Select Committee on Environment, Food and Rural Affairs Eleventh Report


2 Issues raised

8. As we have indicated, the bulk of our written evidence focussed on the related issues of co-existence and liability. An important part of the information received dealt with the Government's proposal to allow voluntary 'GM-free' zones. These were also the issues discussed in oral evidence.

Co-existence

Thresholds

9. European legislation requires that food and feed which contains more than a certain threshold of GM content must be labelled as containing GM. Regulation (EC) No. 1829/2003 sets that threshold at 0.9 percent, provided that "this presence is adventitious or technically unavoidable".[13] There is also capacity for lower thresholds to be set when appropriate.[14]

10. We received a great deal of evidence about threshold levels. There was much disagreement about the matter. However, there was one area of common ground: it was accepted that current techniques for testing for GM material mean that 'zero GM' in practice means less than 0.1 percent GM content.[15]

11. In her March 2004 statement the Secretary of State referred specifically to threshold levels, citing a report by the AEBC on co-existence and liability, published in November 2003.[16] She said that the details of co-existence regimes still needed to be worked out, but that "farmers who wish to grow GM crops should be required to comply with a code of practice based on the European Union's 0.9 per cent. labelling threshold, and that this code should have statutory backing".[17] She also suggested that the Government accepted that there should be a lower threshold for GM presence in organic farming, and said that it would "explore further with stakeholders whether a lower threshold should be applied".[18]

12. In their oral evidence the environmental NGOs suggested that the 0.9 percent figure had been misused by Government. GeneWatch says that the figure has been "wrongly interpreted in science and law", and that the "common presumption that routine contamination of up to 0.9 percent is allowed, and therefore that co-existence measures must be designed to only ensure that contamination does not rise above 0.9 percent in non-GM crops … is incorrect".[19] It told us that

  • "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 farm-gate as additional contamination can accrue during transport, storage and processing"; and
  • "there is a zero threshold for known and avoidable GM contamination", since the 0.9 percent threshold applies only to "adventitious and technically unavoidable presence".[20]

13. The arguments are made even more strongly in respect of organic crops. The Soil Association pointed out that "organic food is defined by a European Union regulation. There is a limit on GM in organic food, and it is zero; and that is set by European law, not by the British Government".[21] The AEBC report also noted that European legislation states that "the use of GMOs by organic farmers is forbidden … No legal threshold has been set for adventitious presence in organic produce, although there is provision in EU law to do so".[22]

14. The Minister told us that in the view of the Government the legal position was clear.[23] He cited European Commission guidance that "it would be disproportionate if statutory coexistence measures went beyond those needed to meet the EU labelling threshold".[24] On that basis he said that

in terms of the legal and statutory position and the potential liability, the 0.9 is the threshold and the baseline figure because that is now established within European Union law and within this country.[25]

However, he agreed that it was possible to set different threshold levels for organic farming, and that the Government would look into the matter.[26]

Why are threshold levels so important?

15. The importance of this issue is spelt out in the AEBC report, which presents both sides of the argument.[27] Those who argue that a 'zero' threshold is unworkable and unachievable, and that 0.9 percent is an acceptable compromise, "strongly suspect on the basis of the available evidence that successful co-existence at 0.1 percent would be unachievable if there were significant areas of GM crop cultivation … There is moreover a suspicion that the de facto 'zero' threshold of 0.1% is being used by some - though perhaps not all - interested parties as a way de facto to rule out the introduction of the option of growing GM crops".[28] The argument advanced on the other side is that consumers do not wish to consume GM products: and that "if consumers want to buy non-GM products at a low a threshold as is technically practicable, i.e. 0.1%, this option should be open to all farmers".[29] Any co-existence regime should recognise this view.

16. In oral evidence, Professor Grant agreed that there was "some confusion" about the 0.9 percent figure. He quoted Recital 24 of the food and feed labelling regulation, which he said

seems to be saying that such [GM] 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 it is adventitious …[30]

In short Professor Grant said that it was arguable that cross-pollination might be considered to be "adventitious", which in turn would mean that a co-existence regime should aim for no more than 0.9 percent contamination or admixture.

17. The argument, then, turns on the interpretation of the phrase "adventitious or technically unavoidable". On the basis of one interpretation of the phrase, the Soil Association has produced legal opinion in support of its case that any co-existence regime should be founded on a threshold for GM content in non-GM crops of 0.1 percent.[31] The Minister told us that he would certainly look at the arguments, but nonetheless said that the legal advice he had received was clear: that the threshold should be 0.9 percent.

18. There is huge confusion in both the Government's and the European Union's position in relation to GM crops, especially in relation to the thresholds of contamination of non-GM crops and thus liability. The Government cannot allow the commercial cultivation of GM crops in the United Kingdom until there is clarification of these critical issues. Until this is done no credible co-existence regime can be constructed.

