Memorandum submitted by Soil Association
GM GOVERNMENT DECISION
EXECUTIVE SUMMARY
— Co-existence measures must be based
on a 0.1% limit of detection threshold. Our legal advice is that
the EU labelling legislation allows no threshold for avoidable
contamination in non-GM food/feed, and the prohibition on GMOs
in organic production includes GM contamination. Additionally,
all the supermarkets are using a 0.1% threshold for their own
brands (2-13).
— Controls must be particularly strict
for seed production (15-17).
— GM crop management protocols must
be statutory and include: consideration of regional GM-free policies;
notification of non-GM producers; no GM production if organic
crops are at risk; a map-based public register; separation distances;
management of rotations; control of volunteers; control of machinery,
storage areas and transport containers; testing of non-GM crops;
and record-keeping (18).
— Based on scientific information on
pollen dispersal, separation distances for maize should be 3km,
or 75m less if pollen barriers are used (19-21).
— For oilseed rape, the distances would
need to be at least 6km but because of the additional problems
of volunteers and feral populations, no farm co-existence protocols
would be adequate. GM-free zones must be used (22-24).
— New legislation for a liability regime
for GM crops must be introduced which makes the biotechnology
companies strictly liable for all damages (25-31).
— Economic damages must be actual economic
costs and losses, not just those in relation to official thresholds
or from breaches of co-existence measures (29).
INTRODUCTION
1. We strongly welcomed Margaret Beckett's
announcement on 9 March, that statutory protocols for co-existence
between GM and non-GM crops will be introduced. The Soil Association
is the main certifier and promoter of organic food and farming
in the UK. Organic farming accounts for 4% of UK farmland and
UK organic food sales are worth over £1 billion. We are completely
opposed to GM crops for health, environmental, and ethical reasons
and because of the threat of contamination of non-GM food.
BASIS OF
CO -EXISTENCE
MEASURES—0.9%
OR 0.1% THRESHOLD
2. EFRA should first clearly establish the
legal basis and the objectives of co-existence measures. A casual
and incorrect interpretation of the GM labelling rules has been
widely used in the discussions on co-existence.
3. In its July 2003 guidelines on co-existence,
the European Commission said national co-existence measures must
be introduced to enable non-GM crop production within the EC labelling
thresholds. The AEBC report on co-existence and liability on 25
November said statutory GM crop management protocols must achieve
at least a 0.9% maximum contamination level. However, we believe
that the measures must be designed to achieve a maximum 0.1% level.
4. We have taken legal advice on the EU
legislation on both GM labelling and the prohibition on GMOs in
organic production. We would be pleased to discuss this further
with the committee in an oral evidence session.
5. There is a common presumption that routine
contamination of up to 0.9% is allowed, and therefore co-existence
measures must be designed to only ensure that contamination does
not rise above 0.9% in non-GM crops. This is incorrect. First,
the 0.9% limit applies at the retail stage (though at the farmgate
for feed), meaning that contamination levels have to be lower
at the farmgate as additional contamination can accrue during
transport, storage and processing. Lower farmgate thresholds are
required in the Danish co-existence regime for this reason.
6. Secondly, there is a zero threshold for
known and avoidable GM contamination. Under the EU labelling rules
(EC Regulation 1829/2003), all GM food, feed, derivatives, and
products containing GMOs that are sold to the "final consumer
or mass caterers" must be labelled, however little the
GM content. There is a 0.9% threshold for GM contamination
but this is only for "adventitious and technically unavoidable
presence" (Articles 12.2 and 24.2). "Operators must
be in a position to supply evidence to satisfy the competent authorities
that they have taken appropriate steps to avoid the presence of
such material" (Article 12.3 and 24.3). "Operators should
avoid the unintended presence of GMOs" (recital 28).
7. "There is no tolerance threshold
for GM presence that is avoidable, or is unavoidable but above
0.9%"; also "this threshold will only apply to ingredients
obtained from non-GM sources. There will be no threshold for supplies
obtained from sources of unknown origin" (FSA draft guidance
notes, circulated 30.3.2004).
