Publication Title

Washington University Law Review


Over the past two decades, the United States has seen the introduction and widespread adoption of genetically modified (“GM”) crops, followed by the rise in popularity of organic products. These two industries, while diametrically different, together form the base of the hugely important agriculture sector in the United States. As GM and organic farmers attempt to exist side by side, the potential for inadvertent contamination looms large. GM materials can travel large distances by wind, animal, or even carried by rented farm equipment. Once a strain of seed is approved for widespread use, the regulations that govern GM use do not restrict the growth of GM crops, even if grown beside organic farms. This has the potential to place organic farmers—who must comply with strict federal regulations on products labeled ‘organic’—in a bind.

Although there have not been any major rulings by U.S. courts in cases where facts allege GM drift contaminated organic crops, the threat remains. However, with the continued growth of both sectors, the threat remains. With this in mind, some scholars propose imposing strict liability on those farmers from whose fields the GM material drifts, similar to courts’ treatment of pesticide overspray. Such analogies mischaracterize GM materials as inherently dangerous. Others propose imposing new federal regulations that establish liability for GM drift. However, regulations of this sort have the potential to unnecessarily target GM farmers and restrict their ability to grow affordable foodstuffs for the American public. Because GM crops represent a majority of several staple crops, such regulations could lead to widespread harm.

This Note instead proposes that the U.S. follow the lead of the Supreme Court of Western Australia via the recently decided case Marsh v. Baxter. There, the court applied common law theories to a dispute between GM and organic farmers following the drift of GM material between farms. The Marsh holding displays the potential for injured farmers to seek recovery through theories of common law tort. In particular, this Note suggests that private nuisance actions could institute a balancing test to effectively consider the interests of both parties. Such a test would not only allow for equitable outcomes for the injured farmer, but also ensure that the United States has a continued source of reasonably-priced food for its citizens.