19. The argument that the threshold for GM content in organic crops should be lower than 0.9 percent seems to be more widely accepted. In its report on co-existence and liability the AEBC noted the perspective that

organic producers are responding to consumer demand for as little GM material as possible in their food, so 0.1% is a realistic and reasonable threshold to set. The onus should therefore be on GM cropping to take place, if it takes place at all, in a way that respects the 0.1% standard widely adopted in organic agriculture.[32]

In her statement, the Secretary of State said that "we will explore further with stakeholders whether a lower threshold should be applied on a crop-by-crop basis".[33] However, there may be resistance from some quarters: the Chairman of the Supply Chain Initiative on Modified Agricultural Crops told us that "I do not see why there should be any different level from that applied to non-GM conventional growers, which is 0.9 per cent".[34]

20. We, however, can see that a lower threshold level of permissible admixture or contamination of organic crops with GM is appropriate. We are mindful that European law, after all, requires organics to contain no GM content. However, as Professor Grant pointed out, if a lower threshold was set, "reasonable behaviour" would be required on both sides. Thus if a farmer sought to introduce GM crops to a neighbourhood where an organic farmer was already established, that would "impose obligations … on the GM farmer to … work to appropriate separation distances"; but equally, "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".[35]

21. The current European Union interpretation of 'zero' contamination is that it is set at the limit of technical measurability: 0.1 percent. This is therefore the standard set for organic crops. We believe that proposals to allow "adventitious or technically unavoidable" contamination are likely to be confusing, unworkable, unacceptable to consumers and potentially destructive of the UK organic food industry. We recommend that the planting regime for GM crops respect the legal requirement that organic crops suffer zero contamination, and so does not undermine the Government's encouragement of the organic sector exemplified by the Organic Action Plan.

Separation distances

22. Coexistence regimes depend primarily but not exclusively on setting separation distances. Separation is required to prevent the transfer of GM traits to non-GM and organic crops by cross pollination. Under EU law, any such transfer, detectable at 0.1 percent contamination in the final product, is incompatible with organic status. But transfer from GM to conventional non-GM crops, detectable up to 0.9 percent contamination in the final product, would allow those crops to retain a non-GM status. This presents an obvious difficulty in establishing a regime of separation distances.

23. In May 1999 the Government endorsed the guidelines issued by the Supply Chain Initiative on Modified Agricultural Crops (SCIMAC) relating to separation distances.[36] It was these guidelines which underpinned the farm scale evaluations.[37] The separation distances prescribed are intended to "reduce any potential cross-pollination to below 0.9 percent under worst case conditions (ie. those most favourable to cross-pollination)".[38] The separation distances for a number of crops are set out below.

Table 1: Separation distances to restrict cross-pollination to 0.9 percent, as defined by SCIMAC[39]
Crop type
Certified seed crops

(same species)
Registered organic crops

(same species)
Non-GM crops

(same species)
Oilseed rape
200m
200m
50m
Sugar beet
600m
600m
6m
Fodder beet
600m
600m
6m
Forage maize
200m
200m
200m sweetcorn

50m forage maize

24. The SCIMAC guidelines were robustly defended by some of those who gave evidence to us. Evidence from the farm scale evaluations was cited. The National Farmers' Union told us that "the separation distances were found by the farmers who participated in the farm-scale trials to be workable … There was no incidence of non-GM production being compromised throughout the farm-scale trials", and that "separation distances are effective in maintaining crop purity".[40] SCIMAC itself told us that "the precautionary approach that we took [in the guidelines] … in other words conditions that are ideally suited to cross-pollination occurring - certainly has been borne out by the gene flow studies that were carried out of the maize trials".[41]

25. The environmental NGOs were unpersuaded. Greenpeace, for example, told us that the distances set out in the SCIMAC guidelines have "already been found insufficient to stop contamination".[42] It pointed to research by the National Pollen Research Unit, which "recommended a separation distance of 3000 metres for GM maize to prevent cross-pollination [with non-GM and organic crops]".[43] GeneWatch UK said that "evidence exists that current separation distances are not sufficient to meet the demands of avoiding contamination".[44]

26. The Soil Association cited studies which had looked at cross-pollination. One study involving maize had found cross-pollination at 1.6 percent at 200 metres, 0.7 percent at 300 metres, and 0.2 percent at 500 metres; another found that it was 0.8 percent at 600 metres and 0.2 percent at 800 metres.[45] On this basis the Association concluded that even to meet a 0.9 percent threshold the separation distance would have to be 600 metres, and to keep contamination at negligible levels the recommendation of the National Pollen Research Unit, 3 kilometres, was appropriate.[46] The Soil Association's conclusions about oilseed rape were even more dramatic: it suggested a separation distance of 6 kilometres.[47]

