 2001), http://www.agbioworld.org/newsletter_wm/index.php?caseid=
archive&newsid=965 [https://perma.cc/HM4E-UJTX].
250
. Micronutrient Deficiencies: Vitamin A Deficiency, WHO, http://www.who.int/nutrition/
topics/vad/en/ [https://perma.cc/962Q-AEUQ] (last visited Jan. 22, 2017).
251
. Id.
252
. Id.
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230 UC IRVINE LAW REVIEW [Vol. 7:195
women are also vulnerable, with vitamin A deficiency causing night blindness and
maternal health complications.
253
Vitamin A deficiency is concentrated in South
Asia, where nearly half of all pre-school children are affected.
254
Incidentally, the
rates are highest in India, Bangladesh, and Pakistan
255
—the very countries that were
the focus of Green Revolution interventions.
When researchers genetically engineered rice to produce beta carotene,
256
a
key vitamin A precursor, it seemed like an elegant technical solution to a vexing
public health problem.
Sixteen years later, Philippine researchers are still working on Golden Rice.
Their first order of business was to improve the beta carotene levels.
257
Once that
was accomplished, their attention turned to trying to embed the traits in strains of
rice appropriate for growing in Philippine fields.
258
To date they have had little
success. The modified rice still lags behind conventional rice in yield,
259
and its
developers have not given an estimate of when they expect to have a version ready
to distribute.
260
Despite the millions of dollars invested in this high-tech solution,
and despite the save-the-world rhetoric, Golden Rice has simply failed to achieve
its promise. This failure is not due to opposition from opponents of genetically
engineered crops, nor is it due to burdensome regulatory requirements, but is
because of much more prosaic agronomic concerns.
261
Yet, even as Golden Rice
languishes, the Philippines nevertheless made significant progress in reducing
253
. See Parul Christian et al., Night Blindness During Pregnancy and Subsequent Mortality Among
Women in Nepal: Effects of Vitamin A and Beta-Carotene Supplementation, 152 AM. J. EPIDEMIOL. 542
(1999).
254
. Saeed Akhtar et al., Prevalence of Vitamin A Deficiency in South Asia: Causes, Outcomes,
and Possible Remedies, 31 J. HEALTH POP. NUTR. 413, 415 (2013).
255
. Id.
256
. For a first-hand account of this research, see Potrykus, supra note 244.
257
. What Is the Status of the Golden Rice Project Coordinated by IRRI?, INT’L RICE RESEARCH
INST., http://irri.org/golden-rice/faqs/what-is-the-status-of-the-golden-rice-project-coordinated-by-
irri [https://perma.cc/TP4N-M7N8] (last visited Nov. 11, 2016).
258
. Id.
259
. Id. (reporting that “[r]esults of the first round of multi-location trials of Golden Rice
showed that beta carotene was produced at consistently high levels in the grain, and that grain quality
was comparable to the conventional variety. However, yields of candidate lines were not consistent across
locations and seasons.”) (emphasis added). This language had originally read: “average yield was
unfortunately lower than that from comparable local varieties already preferred by farmers.” Stone,
Photograph of IRRI Post, Golden Rice: Bringing a Superfood Down to Earth, FOOD, FARMING,
AND BIOTECH., Aug. 28, 2015, https://fieldquestions.com/2015/08/28/golden-rice-bringing-a-
superfood-down-to-earth/ [https://perma.cc/AV5L-AXCE]. For a full discussion, see Glenn D. Stone
and Dominic Glover, Disembedding Grain: Golden Rice, The Green Revolution, and Heirloom Seeds in the
Philippines, 33 J. AGRIC. & HUMAN VALUES 1 (2016).
260
. Tom Philpott, WTF Happened to Golden Rice, MOTHER JONES (Feb. 3, 2016), http://
www.motherjones.com/tom-philpott/2016/02/golden-rice-still-showing-promise-still-not-field-
ready [https://perma.cc/3X8D-2F2N].
261
. Wash. Univ. in St. Louis, GMO Golden Rice Falls Short on Lifesaving Promises, Researcher
Says, LAB. EQUIP. ( June 3, 2016), http://www.laboratoryequipment.com/news/2016/06/gmo-
golden-rice-falls-short-lifesaving-promises-researcher-says [https://perma.cc/Y8SM-WL7X].
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vitamin A blindness.
262
Due to a significant public health campaign, 86% of children
in the Philippines now receive vitamin A supplementation.
263
The result has been a
dramatic reduction in vitamin A deficiency,
264
achieved wholly through
conventional nutrition programs.
In short, even as the Rockefeller Foundation poured millions of dollars into
developing Golden Rice, there were readily available solutions to the problem
Golden Rice was supposed to address. Many countries were requiring that staples
like flour, cooking oil
265
and sugar
266
be fortified with vitamin A—techniques which
proved to be effective, and extremely inexpensive ways to maintain vitamin A levels.
UNICEF spearheaded a wide-ranging fortification program built around periodic
high-dose vitamin A supplementation. This low-tech, low-cost approach has long
been known to prevent childhood blindness and reduce associated illnesses such as
measles and diarrhea.
267
Indeed, it is credited with reducing childhood mortality by
24%.
268
Moreover, because this supplement is typically delivered during biannual
Child Health events, periodic supplementation had an additional benefit—it creates
an opportunity to shore up fragile public health systems and to provide a package
of locally tailored interventions like immunizations and deworming.
269
The success
rates for this very simple intervention are proven, and extremely inexpensive.
Golden Rice, by contrast has been inordinately expensive, and as yet remains
unproven. It was an elegant idea, but it does not yet work. If and when it actually
manages to live up to the hype, it will merely add an additional arrow in a quiver
262
. Food and Nutrition Research Inst., 7th National Nutrition Survey: 2008, DEPT. OF
SCI. AND TECH. (2008), http://www.fnri.dost.gov.ph/images/sources/biochemical_vad.pdf
[https://perma.cc/97VB-STZ8].
263
. Vitamin A Supplementation Interactive Dashboard, UNICEF (Apr. 20, 2016), http://
data.unicef.org/nutrition/vitamin-a.html [https://perma.cc/ZZD7-8762].
