Liability of the seed producer towards the cultivating farmer due to illness of dairy cows caused by genetically modified maize

In a case that has now come to light, the Higher Regional Court of Frankfurt had to decide on a farmer's claims for damages against an agricultural company due to the illness of his dairy cows caused by genetically modified maize (Bt maize 176).
In 1997, the agricultural corporation offered seeds of the genetically modified Bt corn 176 variety for sale. The plaintiff had purchased the genetically modified corn and grown it in his fields. He mixed half of the harvested plants with conventional corn and fed them to his dairy cows with good success. In 2000, the farmer therefore switched his feed production entirely to the genetically modified corn.
In 2001, symptoms of the disease first appeared in some cows. They suffered from diarrhea and, at the same time, their milk yield decreased. The consistency of the milk also changed. Clumping and bloody milk occurred, resulting in the death of some cows.
In the lawsuit, the farmer claimed that the sole cause of the animals' illness and the complete cessation of milk production on his farm was the feeding of BTt maize 176. The agricultural company had not informed him about the consequences of the genetically modified maize variety.
The Giessen Regional Court dismissed the farmer's lawsuit, arguing that a permit for the cultivation and feeding of the animals had been obtained, and that the cultivation had undisputedly taken place solely for experimental purposes.
The Higher Regional Court of Frankfurt (OLG Frankfurt, judgment of February 6, 2009 – 2 U 128/07) has now confirmed this argument. It stated that strict liability for risks also applies to legally developed genetically modified organisms. Only if a qualified authorization to market products exists does the Product Liability Act take precedence over the Genetic Engineering Act. In this specific case, however, the marketing authorization was suspended pursuant to Section 37, Paragraph 2 of the Genetic Engineering Act (GenTG) and therefore could not have an exclusionary effect. The limited distribution authorization for research and testing purposes was also not a qualified distribution authorization within the meaning of Section 37, Paragraph 2 of the GenTG, since Bt maize 176 was not permitted to enter the commercial market; rather, only a limited distribution for experiments was permitted, based on quantity and purpose.
The farmer cannot assert claims for damages simply because, as the operator of the genetic engineering work, he himself is the primary cause. In this respect, he is both the injured party and the causer. However, liability under Section 32 of the Genetic Engineering Act (GenTG) only applies to third parties.

This publication can also be found on the website of the law firm Dr. Kauch .