Memorandum submitted by the Agriculture
and Environment Biotechnology Commission
GM MAIZE DECISION
EXECUTIVE SUMMARY
1. The Government's recent announcement
on GM policy, representing the first agreement in principle to
commercial cultivation of a GM crop in the United Kingdom, will
have significant implications for the future of agriculture in
the UK. After the unprecedented consultative and analytical exercise
of the GM dialogue, it will also have implications for future
policy making on controversial science-based issues.
2. We welcome the Government's agreement
to our recommendation to require GM-farmers to comply with a statutory
code of practice to achieve the statutory (0.9%) labelling threshold
for non-GM products, and to monitor the effectiveness of these
measures during a carefully managed introductory period. However,
the Government's statement leaves open several important questions,
particularly on co-existence and liability. It is important that
these issues are resolved, and a satisfactory co-existence and
liability regime is implemented, before any commercial cultivation
of GM crops goes ahead. In particular: the Government must take
a view on the difficult question of whether coexistence arrangements
will be put in place to deliver a threshold of GM content lower
than the legally defined figure of 0.9%; it must put in place
a compensation system for farmers who lose financially through
their non-GM crops exceeding statutory thresholds; and it must
implement a satisfactory liability regime to deal with possible
unforeseen environmental effects of GM crop cultivation. If voluntary
GM-free zones are to be encouraged, the practical difficulties
of establishing these must be resolved.
INTRODUCTION
3. The Agriculture and Environment Biotechnology
Commission (AEBC) was launched by the Government in June 2000
with a remit to provide independent, strategic advice on developments
in biotechnology and their implications for agriculture and the
environment. Our origin was a review in 1999 by the Cabinet Office
and the Office of Science and Technology of the Advisory and Regulatory
Framework for Biotechnology, which concluded that a broader approach
was needed for strategic issues. Government appointed our 20 members
from a diverse range of backgrounds, with a wide range of skills
and expertise. We work in an open and transparent way, looking
at the broad picture and taking ethical and social issues into
account as well as the science.
4. The Biotechnology Commission played a
key role in the process leading to the Government's statement
on genetic modification on 9 March 2004. The first of the Commission's
reports, Crops on Trial, in September 2001 called for a
"wider public debate . . . to consider what role GM crops
might have in UK agriculture in the future". This recommendation
was accepted by Government, and after more detailed advice from
the Commission in April 2002, eventually became the GM Nation?
public debate (Summer 2003). The debate was one strand of the
GM dialogue, alongside the GM Science Review and the Prime Minister's
Strategy Unit's Costs and Benefits study. Professor Malcolm Grant,
the AEBC Chairman, was asked to appoint and chair an independent
steering board to run the debate at arm's length from Government.
Seven of those he appointed to the board were AEBC members. At
the same time as the debate was being conceived and managed, the
Commission was developing its thoughts on the issue of whether
and how GM agriculture could co-exist with conventional and organic
farming, and on the issue of potential environmental liability,
if commercial cultivation were to go ahead. Its report on GM
Crops? Coexistence and Liability was published in November
2003. The Government responded to some of the recommendations
in this report as part of its recent statement on GM crops and
has indicated that it will respond to the others in due course.
5. This Memorandum should be seen as an
addition to the existing body of advice and other material that
the Biotechnology Commission has already published since its inception
in 2000, much of which is of relevance to this inquiry. It should
not be considered to supersede or comment on any previous AEBC
advice, which still stands in its entirety. Neither should it
be seen as comprehensively addressing the terms of reference of
the Efra Committee's enquiry. While all Members have agreed to
the content of this memorandum, there are some issues on which
the Commission is not in a position to take a unanimous position,
given the wide range of points of view of its Members.
BROAD IMPLICATIONS
6. The Government's recent announcement
on GM policy was undeniably a watershed, and its implications
will be significant. It represented the first agreement in principle
to commercial cultivation of a GM crop in the United Kingdom,
on grounds of a case-by-case, precautionary and evidence-based
approach. Government proposes that future decisions on other GM
crops will be made on a similar basis. However, the policy announcement
leaves significant questions still to be resolved, particularly
on co-existence and liability.
7. As the Government states, some concerns
often raised about GM crops do not apply in the case of GM maize,
as it has no wild relatives in the UK and is unlikely to survive
a winter in this country, and little organic maize is grown here.
Moreover, it appears that the crop will not actually be grown
in the UK, after reports that Bayer CropScience has withdrawn
the Chardon LL herbicide-tolerant maize variety from the
UK market. However, these facts simply highlight the uncertainty
about how concerns not applicable to GM maize will be addressed
when making decisions on future applications for approval of other
GM crops.