264
. The percentage of children newborn to age five with vitamin A deficiencies plummeted
from a high of 40% in 2003 to 15% in 2008. The rates for pregnant and lactating women showed
comparable declines. (Note: the 2008 results are the most recent results available. The 2014 results
should be available soon). Food and Nutrition Research Inst., supra note 262. In response, IRRI notes
that Golden Rice, “if it is found to be safe, shown to improve vitamin A status, and used in combination
with existing programs” might be a way to help those still affected by vitamin A deficiency. IRRI, Why
Is Golden Rice Needed in the Philippines Since Vitamin A Deficiency is Already Decreasing? , http://
irri.org/golden-rice/faqs/why-is-golden-rice-needed-in-the-philippines-since-vitamin-a-deficiency-is-
already-decreasing (last visited Nov. 11, 2016). This heavily caveated claim by those actually
developing the crop is notably more modest than the sweeping claims made for Golden Rice by its
most vocal advocates.
265
. BASF, Oil Fortification, http://www.food-fortification.com/About_Food_Fortification/
Application/Oil_Fortification.aspx (last updated 2011).
266
. Omar Dary & Jose O. Mora, Food Fortification to Reduce Vitamin A Deficiency:
International Vitamin A Consultative Group Recommendations, 132 J. NUTRITION 2927S, 2929S (2002).
267
. Vitamin A Supplementation Interactive Dashboard, supra note 262.
268
. UNICEF, VITAMIN A SUPPLEMENTATION: A STATISTICAL SNAPSHOT [Brochure] 1, 4
(2016), http://data.unicef.org/resources/vitamin-supplementation-statistical-snapshot/ [https://
perma.cc/38TS-VACK]; Damian K Francis, Vitamin A Supplementation for Preventing Morbidity and
Mortality in Children from 6 Months to 5 Years of Age, COCHRAN LIB. 1 ( Jan. 14, 2011), http://
www.cochranelibrary.com/editorial/10.1002/14651858.ED000016 [https://perma.cc/D36D-6JH8].
269
. Vitamin A Supplementation: A Statistical Snapshot, supra note 267, at 10.
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232 UC IRVINE LAW REVIEW [Vol. 7:195
already filled with effective, less-expensive solutions. The disconnect between the
abundance of available ways to address the problem, and the vocal insistence that
Golden Rice was necessary seemed to justify accusations like Golden Rice was
about winning an argument than about helping those at risk.
270
It truly did seem like
the best reason to pursue Golden Rice was to justify the use of genetic engineering.
Subsequent developments in the Golden Rice saga only underscore this
concern. In 2012, after conducting experiments in China, a Tufts University
researcher announced that Golden Rice had finally achieved the same effectiveness
as the direct supplementation approach pursued by the WHO and UNICEF.
271
So,
after twenty years of effort, and millions of dollars, the technology was now capable
of doing exactly what low-tech solutions had been doing all along.
272
However, in
their eagerness to prove their case, these researchers overstepped major legal and
ethical boundaries. They failed to inform parents that their children were being fed
genetically modified rice because they were concerned that mentioning Golden Rice
was “too sensitive.”
273
Moreover, the researchers illegally imported the rice into
China, and fabricated required approvals.
274
In the process, the researchers violated
federal guidelines and IRB protocols with regard to the proper treatment of human
subjects. The breaches were so serious that the American Journal of Clinical Nutrition
ultimately retracted its publication of the results
275
and Tufts University sanctioned
270
. Pollan, supra note 246, at 1; Dr. Vandana Shiva, The Golden Rice Hoax: When
Public Relations Replaces Science, S.F. ST. U. ( Jan. 12, 2009), http://online.sfsu.edu/repstein/
GEessays/goldenricehoax.html [https://perma.cc/LY4F-AFS4].
271
. Guangwen Tang et al., ß-Carotene in Golden Rice is as Good as ß-Carotene in Oil at
Providing Vitamin A to Children, 96 AM. J. CLINICAL NUTRITION 658, 658 (2012). Unfortunately, this
test on healthy school children does not necessarily indicate how malnourished children will handle
Golden Rice.
272
. Some researchers have questioned whether these results in healthy children can be
extrapolated to malnourished children whose diets (and bodies) lack adequate fat to absorb and process
vitamin A. Washington University in St. Louis, supra note 261.
273
. Jane Qiu, China Sacks Officials Over Golden Rice Controversy, NATURE (Dec. 10, 2012),
http://www.nature.com/news/china-sacks-officials-over-golden-rice-controversy-1.11998 [https://
perma.cc/Z38Q-4LRB]. The parental consent form instead merely indicated that the rice contained ß-
carotene.
274
. Tufts Univ., Statement on Golden Rice Research, ACADEMICS REVIEW (Sept. 17, 2013),
http://academicsreview.org/2013/09/tufts-university-statement-on-golden-rice-research/ [https://
perma.cc/L4F9-NUK3].
275
. Retraction of Guangwen Tang et al., ß-Carotene in Golden Rice is as Good as ß-Carotene in
Oil at Providing Vitamin A to Children, AM. J. CLINICAL NUTRITION ( July 29, 2015), http://
ajcn.nutrition.org/content/early/2015/07/29/ajcn.114.093229.full.pdf+html.
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the researcher,
276
describing the conduct as “constituting ‘serious and continuing
non-compliance with federal regulations’ and with Tufts IRB policy.”
277
Unfazed by these major ethical breaches, advocates of Golden Rice continued
to tout the results.
278
Their unwillingness to acknowledge the significance of failing
to get proper government approvals or parental consent before feeding children an
experimental genetically modified product speaks volumes. Research rules
governing prior informed consent are not a technicality—they are all that stand
between vulnerable populations and serious exploitation.
The importance of these questions should be self-evident. The choice to
pursue a technology-based solution to a problem rooted in poverty had
consequences. There are alternative, equally valid perspective about whether
vitamin A deficiency, and by implication issues of hunger and diet-related disease
more broadly, are problems in need of technical or social solutions. Had the
hundreds of millions of dollars spent developing Golden Rice been instead used to
support the pre-existing, albeit less glamorous poverty alleviation efforts, or
straightforward initiatives to provide vitamin A supplements directly to vulnerable
populations, perhaps today’s statistics would look very different. As Peter Rosset,
director of Food First, emphasized, “People do not have vitamin A deficiency
because rice contains too little vitamin A but because their diet has been reduced to
rice and almost nothing else.”
279
Poverty is the core issue in vitamin A deficiency
and in food insecurity more generally. Technology, by itself, cannot solve the
problem.
280
III. SOME ADDITIONAL COSTS OF GENETICALLY ENGINEERED CROPS
Even assuming that the promised new innovations from genetic engineering
actually materialize,
281
their use and deployment raises some real questions about
accountability and transparency. The companies that own genetically engineered
276
. Tufts Univ., supra note 274 (announcing that the researcher had been barred from doing
human subject research for two years during which time the researcher would undergo retraining on
human subjects research regulations and policies). After the two-year suspension, the University
imposed what is essentially an additional two-year parole during which time the researcher would be
able to do human studies only as a supervised co-investigator.
