SENATE BILL 51

50th legislature - STATE OF NEW MEXICO - first session, 2011

INTRODUCED BY

Stephen H. Fischmann

AN ACT

RELATING TO AGRICULTURE; PROVIDING PROTECTION FOR FARMERS FROM LIABILITY OVER POSSESSION OF GENETICALLY ENGINEERED PRODUCTS; PROVIDING FOR COURT JURISDICTION FOR INFRINGEMENT CASES; IMPOSING LIABILITY ON MANUFACTURERS FOR PRIVATE NUISANCE.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

     SECTION 1. GENETICALLY ENGINEERED PRODUCT--PROTECTION FROM LIABILITY--COURT JURISDICTION.--

          A. As used in this section:

                (1) "farmer" means a person who plants a crop, manages a crop or harvests a crop;

                (2) "genetically engineered product" means a product created through means in which the genetic material has been changed through modern biotechnology in a way that does not occur naturally by multiplication or natural recombination;

                (3) "manufacturer" means a person that develops, manufactures or sells a patented genetically engineered product;

                (4) "modern biotechnology" means the application of in vitro nucleic acid techniques, fusion of cells, including protoplast fusion, or hybridization techniques that overcome natural physiological, reproductive or recombination barriers and that are not techniques used in traditional breeding and selection, including the following:

                     (a) recombinant DNA;

                     (b) direct injection of nucleic acid into cells or organelles; and

                     (c) recombinant DNA techniques that use vector systems and techniques involving the direct introduction into the organism of hereditary materials prepared outside the organism, such as microinjection, macroinjection, chemoporation, electroporation, micro encapsulation and liposome fusion; and

                (5) "technology use agreement" means an agreement between a manufacturer and a farmer that controls the right to plant a given genetically engineered seed, plant part or plant on a specific area of land for a certain period of time.

          B. If a genetically engineered product in which a manufacturer has rights is possessed by a farmer or found on the property owned or occupied by the farmer and possession of the product is not intended by the farmer, the farmer is not liable for the possession of the product for the duration of that possession for any damages claimed by the manufacturer.

          C. Consistent with 28 U.S.C. Section 1400(b), an infringement case brought against a farmer who does not have a current technology use agreement with a manufacturer shall be brought in the federal judicial district court where the farmer resides or in the federal judicial district court where the defendant is alleged to have committed acts of infringement and has a regular and established place of business.

          D. The release by a manufacturer, directly or through its licensees or agents, of a genetically engineered product shall constitute a private nuisance for which the manufacturer shall be liable if the following conditions are met:

                (1) the release causes the presence of the plant within the property owned or occupied by a person for whom the plant presence was not intended and with whom the manufacturer has not entered into a seed contract or a license, and thereby constitutes an unreasonable interference with the use and enjoyment of that person's property; and

                (2) the release results in damages in any calendar year that exceed five hundred dollars ($500), thereby constituting substantial interference with the use and enjoyment of the person's property.

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