By: Catrina Crittenden
In March 2023, the U.S. Department of Agriculture announced the formulation of a working group to address longstanding concerns over the seed industry’s anti-competitive behavior. This inquiry into the U.S. seed industry and its possible antitrust violations are long overdue considering the ongoing food crisis. Experts project food insecurity, or lacking access to a consistent and nutritious diet, will affect 345.2 million people this year. Food is the most basic of all human needs and farmers produce food with seeds. The U.S. government must regulate the seed system that caused a food crisis. The war in Ukraine shows us why.
Since the 1930s, U.S. intellectual property law allows agricultural firms to patent plant genetics (seeds), a concept that runs afoul to the historical practice of seed varieties being publicly funded and freely distributed. Companies with seed patents prevent farmers from seed saving, or replanting seeds from prior crop yields. In the U.S., which relies on soybean production, Monsanto accounts for 90 percent of all U.S. soybean seeds sales because of patents they own over genetically engineered soybeans. The U.S. seed monopoly model created a global system in which “[o]nly four companies – Bayer-Monsanto, DowDuPont/Corteva, ChemChina-Syngenta, and BASF – dominate 60% of the global seed market.”
Currently, agribusinesses that dominate international trade leave food in short supply when war impacts the supply chain. For example, Ukraine’s food supply is particularly vulnerable to conflict. Ukraine relies on monoculture (the production of a single homogenous crop), and a select few giant agricultural firms (including Monsanto) are increasingly supplying seeds for industrial use. Although, Ukraine is “responsible for a third of the world’s wheat production,” after Russia destroyed farms and seed banks across the country, Russia also prevented Ukraine from producing and distributing Ukraine’s agricultural commodities to countries that rely on its grain. Monsanto saw the war in Ukraine as an opportunity to enter the country, establish seed banks, and force smaller farmers who produce food to feed Ukrainians out of business.
Monsanto is so large and predatory in the U.S. market, that the U.S. must enforce domestic law to limit their ability to gain control over agricultural markets and ultimately upend global food supply in times of crisis. The Sherman Antitrust Act of 1890 (“Sherman Act”) intended to give the U.S. government the authority to prevent companies from becoming so large they create an anti-competitive market. While merely existing as a monopoly is not regulated by the Sherman Act, Article Two of the Sherman Act expressly prohibits “unilateral anticompetitive conduct by dominant firms.” Article 2 of the Sherman Act requires a firm to have 1) monopoly power (“a large degree of market power”) and 2) engaged in exclusionary conduct. While courts hesitate to name a specific percentage that constitutes monopoly power, a market share of ninety percent is enough to establish prima facie market power. Monsanto both controls 90 percent of the soybean seed market and engages in exclusionary conduct.
Monsanto is notorious for using their market power to keep prices high, designing products in ways that make it difficult for rivals to produce substitutes, and blacklisting farmers from using Monsanto’s products if the farmers criticize the company. In the midst of the 2008 recession, Monsanto continued its practice of raising prices, outraging farmers struggling to survive by drastically raising its corn and soybean prices. To prevent competitive products from emerging, Monsanto threatened to sue smaller seed manufacturers and then forced hundreds of companies to sign licensing agreements to avoid being bought out. Evidence suggests that Monsanto uses its patent rights to force small farmers into litigation they cannot afford, including suing small farmers for the natural migration of seeds onto neighboring farmlands. Documents produced in a 2019 French lawsuit produced evidence that Monsanto maintains a list of names, addresses, and even recreational interests of farmers who espoused concern over possible cancer-causing ingredients in its highest selling product, Roundup. Blacklisted farmers are often forced into bankruptcy after extensive litigation. These practices are not only predatory, but surpass the government’s standard of exclusionary conduct. Furthermore, a Hauge tribunal of judges found this behavior actively causes food insecurity, is destroying the environment, and violates international human rights law.
In the last hundred years, government regulators focused on steel, oil, and big tech; yet agribusiness’s consolidation should be of concern to U.S. lawmakers given the food crisis, the war in Ukraine, and how exclusionary agribusiness monopolies are. Given Monsanto’s overwhelming control over the U.S. soybean market, their extensive history of engaging in exclusionary conduct, and the public outrage over the company’s behavior, as the U.S. government turns to breaking up agricultural monopolies – Monsanto will be the first company to fall.
 See Leah Douglas, U.S. farm agency announces working group on seed industry consolidation, Reuters, (Mar. 6, 2023 5:24 PM), https://www.reuters.com/markets/commodities/us-farm-agency-announces-working-group-seed-industry-consolidation-2023-03-06/.
 Julia Horowitz, Russia’s war in Ukraine sparked a historic food crisis. It’s not over, CNN, https://www.cnn.com/2023/01/15/business/global-food-crisis-davos/index.html (last updated Jan. 17, 2023, 1:06 PM) (explaining that we are amid the “the worst food crisis in modern history”).
 What is hunger?, Action Against Hunger, https://www.actionagainsthunger.org/the-hunger-crisis/world-hunger-facts/what-is-hunger/ (last accessed April 1, 2023).
 Id. (explaining that the crisis is worsening, including “a staggering rise of 200 million people compared to pre-COVID-19 pandemic levels.”).
 Daryl Lim, Self-Replicating Technologies and the Challenge for the Patent and Antitrust Laws, 32 Cardozo Arts & Ent. L.J. 131, 140 (2013), https://repository.law.uic.edu/cgi/viewcontent.cgi?article=1449&context=facpubs.