277
. Martin Enserink, Golden Rice Not So Golden for Tufts, SCIENCE MAG. (Sept. 18, 2013),
http://www.sciencemag.org/news/2013/09/golden-rice-not-so-golden-tufts [https://perma.cc/
J5ET-RSHY].
278
. See, e.g., The Crime Against Humanity, ALLOW GOLDEN RICE NOW, http://
www.allowgoldenricenow.org/the-crime-against-humanity [https://perma.cc/XGK2-LR8R] (last
visited Nov. 12, 2016); Enserink, supra note 277 (quoting Golden Rice developer Ingo Potrykus as
saying “[t]he study has shown that golden rice is a very effective source of vitamin A . . . . That’s what’s
most important.”); Saletan, supra note 13 (strongly suggesting that the outcry over the breach of law and
ethics was irrelevant in light of the results, and arguing that the controversy was trumped up).
279
. Letter to the Editor by Peter M. Rosset, in GMO? Hell No!, THE NATION (2001),
https://www.thenation.com/article/gmo-hell-no/ [https://perma.cc/S2RL-G6WW].
280
. See, e.g., Kiers et al., supra note 227, at 320–21.
281
. The fiercely fought battles over the safety of these crops for human consumption are
outside the scope of this analysis, as are the potential environmental ramifications of these crops.
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234 UC IRVINE LAW REVIEW [Vol. 7:195
seeds, through a network of intellectual property rights, exercise an unprecedented
level of control over agricultural production, and over information about the crops
that are produced. Even if genetically engineered crops were capable of delivering
higher yield under climate change conditions, those yields would come at a high
price in terms of public discourse. Given that food security is not primarily a
question of production, it is an open question as to whether that hypothetical yield
would be worth the price.
A. Costs Due to Control over Production
There is really no such thing as a “seed company” anymore. In the last twenty-
five years, the seed industry has undergone tremendous consolidation.
282
In fairly
short order, a sector composed primarily of small, family-owned firms was
transformed into an industry dominated by a small number of transnational
pharmaceutical/chemical corporations.
283
A wave of mergers and consolidations
produced a handful of “agricultural life science” conglomerates that hold intellectual
property rights in pesticides, fertilizers, and seeds, most notably genetically
engineered seeds. Over that same time period, the cost of a bag of seed corn has
more than quadrupled, and soybean has more than quintupled.
284
This cost increase
tracks the growing prevalence of the genetically engineered crops that dominate
agriculture in the United States.
285
Just a handful of companies control 75% the global agrochemical market, 63%
of the global seed market, and conduct more than 75% of private sector agricultural
research on seeds and pesticides.
286
Yet, small as that group is, it understates the
level of consolidation that actually exists. One company, Monsanto, single-handedly
dominates the market for genetically engineered crops. Monsanto directly control
282
. Seventy-five, erstwhile independent, seed companies were purchased by Monsanto, Dow
AgroSciences, DuPont, Syngenta, and AgReliant. Dean V. Cavey, Reflections on Consolidation in the Seed
Industry, VERDANT PARTNERS ( June 13, 2016), http://www.verdantpartners.com/reflections-on-
consolidation-in-the-seed-industry/ [https://perma.cc/NDD2-5JTB].
283
. Howard, supra note 185, at 1266.
284
. Over the last twenty-five years, a bag of seed corn went from $65 to $300 and soybean
from $12 to over $70. Cavey, supra note 282.
285
. GMOs in Food, INSTITUTE FOR RESPONSIBLE TECHNOLOGY, http://responsible
technology.org/gmo-education/gmos-in-food/ [https://perma.cc/SAE9-42AN] (last visited Aug. 3,
2017). More than 90% of the corn, soybean, cotton, sugar beets, and canola planted in the United States
are genetically engineered.
286
. The so-called Big Six are BASF, Bayer, Dow, DuPont, Monsanto, and Syngenta. See
Breaking Bad: Big Ag Mega-Mergers in Play, ETC GROUP 4 (Dec. 2015), http://www.etcgroup.org/
sites/www.etcgroup.org/files/files/etc_breakbad_23dec15.pdf [https://perma.cc/SVV2-5M4J].
In December 2015, two of those companies, Dow and DuPont, announced a merger, see Sam Thielman,
Chemical Giants Dow Chemical and DuPont Announce $130bn Merger, THE GUARDIAN (Dec. 11, 2015),
https://www.theguardian.com/business/2015/dec/11/dow-chemical-dupont-merger-dowdupont
[https://perma.cc/DH93-RXBP], that will give the combined company 40% of the U.S. corn and
soybean markets, John Cassidy, A Dow DuPont Merger Would Raise Big Questions, NEW YORKER
(Dec. 9, 2015), http://www.newyorker.com/news/john-cassidy/a-dow-dupont-merger-would-raise-
big-questions [https://perma.cc/VZ7H-YCLY]. During that same time period, Monsanto
unsuccessfully attempted to merge with another of the Syngenta. See ETC GROUP, supra, at 4.
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over a quarter of the global seed market.
287
Within the United States, Monsanto’s
footprint is even larger—roughly 80% of U.S. corn and more than 90% of
U.S. soybeans are grown with seeds containing Monsanto’s patented seed traits
(whether sold by Monsanto itself or by licensees).
288
This unprecedented level of
control over the seed market has made Monsanto into the popular face of
genetically engineered crops.
This control has had real-world consequences. Consolidation in the seed
industry and the parallel rise of genetically engineered crops has meant a reduction
in the nonengineered seeds available to farmers.
289
One European study showed
that consolidation decreased in the number of available cultivars, a shift in focus to
crops and hybrids more profitable to companies, and termination of breeding
programs for regionally relevant crops.
290
By contrast, local seed companies and
breeding organizations increase farmers’ choices. Studies from the United States,
291
India,
292
and South Africa
293
have shown that introduction of genetically engineered
crops eventually leads to reductions in available crop cultivars,
294
and in extreme
situations, choice only between genetically engineered cultivars.
295
This causes a
ripple effect across food markets more generally with processors and manufacturers
struggling to find non–genetically engineered ingredients.
296
This information
prompted the National Research Council to call for study on the effect of increasing
287
. ETC GROUP, supra note 286, at 5.
288
. Dan Mitchell, Why Monsanto Always Wins, FORTUNE ( June 26, 2014), http://
fortune.com/2014/06/26/monsanto-gmo-crops/ [https://perma.cc/6P3K-QX9J].