27. In short, the environmental NGOs concluded that separation distances should be greater than proposed by SCIMAC because (a) the threshold for GM content in non-GM crops should be lower than 0.9 percent, and (b) because cross-pollination takes place over longer distances than SCIMAC envisaged. The second point of dispute is less easy to deal with than the first. SCIMAC points out that gene flow does not take place between plants which are cultivated with its recommended distances between them. The environmental NGOs say that cross-pollination takes place across much wider distances. We note that, as SCIMAC told us, its guidelines are under constant review.[48] And we discuss below the proposal of the AEBC that there should be an 'introductory period' if commercial planting is permitted.

28. Government guidelines on separation distances should be regularly and independently audited and reviewed. The Government should clarify how a regime of auditing and review would be funded and conducted. Any audit regime must, in particular, carry the confidence of the organic farming movement in the United Kingdom.

An introductory period

29. In its report the AEBC recommended that if GM crops are commercialised "there should be an initial introductory period where there would be intensive monitoring and auditing of coexistence arrangements to determine whether and how far coexistence was actually being achieved". [49] Professor Grant told us that "a period of very close monitoring of crops [would allow us to] learn from experience rather than necessarily regarding that statutory separation distances were binding for all time".[50] In his evidence the Minister seemed receptive to the idea, although he said that it was a matter for the forthcoming consultation.[51]

30. There is the question of who should be responsible for monitoring and auditing the regime of separation distances. Professor Grant told us that responsibility rested with Government.[52] The Minister was more cautious, saying again that it was a matter for the consultation. We are also cautious: whether all sides would consider the Government's monitoring to be independent is perhaps a moot point.

31. Separation distances will be statutory. However, we note the lesson of buffer zones proposed in respect of pesticides use. If farmers have found it difficult to maintain separation distances in respect of pesticides it is likely that they may find it difficult in respect of GM crops. This point should be borne in mind if any monitoring period were to be established.

GM-free zones

32. Another aspect of co-existence is the suggestion that there should be areas wholly free of GM cultivation. Indeed several nations and regions within the United Kingdom have said that they would like to be GM-free, including Wales and Cornwall. But mandatory 'GM-free zones' would not be consistent with EU legislation (specifically EU Directive 2001/18/EC), although the European Commission has indicated that voluntary zones would be permissible.[53] In her statement the Secretary of State said that the Government would "issue guidance on the establishment of voluntary GM-free zones". The guidance - to farmers - will set out the legal framework and address "practical issues which farmers may wish to consider".[54]

33. Our witnesses seemed unimpressed by the idea of voluntary GM-free zones. Greenpeace, for example, told us that "the commercial planting of GM crops will effectively make GM-free zones unenforceable".[55] Professor Grant said that "voluntary GM free zone is only as good as the volunteers who sign up to it and are willing to abide by it".[56] He also raised the prospect of possible contamination from vehicles carrying GM products which pass through any 'GM-free' zone.[57] Of course it might be possible to change European law to permit regions or nations to become wholly GM free. We have already mentioned Wales and Cornwall: in addition, it seems that Austria might also be interested in being 'GM-free'.

34. We are sceptical about the concept of 'voluntary' GM-free zones. We recommend however that the Government consider carefully the arguments in favour of mandatory GM-free zones, particularly at the level of regions, and nations such as Wales. We recommend that the Government set out its views on this point in its response to this report.

Liability

35. There are two aspects of the debate about liability in relation to GM crops. One relates to economic losses which might be incurred by non-GM farmers: for example, by organic farmers who lose their organic status due to GM contamination of their crops. The other relates to the wider issue of environmental liability arising if the GM features of the commercial crop become transferred to other plants in the wild.

36. Although we focus below on economic liability, environmental liability is obviously a matter of vital importance. It has been discussed at length by the AEBC,[58] and was referred to in its evidence by Defra.[59] We believe that environmental damage and liability is inextricably linked with the matters we have discussed in this report. We therefore believe that it should properly be subject to the Government's consultation process. The Government cannot proceed to allow cultivation of GM crops until this matter is resolved.

