Government’s GM advisor calls for new contamination and liability laws
FoE has also done a briefing, pasted below.
Government’s GM advisor calls for new contamination and liability laws
Immediate Release: Tuesday 25 November 2003
New laws must be introduced if GM crops are ever allowed to be commercially grown in the UK, the Government's main GM policy advisor said today. This should include measures to prevent contamination from GM crops and rules to enable farmers to claim compensation if it occurs. Friends of the Earth has broadly welcomed the report, but insists that biotech companies must be strictly liable for any harm caused.
Today's report by the Agriculture and Environment Biotechnology Commission (AEBC) also calls for changes to the Environmental Protection Act so that the costs of cleaning up environmental damage caused by GM crops would be charged to biotech companies, even if the law has not been broken.
The main recommendations in the AEBC report include:
. Coexistence should be governed by legally binding protocols to meet contamination thresholds
. GM commercial crops should be subject to a probationary period of limited growing to test how effective the coexistence rules will be
. GM approvals could be suspended if coexistence rules break down and consumer choice is compromised
. Farmers suffering contamination above the statutory threshold (0.9 %) should automatically be compensated
. Compensation from industry for environmental remediation costs should be available to regulators irrespective of criminal liability
. Costs for remediation of diffuse impacts of GM (from an unidentifiable source) could be chargeable to biotech companies
Friends of the Earth's GM campaigner Pete Riley, said "The Government must not make the mistake of ignoring scientific evidence and over-whelming public opinion and give the go-ahead to the commercial growing of GM crops. But if it caves in to GM industry pressure it must ensure that tough legislation is in place to allow farmers and the public to grow and eat GM-free food".
"We are pleased that the Government's GM advisor has rejected industry calls for a voluntary approach to controlling GM crops and recognises that new laws would be needed to regulate coexistence and liability. If GM crops are ever commercially grown in the UK, the biotech industry must be forced to prevent GM contamination or environmental damage, and be financially liable if they fail. The AEBC's recommendations set out a framework to make this happen."
GM Contamination and Liability
Why new laws are needed to prevent GM contaminating the countryside and food chain, and to ensure biotech companies pay for the harm they may cause
Over the next 12 months the necessary approvals for the commercial growing of GM crops in the UK could be granted. The most likely crop to be first on the market is a GM fodder maize called T25 which would be used to produce silage to feed cattle. This was one of the crops used in the GM farm scale evaluations, which were reported on in October 2003. Growing GM crops on a wide scale would greatly increase the chances of GM traits crossing into other crops or spreading into any related wild plant populations. This has the potential to cause economic harm to neighbouring non-GM producers and environmental damage. The first generation of GM crops, including T25 maize, have been modified to tolerate certain herbicides: glufosinate ammonium and glyphosate.
These types of crops have additional environmental problems associated with them, as they can have a dramatic impact on biodiversity by greatly reducing the numbers of weed seeds and plants in arable fields.
This briefing examines the likely problems arising from attempts to allow GM crops to coexist in the same area as non-GM and organic crops. It also examines what regulations would be required to ensure that health and the environment are protected, and choice is maintained if the Government was to foolishly license any GM crops. It also outlines what measures would be needed to ensure that those profiting from GM crops would be liable for any harm they might cause.
Coexistence should mean the ability of non-GM farmers and producers to produce crops and food in which no GM content is detectable. Thecurrent limit of detection of 0.1%. The European Commission issued guidance on coexistence which is defined thus:
Coexistence refers to the ability of farmers to make a practical choice between conventional, organic and GM crop production, in compliance with the legal obligations for labelling and/or purity standards.
Of course, if farmers don't have this choice, then ultimately consumers too will be denied the choice to eat GM free food.
Why is coexistence important?
EU purity standards will allow up to 0.9% contamination of ingredients in final food and feed products and up to 0.7% in seed, depending on species. Organic regulations require that no GM materials should be present in food or feed labelled organic. This is also the operating threshold for many food retailers and manufacturers. Thus contamination of any kind above 0.1% with GM traits has the potential to cause serious disruption and expense in the food chain.
From an environmental perspective the presence of transgenes in crops or wild relatives would result in more complex weed control programmes as herbicide tolerant volunteers emerge in following crops.
Eventually, the acquisition of several GM traits over a number of years could transform crops and wild flowers into invasive weeds of farmland and natural habitats. The consequences for farming and the environment are difficult to predict but could be significant. It is therefore important to ensure that GM traits remain in the field where they are released and are controlled in following seasons.
In considering coexistence laws all types of gene escape have to be considered, such as wind borne cross pollination, insect borne crosspollination and the physical movement of seed by humans or animals, eg on shoes/clothing and tyres or by wind or water movements.
Coexistence rules would have to apply off-farm as well as on-farm and therefore everyone along the supply chain would have to take responsibility.