8. The Government's statement also has significant
implications for the future of policy-making on controversial
scientific issues. The statement is informed and accompanied by
the Government's response to the GM dialogue. It takes into account
a diverse body of evidence arising from a unique consultative
and analytical exercise, including, in addition to the three strands
of the dialogue, the farm-scale evaluation (FSE) results and our
report on co-existence.
9. The Innogen conference in Edinburgh in
November 2003 (co-sponsored by the AEBC) asked "to what extent
has the UK GM Crops Dialogue set a pattern for future decision
making on new science and technology" and suggested that
"the Government's response would determine whether people
thought it worthwhile to get engaged in any public issue".
While Commission members hold different views on whether the Government's
decision to allow commercial cultivation of maize was the right
one, it is clear that the GM dialogue process has engendered a
more considered approach to the issues than we might otherwise
have seen. The Government deserves congratulation for sponsoring
the public dialogue on GM. It must now make clear how it will
build on and learn lessons from the process before embarking on
future, similar exercises.
COEXISTENCE
10. Resolving the issue of coexistence of
GM and other crops, and associated questions of liability, is
a challenging task for Government, as the Commission is well aware
after deliberating on these subjects at some length in preparing
our report on GM Crops? Coexistence and Liability (published
in November 2003). But a resolution is absolutely necessary if
GM crops are to be grown commercially in the UK. In our report,
we predicted that a laissez faire approach, with no measures
put in place to facilitate co-existence, would make successful
co-existence impossible in some cases and more difficult in others,
thereby restricting choice for both consumers and farmers. Our
first recommendation was that the main aim of Government policy
on co-existence of GM and other crops must be to facilitate consumer
choice as far as possible, while allowing UK farmers to respond
to market demand. The Government has agreed that coexistence arrangements
should facilitate consumer and farmer choice.
11. Annex A summarise our recommendations
on Coexistence and Liability and the Government's response so
far to each of these. We are comforted that the Government has
accepted several of the Commission's key recommendations on coexistence,
including that farmers who grow GM crops should be required to
comply with a code of practice with statutory backing to achieve
the statutory labelling threshold (maximum 0.9% GM content) for
non-GM products, and that the initial introductory period should
be carefully managed to monitor the effectiveness of these measures.
We also recommended that codes of practice (or protocols) should
be straightforward to amend if this monitoring showed that co-existence
was not being achieved as intended and that, if necessary, the
Government should be able to suspend GM crop production until
arrangements had been made to resolve co-existence problems. It
is not clear whether the Government envisages this contingency
in its plans for a statutory code of practice.
12. There were some issues where it proved
impossible to resolve differences of opinion in our deliberations
on co-existence and liability—in which case our report set
out clearly and fairly the different choices facing Government,
and analysed the implications of each. This included the question
of whether co-existence arrangements should be put in place to
deliver a threshold of GM content lower than the legally defined
figure of 0.9%, which comes about because organic farmers, and
possibly other non-GM farmers, may wish to work to a non-statutory
threshold of 0.1%. The Government has stated that it will "explore
further with stakeholders whether a threshold lower than 0.9%
could be reliably delivered at a reasonable cost on a crop-by-crop
basis."
13. We were uncertain what thresholds would
be achievable in practice if GM crop cultivation went ahead, and
recommended that the initial post-commercialisation monitoring
period should be designed to assess what was realistically possible.
However, Commission members' views on what the implications of
the results of this monitoring should be for UK policy on cultivation
of GM crops varied considerably. Some saw the 0.1% threshold as
a realistic and reasonable response to consumer demand and believed
that GM cultivation should be constrained as required to achieve
it, while others felt that any non-GM growers who wished to produce
to a threshold lower than the statutory one should take sole responsibility
for achieving this, without unfairly constraining GM farmers.
The Government has not made its view clear and will need to do
so before any commercial GM cropping takes place.
COMPENSATION
14. The Commission agreed unanimously that
farmers suffering financial loss as a result of their produce
exceeding statutory thresholds through no fault of their own should
have access to compensation. In principle, insurance would be
the best means of financial redress, but cover was not yet available
and it would probably take some time for a market to develop.
In addition, it was not clear whether the cover provided by the
insurance system would be first-party (farmer insured against
losses due to his own crops exceeding a statutory threshold),
or third-party (GM-farmer insured against claims from others).
A first-party system would be simpler but it would mean that the
cost of providing compensation would be borne by organic or non-GM
farmers themselves; whereas the cost of third-party insurance
would be borne by those cultivating GM crops, which would be a
better reflection of the compensation arrangements we proposed.