289
. Angelika Hilbeck et al., Farmer’s Choice of Seeds in Four EU Countries Under Different
Levels of GM Crop Adoption, 25 ENV. SCI. EUR. 1, 1 (2013), http://www.enveurope.com/content/25/
1/12 [https://perma.cc/P57B-LETG] (documenting that European countries permitting the sale of
genetically engineered seeds have experienced a decline in available seed crop diversity, while that same
measure of diversity has either remained the same or increased in countries that prohibit genetically
engineered seeds); see also David Schimmelphennig et al., The Impact of Seed Industry Concentration on
Innovation: A Study of U.S. Biotech Market Leaders, 30 AGRIC. ECON. 157, 158–59 (2004) (showing
an inverse relationship between consolidation and innovation in the seed industry).
290
. Svein Øivind Solberg & Line Breian, Commercial Cultivars and Farmers’ Access to Crop
Diversity: A Case Study From the Nordic Region, 24 AGRIC. & FOOD SCI. 150, 150 (2015).
291
. Finding Non-GMO Soybean Seed Becoming More Difficult, THE ORGANIC &
NON-GMO REPORT ( July/Aug. 2008), http://www.non-gmoreport.com/articles/jul08/non-
gmo_soybean_seed.php [https://perma.cc/AJ5X-8BT8].
292
. Glenn Davis Stone, Field Versus Farm in Warangal: Bt Cotton, Higher Yields, and Larger
Questions, 39 WORLD DEV. 387, 392–94 (2011).
293
. Harald Witt et al., Can the Poor Help GM Crops? Technology, Representation & Cotton in
the Makhathini Flats, South Africa, 33 REV. AFR. POL. ECON. 497, 507–08 (2006).
294
. Hilbeck, supra note 289, at 1.
295
. Sugar Beet Industry Converts to 100% GMO, Disallows Non-GMO Option, THE ORGANIC
& NON-GMO REPORT ( June 2008), http://www.non-gmoreport.com/articles/jun08/sugar_
beet_industry_converts_to_gmo.php [https://perma.cc/3LW5-8P2K].
296
. Carey Gillam, U.S. Food Companies Find Going “Non-GMO” No Easy Feat, REUTERS
(Feb. 18, 2014), http://www.reuters.com/article/us-usa-food-gmo-analysis-idUSBREA1H1G42014
0218 [https://perma.cc/D7LM-QS36].
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236 UC IRVINE LAW REVIEW [Vol. 7:195
market concentration of seed suppliers on seed and cultivar diversity and farmer
planting options.
297
Sugar beets offer a cautionary tale of how loss of diversity can affect
farmers.
298
USDA initially deregulated genetically engineered sugar beets in 2005.
299
This decision was mired in lengthy litigation challenging the adequacy of the
agency’s consideration of the environmental impacts associated with these crops.
300
Yet, within by 2010, 95% of the sugar beet crop was genetically engineered,
301
and
non–genetically engineered seeds were next to impossible to find.
302
However, many major food companies have begun announcing that they will
eliminate genetically engineered ingredients, including sugar, from their consumer
products.
303
That creates a problem for domestic farmers because roughly half of
the United States’ sugar production comes from sugar beets, virtually all of which
is genetically engineered.
304
Manufacturers began switching from sugar beet sugar
to cane sugar to avoid genetically engineered sugar beets. Hershey reformulated
297
. NAT’L RESEARCH COUNCIL, THE IMPACT OF GENETICALLY ENGINEERED CROPS ON
FARM SUSTAINABILITY IN THE UNITED STATES, at vii-viii, 2–4 (Norman Grossblatt ed., 2010).
298
. Another issue flowing from lack of diversity is the emergence of weed and insect resistance.
Overuse of glyphosate, in conjunction with Monsanto’s Roundup-Ready line of genetically engineered
crops (corn, cotton, canola, alfalfa, and sugar beets), has been the emergence of “superweed.” See Are
Superweeds an Outgrowth of USDA Biotech Policy: Hearing Before the Subcomm. on Domestic Policy of the
H. Comm. on Oversight and Government Reform, 111th Cong. 23 (2010) (statement of Micheal
D.K. Owen, Ph.D., Professor of Agronomy, Iowa State University), https://www.gpo.gov/fdsys/
pkg/CHRG-111hhrg65559/html/CHRG-111hhrg65559.htm [https://perma.cc/6KAL-86U2].
Millions of acres are now infested with glyphosate-resistant weeds, like horseweed, pigweed, ragweed,
and waterhemp. Id. at 3–4.
299
. APHIS No. 51, Determination of Non-Regulated Status for Sugar Beets Genetically
Engineered for Tolerance to the Herbicide Glyphosate, 70 Fed. Reg. 13007 (U.S.D.A. 2005). For
background information, see APHIS Response to Petition 03-323-01p, USDA/APHIS Environmental
Assessment (U.S.D.A. 2004), http://www.aphis.usda.gov/brs/aphisdocs/03_32301p_pea.pdf.
300
. See, e.g., Ctr. for Food Safety v. Vilsack, 753 F. Supp. 2d 1051, 1053 (N.D. Cal 2010), vacated
and remanded, 636 F.3d 1166 (9th Cir. 2011), appealed, Nos. 11–16468, 11–16564, 502 F. App’x 647 (9th
Cir. 2012). For a detailed discussion of this litigation, see Rebecca M. Bratspies, Is Anyone Regulating?
The Curious State of GMO Governance in the United States, 37 Vermont L. Rev. 923, 948–51 (2013).
301
. U.S. Sugar Production, USDA, ECON. RESEARCH SERV., http://www.ers.usda.gov/
topics/crops/sugar-sweeteners/background.aspx [https://perma.cc/L5U9-K97V] (last updated
Apr. 28, 2017).
302
. Barry Estabrook, Sugar-Beet Flip-Floppers, and Other Sustainability News, ATLANTIC
(Nov. 2, 2010), http://www.theatlantic.com/health/archive/2010/11/sugar-beet-flip-floppers-and-
other-sustainability-news/65530/ [https://perma.cc/FET3-7VLA].
303
. The list of major companies making this choice includes General Mills, Post, Hershey, and
Unilever. See The Tipping Point is Here on GMOs, with 10 Major Companies Shifting to Non-GMO
Products, GMO INSIDE BLOG ( June 7, 2016), http://gmoinside.org/the-tipping-point-is-here-on-
gmos-with-10-major-companies-shifting-to-non-gmo-products/ [https://perma.cc/H593-PTKM].
Del Monte is also eliminating genetically engineered ingredients. Lucinda Shen, Del Monte is Making
This Huge Change to its Products, FORTUNE (Mar. 29, 2016), http://fortune.com/2016/03/29/del-
monte-natural-products/ [https://perma.cc/D7ZR-KNDP].
