Mexico Scores Major Victory Against Bayer-Owned Monsanto As Corn War With US Reaches Pivotal Moment

“Reason has ultimately prevailed in favour of life, health, nature, biodiversity and food sovereignty.”

After a four-year legal battle on multiple fronts with Mexico’s AMLO government, Monsanto has finally thrown in the towel. Last Tuesday, Mexico’s National Council of Humanities, Sciences and Technologies (Conahcyt) announced that two Mexican divisions of Monsanto — now subsidiaries of German chemicals giant, Bayer, which in 2018 acquired Monsanto in arguably the worst ever corporate merger — had dropped their law suits against the Mexican government over its intention to ban genetically modified corn.

As readers may recall, Mexico’s outgoing President Andrés Manuel Lopéz Obrador signed a presidential decree in 2020 seeking to ban all use and importation of GMO corn and the toxic weedkiller, glyphosate. His government has also placed import restrictions on white corn, which is generally used for human consumption in Mexico. The reasons cited for doing so include protecting the health of the population, the environment and Mexico’s genetic diversity of maize.

But this is not just about biotech. It is about increasing Mexican food sovereignty by reducing the threat of unfair US competition in the global corn market. As even the Chicago Council on Global Affairs, an international affairs think tank, recently conceded, US corn has dominated Mexico over the past three decades for one main reason: thanks to NAFTA, the scales have been stacked in the favour of US growers:

[T]he main reason US corn dominates the market is because the federal government heavily subsidizes corn production, to the point where American corn can be sold at prices well below the cost of production. Mexico has no such policies. In fact, the Mexican government eliminated nearly all price support for its agricultural sector as a part of NAFTA. As a result, US corn flooded the market, causing corn prices to plummet by as much as 66 percent.This drop forced many Mexican producers out of business.

In response to the AMLO government’s proposed ban on GMO corn, global agrochemical companies and seed manufacturers, including Bayer, and the Mexican lobbying associations that tirelessly represent their interests (Proccyt, AC and the National Agricultural Council) unleashed a wave of over 30 amparos (judicial protective orders) aiming to declare the decree unconstitutional. However, the vast majority of these trials have been concluded with rulings unfavourable to the companies involved or their lobbying associations.

A Rare Exception

But one of the cases filed by Monsanto/Bayer offered a rare exception. In 2022, Judge Francisco Rebolledo Peña ruled in favor of Monsanto with (in the words of the Mexican pro-government media outlet Regeneración) “a controversial, contradictory and partial ruling that ignored the evidence provided by the authorities.” That ruling was swiftly appealed by the Ministry of the Environment and Natural Resources (Semarnat), the Federal Commission for Protection against Sanitary Risks (Cofepris) and Conahyct.

In the resulting trial, Conahcyt provided scientific and legal defences, presenting more than 250 pieces of evidence to support the government’s 2020 decree. The appeal ultimately resulted in Mexico’s Fourth Collegiate Court on Administrative Matters rejecting Monsanto’s arguments, citing human rights and environmental safety concerns.

In 2023, Monsanto filed another lawsuit, this time against AMLO’s modified decree which allowed the use of GMO corn in animal feed and the making of consumer products like cosmetics, textiles and paper while maintaining a ban on GM corn for human consumption, particularly in the use of making flour for tortillas, which are a staple of the Mexican diet. The changes to the law meant it would have limited impact on Mexican imports of US corn, at least during the short to medium term, since most of those imports are already used “for fodder and industrial uses.”

This later amparo was also shot down, this time by Judge Elizabeth Trejo Galán who in her ruling underscored the precedence of public over private interest (what a quaint notion!).

Last week, Monsanto’s owner, Bayer, finally threw in the towel altogether by withdrawing all of its legal challenges against the 2020 presidential decree. Conahcyt described Bayer’s retreat as a major legal victory for Mexico in which “reason ultimately prevailed in favour of life, health, nature, biodiversity and food sovereignty.” Noting that the legal victory over Monsanto highlights Mexico’s commitment to safeguarding public health and environmental integrity, Conahcyt pledged to continue working to ensure that GM corn and glyphosate are removed from the Mexican food supply.

A Four-Year Corn War

There is still plenty of work to do as Mexico’s four-year “Corn War” with its two USMCA partners, the United States and Canada, reaches a pivotal moment. As readers may recall, in August 2023 the US escalated its food fight with Mexico by calling for the formation of a dispute settlement panel under the USMCA North American trade deal to determine whether AMLO’s 2023 decree undermines the market access Mexico’s government agreed to provide in the USMCA.” Canada quickly joined the US’s dispute against Mexico.

