By Gabriela Agonstinelli

In the wake of California’s failed Prop 37 initiative, Americans once again have new fodder for the ongoing debate over GMOs (genetically modified organisms) and the politics behind them. A newly-passed appropriations bill has everyone buzzing, from food-centric grassroots groups to Tea Party activists, due to “blanket” protections it now affords GMO purveyors. In pertinent part, the new law known as the Monsanto Protection Act reads as follows:

Sec. 735. In the event that a determination of non-regulated status made pursuant to section 411 of the Plant Protection Act is or has been invalidated or vacated, the Secretary of Agriculture shall, notwithstanding any other provision of law, upon request by a farmer, grower, farm operator, or producer, immediately grant temporary permit(s) or temporary deregulation in part, subject to necessary and appropriate conditions consistent with section 411(a) or 412(c) of the Plant Protection Act, which interim conditions shall authorize the movement, introduction, continued cultivation, commercialization and other specifically enumerated activities and requirements, including measures designed to mitigate or minimize potential adverse environmental effects, if any, relevant to the Secretary’s evaluation of the petition for non-regulated status, while ensuring that growers or other users are able to move, plant, cultivate, introduce into commerce and carry out other authorized activities in a timely manner…

Section 735  has been interpreted as allowing farmers to continue harvesting and selling GMO crops even after a court has ruled that the USDA conducted inadequate review of those crops for market approval. Critics have swiftly dubbed the provision the “Monsanto Protection Act” for being “a special-interest loophole.”


It is imperative to note, however, that when a court makes this determination, it subsequently requires the USDA to go back and complete its review. Proponents of the provision insist it is only in this second review period that this harvesting/selling extension is permitted. This deflates the special interest argument a bit.

Still, the provision has an unmistakable air of deviousness to it. First, it is an anonymously authored provision. Secondly, nobody has been willing to admit to this contribution. Thirdly, the provision just happened to have been slipped into an incredibly vast forum – a huge omnibus spending bill.

Jon Entine, head of the Genetic Literacy Project at George Mason University, maintains the war being waged against § 735 is overblown. In addition to asserting that GMO technology has never been overturned by courts for being unsafe, he offers an explanation behind Section 735: “Getting approval for any transgenic crop or food is like running a torturous gauntlet, both arduous and bureaucratic.”

As Sen. Jon Tester of Montana has insisted, Section 735 boils down to a major “separations of power” dilemma. Here, we have a legislative document carving exceptions into regulatory (executive) protocols in an attempt circumvent judicial warnings. This provision is also a far cry from an attempt to support farmers while their crops are under review. Instead, as Tester suggests, “all it really assures is a lack of corporate liability.” The end result of Section 735 may be that the Secretary of Agriculture will be given a new executive power he or she would be unwilling to exercise due to the political consequences that will undoubtedly arise from its use. Hot air on both sides.