8. It is worth noting that this is the same
official interpretation that has been used for the 1% labelling
threshold for GM maize and GM soya, which has applied since 10
April 2000 under EC regulation 49/2000.
9. Therefore, co-existence measures must
be designed to achieve zero contamination of non-GM crops, as
anything less rigorous would be avoidable and result in the need
to label the food/feed. In practical terms, this means that GM
contamination must be kept below the reliable, repeatable limit
of detection, currently 0.1%.
10. The use of a limit of detection value
is also needed to protect the organic sector. EC Regulation 2092/91
on the standards for organic production prohibits the use of GMOs.
In its July 2003 guidelines on co-existence, the European Commission
stated that this only refers to GM labelled inputs and not GM
contamination, and that without a separate lower threshold for
organic products, the 0.9% threshold applies. However, our legal
advice is that this is incorrect. There is no mention of any restriction
of the scope of the prohibition to GM labelled inputs, only a
general prohibition on using GMOs which would apply to all GMOs
whether labelled or not, whether present intentionally or as contamination.
11. There is also a clear market requirement
for the co-existence measures to ensure that contamination of
non-GM crops is below 0.1%. All the UK supermarkets and major
food companies have non-GM policies (including Tesco, Sainsbury's,
Safeway, Waitrose, ASDA, Iceland, Marks and Spencer, Co-op, Somerfield,
and Morrisons). All the supermarkets are using a 0.1% contamination
threshold (although ASDA's policy needs confirmation) for the
supplies for their own brand produce. They say this is to meet
their consumers' demands and to have leeway to ensure that they
do not breach the 0.9% labelling limit, since they cannot test
every batch. The ability of UK farmers to supply the domestic
UK market must not be jeopardised.
12. It has been argued by the GM industry
and Government that the use of a limit of detection threshold
would amount to a ban on GM crops (and the EC guidelines say that
the co-existence measures must not prevent GM crops from being
grown). However, GM crops could still be grown in regions where
non-GM varieties are not grown; they could be grown in contained
conditions, species which cannot cross with food crops could be
grown for industrial or medical purposes, and it is possible that
some GM food crops could be grown more widely if it is clear that
there is no risk of cross-pollination with non-GM crops because
of the characteristics of the plant. Moreover, there is actually
no legal prohibition on the contamination of non-GM crops, only
that they would have to be labelled as GM.
13. It has also been suggested that the
measures should be limited to "pragmatic" (presumably
light) measures. However, the EC legislation only refers to "appropriate"
measures. Our legal advice is that if producers/retailers wish
to avail themselves of the provision to avoid a GM label, all
possible measures must have been taken to avoid contamination.
PHYSICAL SEPARATION
MEASURES REQUIRED
14. It is important to note that separation
measures will be required throughout the food chain, not just
at the farming stage.
(i) Protocols for seed production
15. The most important stage for which separation
measures are required is at the seed production stage as this
is the start of the food chain. Contamination is also best controlled
at this stage, since the area and amounts increase enormously
once a seed is grown for a crop. The increase during crop production
of maize is 110-130 fold, while for oilseed rape it is 121-132
fold (source: FAO). The seed industry is also used to implementing
purity standards and can pass on the costs to their buyers of
GM seeds.
16. We wish to stress that the market cannot
be relied on to supply sufficient guaranteed GM-free seed—this
has not happened in North America. A 2002 study of 54 non-GM seed
samples in Manitoba found that 97% of certified oilseed rape seed
stocks were GM contaminated, up from 59% three years ago.
17. GM-free zones and testing protocols
would be needed for certified non-GM seed production, and must
apply EU-wide since much seed is sourced from abroad. Protocols
for GM seed production will need to include the list below.
