Monsanto 7-State Probe Threatens Profit From 93% Soybean Share and Monsanto faces fight as probes bolster critics

1.Monsanto 7-State Probe Threatens Profit From 93% Soybean Share
2.Monsanto faces fight as probes bolster critics

EXTRACTS: "In order to get the large rebate [MONSANTO] would give you, you had to minimize your sales of other companies' seeds," Stine said. "The rebates were so large that for all practical purposes you had to do it." (item 1)
"The portion of the price of soybeans that Monsanto is taking has gone up precipitously even as the amount of acres planted of those seeds has also increased," said Peter Carstensen, a former Justice Department antitrust lawyer who teaches law at the University of Wisconsin. (item 2)
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1.Monsanto 7-State Probe Threatens Profit From 93% Soybean Share
Alison Fitzgerald
Bloomberg, March 10 2010


March 10 - At least seven U.S. state attorneys general are investigating whether Monsanto Co., the world's largest seed producer, has abused its market power to lock out competitors and raise prices.

Iowa and Illinois, whose antitrust probes Monsanto disclosed previously, have joined with Ohio, Texas, Virginia and two other states in a working group coordinating the inquiries, according to investigators, farmers and seed dealers. They declined to identify the sixth and seventh states.

The state investigations add to pressure on Monsanto over allegations of abusive competitive tactics. The U.S. Justice Department is probing the company's marketing practices, and DuPont Co. has accused its rival in licensing litigation of anti-competitive actions. At stake are the costs to farmers who produce $80.3 billion a year in corn and soybeans, used in products ranging from Coca-Cola to cattle feed to ethanol.


"Monsanto has become such a dominant player in the seed business that producers have real concerns that the price they pay for seed is going to be anywhere near reasonable," said John Crabtree, a spokesman for the Center for Rural Affairs in Lyons, Nebraska, a nonprofit group that provides services to farm communities. "The fear is that the sky's the limit."

Monsanto rose to dominance via its genetically engineered Roundup Ready seed line, which was in 93 percent of the soybeans and 82 percent of the corn produced in the U.S. last year. The gene Monsanto adds to the seeds allows crops to withstand use of its Roundup weed killer.

Rebates, Incentives

The states are probing whether Monsanto violated any laws by offering rebates to distributors for excluding rival seeds, imposing limits on combining the product with other genetic enhancements, or offering cash incentives to switch farmers to a more-expensive generation of seeds, according to one person involved in the probe who asked not to be named because he isn't authorized to discuss it.

The five states known to be part of the inquiry accounted for almost 39%, or $31 billion, of U.S. corn and soybeans last year, based on U.S. Department of Agriculture data. A state- level investigation, on top of the federal one, "can lengthen the lawsuit and potential settlements, and it can increase uncertainty and costs for Monsanto," said Daniel Sokol, a law professor at the University of Florida in Gainesville who edits a blog on antitrust and competition policy.

Monsanto Vice President Jim Tobin will address the concerns at a hearing March 12 in Ankeny, Iowa, where the U.S. Justice and Agriculture departments are holding a workshop on seed- industry competition. It's the first of a series of sessions the agencies are sponsoring to examine whether consolidation in agriculture is harming competition.

'Unsubstantiated Allegations'

"There have been unsubstantiated allegations of a lack of competition in the seed market for several years now," said Kelli Powers, a spokeswoman for St. Louis-based Monsanto. "We're confident an objective review will reveal competition is alive and flourishing in the seed market." Monsanto has a "broad licensing approach" that is "in fact pro-competitive," she said.

"We produced millions of pages of documents" for the state working group, said Scott Partridge, a Monsanto attorney, in an interview. "For about a year now they haven't had any more questions." Seed producers and dealers say the state group has spoken to them as recently as December about their Monsanto licensing agreements.

The rebates investigators are exploring in the Monsanto case are similar to incentives that have figured in past antitrust inquiries that led to settlements, said Herb Hovenkamp a professor at the University of Iowa Law School in Iowa City and the author of "Antitrust Law," a 23-volume text.