We are now in the closing stages of this process. After hearing arguments from the Mexican and U.S. governments, as well as technical opinions from non-governmental entities, the three-member panel is scheduled to release its preliminary and final reports in Autumn. Last week, Mexico published its closing argument in the dispute, the English translation of which readers can assess here. It is 264 pages long and I have only had time to read the first 55 paragraphs (out of 633). Here are some key excerpts from that early section:

On the US government’s lack of science-based arguments:

“Mexico has demonstrated throughout this controversy that there are legitimate concerns related to risks to human health and the diversity of native maize derived from the consumption of GM maize and has presented the scientific basis for these concerns, which will be addressed in detail throughout this paper. Mexico is protecting its population, which basically subsists on corn, as it is legally obliged to do so. The United States superficially analyzes and criticizes the evidence and risk assessment prepared by Mexico, but in its criticisms, it does not present arguments backed by science to support its position, but simply disqualifies with adjectives.”

On the US government’s preference for data from old, industry-conducted scientific trials:

First, the United States appears to argue that authorizations for GM corn events that have
been previously issued by Cofepris [Mexico’s Ministry of Health] and other authorities, such as the FDA and EPA, prevent Mexico from modifying its conclusions about the safety of GM corn consumption and the health risks associated with direct consumption, as well as the risks to biodiversity and corn diversity (which includes native varieties). This is incorrect…

The United States cannot freeze the ability of Mexican authorities to protect its population
from the risks posed by GM corn and glyphosate based solely on those authorizations. Such action would be tantamount to ignoring, without reasonable justification, the scientific evidence, free of conflict of interest and available to date, that was presented by Mexico in the “Scientific Record on Glyphosate and GM Crops” (2020), prepared by Conahcyt, and the collection of relevant studies in the National Biosafety Information System (SNIB) maintained by Cibiogem.

On the other hand, the FDA assessment identified by the United States in footnote 34 of its
Rebuttal Submission were conducted, for the most part, between 1996 and 2002. These
assessments not only do not take into account the updated scientific evidence confirming the risks of GM corn identified by Mexico, but are part of voluntary consultation procedures that are based on information that is selected by the biotechnology developers themselves seeking authorization and do not contemplate an analysis of stacked events and their possible effects.

On the risk of genetic contamination:

“[In its arguments] the United States ignores the fact that the Food and Agriculture Organization of the United Nations (FAO) itself has pointed out that “genetic modifications of plants are likely to be more complex perhaps involving multiple between-species transfers and this may lead to an increased chance of unintended effects … the possible implications of the differences with respect to health need to be considered”. This is a core part of the risks identified by Mexico.”

On US attempts to underplay role of glyphosate in cultivation of GMO corn for Mexico’s market (that’s right, the US government is essentially arguing that the rapidly rising health and environmental concerns about glyphosate, the toxic weedkiller that has already set back Bayer around $20 billion in payment penalties and litigation costs since 2018, the year it bought Monsanto, and could end up bankrupting the Germany company, should have no bearing whatsoever on Mexico’s right to ban GMO corn and glyphosate):

“The United States argues that the damages arising from the application and general use of glyphosate are not relevant for this dispute. This is incorrect. As Mexico explained in its Initial Submission, the challenged measures are part of, and contribute to the objectives contained in the Decree 2023, which are related to the use of glyphosate. Mexico explained in its Initial Submission that there is a clear relationship between GM crops and the increase in the use of herbicides such as glyphosate and that, the main function of GM corn events imported into Mexico is to tolerate herbicides, specifically glyphosate.”

On risks to human health:

In the factual section of the United States’ Rebuttal Submission, the evidence presented by Mexico is described, in terms of health risks, as imprecise and ambiguous as if mere adjectives were sufficient to dismiss the scientific results presented by Mexico… Mexico presented more than a hundred scientific articles that provide evidence of the risks to health associated with the consumption of GM corn. The majority of these articles were superficially commented on by the United States in Annex I of its Rebuttal Submission, with a few exceptions. This can be considered a tacit acceptance of the conclusions stated in these articles or a lack of evidence to counter Mexico’s arguments.

