Examination of Witness (Questions 105-119)
24 MAY 2004
PROFESSOR MALCOLM
GRANT
Q105 Chairman: Professor Grant, welcome.
You are a regular recidivist for both the MAFF Select Committee
and the Defra Select Committee. You know what we are trying to
ascertain and we will obviously call upon your expert knowledge
to help us do so and, as is usually the case, you are the precursor
to the Minister, who I am sure will be very keen to read, if not
to hear in person, what you have to say. Not everybody is completely
au fait with what AEBC does and stands for, so could you tell
us in a few sentences where the body is at and who is represented
on it?
Professor Grant: By all means,
Chairman, and thank you for the invitation to appear before the
Committee this afternoon. The Agriculture and Environment Biotechnology
Commission was set up four years ago with a wide range of members
in an attempt to provide the Government with an expert commission
who could give it strategic advice on the potential implications
of biotechnology for agriculture and the environment. It is a
twenty strong commission; it has membership from a group of different
communities who have interest and experience in biotechnology
matters including from NGOs, from the farming community, consumer
representation, and from the industry, but the critical thing
about it is that its members are not there to represent foregone
conclusions but to participate in an intellectual argument, such
as you will see in the coexistence and liability report that I
know the Committee has read, to try to bring the Government some
profound, or at least, worthwhile advice.
Q106 Chairman: That is very succinct
and helpful. If we could start then with the issue of tolerance,
or dare I say thresholds, there is at least from the evidence
we received last week some criticism of these thresholds. One
could advance the case that there is considerable confusion even
amongst the aficionados on both sides of the argument; I suppose
there is also a possibility that people could advance a view that
there is a bit of a fudge going on; that we really want to talk
about GM free, for those who wish to be assured that that is the
case of what they are eating but in reality no such thing exists,
or the industry says no such thing exists, so we start with this
0.1% threshold, and that really is a very difficult figure to
make sense of so we get to this 0.9% threshold over which a label
which you cannot guarantee is GM free will so be ascribed. Can
you give us some clarity on what is going on with these thresholds?
Professor Grant: I can come at
it from two different angles. This is an issue that exercised
the Commission for quite a long time. If you come at it from a
general public policy perspective, the arguments that tended to
divide our members related to the use to which the thresholds
were being put, because in our conversations that use was around
the prospect that compensation might be paid by one party to another
if the threshold were exceeded as a result of growing a GM crop
nearby, and the economic framing of the question therefore resolved
around on which party it was most equitable to impose that burden.
Was it on the party who wished to maintain an entirely GM free
output, whether that be organic or other agriculture, or should
it be on the party who was introducing a GM type of agriculture
into the area which was having an impact on the other, and according
to those arguments one could find a range of potential thresholds
from nought or, as it is commonly interpreted in practice 0.1,%
through to a higher threshold. The second line of approach that
we adopted, however, started to emerge from the threshold of 0.9%
that had been adopted in the food and feed regulation last September,
and it is around that area that I think there is some confusion.
The regulation, in Article 12 and Article 24, talks about "adventitious
or unavoidable presence", and I know that an argument has
been raised with this Committee that that means that, if the presence
is avoidable, then the true threshold should be zero, in other
words there should be an obligation on the part of those seeking
to market the produce to ensure that there is zero threshold,
or else (I assume) that the product is labelled accordingly. I
have not had the advantage of seeing the legal advice on which
that view is based. I would, though, I think draw to the attention
of the Committee a couple of other provisions of the regulation.
One is in the recitals at the beginning, Recital 24, which stresses
that "a threshold should be established for the adventitious
or technically unavoidable presence of GM material in foods and
feeds both when the marketing of a material is authorised in the
Community and when the presence is tolerated by virtue of this
regulation". The recital seems to be saying that such material
may be present in minute traces in conventional food and feed
as a result of adventitious or technically unavoidable presence
during seed production, cultivation, harvest, transport and processing,
and it may be possible to read into that that the 0.9 threshold
is intended to be a tolerance. Where the presence of the material
is avoidable, in other words it is under the control of the producer,
then there is an obligation to take reasonable or appropriate
steps to avoid it, but where it is adventitious, which may mean
that it is as a result of cross-pollination or as a result of
contamination through the production process due to the acts of
others, then it seems to me that it is at least arguable that
the 0.9% becomes a threshold. I would just add to that a brief
reference in Article 43 to an amendment that the food and feed
regulation makes to the main Directive No 18/2001 on deliberate
release to the environment, when it puts an obligation on Member
States to take appropriate measures to avoid the unintended presence
of GMOs in other products and requires the Commission to gather
and co-ordinate information and to develop guidelines on co-existence.