304
. About Roundup Ready Sugar Beets, USDA APHIS, https://www.aphis.usda.gov/aphis/
ourfocus/biotechnology/brs-news-and-information/CT_Sugarbeet_about (last modified Jan. 26,
2016).
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many of its products, including the iconic Hershey’s kisses to replace beet sugar
with cane sugar.
305
Sugar beet farmers wanting to sell into the new and growing non–genetically
engineered foods market must plant conventional sugar beet seeds. However, non–
genetically engineered sugar beet seeds are no longer widely available and it will take
years to develop a new supply of adequate seeds.
306
In the meantime, cane sugar
sells for a premium over beet sugar, even though the two are virtually
indistinguishable.
307
In May 2016, a bipartisan delegation of forty-five Senators and
Congressional Representatives found themselves in the unenviable position of
requesting that the Secretary of Agriculture lift an import quota on cane sugar.
308
USDA raised sugar imports quotas by 200,000 tons in order to meet demand.
309
B. Costs Due to Control over Knowledge
The five major “agricultural life science” conglomerates hold intellectual
property rights in many kinds of seeds, most notably genetically engineered seeds.
These companies do not sell seeds, per se. Instead, working through dealers, the
companies sell technology-licensing agreements that allow the use of those seeds
for a single growing season. The only way to legally purchase these seeds is through
a licensed dealer. And, every purchaser has to sign a technology/stewardship
agreement—a lengthy contract that defines the rights of the seller and purchaser.
The influence the giant agbiotech companies wield over knowledge
production about genetically engineered crops parallels their market dominance.
Until recently, these technology/stewardship agreements explicitly prohibited the
purchaser from conducting research on the seeds.
310
The agreements also
305
. Dan Charles, As Big Candy Ditches GMOs, Sugar Beet Farmers Hit a Sour Patch, MPR
NEWS (May 12, 2016), http://www.mprnews.org/story/2016/05/13/npr-big-candy-ditches-gmos;
Oliver Nieburg, Hershey’s Milk Chocolate and Kisses to Go Non-GM, CONFECTIONERY NEWS
(Feb. 23, 2015), http://www.confectionerynews.com/Ingredients/Hershey-in-non-GMO-and-no-
high-fructose-corn-syruppledge?utm_source=AddThis_twitter&utm_medium=twitter&utm_
campaign=SocialMedia#.VPYk_vvu—s.twitter.
306
. Tom Meersman, Hershey Dumps Sugar Beets Because of GM Concerns, SPOKESMAN-
REVIEW ( Jan. 10, 2016), http://www.spokesman.com/stories/2016/jan/10/hershey-dumps-
sugar-beets-because-of-gm-concerns/; Colleen Scherer, GM Concerns Lead Hershey to Reject Sugar
Beets, FARM J’S AG PROF ( Jan. 4, 2016), http://www.agprofessional.com/news/gm-concerns-lead-
hershey-reject-sugar-beets.
307
. Ron Sterk, Where’s the Sugar?, FOOD BUS. NEWS (May 17, 2016), http://www.
foodbusinessnews.net/Opinion/Ron-Sterk/Wheres-the-sugar.aspx?cck=1.
308
. Letter from Senators and Congressional Representatives, to Tom Vilsack, Sec’y, U.S. Dep’t
of Agric. (May 5, 2016), https://s3.amazonaws.com/emma-assets/gesab/bed16a533f49848b789
30ef6d0a1276d/Letter_to_Sec._Vilsack_Sugar_TRQ.pdf.
309
. USDA Increases FY 2016 U.S. Sugar Overall Allotment Quantity and Raw Cane Sugar
Import Access, USDA (May 17, 2016), http://www.fas.usda.gov/newsroom/usda-increases-fy-2016-
us-sugar-overall-allotment-quantity-and-raw-cane-sugar-import-access (“USDA recognizes that
America’s beet sugar producers have made significant investments in a strong 2016 crop, but they
continue to face uncertainty.”).
310
. Emily Waltz, Under Wraps, 27 NATURE BIOTECHNOLOGY 880, 880 (Oct. 2009), http://
www.emilywaltz.com/Biotech_crop_research_restrictions_Oct_2009.pdf.
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238 UC IRVINE LAW REVIEW [Vol. 7:195
prohibited a purchaser from supplying seeds to someone else for research
purposes.
311
As a result, there was no way for researchers to legally acquire seeds or
conduct research without the explicit permission of the company involved.
Researchers complained about needing to have “written permission from the
companies for any science involving their seed, even if it was commercially
available.”
312
To obtain this permission, researchers had to get the company to sign
off on the research design. The companies could pick and choose who could study
the crops, and how the research would be conducted, giving them unfettered power
to shape the information available on genetically engineered crops.
313
1. Direct Control over Research
In an unprecedented 2009 letter to EPA,
314
twenty-six entomologists
complained that the agricultural biotechnology companies were thwarting
independent research on the effects of their genetically engineered crops.
315
They
alleged that “[n]o truly independent research can be legally conducted on many
critical questions.”
316
These scientists asserted that this lack of research “unduly
limited” the data that regulators had before them in making decisions about
genetically engineered crops.
317
They pointed to technology/stewardship
agreements as the culprit because of the astonishing level of control these
agreements exert over farmers’ use of licensed seeds. At the time, these agreements
prohibited all research, including even an individual grower’s personal experiments
intended to compare yields in his/her own fields.
318
The scientists signing this letter
all worked at public universities in corn growing regions—institutions with
extension programs tasked with bringing “vital, practical information to agricultural
producers” and “educating farmers . . . on modern agricultural science and
technologies.”
319
Because they could not freely conduct independent research, these
scientists argued they were unable to fulfill their duty to “address critical public
issues through teaching, research and outreach”
320
with regard to genetically
311
. Id.
312
. Nathanael Johnson, Genetically Modified Seed Research: What’s Locked and What Isn’t,
GRIST (Aug. 5, 2013), http://grist.org/food/genetically-modified-seed-research-whats-locked-and-
what-isnt/.
313
. Waltz, supra note 310, at 881.
314
. See Twenty-Six Leading Corn Scientists, Comment for the FIFRA Scientific Advisory
Panel on Technology/Stewardship Agreement Required for the Purchase of Genetically Modified Seed
(Feb. 22, 2009), https://www.regulations.gov/document?D=EPA-HQ-OPP-2008-0836-0044
[hereinafter Comment from Leading Corn Scientists].