In its closing statements, the Mexican government “argues persuasively… that it has the right to take such precautionary measures under the trade agreement, that the measures have had minimal impacts on U.S. corn exporters and that its restrictions are indeed based on peer-reviewed science documenting the risks of consuming GM corn with glyphosate residues,” argues Timothy A Wise, a senior adviser at the Institute for Agriculture and Trade Policy (IATP). “These risks are particularly elevated for Mexicans, who consume more than 10 times the corn consumed in the U.S. and do so in minimally processed preparations, such as tortillas.”

But Mexico is still not quite ready for life without glyphosate. In March, the AMLO government suspended its ban on the weedkiller just days before it was due to come into effect. From our article, A Battered Bayer Breathes Sigh of Relief As Mexico Suspends Its Long-Awaited Ban on Glyphosate Weedkiller:

On April 1, 2024, Mexico’s government was supposed to make history by banning the world’s most notorious weedkiller. On that day, a presidential decree prohibiting the production, importation, distribution and use of glyphosate, the active ingredient of Bayer’s Roundup weedkiller, on Mexican soil was to finally come into effect. But it was not to be. On Tuesday (March 26), just five days before the big day, Mexico’s government suspended the ban arguing that there is no immediate way to replace the herbicide and that safeguarding Mexico’s food security must override all other concerns…

Mexico’s AMLO government still considers glyphosate to be harmful to human health and the environment, but it fears that Mexican farmers aren’t ready to make the shift just yet. Many farmers and so-called “scientific experts” in Mexico have warned that there is no alternative (TINA) to glyphosate and that its ban could imperil the country’s grain production. Mexico’s imports of GMO corn from the US, rather than falling, reached record levels last year, in part due to a severe drought across many key growing regions.

Industry influence and lobbying almost certainly played a part in the government’s climb down. Days before the government announced its policy reversal, two senators of AMLO’s governing party, MORENA, proposed suspending implementation of the decree on glyphosate due to the lack of alternatives or sustainable practices that will allow the country to maintain the country’s agricultural production.” The proposal was rejected by the senate and lambasted by consumer groups, including the campaign group Sin Maiz No Hay País.

But the AMLO government is not willing to abandon its ban on the use and importation of GMO corn for human use. Nor, apparently, is the incoming Claudia Sheinbaum government, whose proposed agriculture minister, Julio Berdegue, has pledged to honour AMLO’s 2023 decree.

This may be an important battle for Big Ag lobbies and biotech companies but it is an existential one for Mexico, for whom corn is the cornerstone not only of its cuisine and diet but also its culture. The multi-decades struggle to keep Mexico (largely) GMO-free is a grassroots one. The bans on field trials of GMO corn instituted by a few brave judges just over a decade ago would never have happened if it weren’t for the campaigning efforts and legal actions brought by scientists and NGOs like the “Sin Maíz No Hay País” (Without Maize There is No Country) campaign, the Alliance for Food Health and the Maiz Class Lawsuit.

These same organisations recently gathered over 110,000 signatures in less than two weeks for a letter urging the three trade dispute panellists to listen to the opinions of Mexican society, as well as sectors of American and Canadian society that support bio-cultural diversity and healthy eating.”

A Global Issue

The letter, which was also sent to representatives of the governments of Mexico and the United States, argues that no risk analyses or scientific studies have as yet been performed to evaluate the potential health impact of consuming genetically modified corn in volumes typical of a country like Mexico. Mexican citizens consume, on average, 11 times more corn than their US counterparts. In the absence of scientific certainty, the letter says, the precautionary principle should be applied and protective measures adopted for consumers and ecosystems.

The letter also makes the case that the decision taken by the three trade dispute panellists in the Fall could end up affecting not just Mexico or North America but the entire world:

Scientific research… has already detected genetic contamination of native Mexican varieties with genes from modified varieties imported from the United States. This contamination puts Mexico’s biocultural diversity at risk. To the extent that our country serves as an immense living and [regularly] updated seed bank for the rest of humanity, genetic contamination also puts at risk the planting of maize in many different latitudes around the world.

As the center of origin, domestication and constant diversification of maize, Mexico is in a position to offer the rest of the world maize that is adapted to extreme environmental conditions, such as those accentuated by climate change. In this context, the contamination of native varieties may affect not only consumers in Mexico, but worldwide.

The outcome of this trade dispute could have global ramifications in another way: if the panellists end up ruling in Mexico’s favour (admittedly a big “IF” given all the corporate dollars at stake), it could set a legal precedent. That, in turn, could encourage other countries to impose similar bans on the cultivation or importation of GMO crops. And that is the last thing the world’s agrochemical giants want.