If that line of argument is correct, it suggests (certainly to
my mind) that 0.9% is a level of tolerance for adventitious presence,
but should it be a presence that is due to the acts of the person
bringing the product to market then appropriate steps should be
taken to reduce the GM content. I do not know that I can help
the Committee further than that.
Q107 Chairman: That is very useful. We
will have to look at that in contextual analysis because some
of us will want to unpick it, but what you are saying at least
gives me some fear that the only people who really will ever gain
from this are the lawyers, because there is always going to be
a tendency for someone to talk about an accident adventitious
escape of the GM materials and the real difficulty is tracing
this back. If I could link this to something which has not had
due attention paid to it, which is the non farm likelihood of
the transfer of GM materials—whether in the form of transport
material, the use of equipment—this is really going to open
up a bit of a can of worms. I know it may be that this is already
the case because an organic farmer could be facing this threat
at the moment from conventional crops, but there does not seem
to be the same sensitivity as you in your four years lying on
this bed of nails will realise is likely to be opened. How do
you see this potentially going?
Professor Grant: I should start
by declaring an interest as a lawyer—
Q108 Chairman: We did not want to remind
you of your previous incarnation!
Professor Grant: —but I
do not think it is the only profession that is likely to benefit.
One of the complexities, as we set out in one of the annexes to
the report, is that of testing, and the inherent unreliability
of some of the methods of testing, and the expense of the PCR
method which is probably the least unreliable of all of them.
What we have been anxious to do in our thinking about this is
to find a common sense approach, one which will not pit farmer
against farmer in the courts and one which will allow, so far
as is possible, a co-existence regime to be introduced, to be
monitored, and to be enforced without constant recourse to litigation.
That, of course, depends on goodwill on all sides, and it also
depends to a significant extent on, first of all, the labelling
regime around 0.9% and, secondly, the attitude and responses likely
to be taken by the Soil Association and the other certifying authorities.
On their current approach to GM they would be entitled, I think,
applying the present GM regulation to decertify a crop or a farm
even where GMOs were used in the course of agriculture. Where
GMOs have been deliberately used it would not be possible for
the crop to be sold as organic because that would be contrary
to the law. However, so far as thresholds are concerned, for organic
agriculture, there is a stance which is taken by the Soil Association
and the other certifiers but it has no statutory base as a threshold.
There is an ability to introduce a statutory base under European
legislation of which advantage has not yet been taken, so there
is an inherent area of uncertainty at least between 0% and 0.9%
which, if it is to continue, could itself cause some of the confusion
and practical difficulty to which you have referred.
Chairman: Let me take up the organic
issue and ask Joan Ruddock to look specifically at the problems
that that boundary may cause.
Q109 Joan Ruddock: You have just said,
Professor Grant, that there is a provision in EU law that could
be taken up and has not been. Is it your expectation that it will
be? If so, how do you expect that to go?
Professor Grant: It has been my
optimistic expectation that it might be for some years now but
it would, of course, require agreement across a range of States
who are not presently in agreement and between a range of certifying
authorities who are not necessarily in agreement with their Member
States. I understand that there is such a threshold established
in other countries outside Europe but it has not yet found a basis
within Europe.
Q110 Joan Ruddock: Is it not very clear
to you, as it was to us, that as far as the Soil Association is
concerned their understanding is that there should be no GMO presence,
and that means detectable at 0.1% so all that can be guaranteed
is 0.1%, but there is no rationale if one is an organic producer
to moving to 0.9%, so how could agreement ever be reached?
Professor Grant: But if you turn
that round and ask then whether there should be a statutory threshold,
I do not really mind where it is as long as there is one because
if you have a statutory threshold you have an underpinning in
law that then allows you to design liability provisions around
it which will make sense. At the moment we have this grey area
that the Commission struggled with for years, frankly, of between
0.1 and 0.9%. The issue though, if you put it in liability terms,
then resolves itself into a question of whose rights prevail.
This is not an uncommon question but it is fundamental to this
issue.
Q111 Joan Ruddock: Let's leave that aside
for the moment. Would it be correct to say that you could envisage
a statutory basis for 0.1%?
Professor Grant: Oh, yes. If that
were to be resolved under the European law, that would be a statutory
basis.
