Thursday, October 29, 2009
Posted by D. Daniel Sokol
Diana Moss (AAI) reports on Transgenic Seed Platforms: Competition Between a Rock and a Hard Place.
ABSTRACT: With the widespread adoption by farmers of corn, cotton, and soybean seed containing transgenic
technology, the U.S. seed industry has changed rapidly in the past twenty years. The largest changes include the creation of strongholds of patented technology and the gradual elimination of the numerous regional independent seed companies through consolidation. Resulting increases in concentration in affected markets has been driven largely by the industry’s dominant firm, Monsanto.
A threshold question to consider is whether Monsanto has exercised its market power to foreclose rivals from market access, harming competition and thereby slowing the pace of innovation and adversely affecting prices, quality, and choice for farmers and consumers of seed products. If the answer to this question is yes, remedying the intractable competitive situation that prevails in the transgenic seed industry may require antitrust enforcement, legislative relief, or both. The problem highlights both the importance of competition policy and the security and diversity of a key agricultural sector.
Any antitrust inquiry into the transgenic seed industry should carefully consider the three markets in which Monsanto possesses market power (innovation, genetic traits, and traited seed) and conduct that potentially stifles competition. Such conduct includes licensing restrictions on rivals’ use of Monsanto traits and control of the distribution channel to create adverse incentives for seed companies and farmers to distribute or plant anything but Monsanto products. At the core of this analysis is the tension between patent law and antitrust law. Moreover, antitrust enforcement will require thoughtful approaches to remedy, particularly the goals of promoting competition between transgenic seed platforms versus easing access to Monsanto’s dominant platform.