315
. Andrew Pollack, Crop Scientists Say Biotechnology Seed Companies Are Thwarting Research,
N.Y. TIMES (Feb. 19, 2009), http://www.nytimes.com/2009/02/20/business/20crop.html?_r=0.
316
. Comment from Leading Corn Scientists, supra note 314.
317
. Id.
318
. Waltz, supra note 310, at 880 (reporting that Syngenta prohibited any research intended to
compare its commercial crops to other companies’ crops).
319
. Extension, USDA NIFA, https://nifa.usda.gov/extension (last visited Nov. 8, 2016).
320
. See, e.g., About Extension: Creating a Stronger Minnesota Through Education and Research,
U. OF MINNESOTA EXTENSION, http://www.extension.umn.edu/about/ (last visited Nov. 8, 2016).
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engineered crops. Fearing retaliation, the scientists submitted the letter
anonymously.
This letter, and the press coverage it generated,
321
sent shock waves through
industry and government circles. In response, the industry trade group, the
American Seed Trade Association (ASTA) convened a meeting between the major
agricultural biotechnology companies and research scientists. At this meeting, the
industry agreed to a set of reforms,
322
including negotiation of institution-wide
academic licenses, and some modifications to the prohibitions contained in the
technology/stewardship agreements. Under a set of academic research principles,
adopted by the companies, ASTA, and the Biotechnology Information
Organization, researchers would have greater freedom to study questions deemed
agronomic (things like the effects that genetically engineered crops have on soil, on
pest populations, on pesticide use, and on the environment more generally).
323
However, research on the genetics of these crops, or anything akin to breeding was
still prohibited under the technology/stewardship license. And, perhaps most
troublingly, there were no provisions to allow research on crops in development,
even though that is the moment when independent research might have the greatest
impact.
324
These research principles were then incorporated into the technology/
stewardship agreements. For example, as of 2011 Monsanto’s Technology/
Stewardship Agreement prohibited purchasers from conducting research “other than
for making agronomic comparisons and conduct[ing] yield testing for Grower’s own use.”
325
Purchasers are still prohibited from any kind of research that might involve breeding
activities.
326
Public reports suggest that academic researchers now have a much wider scope
to research how crops interact with the environment, and which varieties perform
best.
327
Monsanto has entered into about 100 Academic Research Licenses designed
to allow university researchers to work with Monsanto’s seeds without prior
consultation with the company.
328
These agreements are between the University and
321
. See, e.g., Pollack, supra note 315.
322
. Research with Commercially Available Seed Products, AM. SEED TRADE ASS’N (Sept. 17, 2009),
http://www.amseed.org/pdfs/issues/biotech/research-commercially-available-seed-products.pdf.
323
. Id.
324
. Bruce Stutz, Companies Put Restrictions on Research into GM Crops, YALE ENVIRONMENT
360 (May 13, 2010), http://e360.yale.edu/feature/companies_put_restrictions_on_research_into_
gm_crops/2273/.
325
. 2011 Monsanto Technology/Stewardship Agreement, https://thefarmerslife.files.
wordpress.com/2012/02/scan_doc0004.pdf (emphasis added). Pioneer’s Agreement similarly
provides that “You may not conduct research on Seed, grain or crop(s) produced from Seed other than
to make agronomic comparisons and conduct yield testing for Your own use.” Pioneer Hi-Bred Limited
and Technology Use Agreement, https://www.pioneer.com/CMRoot/Pioneer/Canada_en/
products/seed_trait_technology/2016_CA_TUA_English.pdf.
326
. See 2011 Monsanto Technology/Stewardship Agreement, supra note 325.
327
. Johnson, supra, at 312.
328
. The Myth About Controlling Research, MONSANTO BLOG (Sept. 6, 2012), http://
monsantoblog.com/2012/09/06/the-myth-about-controlling-research/.
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240 UC IRVINE LAW REVIEW [Vol. 7:195
the company, and cover all researchers at the University. This kind of blanket
licensing agreement is undoubtedly an improvement, but it is shocking that this was
a question in need of clarification in the first place. And, areas of research that are
deemed “outside of agronomic research,” most notably breeding, remain off limits.
Moreover, the terms of these academic research agreements are confidential,
leaving lingering questions about possible restrictions on the freedom to publish or
to provide negative results to regulators. There were certainly past incidents in
which the attempt to negotiate such agreements broke down over these
questions.
329
Even more astonishing than the prior restrictions on academic research is the
fact that these same research limitations extended to regulators. Indeed, it was only
in 2010 that Monsanto and the USDA Agricultural Research Service negotiated a
license that allowed the government, the regulators overseeing Monsanto, the
freedom to conduct research without first asking Monsanto’s express permission
for each individual experiment.
330
This license came sixteen years after genetically
engineered crops were commercially planted. What makes this situation even more
astonishing is that for those sixteen years, the fact that USDA had oversight and
approval authority was regularly deployed by the companies involved as vouching
for the safety and efficacy of these crops.
2. Indirect Control over Research
There is an ideological cast to any discussion about genetically engineered
seeds. Both opponents and advocates are passionate in ways that go far beyond the
actual data. Advocates see themselves as defending science,
331
and are quick to draw
connections between opposition to these crops and the anti-vaccine movement.
332
They analogize rejecting genetically engineered crops to rejecting evidence of
climate change.
333
Opponents, by contrast, talk about poisoned food
334
and
corporate hegemony.
335
The heated, emotional rhetoric often swamps legitimate
329
. Waltz, supra note 310, at 881.
330
. Emily Waltz, Monsanto Relaxes Restrictions on Sharing Seeds for Research, 28 NATURE
BIOTECHNOLOGY 996 (2010).
331
. Keith Kloor, Why Vaccine and GMO Denial Should Be Treated Equally, Discover (Aug. 7,
2014, 11:46 AM), http://blogs.discovermagazine.com/collideascape/2014/08/07/vaccine-gmo-
denial-treated-equally/#.V7b5_vkrKM8.
332
. See, e.g., id.; Joel Silberman, A Reality Check for the Anti-GMO, Anti-Vaccine Folks,
L.A. TIMES (Nov. 13, 2014, 6:02 PM), http://www.latimes.com/nation/la-ol-vaccine-gmo-natural-
20141113-story.html.
333
. GMO Opponents—Left’s Version of Global Warming Deniers, SKEPTICAL RAPTOR
(Aug. 19, 2015), http://www.skepticalraptor.com/skepticalraptorblog.php/gmo-opponents-lefts-
version-global-warming-deniers/.