Q112 Joan Ruddock: And therefore everything
else would become clear, because if I were to take you up on the
distinction that I thought you were making between adventitious
and other forms of contamination, you were saying that you thought
it was possible to accept where it was unavoidable that that was
a responsibility which would then translate into a threshold that
was acceptable across the board but, if it were adventitious,
then the separation distances which would be deliberate and determined
by the national states, would clearly influence the level of adventitious
contamination, would they not?
Professor Grant: Yes, they would.
There would be a relationship.
Q113 Joan Ruddock: Precisely, and therefore
it is arguable, surely, that that level of contamination that
occurred because of the separation distances was an avoidable
form of contamination?
Professor Grant: Avoidable depends
upon who is charged with the avoidance.
Q114 Joan Ruddock: I am suggesting the
GM producer would be, or the Government that set the threshold
that enabled the GM producer to contaminate?
Professor Grant: But going back
to the argument I was trying to put before, I would have argued
that adventitious presence and avoidability in the eyes of an
organic farmer, were a GM crop to be introduced in the neighbourhood,
would not necessarily impose obligations on the organic farmer
to avoid it but on the GM farmer to establish, or to work to appropriate
separation distances to achieve it. That is subject to one very
important qualification, I think, which we stress throughout our
report, which is that we expect reasonable behaviour on both sides.
We would not expect an organic farmer to have a right of action
if they deliberately went and planted an organic crop right alongside
a GM crop.
Q115 Joan Ruddock: But the advice that
is given by bodies such as your own or anybody else's and the
Government that takes the decisions clearly is about setting up
with separation distances a factor in the level of contamination
that could occur in certain crops, so I do not see it as an equal
situation in the way in which you imply.
Professor Grant: But nor would
I draw it as an exact equivalence. Contamination is not a precise
consequence of separation distances. Separation distances, the
greater they are, may have a greater impact on the reduction of
potential contamination, but it depends on the type of the crop,
its cross-pollination, the viability of the seed that comes about
as a result of the crossing and, also, on a wide variety of post-cultivation
factors in the handling of the product from harvesting through
to the farm gate and beyond.
Q116 Joan Ruddock: What I am suggesting
is that it is one factor which potentially could be deemed avoidable
in the case of certain crops where the separation distance would
be very significant.
Professor Grant: Let me just qualify
that. The language is "adventitious or technically unavoidable",
and I think there is quite a scope for argument about that and
where the burden of avoidability rests.
Q117 Joan Ruddock: Is it your belief
that it is the organic farmer that should be responsible for the
level of contamination, or the avoidance of contamination?
Professor Grant: This is at the
heart of all of this. Our Commission took the view that, at a
threshold of 0.9%, the responsibility should rest with the GM
farmer and, indeed, that that should be underpinned by a compensation
scheme. We could not come to an agreement about where responsibility
should rest between 0.1 and 0.9%. There are quite strong arguments
on both sides, and we have recorded them, I hope fairly, in the
report.
Q118 Joan Ruddock: But if, for example,
consumers, which is the situation I believe that prevails, believe
that organic produce should be free of GM, which equates to 0.1%,
is it then your view that the organic farmer must be responsible
for ensuring that his or her crop is not at 0.9% but, if he wants
to take a lower level, that farmer bears the sole responsibility
for getting down to the 0.1%?
Professor Grant: I think that
must remain the default position under the recommendations that
we were able to agree on, in other words not being able to agree
on 0.1-0.9 in effect embeds 0.9, but with two qualifications.
Firstly, around 0.1 there are real problems of detectability and
the tests which have been devised are not cheap and create operational
problems. The second question is that, in order to be able to
comply with a 0.9 threshold, it is going to be incumbent on the
industry and particularly on the GM industry to work to much lower
thresholds in practice in order to have an appropriate margin
of risk. We were not convinced that 0.1% was a practically achievable
threshold in the event of cultivation of GM crops, particularly
if cultivation started to become more widespread, hence a measure
of unwillingness on many of our members to go for a 0.1% threshold.
Q119 Joan Ruddock: There is a difference
there between 0.1% being difficult to measure and 0.1% being difficult
to achieve if you had a lot of GM in the country. Is it your view
that at the moment, when the supermarkets say that in their own
brands they only have 0.1% maximum GM, that that is correct, or
are you suggesting that may not be correct at the present time?
Professor Grant: I am not competent
to comment on that but we are, as a Commission, aware of the growing
difficulty of sourcing non GM foodstock for animals for supermarket
use. It is not going to get any easier.
Chairman: We have already trespassed
partly into the area of separation distances but I want Patrick
to look at this in a bit more detail now.
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