FTC Sues Intel

The Federal Trade Commission sued Intel Corp. in December alleging it used "threats and rewards," including rebates, to coerce companies not to buy rivals' computer chips. In a separate civil dispute, Intel agreed in November, without admitting any liability or fault, to pay $1.25 billion to Advanced Micro Devices Inc. to settle allegations Intel gave discounts to customers that avoided AMD products.

Courts disagree on whether such financial incentives are anti-competitive, Hovenkamp said.


"These things have been so controversial and so heavily litigated that some firms have taken preventative steps and just gotten rid of them," Hovenkamp said.

Monsanto phased out its market-share discounts as of last year, said Powers, the spokeswoman.

Of Monsanto's $11.7 billion in revenue in the fiscal year ended Aug. 31, 2009, $7.3 billion came from sales and licensing of seeds and seed genes. Revenue grew by an annual average of 17% from 2004 to 2009, as earnings expanded eight-fold to $2.11 billion, driven by genetically engineered products and acquisitions of other seed companies.

Generic Roundup

Revenue then declined as generic rivals to Roundup flooded into the U.S. from China. In the fiscal first quarter ended Nov. 30, Monsanto had a loss of $19 million as sales declined 36% to $1.70 billion.

Monsanto lost 74 cents, or 1 percent, to close at $71.28 yesterday in New York Stock Exchange composite trading.

Showing that Monsanto engaged in anti-competitive behavior that harmed residents of their states could enable the attorneys general to demand civil monetary damages in addition to any penalties that the Justice Department may seek, Hovenkamp said.

In one soybean licensing agreement reviewed by Bloomberg, Monsanto offered the licensee financial incentives to favor Roundup Ready seeds and Roundup brand chemicals over those of competitors. The dealer's agreement with Monsanto is
confidential, and he asked that his name not be used.

'You Had To'

Under the agreement, the licensee would earn a rebate of 7.5 percent of the royalty it pays Monsanto if Roundup Ready accounts for 70 percent of the dealer's annual herbicide-resistant seed sales. The rebate is halved if the Roundup Ready share is between 50 percent and 75 percent, and isn't paid at all below 50 percent.

Similar terms were in Monsanto's licensing agreements with Stine Seed Co. until Monsanto phased them out in recent years, according to Harry Stine, president and founder of the largest closely held seed company in the U.S., based in Adel, Iowa.

"In order to get the large rebate they would give you, you had to minimize your sales of other companies' seeds," Stine said. "The rebates were so large that for all practical purposes you had to do it." At one time, the requirement for earning the full rebate was as high as 90 percent, he said. Stine has a collaborative agreement to develop seeds with Monsanto, he said.

Gene Restrictions

The agreement reviewed by Bloomberg prohibited the dealer from combining the Roundup Ready trait with herbicide-tolerant traits that the licensee or other companies developed. It specifically bars the dealer from using any non-Monsanto genetic modification that makes crops tolerant to glyphosate, the herbicide found in Roundup. Such terms could be anti-competitive because Monsanto controls such a large share of the corn and soybean markets with its Roundup Ready gene, Hovenkamp said.

Monsanto's Partridge said the company routinely negotiates agreements that allow seed companies to combine Roundup Ready with genetic modifications of its competitors.

"Monsanto has a demonstrated track record of both in- licensing and out-licensing trait technologies to support the development of stacked products," he said in an interview. "We've done this more than any other company in this industry."

Monsanto is also under scrutiny because the rising price of its seeds has been a sore point for farmers, said Peter Carstensen, a antitrust professor at the University of Wisconsin Law School in Madison.

Farmers' Costs Rise

"Buying seed used to be not terribly costly," said Charles Benbrook, chief scientist at the Organic Center in Boulder, Colorado, who in December completed a study of 35 years of seed pricing. "Now farmers are locked into these high seed costs on an annual basis."