334
. For a striking example of the kind of hyperbolic, all-caps advocacy that gives rise to the
“anti-science” allegations, see Mike Adams, The GMO Debate Is Over; GM Crops Must Be Immediately
Outlawed; Monsanto Halted from Threatening Humanity, NATURAL NEWS (Sept. 21, 2012), http://
www.naturalnews.com/037262_GMO_Monsanto_debate.html.
335
. See, e.g., GMO Intro: GMOs Are Genetically Modified Organisms, GMO FREE USA,
http://gmofreeusa.org/education/gmo-intro/ (last visited Nov. 11, 2016).
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concerns both about anti-science and about equity in the food system. With little
room for nuance, dialogue becomes a shouting match.
Wading into these polarized waters can be treacherous, particularly for
scientists. Given the way battle lines have been drawn, researchers whose work
questions the benefits or safety of genetic engineering frequently pay a heavy price
for their work. To advocates of the technology these scientists must appear as
traitors, with publishing their work in respected scientific journals akin to giving aid
and comfort to the enemy. At least that is what it seems like from the ferocity of
their response.
The story of Ignacio Chapela and David Quist is case in point. In 2001, the
two Berkeley researchers published a Nature article claiming that transgenic maize
was growing in Oaxaca, the center of origin for maize.
336
Their findings were almost
immediately confirmed by two independent teams of Mexican scientists.
337
And
subsequently, Mexican officials found even more contamination than Quist and
Chapela had initially reported.
338
However, that did not prevent the biotech industry
from attacking the researchers in editorials. The Bivings Group, a PR firm affiliated
with Monsanto, conducted a viral attack campaign online, posting on AgBioWorld
under various names that were later traced back to the firm.
339
These comments
were extremely negative, calling Chapela’s objectivity and competence into
question.
340
The Bivings Group deliberately used individual names on its postings
in order to create the impression that these comments were coming from
independent third parties. Indeed, at the time, the company’s website touted the
336
. David Quist & Ignacio H. Chapela, Transgenic DNA Introgressed Into Traditional Maize
Landraces in Oaxaca, Mexico, 414 NATURE 541, 541 (2001).
337
. On September 17, 2001, Mexico’s Secretary for Environmental and Natural Resources
confirmed that transgenic maize had been found in Oaxaca and nearby Puebla. Rex Dalton, Transgenic
Corn Found Growing in Mexico, 413 NATURE 337 (2001). Subsequent studies further confirmed that
Quist and Chapela’s results were correct. Id. This is not to say there were no methodological issues in
the research. There were plenty of legitimate methodological questions. But, the tenor of the critique,
and its coordinated nature suggests that something more was going on.
338
. By April 2002, the Mexican Ministry of the Environment confirmed that significant
percentages of tested Mexican corn farms had traces of transgenic material. Paul Brown, Mexico’s
Vital Gene Reservoir Polluted by Modified Maize, THE GUARDIAN (Apr. 19, 2002), https://
www.theguardian.com/environment/2002/apr/19/food.internationaleducationnews.
339
. George Monbiot, The Fake Persuaders, THE GUARDIAN (May 14, 2002), https://
www.theguardian.com/politics/2002/may/14/greenpolitics.digitalmedia; George Monbiot, These
Astroturf Libertarians Are the Real Threat to Internet Democracy, THE GUARDIAN (Dec. 13, 2010),
https://www.theguardian.com/commentisfree/libertycentral/2010/dec/13/astroturf-libertarians-
internet-democracy (describing the activities of the Bivings Group).
340
. Some of these postings have been reprinted in A Lady in London and Ignacio Chapela,
GMWATCH (Dec. 10, 2003), http://www.gmwatch.org/news/archive/2003/8102-a-lady-in-london-
and-ignacio-chapela; see also Immoral Maize—Definitive Account of Chapela Affair, GMWATCH (May
7, 2009), http://gmwatch.org/latest-listing/1-test/10959-immoral-maize-definitive-account-of-
chapela-affair (quoting ANDREW ROWELL, DON’T WORRY (IT’S SAFE TO EAT) 149 (2003)).
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242 UC IRVINE LAW REVIEW [Vol. 7:195
effectiveness of strategically posting as an uninvolved third party to more effectively
influence public opinion.
341
As always, there were legitimate methodological questions about the research,
but the tenor of the response went far beyond the kind of give and take one expects
in a scientific discussion. The intensity of the vitriol prompted 144 civil society
groups to issue a joint statement decrying the use of “intimidatory” techniques to
“silence” dissident scientists.
342
Indeed, even public critics of the Quist/Chapela
paper’s methodology and conclusions admitted they had “never seen anything like
it”
343
and that the attacks on the scientists went well beyond the scope of usual
professional interactions.
344
One went so far as to characterize the attacks as
“sending a message to any young scientists” in an attempt to stave off publication
of other research on genetically engineered crops that “would break ranks.”
345
If this were merely an isolated incident, it might not raise concerns about the
control advocates of genetic engineering and biotech companies wield over
research. However, the Quist/Chapela story is one in a string of incidents in which
reputable scientists publish something critical of genetically engineered crops and
find themselves suddenly in a maelstrom. In 2007, Dr. Emma J. Rosi-Marshall, a
stream ecologist, found herself at the center of a backlash when she published a
paper finding that certain genetically engineered crops “may have negative effects
on the biota of streams in agricultural areas.”
346
Studying streams in Northern
Indiana, Dr. Rosi-Marshall speculated that widespread planting of genetically
engineered crops might be creating an unanticipated, ecosystem-wide effect.
347
Within weeks, advocates of genetic engineering were attacking her research design,
her data, and her ethics, even going so far as to contact her funders with allegations
of scientific misconduct.
348
This type of massive, concerted attack creates a real
disincentive to pursue legitimate lines of inquiry.
341
. Monbiot, These Astroturf Libertarians Are the Real Threat to Internet Democracy, supra note
339 (quoting a Bivings Group article titled Viral Marketing: How to Infect the World as advising “there
are some campaigns where it would be undesirable or even disastrous to let the audience know that
your organization is directly involved . . . .”).
342
. JOINT STATEMENT ON THE MEXICAN GM MAIZE SCANDAL (Feb. 18, 2002) https://
www.organicconsumers.org/old_articles/gefood/maizescandal022002.php (last visited Aug. 16,
2017).
343
. Charles C. Mann, Has GM Corn “Invaded” Mexico?, 295 SCI. 1617, 1617 (2002) (quoting
Peggy Lemaux, a UC Berkeley scientist engaged in genetic engineering research, and, at the time, one
of the most public critics of the Quist-Chapela paper); see also Justin Gerdes, Killing the Messenger,
MOTHER JONES ( July 9, 2002, 7:00 AM), http://www.motherjones.com/politics/2002/07/killing-
messenger (also quoting Peggy Lemaux).
