Too big to prosecute: How Monsanto slipped the DOJ’s grasp
By Susie Cagle
Hey so remember a few months ago when we told you about how the Department of Justice quietly slipped its Monsanto investigation into the shredder? The global GMO giant was “pleased,” activists were pissed, and we were left wondering how that whole thing even happened.
Today, Lina Khan at Salon breaks down the what-the-**** of it all. The investigation was first fertilized at the state level in 2007, when officials in Iowa, Texas, and other states began looking into Monsanto’s restrictive, anti-competitive contract agreements with seed companies and farmers. Monsanto’s trademarked genes are in more than 90 percent of American soy and 80 percent of corn.
Monsanto started in chemicals, only moving into genetically modified seed traits in the 1980s, and then buying up seed companies of its own in the ’90s. “Over the next decade Monsanto spent more than $12 billion to buy at least 30 such businesses,” Khan writes.
Alarmed by the fact that they were losing access to many key seed gene pools and seed breeders, biotech competitors — including DuPont, Dow and Syngenta — scrambled to keep up, grabbing suites of seed companies to secure their own arsenals.
Once mimicked by its rivals, Monsanto’s strategy redrew the industry. Competition and variety have dwindled as a result. Since the mid-1990s, the number of independent seed companies has shrunk from some 300 firms to fewer than 100. Many businesses not bought out directly were pushed out by bankruptcy.
The antitrust lawsuit against Monsanto proved difficult for the DOJ for a number of reasons, not least of which was Monsanto’s Hulk-like influence over Washington politics: The company spent nearly $6 million on lobbying last year.
When contacted, a spokeswoman for the DOJ acknowledged only that the antitrust division had shut its investigation into “possible anticompetitive activity” in the seed industry, due to “marketplace developments that occurred during the pendency of the investigation.” The spokeswoman would not detail these developments. “We believe it would not be appropriate to comment further,” she said. The state attorneys general who initiated the probe five years ago also closed their inquiry and have chosen not to comment. …
Those close to the investigation also note that it became easier for officials to justify inaction because Monsanto cleaned up its act as soon as authorities came knocking. Seed companies say Monsanto began loosening its licensing agreements in 2008, less than a year after the state attorneys general opened their inquiry. Months after the Justice Department followed suit in 2009, Monsanto announced it would allow farmers to continue using its leading soybeans, Roundup Ready 1, even after its patent expired in 2014. This gesture — at least in theory — opens the market to generic competition. …
[University of Wisconsin Law School professor Peter] Carstensen, a former DOJ attorney, believes antitrust officials may have been reluctant to wage a close fight given Monsanto’s political connections. “There was a good case to be made, but at the end of the day nobody was prepared to bite the bullet and move forward,” he said. …
“It’s a great frustration,” Carstensen says. “If the Obama administration really cared about technological innovation, they would have come in and tried to free technology from being captured by a single company.” Instead, he says, they have “protected Monsanto’s interest.”
But Monsanto learned its lesson, right, and cleaned up its act? Monsanto’s not Hulking out anymore, it’s just a calm big-agriculture Bruce Banner now, right? Yeah, not so much. The company’s lobbyists are now pushing the “Monsanto Protection Act” into a Senate spending bill. “Even if a court orders Monsanto to stop planting seeds until an environmental review is carried out, this bill overrules that,” reports SustainableBusiness.com. Gee, thanks for setting some precedent, DOJ!