(ii) Protocols for GM crop production
18. The European Commission July 2003 guidelines
said that farmers who want to grow GM crops must notify their
neighbours before the seeds are ordered, and must bear the burden
of farm co-existence measures. We agree. In addition, crop co-existence
protocols must be statutory and cover:
i. Consideration of local/regional GM-free
policies—farmers contemplating growing GM crops should
be required to consider whether to respect GM-free policies of
local/regional authorities or voluntary non-GM farmer agreements.
ii. Pre-notification & negotiation
with non-GM neighbours—all organic and other non-GM
farmers and beekeepers within a six mile notification zone should
be informed of the wish to plant GM crops before seeds are ordered.
This should be followed by a detailed assessment of the contamination
risks using criteria (such as type of crop, scientific data on
pollen transfer, time of flowering and prevailing wind direction),
followed by negotiation with the non-GM producers if there is
a risk of contamination. There should be a general presumption
in favour of the non-GM producer. Where co-existence measures
cannot ensure that contamination will not rise above 0.1% of an
organic crop, GM production should not proceed.
iii. Map-based register—if
GM crop cultivation is to proceed, registration on a national
publicly accessible map-based land register must be required.
The new deliberate release directive requires a land register,
but we are very concerned that the Government has been swayed
by the arguments of the biotechnology companies that this need
not be comprehensive or easily available to the public.
iv. Separation distances—see
below
v. Management of crop rotations—including
separation times between GM and "non-GM" crops and to
alternate with non-GM crops in the vicinity
vi. Control of volunteers and bolters
vii. Machinery—drilling and
harvesting machinery used on GM crops must be throughly cleaned
before use on non-GM crops. Where machinery is shared or hired,
only separately dedicated machinery can be used for GM crops.
viii. Seed and crop storage—GM
crops must be stored in dedicated storage areas.
ix. Transport—GM and non-GM
crops would have to be transported separately, with GM crops in
completely enclosed containers which would have to be cleaned
thoroughly afterwards. There should preferably be separate dedicated
containers for GM crops.
x. Testing of non-GM crops—this
would have to be carried out within and around the separation
distances to test if the protocols are working.
xi. Record-keeping—records
of all GM crops must be kept for 10 years. All containers of GM
crops must be accompanied by records of the specific GM event.
Copies must be kept by all companies handling the consignment.
xii. Reimbursement of costs to non-GM
producers—all costs of the risk assessment and any testing
must be reimbursed by the GM farmer or biotechnology companies.
(a) Maize
19. Our advice follows the recommendations
of the National Pollen Research Unit which reviewed the scientific
literature on pollen transfer ("Pollen dispersal in the crops
maize, oilseed rape, sugar beet and wheat", by Dr Treu and
Professor Emberlin, 2000). The scientific evidence shows that
the Government's current separation distances for maize—50m
for conventional crops, and 200m for organic and seed crops—are
completely inadequate for commercial conditions.
20. The main concern is cross-pollination
with non-GM maize and sweetcorn, and the inclusion of pollen in
honey. One study found that the cross pollination level was 1.6%
at 200m, 0.7% at 300m, and 0.2% at 500m (Jones and Brooks, 1950).
Another study found that it was 0.8% at 600m and 0.2% at 800m
(Salmov, 1940. This was conservative as the receiving plants were
opposite to the prevailing wind).
21. So, just to avoid breaching a 0.9% level,
the separation distance would need to be over 600m. To reduce
contamination to "negligible" levels, the NPRI recommend
3km. In addition, border rows of non-GM maize have been found
to be better than a 75m separation distance through the dilution
effect of the non-GM pollen, and so could be used to reduce the
3km distance by 75m.
(b) Oilseed rape
22. GM oilseed rape would provide an extremely
high risk of contamination of non-GM crops. The Government's current
recommended separation distances of only 100m for varietal associations
and partially restored hybrids, 50m for other conventional crops,
and 200m for organic crops, are completely inadequate. We do not
believe that crop management protocols can keep contamination
within 0.1% (or even reliably within 0.9%). The only practical
option would be GM-free zones in all areas where non-GM oilseed
rape production is important.
23. Oilseed rape is grown for oil. It is
also the most important forage crop for beekeepers. Small-scale
studies have given misleadingly low levels of cross-pollination.
