Gene-Altered Profit-Killer

"These are companies with huge brand equity," Wailes said, and are unwilling to risk their reputations.

In fact, many experts suspect that pressure from the food industry was a major reason why Bayer mysteriously dropped LL601 five years ago without seeking USDA approval for it. The company has refused to answer questions about its biotech rice program, which produced two other varieties. The Agriculture Department deemed those two safe for sale, but Bayer opted not to market them.

In recent weeks, tests by researchers in Texas, Arkansas and Louisiana have begun to unveil how LL601 persisted even after Bayer quit. The rice had been grown in several test locations, including Louisiana State University's rice research station near Crowley from 1999 to 2001.

Analyses in the past two weeks of samples of other rice varieties that were grown over the years at the same research station found that at least one -- a long-grain rice known as Cheniere -- was contaminated with LL601 at least as far back as 2003.

Records indicate that the affected plot of Cheniere rice, which was used to grow "foundation stock" from which much larger amounts were produced over the next few years, was located at least 160 feet from the LL601 plot, farther apart than what USDA required, said LSU spokeswoman Frankie Gould.

Exactly how and when the crossover of the genetically altered rice occurred remains uncertain. It could be, experts said, that some grains of LL601 got mixed inadvertently with grains of Cheniere, so that future plantings of Cheniere were really plantings of both. That could have gone unnoticed for years until someone tested for the errant gene -- which is how Riceland Foods Inc. of Stuttgart, Ark., happened upon the problem this year.

Or it may be that LL601 plants fertilized some Cheniere plants, creating a gene-enhanced Cheniere. Rice pollen does not usually go far afield, but it can.

Tests on more than a dozen other LSU varieties have come up negative for the LL601 gene, as have tests from Texas and Arkansas plots; results from Mississippi are pending. But because many varieties of rice are mixed in huge bins after harvest, it could be difficult to rid the U.S. rice crop of the illegal variety.

"The damage has been done and it is still being done," said Adam J. Levitt, a partner in the Chicago office of Wolf Haldenstein Adler Freeman & Herz LLC, who led a class action lawsuit that won $110 million for farmers after gene-altered and unapproved StarLink corn appeared in food in 2000. "They've really in a very substantial way poisoned the well."

How Bayer will deal with the international ramifications of LL601's escape is uncertain. But its domestic strategy became clear on Aug. 18, the day Agriculture Secretary Mike Johanns announced the problem. That day Bayer filed a petition seeking USDA approval -- or "deregulation" -- of LL601.

If the petition is successful, the variety's presence would no longer violate U.S. regulations -- but the strategy has raised some hackles.

"Post hoc approval strikes us as really cynical," said Bill Freese, science policy analyst for the District-based Center for Food Safety. "Bayer has no intention of bringing this rice to market. Clearly this is an effort to avoid liability."

Last week Freese's group filed a petition asking USDA to reject Bayer's request and to rescind its earlier approval of the company's other two engineered rice varieties.

The petition argues that the herbicide resistance trait is sure to make its way into red rice, a weedy wild relative of white rice that is already rice growers' biggest pest. Any advance likely to make red rice herbicide-resistant, the petition claims, would force farmers to turn to more potent weedkillers and violate the Plant Protection Act.

Even if Bayer succeeds in deregulating LL601, farmers will still face international rejection -- a potentially major hit, since most rice profits are from overseas sales.

On Friday the European Commission said the rice "is not likely to pose an imminent safety concern." But it also made plain that the rice is illegal and offered no hints it would soften its stance.

Of even greater concern is whether Central American nations -- the biggest foreign buyers of U.S. rice -- and Mexico, the second biggest, will adhere to their strict rules on engineered foods. Talks were underway late last week, Yielding said.

The December inspector general report scolded USDA's Animal and Plant Health Inspection Service for failing to conduct required inspections of test plots and in some cases not even knowing where experiments it had approved were being conducted.

APHIS spokeswoman Rachel Iadicicco said the shortcomings cited in that report have been remedied.