We recommended that, until a satisfactory insurance market developed,
special arrangements should be put in place to compensate financial
loss. We suggested the possibility of establishing a fund or indemnity
to cover compensation claims, and set out several options for
financing this, including: Government, the agricultural biotechnology
industry or farmers through a levy on the sale of GM-seed or on
all harvested crops.
15. The Government said in its response
to the GM dialogue that it will "consult stakeholders on
options for providing compensation to non-GM farmers". It
has stipulated that the GM crops industry would need to fund any
compensation scheme (and has ruled out the possibility of funding
by non-GM farmers or by Government itself)—saying that this
would be a further incentive to biotechnology companies to ensure
that co-existence arrangements are effective and complied with.
The Government has failed to guarantee that any system for compensation
will be secured prior to its allowing the commercial cultivation
of GM crops to proceed.
16. The Commission's report on co-existence
looked at several issues that Government will need to resolve
if it is to set up a compensation scheme. It discussed how a compensation
fund might operate, including what conditions would apply to claims
and how they would be judged. It also looked at whether contributions
to a compensation fund should be mandatory or voluntary; if mandatory,
the scheme would need to be statutory, but it was unclear whether
this would be considered a proportionate approach to the development
of co-existence measures and therefore acceptable under EU law.
There is also the issue of whether there should be compensation
for exceeding thresholds lower than the statutory one, as discussed
above for co-existence measures more generally.
TIMING OF
CO -EXISTENCE
MEASURES
17. In announcing the Government decision
to allow in principle the commercial cultivation of GM herbicide-tolerant
maize, Margaret Beckett said she anticipated "that co-existence
measures will be in place before any GM crops are grown commercially".
The Commission believes that a satisfactory co-existence and liability
regime must be implemented before any commercial planting of GM
proceeds.
CO -EXISTENCE
PROTOCOLS AND
SEPARATION DISTANCES
18. Separation distances would be only one
element of the statutory crop management protocols required to
minimise adventitious presence of GM in non-GM crops. Other possible
measures (discussed in more detail in our report) include:
— strict control of GM "volunteers"—unwanted
plants growing spontaneously outside the intended place and and/or
time;
— high degree of seed purity and careful
monitoring of seed spillage;
— cleaning of all farm machinery used
to sow or harvest the crop;
— separate handling and storage of
GM and non-GM crop varieties, and cleaning of GM storage areas
after use;
— specification of minimum cropping
intervals; and
— planting of barriers to minimise
cross-pollination.
19. The different measures required and
the relative significance of each will vary for different crops,
and protocols should be designed on a crop-by-crop basis. They
should build on existing practice and should aim to be precautionary,
while remaining as practicable as possible for GM farmers to follow.
Separation distances should be set initially using the best available
data from existing published research on gene flow. Nevertheless,
whether or not protocols will work as intended depends on a number
of factors, including seed purity, the extent of take-up of GM
cropping and the behaviour of farmers. There are uncertainties
about the way in which the different factors will interact at
commercial scales, as acknowledged in the GM Science Review[1]This
is why the initial post-commercialisation period of intensive
monitoring and auditing of co-existence arrangements is crucial.
It seems almost inevitable that co-existence protocols, or codes
of practice, would be subject to some modification after this
period.
ENVIRONMENTAL LIABILITY
20. Just as important as the issue of liability
for economic loss is the question of environmental liability.
Any impacts of growing GM crops need to be assessed in the general
context of modern agriculture, including the impact of existing
and other novel agronomic practices. Much adverse environmental
change has been brought about by past agricultural practices without
any thought of recourse to liability. Some Commission members
believe that it would therefore be wrong to single out GM for
special treatment. But others feel that, in the light of past
experiences where things have gone wrong unexpectedly (for example
BSE) a rigorous liability regime must be put in place from the
outset to reassure the public that legal responsibility will be
accepted if unforeseen impacts become apparent in the future.
21. Commission members had a range of views
on the likelihood of significant environmental impacts arising
from the commercial cultivation of GM crops, once assessed as
safe for release into the environment. Given the uncertainties
about what if any impacts might arise, our advice focused on the
hypothetical question of what would happen if regulatory safeguards
were to fail and a significant impact was detected, including
the issues of:
— whether the impact could be, or needed
to be, mitigated;
— who should have the power to require
remedial action to be taken; and
— who should be liable to undertake
and/or pay for remedial action.
22. Considering what might constitute "harm"
to the environment raises difficult questions. Any adverse environmental
impacts of growing GM crops, if they should occur, are likely
to be long-term, cumulative and diverse rather than short-term
and easily identifiable, making liability difficult to attribute.