GM crops involve techniques that bring uncertain outcomes. Their release into the environment and food chain is very unpredictable.
The Government's GM Science Review highlighted many areas of scientific uncertainty and gaps in scientific knowledge. New data on the potential impact of GM crops and food are being published regularly.
The latest research from Defra in October 2003 on cross pollination of oilseed rape and maize presents new data on coexistence which could have economic consequences for conventional farmers, seed producers, organic farmers and beekeepers. In the long-term the establishment of GM traits in feral and wild plant species could produce new threats to the environment.
If harm results from any new technology then the liability should lie with the companies that introduced the technology.
UK liability law
UK law is based on case law and nuisance, and the victims of economic harm caused by GMOs would have to prove which of their neighbours was responsible to secure compensation. This would require small companies and individuals to risk having costs awarded against them if they could not establish proof of the source of the contamination.
EU liability law
Currently, under EU law, biotech companies would avoid liability for harm caused except in cases of serious malpractice. The draft EU Environmental Liability Directive could fail to deliver satisfactory liability for GMOs. It will only provide a 'general framework' which will ignore the unique nature of GM pollution and restrict liability for biodiversity damage to a small number of protected habitats and species. Crucially for GM, in order to protect technological innovation it may exempt companies from damage that could not be predicted according to 'best science' at the time of release, and if they have a license to release the GMO into the environment.
Economic damage is not covered by the Draft Directive. The present draft excludes most of the farmland of the EU where GMOs will actually be released because it only applies to designated land and species under the Habitats Directive and the Birds Directive.
International liability law
International law offers no immediate solution for the liability 'gap' in EU law. Although the Cartagena Protocol on Biosafety includes an international liability and redress regime for trans-boundary movements of GMOs it is still a long way from implementation. The first meeting to begin discussing liability will not take place until February 2004.
Liability legislation required
Before any more releases of GM crops and food occur it is essential that there is clear legislation making the biotech companies liable for any harm that their products may cause. Such legislation would:
. Provide incentives for companies to minimise the risks attached to the product from the outset
. Ensure that the costs attached to risks are borne internally by the industry and not externally by society
. Require companies to have sufficient insurance cover to deal with all possible risks
. Provide compensation for victims and for the environment for damage caused, even when such damage is discovered long after it was caused
. Require companies to pay into a compensation fund to cover harm where blame can not be apportioned to individual companies
. Allow parties along the supply chain to be able to pass liability claims directly to the company which introduced the food or crop onto the market
GM contamination and liability laws
The European Commission has recognised that there is a need to legislate to allow GM and non-GM crops to coexist in the EU. The GMO Deliberate Release Directive 2001/18/EC has been amended to allow member states to legislate to prevent crops and food being contaminated by GMOs .
Given the weaknesses of the draft EU Directive on Environmental Liability and the current UK case law on economic liability it is essential that the UK introduces tough legislation to minimise the risk of harm arising from a GMO being released and to ensure that the polluter pays for any harm by making the GMO consent holders strictly liable for any harm that their products cause.
The key clauses required in a UK GM Contamination and Liability Bill would be
. The appointment of an independent GM regulator.
. Separation distances between GM crops and non-GM crops, and GM crops and beehives that would ensure that no GM presence could be detected in non-GM products at a detection limit of 0.1%.
. Separation times between GM crops and following non-GM crops of the same species to ensure that no GM presence could be detected in non-GM products at a detection limit of 0.1%.
. All GM planting should be notified 12 weeks in advance.
. Legally binding requirements to control GM volunteer and feral crops.
. Legally binding duty on the GM regulator to monitor for GM traits in wild
relatives and to control them.
. Levy on GM seed sales to cover costs of monitoring and enforcement.
. Strict hygiene rules applying to seed growing, crop growing, storage, transportation and processing for farmers, farm contractors, seed and crop merchants, transport contractors and food manufacturers.
. Traceability system for GM crops based on analysis and verifiable paper trail from field to final product.
. Strict liability on economic and environmental harm on the holders of marketing consents for GM crops.
. Injured parties able to claim directly from the marketing consent holder.
. Additional levy on seeds to create a fund for remediation measures should it prove impossible to apportion blame for harm to any one marketing consent holder.
Such legislation must be introduced and passed before any commercial planting of GM crops is considered.
i. FSE results (http://www.defra.gov.uk/environment/gm/fse/index.htm)
ii. COMMISSION RECOMMENDATION of 23 July 2003 on guidelines for the
development of national strategies and best practices to ensure the coexistence of genetically modified crops with conventional and organic farming (notified under document number C(2003) 2624)(2003/556/EC)
vi. New Article 26 (a) of 2001/18/EC states that "member states may take measures to avoid the unintended presence of GMOs in other products".