Agricultural scale studies have found a 0.8% cross-pollination
rate at 2.5km (Timmons et al, 1995) and a 5% rate at 4km (Thompson
et al, 1999). The NPRI have recommended a separation distance
of 6km. However, rape is also highly interfertile with cabbage,
cauliflower, broccoli and Brussels-sprout.
24. Seed mediated geneflow is an additional
high risk with oilseed rape. GM volunteers would be a major problem.
In Canada, GM herbicide tolerant (HT) volunteers are now common
in fields that have never grown GM crops. A Defra study found
that even with the most rigorous control measures it would take
five years for GM volunteers to fall below 1% following a GM HT
rape crop.[46]
We cannot propose any measures adequate to control this problem.
In addition, feral populations are common and provide another
source of contamination. All in all, the only practical option
would be GM rape-free zones.
Liability provisions
25. The European Commission has said that
national liability laws should be reassessed to see if they are
adequate. Having considered this issue in depth, we are certain
that a new specific liability regime must be introduced for GM
crops.
26. If GM crops are widely grown, the need
for legal recourse could be very great, as all experts including
the Government's Science Review panel consider the contamination
of non-GM crops to be inevitable. Currently the legal protection
available to organic farmers suffering costs or reduced income
due to the risk of or actual GM contamination is completely inadequate.
There also should be liability provisions for environmental and
health damages. We note that according to EC Regulation 1829/2003,
"The granting of authorisation shall not lessen the general
civil and criminal liability of any food producer".
27. Organic farmers cannot rely on case
law in the civil courts as the current legal situation is unclear
and not encouraging. Under the laws of nuisance, a person whose
activity caused damage to another's property is not strictly liable
if the activity is considered a "natural" use of the
land or has statutory authority. Would the cultivation of GM crops
be considered a "natural" use; would the fact that it
has a Government approval mean its cultivation on a particular
farm is covered by statutory authority? Would organic farming
be considered a "sensitive" use of land, to which normal
legal protection does not apply?
28. The liability provisions must not require
a farmer to prove the source of the GMO, since if several farmers
are growing GM crops in the region, it will be impossible to know
the farm source of the contamination.
29. Liability must not be narrowly defined.
Damage should be defined as the actual economic costs and losses,
not just in relation to the breaching of official thresholds for
contamination or if co-existence protocols are breached. This
could be, for example, from the costs of measures taken to avoid
contamination or testing, loss of a market, lower prices, or the
inability to continue producing a particular crop.
30. Those liable should be those seeking
to gain from GM crops—the patent holders. It should certainly
not be non-GM users or society at large. Making the companies,
rather than GM farmers, strictly liable avoids pitting farmers
against each other and avoids the intractable problem of identifying
the farm source of the contamination. The specific GM "event",
however, and thus the patent holder is always identifiable.
31. Because of the costs and time of prosecution
for individual farmers pursuing cases against multi-national companies,
there will also be a need for a Government run compensation scheme,
whereby organic and other non-GM farmers would have instant access
to compensation. This should be funded by the biotechnology companies.
Such a scheme is being considered by the Danish Government.
Processes for the determination of GM-free zones
32. GM-free zones should be introduced for:
— crops such as oilseed rape where
farm co-existence measures would be completely inadequate;
— to protect strategically important
crops, such as certified seed production;
— where a majority of farmers and/or
public support such zones.
The establishment of GM-free zones must not
mean contamination controls can be lax outside the zones, as farmers
everywhere must be able to produce non-GM crops.
CHANGES TO
LEGISLATION TO
ALLOW GM CROPS
TO BE
GROWN
33. New UK legislation will have to be brought
in for:
— a compulsory map-based land register
of all GM sites;
— compulsory GM crop management protocols;
— a strict liability regime for economic
damages to non-GM farmers.
34. New EU legislation will be needed for:
— compulsory GM contamination seed
production protocols.
Soil Association
April 2004
46 "G Squire, G Begg and M Askew, "The potential
for oilseed rape feral (volunteer) weeds to cause impurities in
later oilseed rape crops". Report of DEFRA project RG0114,
August 2003. Back
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