Furthermore, if any environmental harm were to be irreversible,
a liability regime would be of limited value.
23. There are therefore inherent limits
to a system of liability and it will never be possible to cover
risk completely. Where liability fails, the responsibility rests,
by default, with the state. Notwithstanding this important caveat,
we recommended that an amended liability regime should be put
in place to improve the response to possible environmental impacts
from GM crops. We proposed a model of administrative liability
that imposed primary responsibility on the state, with a right
of recovery of costs against operators responsible for causing
the damage concerned.
24. The new EU Environmental Liability Directive
was formally adopted at the end of March 2002. Member States must
transpose it into national law by 2007. The new Directive will
cover environmental damage from GMOs, but its scope is limited
to European protected species and protected natural habitats (as
designated under other EU legislation). We believe that the Directive,
which was in draft form when our report was published, provides
a platform on which the Government should build a separate UK
liability regime for environmental damage caused by GMOs. Our
report recommended that the general approach of the Directive
should be used to develop this new liability regime.
25. The UK Environmental Protection Act
1990 gives the competent authorities the power to undertake remedial
work for harm caused by the release of GMOs, but costs can only
be recovered from those responsible if they have been convicted
of a criminal offence under the Act. To bring a UK liability regime
in line with the approach of the Environmental Liability Directive
we recommended two amendments to the 1990 Act:
26. First, the Act should be amended to
remove the requirement for a criminal conviction, which is wrong
in principle and out of line with other existing administrative
liability regimes as well as with the Directive.
27. Second, the Act should be further amended
to make dealing with environmental effects from the release of
GMOs, including diffuse effects, the responsibility of the competent
regulatory authority. The competent authority should have a number
of options at its disposal for doing this; these will include
requiring remediation, and compensating the competent authority
for its own expenses in remedying damage. The appropriate action
to take will depend on the nature of the effects: broad-ranging
powers will need to be conferred upon the competent authority.
28. In its response to the GM dialogue the
Government said, "we are currently considering the AEBC's
recommendations on environmental liability and will respond in
due course". We look forward to this response. We believe
that Government must put in place a satisfactory regime along
the lines we have recommended before any commercial cultivation
of GM crops takes place in the UK.
29. In thinking about potential environmental
impacts of cultivation of GM crops we considered the fact, clearly
demonstrated by the Farm Scale Evaluations, that effects can be
caused by the way in which a particular crop is used in the field,
rather than the crop itself. Any conditions imposed on management
of GM crops—such as co-existence protocols or codes of practice—would
therefore have implications on the potential environmental effects.
Environmental effects could be positive as well as negative, and
if commercial cultivation of GM crops were to proceed, we agreed
that every effort must be made to ensure that any potential environmental
benefits could be realised. We recommended that both Government
and industry should consider the possibility of developing protocols
for the positive environmental management of the cultivation of
GM and other crops, to go alongside measures designed to achieve
co-existence.
GM-FREE ZONES
30. In its statement on GM policy, the Government
said that it would "provide guidance to farmers interested
in establishing voluntary GM-free zones in their areas, consistent
with EU legislation". It is clear that compulsory GM-free
zones would be contrary to EU law, unless a particular environmental
risk to the area in question could be shown. However, the possibility
of encouraging the development of voluntary GM-free zones was
recognised in the European Commission's guidelines on co-existence[2]When
we considered these issues, we were concerned that compulsory
zones would significantly limit some farmers' freedom of choice
and could therefore be justified only on the grounds of environmental
risk. Some of us were in favour of encouraging voluntary zones.
Others felt that such decisions should be left to the market and
individual farmers.
31. There are practical difficulties with
establishing GM-free zones, whether voluntary or compulsory. Much
depends on the strictness of interpretation of the term "GM-free".
With a strict interpretation, buffers between zones might need
to be established because of the uncertainties around gene flow
from crops cultivated at commercial scale, and both transport
of GM material into or through the zone and unauthorised growing
within it would need to be monitored carefully by the participants.
Without these and other measures in place, the suspicion arises
that the establishment of GM-free zones would be a largely superficial
exercise. We await the promised Government guidance with interest.