344
. Mann, supra note 343 (“There’s been a lot of fighting about transgenics, but this is
something else.”).
345
. Gerdes, supra note 343 (quoting Berkeley Professor Miguel Altieri).
346
. Emma J. Rosi-Marshall et al., Toxins in Transgenic Crop Byproducts May Affect Headwater
Stream Ecosystems, 104 PNAS 16204, 16206 (2007).
347
. Id. at 16204.
348
. Henry I. Miller et al., Is Biotechnology a Victim of Anti-Science Bias in Scientific Journals?,
26 TRENDS IN BIOTECHNOLOGY 122, 124 (2008).
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Science depends on give and take. One researcher proposes a novel
conclusion. Other researchers then conduct their own research, and publish results
that either support the novel conclusion, or reject it in favor of other, more robust
conclusions. Yet, none of the criticism poured onto Dr. Rosi-Marshall’s paper called
for further research on the question. Instead, the response was openly driven by the
goal of “neutraliz[ing] any effects that Rosi-Marshall’s paper might have on
policy.”
349
When questioned about the tenor of their response, the critics described
their commitment to “specific ideas about how the risks of these crops should be
scientifically assessed” and their belief that agricultural biotechnology has been
“horrendously [and] unscientifically . . . over-regulated and . . . inhibited.”
350
Golden Rice came up as an example.
351
While critiquing and criticizing research design and results are the bread and
butter of scientific interactions, the backlash directed at scientists like Rosi-Marshall
and Quist/Chapella is different. There is a knee-jerk, ad hominem, and even
emotional quality to the response that seems, well, unscientific. It is driven by a core
of researchers committed to the proposition that genetically engineered crops are
misunderstood and overregulated.
352
As such, it seems directed at shutting down
rather than opening up discussion.
CONCLUSION
There is no question that the human population is growing or that the climate
is changing. We do not yet know whether or how global agriculture will meet these
twin challenges. But, it is increasingly clear that public rhetoric about “feeding the
hungry” through increased technology, which has been so effectively captured by
proponents of genetic engineering, is on the wrong track. In a world awash with
both food and hunger, a relentless focus on measures designed to increase yields is
at best a distraction and at worst counterproductive. Increasing food production
might well be necessary to create the conditions for food security, but alone it will
never be sufficient.
353
Indeed, even the National Academy of Science cautions that,
“feeding the world involves much more than simply increasing crop production.”
354
And yet, the oft-given response to persistent undernutrition is repeated and urgent
calls to adopt technologies purporting to increase production.
349
. Emily Waltz, Battlefield, 461 NATURE 27, 28 (2009).
350
. Id. at 30.
351
. Id.
352
. One manifestation of this coordination is the ASK-FORCE, organized under the auspices
of the Public Research and Regulation Initiative with the mission of discussing “publications about
biosafety and biotechnology that have gained much public attention but which are not supported by a
clear majority of peer reviewed scientific publications.” Ask-Force, THE PUBLIC RESEARCH AND
REGULATION INITIATIVE, http://www.prri.net/working-groups/ask-force/ (last visited Nov. 17,
2016).
353
. Int’l Assessment of Agric. Knowledge, Sci. and Tech. for Dev., supra note 236, at 5.
354
. NATIONAL ACADEMY OF SCIENCES, GENETICALLY ENGINEERED CROPS:
EXPERIENCES AND PROSPECTS 295 (Norman Grossblatt ed. 2016).
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244 UC IRVINE LAW REVIEW [Vol. 7:195
In taking stock of the successes and failures associated with past hunger
alleviation initiatives, and in planning to implement the Sustainable Development
Goals, it is important to be clear about what the problem actually is. Having the
capacity to produce sufficient food is not enough. Unfortunately, even increasing
levels of production are no guarantee that anything will change for the
undernourished. The key question is a commitment to equity—to using the food
that we have to feed people who need it.
Achieving the Sustainable Development Goal of eradicating undernutrition by
2030 will require an emphasis on improved distribution—both through improving
the social safety net, and through improving opportunity and livelihoods for the
poorest among us. Like other technological tools, genetically engineered crops do
not address the complexity and wide variety of challenges that farmers face,
especially smallholders. The possibility that genetically engineered crops will
contribute to poverty alleviation, and thus to food security, depends heavily on
social and economic context. At least some experts have concluded that genetically
engineered crops were developed in too narrow a commercial context to offer much
to this discussion.
355
Indeed, there is little in the development of these crops to date
that positions them either as a tool for redistribution or as a response to the poverty
of small and subsistence farmers. It is certainly possible that this situation will
change. The key questions will be who invests in new genetically engineered crops,
and which crops they prioritize.
356
If genetically engineered crops are going to
contribute to achieving the Sustainable Development Goals, it will first require
rethinking how research priorities are identified, and how costs and benefits
associated with agricultural biotechnology are distributed.
357
The recent
consolidation in the agbiotech industry sends a signal that no such rethinking is in
the offing.
Complexity is easily lost in the heated public discourse surrounding these
crops. Too often what should be a dialogue slips into thoughtless sloganeering. With
advocates of genetic engineering intellectually and economically committed to their
technology, and opponents equally resistant, the lines between evidence and dogma
blur. Public discourse is impoverished when entire lines of inquiry are marked out
as off limits, particularly when those boundaries line up with entrenched commercial
interests.
This dynamic is increasingly clear to policymakers trying to steer a course
forward. For this reason, the FAO cautions against a one-size-fits-all solution,
358
instead emphasizing that hunger alleviation initiatives must be tailored to local
355
. Int’l Assessment of Agric. Knowledge, Sci. and Tech. for Dev., supra note 236, at 42.
356
. NATIONAL ACADEMY OF SCIENCES, supra note 354.
357
. Int’l Assessment of Agric. Knowledge, Sci. and Tech. for Dev., supra note 236, at 42.
358
. Food and Agriculture Organization of the United Nations [FAO], International Fund for
Agricultural Development [IFAD] and World Food Programme [WFP], The State of Food Insecurity in
the World. Meeting the 2015 International Hunger Targets: Taking Stock of Uneven Progres s, at 4, FAO
Doc. I4646E/1/05.15 (2015), http://www.fao.org/3/a-i4646e/index.html.
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conditions and political commitment.
359
Fierce rhetoric offers an appealing but false
clarity about genetically engineered crops and their role in food security. Instead, we
must learn to embrace a complicated and messy ambiguity.
359
. Id.
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