The study showed that soybean farmers spent between 4 percent and 8 percent of their farm income on seeds from 1975 through 1997. Last year, farmers who planted genetically modified soybeans spent 16.4 percent of their income on seeds, it found.

Monsanto's licensing royalty on soybean seeds with the Roundup Ready trait climbed to $15.65 for each 140,000-seed bag last year from about $6.50 a decade ago, according to the owner of one seed company. A bag of Roundup Ready seed sells for about $35 and can plant three-quarters of an acre (0.3 hectare). He asked not to be named because the terms are confidential under his licensing agreement. Monsanto sells him seeds including the genetic trait, which he then reproduces and sells under his own brand, the person said.

'Triple Stack' Corn

Farmers who adopt Monsanto's Roundup Ready 2 Yield technology, being introduced this year as a replacement for Roundup Ready, will have to pay a royalty of as much as $39.75 a bag, according to documents reviewed by Bloomberg.

Cal Dalton, a farmer in Pardeeville, Wisconsin, said he switched to a competitor last year when Monsanto sought a $30 price increase, to $210 a bag, for its "triple stack" corn seed, a line that resists glyphosate, rootworm, and corn borers. Monsanto still earned a royalty on the purchase because the seeds he bought carried the Roundup Ready trait, he said.

The list price for Monsanto's "Yieldgard VT Triple" brand of triple-stack corn seed rose to about $277.50 a bag this year from $201.83 in 2008, based on seed prices per acre provided by Powers, the spokeswoman. She declined to discuss prices or royalties individual customers pay.

Roundup Ready 2

In the licensing agreement reviewed by Bloomberg, Monsanto agreed to rebate to the dealer as much as 4% of the dealer's royalty if he developed a plan to move his customers from Roundup Ready to Roundup Ready 2. Monsanto says Roundup Ready
2 soybean seeds boost crop yields by 4.7 bushels an acre compared with traditional Roundup Ready. Soybeans yielded on average 44 bushels an acre last year, according to the USDA.

Stine, who said he's been on conference calls with the state attorneys general group to discuss the Monsanto investigation, hasn't made up his mind whether Monsanto's dealings are anticompetitive.

"On the one hand," Monsanto is "hard to get along with and very restrictive," Stine said. "However, in general, their traits and products have been superior to other companies'."

--With assistance from Lorraine Woellert in Washington and Jack Kaskey in New York. Editors: Gary Putka, Robert L. Simison
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2.Monsanto faces fight as probes bolster critics Monsanto
Jeffrey Tomich
ST. LOUIS POST-DISPATCH, 11 March 2010


[additional side bar information is not reproduced here]

As the world's largest seed company, Monsanto Co. has been branded a bully before.

Usually, the company dismisses such criticism as ax-grinding by activists or others who are opposed to its genetically modified seeds.

These days, however, Monsanto has a bigger fight on its hands: a civil antitrust lawsuit by DuPont, the parent of archrival Pioneer Hi-Bred International Inc., and parallel antitrust investigations by the Justice Department as well as several states, including Iowa.

The government investigations are thought to focus on the same claims by DuPont  that Creve Coeur-based Monsanto has become a Microsoft-style monopoly, trying to muscle an even larger share of the multibillion-dollar biotech seed business.

"What we're concerned about is either barriers or roadblocks to bringing innovations to the marketplace," Pioneer President Paul E. Schickler said in an interview.

The claims by DuPont and others, which Monsanto strongly denies, will loom large Friday during a daylong gathering of top agriculture regulators and antitrust enforcers. And the stakes are high, not only for Monsanto and other seed companies vying for a bigger piece of the market, but also for farmers and consumers.

The workshop in Ankeny, Iowa, a Des Moines suburb, is the first of five being held nationwide this year. The meetings were organized by the U.S. departments of Justice and Agriculture as fact-finding missions to learn more about issues facing farmers and ranchers.

U.S. Attorney General Eric Holder and Agriculture Secretary Tom Vilsack headline a group of officials, academics and farmers who are scheduled to take part at Friday's event.