Agriculture and Environment Biotechnology Commission
(AEBC)
April 2004
Annex A
SUMMARY OF AEBC RECOMMENDATIONS ON CO-EXISTENCE
AND LIABILITY AND GOVERNMENT RESPONSE TO DATE (AS DRAWN FROM THE
GM DIALOGUE: GOVERNMENT RESPONSE, 9 MARCH 2004). NOTE THAT GOVERNMENT
HAS INDICATED THAT IT WILL RESPOND FURTHER IN DUE COURSE
| Recommendation 1
| Government Response |
| The main aim of Government policy on co-existence of GM and other crops must be to facilitate consumer choice to the greatest possible extent, while allowing UK farmers to respond to present and future national and international market demand.
| We fully accept that arrangements do need to be put in place to facilitate the co-existence of GM and non-GM crops. These arrangements should:
— facilitate consumer choice, while recognising that all farmers are free to choose their method of production (conventional, organic or GM);
— be determined on a crop-by-crop basis;
— be practical, proportionate, effective and equitable; and
— build on existing experience or arrangements as far as possible.
|
| Recommendation 2 | Government Response
|
| If GM crops were to be grown commercially, farmers growing them should be required to follow legally enforceable crop management protocols designed to achieve at least the 0.9% threshold.
| We believe it is reasonable to expect GM farmers to bear the main responsibility for implementing measures to minimise GM presence in non-GM crops. We envisage that these measures should have statutory backing, and are likely to include a requirement to notify neighbouring farmers, separation distances between crops, the control of crop weeds and the cleaning of farm machinery. It should be designed to ensure that non-GM farmers do not have to label their produce as "GM" under EU labelling rules, which require food and feed with an unavoidable GM content above 0.9% to be labelled. We will explore further with stakeholders whether a threshold lower than 0.9% could be reliably delivered at reasonable cost on a crop-by-crop basis.
|
| |
| Recommendation 3 | Government Response
|
| If GM crops are commercialised, there should be an initial introductory period where there would be intensive monitoring and auditing of co-existence arrangements to determine whether and how far co-existence was actually being achieved.
| We agree with the AEBC's recommendation that there should be a carefully managed introductory period. This will enable us to monitor the effectiveness of co-existence measures and amend them as necessary to achieve the required threshold(s). It will also allow us to assess what levels of GM adventitious presence are achievable in practice on a crop-by-crop basis in a commercial farming context.
|
| Recommendation 4 | Government Response
|
| The powers to impose co-existence protocols should allow for their ready amendment if data gathered in the introductory period showed that co-existence and the delivery of consumer choice was not being achieved and Government should be able, if necessary, to suspend production of a GM crop unless and until arrangements were made to overcome co-existence problems.
| [The introductory period] will enable us to monitor the effectiveness of co-existence measures and amend them as necessary to achieve the required threshold(s).
|
| Recommendation 5 | Government Response
|
| There should be special arrangements for compensation for farmers suffering financial loss as a result of their produce exceeding statutory thresholds through no fault of their own, with a view to an insurance market developing in due course.
| We will consult stakeholders on options for providing compensation to non-GM farmers who suffer financial loss through no fault of their own as a result of their produce having a GM presence exceeding statutory thresholds. Any compensation scheme would need to be funded by the GM crops industry, rather than by Government or producers of non-GM crops. This would provide a further incentive for the biotech companies to ensure that co-existence arrangements are effective and that farmers comply with them.
|
| Recommendation 6 | Government Response
|
| Government should use the general approach of the draft EU Environmental Liability Directive to develop the UK's liability regime for any damage caused by the release of GMOs to the environment.
| We are currently considering the AEBC's recommendations on environmental liability and will respond in due course.
|
| Recommendation 7 | Government Response
|
| The Environment Protection Act 1990 should be amended to allow the competent regulatory authority to require environmental remediation where reasonable and appropriate in respect of environmental harm caused by the release of GMOs, irrespective of criminal liability.
| We are currently considering the AEBC's recommendations on environmental liability and will respond in due course.
|
| Recommendation 8 | Government Response
|
| The Environment Protection Act 1990 should be further amended, reflecting the regime envisaged by the draft Directive. The means of dealing with any environmental effects from the release of GMOs, including diffuse effects, should be the responsibility of the competent authority, who will have a number of options at their disposal, including requiring remediation.
| We are currently considering the AEBC's recommendations on environmental liability and will respond in due course.
|
| Recommendation 9 | Government Response
|
| Active consideration should be given to the development of protocols for positive environmental management of the cultivation of GM and other crops, to operate alongside co-existence protocols.
| No response to date. |
Agriculture and Environment Biotechnology Commission (AEBC)
April 2004
1
GM Science Review Panel, First Report p 25 (Executive Summary). Back
2
European Commission Recommendation 2003/556/EC of 23 July 2003
on guidelines for the development of national strategies and best
practices to ensure the co-existence of genetically modified crops
with conventional and organic farming. Back
|