 Melissa Waddell, Magic — and the Monopoly — of Seeds, Non GMO Project, (Apr. 1, 2023), https://www.nongmoproject.org/blog/the-magic-and-the-monopoly-of-seeds/ (“90% of U.S. cropland is dedicated to just 3 commodity GMO crops (corn, cotton and soy”).
 Daniel Kim, Seeds of Greed: America’s Growing Agricultural Monopolies (Apr. 25, 2022), Columbia Political R., http://www.cpreview.org/blog/2022/4/seeds-of-greed-americas-growing-agricultural-monopolies.
 Michael Fakhri and Sofia Monsalve, Ukraine helps feed the world – but its farmers, seeds and future are in danger (Jun. 13, 2022 2:05 AM), Guardian, https://www.theguardian.com/environment/2022/jun/13/ukraine-farmers-seed-food-crisis.
 See Bradley Kaye, Is the War in Ukraine Driven by International Agriculture Monopolies?, CounterPunch, (Sep. 7, 2022), https://www.counterpunch.org/2022/09/07/is-the-war-in-ukraine-driven-by-international-agriculture-monopolies/.
 See Zoltan Ban, Monsanto Stands To Gain From Ukraine Crisis, Seeking Alpha, (Feb. 26, 2015 2:18 AM), https://seekingalpha.com/article/2951936-monsanto-stands-to-gain-from-ukraine-crisis; Monsanto and BlackRock are buying up Ukraine, Free West Media, (Aug. 6, 2022, 11:58 AM), https://freewestmedia.com/2022/08/06/monsanto-and-blackrock-are-buying-up-ukraine/;
Zakharchuk, et. al., Ukraine’s Market of Certified Seed: Current State and Prospects for the Future, 13 Agriculture 1, 11 (2022), https://www.mdpi.com/2077-0472/13/1/61 (describing that Monsanto’s “share in the total certified seed amounted to 21.5%” in 2020).
 Horowitz, supra note 2; see Kaye, supra note 12.
 See Fakhri, supra note 9.
 Id.; Joanne Knox, Why is Ukraine known as the ‘breadbasket of Europe’? Here’s what it produces and exports, Farming Life, (Feb. 24, 2022 1:08 PM), https://www.farminglife.com/country-and-farming/why-is-ukraine-known-as-the-breadbasket-of-europe-heres-what-it-produces-and-exports-3584361.
 See Ban, supra note 11.
 Brock Smith, Time to Break Up Agribusiness Monopolies?, Northern AG Network, (Apr. 26, 2019), https://northernag.net/time-to-break-up-agribusiness-monopolies/.
 Chapter 2 Monopoly Power, Dept. of Justice Archives, https://www.justice.gov/archives/atr/competition-and-monopoly-single-firm-conduct-under-section-2-sherman-act-chapter-2 (last accessed Apr. 1, 2023).
 See United States v. Aluminum Co. of America, 148 F.2d 416, 425 (2nd Cir. 1945); United States v. Dentsply Int’l, 399 F.3d 181, 187 (3rd Cir. 2005).
 See Kim, supra note 8; GianCarlo Moschini, Competition Issues in the Seed Industry and the Role of Intellectual Property, Choices Magazine, https://www.choicesmagazine.org/magazine/article.php?article=120 (last visited Apr. 7, 2023).
 See Moschini, supra note 20.
 See Mike Callicrate, Monsanto Corn Seed Price Hikes a Threat to Agriculture, Org. for Competitive Markets, (Jul. 24, 2008), https://competitivemarkets.com/monsanto-corn-seed-price-hikes-a-threat-to-agriculture/; William Neuman, Rapid Rise in Seed Prices Draws U.S. Scrutiny, NY Times, (Mar. 11, 2010) (explaining that seed prices had already rose 135 percent since 2001).
 See Chris Wager, A Closer Look at the Bayer-Monsanto Merger and the Seed Licensing ‘Cartel’, Food and Power, (May 25, 2016), https://www.foodandpower.net/latest/2016/05/26/food-power-newsletter-bayer-monsanto-merger-seed-licensing-cartel.
 Geoffrey Manne, The Seeds of an Antitrust Disaster, (Dec. 14, 2009), https://truthonthemarket.com/2009/12/14/the-seeds-of-an-antitrust-disaster/; Seed Giants vs. U.S. Farmers, Center for Food Safety, (2013), https://www.centerforfoodsafety.org/files/seed-giants_final_04424.pdf (last accessed Apr. 7, 2023).
 Bayer apologises for glyphosate blacklist, RFI, (May 15, 2019 4:00 PM), https://www.rfi.fr/en/france/20190513-bayer-apologises-glyphosate-blacklist.
 See generally, Monsanto v. U.S. Farmers, Center for Food Safety (2005), https://www.centerforfoodsafety.org/files/cfsmonsantovsfarmerreport11305.pdf (describing the numerous ways Monsanto punishes farmers who protest or disagree with Monsanto’s behavior or practices).
 See Monsanto isn’t feeding the world, it’s damaging food security – Monsanto Tribunal judges, GMWatch, (Apr. 21, 2017), https://gmwatch.org/en/106-news/latest-news/17566-monsanto-isn-t-feeding-the-world-it-s-damaging-food-security-monsanto-tribunal-judges.
 See Paul Sabin, Antitrust and Monopoly, Yale University, https://energyhistory.yale.edu/units/antitrust-and-monopoly (last visited April 7, 2023); Diego Lasarte, The ongoing big tech antitrust cases to watch in 2023, Quartz, (Jan. 24, 2023), https://qz.com/antitrust-cases-big-tech-2023-guide-1849995493.
 See Kim, supra note 8.