Issues span the farm, but Monsanto and its role atop the genetically modified seed business will be a central theme. In particular, discussion will revolve around the company's Roundup Ready herbicide tolerance trait in soybeans, which lets farmers spray for weeds without killing crops.

The Roundup Ready trait wasn't the first biotech trait launched in the United States, but it has been the most successful. Even though Monsanto sells less than a third of soybean seed planted nationwide, the company's Roundup Ready gene is in more than 90 percent of soybean acres. That's because Monsanto licenses the trait to other seed companies that pay a royalty.

DuPont, however, said Monsanto is using its licenses and related marketing practices as a lever to maintain and expand its lead in soybean and corn traits.

In formal comments submitted to the Justice Department, DuPont said Monsanto's licensing terms restrict seed producers from combining their own patented traits with the Roundup Ready genes. That keeps better seeds out of the hands of farmers, the company says.

"The ag biotech trait market is firmly in the grip of a single supplier, acting as a bottleneck to competition and choice," DuPont said.

What's more, the company said Monsanto is trying to coerce independent seed companies and farmers to switch to a new generation of herbicide-resistant soybeans before the patent on the original Roundup Ready soybeans expires in 2014.

Monsanto denies the claims and said it is fully cooperating with the Justice Department inquiry, including handing over millions of pages of documents.

In fact, Monsanto said that its long-standing practice of licensing genetic traits to competitors, including DuPont, has benefited farmers, not hurt them, and that competition in the seed business is robust.

"Be careful of the person shouting from the mountaintop on behalf of people they don't represent," Brett D. Begemann, Monsanto's senior vice president, said in an interview. "I hear the shouting about the bully we are to the seed companies, but I go to all of the licensing meetings, I go to (industry) events, and I'm sure not treated that way."

The company insists its spat with DuPont boils down to a contract dispute - one settled in January when a federal judge in St. Louis ruled that DuPont violated a licensing agreement by combining, or "stacking," its herbicide-resistance gene with Monsanto's Roundup Ready gene.

PRICING POWER

But DuPont isn't alone in its criticism of Monsanto. Other groups also have declared Monsanto a monopoly in biotech traits.

The American Antitrust Institute, an advocacy group that has long been critical of consolidation in the seed business, published a white paper in October that concluded as much. The paper, which Monsanto disputes, has been referred to by one Wall Street analyst as a potential "blueprint for a federal antitrust case" against the company.

One example of the impact of Monsanto's monopoly power is in the rising price of seed, according to the institute and others.

According to the USDA's National Agricultural Statistics Service, biotech soybean seeds have more than doubled in price from $23.90 to $49.60 a bushel from 2001 to 2009. And the price increase over that span reflects increasing royalties paid to Monsanto for use of its Roundup Ready trait, critics say.

Monsanto has increased what it charges for the Roundup Ready trait in soybeans from $6.50 per bag in 2000 to $17.50 per bag, according to a December report published by the Farmer to Farmer Campaign on Genetic Engineering.

"The portion of the price of soybeans that Monsanto is taking has gone up precipitously even as the amount of acres planted of those seeds has also increased," said Peter Carstensen, a former Justice Department antitrust lawyer who teaches law at the University of Wisconsin.

While farmers grumble about price when they're purchasing seed, they will only pay for seed or genetic traits if they get results, Monsanto CEO Hugh Grant said.

The same will hold true in a few years when the patent on Roundup Ready soybeans expires in 2014, opening the door for generic competition, he said.

"When you look at this business in the spring of 2015, if you have a bucket full of soil and a handful of seed, you're a generic manufacturer," Grant said.

Schickler sees it another way. He said Pioneer and other trait developers and seed companies remain blocked from being able to fairly compete for growers - a reason why government intervention is urgently needed.

"We've got to make sure there is an incentive to invest in the research so that you can bring those products to the marketplace as quickly and effectively as possible," he said. "Then customers have choice."
 

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