Economic liability

37. In her statement the Secretary of State said that she would "consult stakeholders on options for providing compensation to non-GM farmers who suffer financial loss through no fault of their own".[60] She made clear, though, that a compensation scheme would be funded by the "GM sector", rather than "by Government or producers of non-GM crops".[61] In his evidence the Minister for Environment and Agri-Environment set out the Government's thinking in more detail. He told us

You could have liability on the farmers who are growing GM produce … You could have liability on the GM companies. You could have some form of joint liability. You could have a liability fund that is managed by the GM companies who could theoretically, just for the sake of argument, recover some of that money if it was due to a failure or a breaking of the regulations by a particular GM farmer … There are a number of choices to be taken on this, a number of options.[62]

38. The AEBC's advice is that farmers who suffer financial loss as a result of their produce exceeding statutory thresholds through no fault of their own should be compensated, and that "in principle insurance would be the best means of financial redress, but cover is unavailable at present, and there would remain the question of who should be responsible for paying insurance premiums".[63] It suggests that a "special compensation scheme" should be put in place until an insurance market developed - and that "Government will wish to promote the development of an insurance market".[64] The Minister's position seems somewhat at odds with this advice. He told us that he favoured a liability fund - which of course may in effect act as an insurance product - telling us that "we are looking at the concept of a liability fund or provision. Our stated view is that should come from the [GM] sector".[65]

39. Who should be liable for economic losses resulting from admixture or contamination was a matter of some debate amongst our witnesses. There are a number of possible models: the sources of funds or insurance premiums might be all farmers; GM farmers; biotechnology companies; the Government; or combinations of some or all of them. Not surprisingly the environmental NGOs were adamant that the biotech companies should pay: GeneWatch UK, for example, told us that liability should rest "with the company or institution who holds the consent to market or experiment with the GM crop involved".[66] On the other side, the Agricultural Biotechnology Council simply said that it looked forward to discussions about liability, in which it would participate fully.[67] Of course, if threshold levels and separation distances are set correctly, and more importantly if they are adhered to, the question of compensation should not in any event arise.

40. The second major strand of the consultation exercise should be the question of how liability should be determined and how compensation should be funded. In particular the Government must decide who should accept liability and fund compensation, and the mechanisms by which compensation should be paid. At the centre of this mechanism must be a guiding principle that economic liability should extend to the level of proven economic losses suffered by non-GM and organic farmers as a result of admixture or contamination. It is a duty of Government to ensure a consistent approach to environmental and economic liability.


13   Regulation (EC) No 1829/2003 of the European Parliament and of the Council of 22 September 2003 on genetically modified food and feed, Article 12(2). Back

14   Council Regulation (EEC) No 2092/91 of 24 June 1991 on organic production of agricultural products and indications referring thereto on agricultural products and foodstuffs Back

15   See, for example, Ev 9, para.9 [Soil Association] Back

16   AEBC (2003) GM Crops? Coexistence and Liability, AEBC, November 2003 Back

17   HC Deb, 9 March 2004, col.1383 Back

18   HC Deb, 9 March 2004, col.1383 Back

19   Ev 9, para.5 Back

20   Ev 9, paras.5 and 6 Back

21   Q3 Back

22   GM Crops? Coexistence and Liability, p.58 Back

23   Q155 Back

24   Q149 Back

25   Q150 Back

26   Q149 Back

27   GM Crops? Coexistence and Liability, p.57 ff Back

28   GM Crops? Coexistence and Liability, p.58 Back

29   GM Crops? Coexistence and Liability, pp.58 and 59 Back

30   Q106 Back

31   Presented to the Committee, but not published Back

32   GM Crops? Coexistence and Liability, p.9 Back

33   HC Deb, 9 March 2004, col.1383 Back

34   Q82 Back

35   Q114 Back

36   New measures on biotechnology announced, Cabinet Office Press Release, CAB 109/99, 21 May 1999 Back

37   Ev 32 Back

38   Ev 34, para.1.8 Back

39   Taken from Guidance for growing newly developed herbicide tolerant crops, SCIMAC, May 1999; see the SCIMAC website, at http://www.scimac.org.uk Back

40   Q46 Back

41   Q88 Back

42   Ev 6, para.10 Back

43   Ev 6, para.10 Back

44   Ev 3, para.19 Back

45   Ev 11, para.20 Back

46   Ev 11, para.21 Back

47   Ev 11, para.23 Back

48   Q89 Back

49   GM Crops? Coexistence and Liability, p.9 Back

50   Q122 Back

51   Q177 Back

52   Q123 Back

53   Ev 64, paras.24 and 25 Back

54   Ev 64, para.25 Back

55   Ev 8, para.21 Back

56   Q129 Back

57   Q132 Back

58   GM Crops? Coexistence and Liability, pp.94 ff; see also P5, paras.20-29 Back

59   Ev 64, paras.21-23 Back

60   HC Deb, 9 March 2004, col.1383 Back

61   HC Deb, 9 March 2004, col.1383 Back

62   Q189 Back

63   GM Crops? Coexistence and Liability, p.10 Back

64   GM Crops? Coexistence and Liability, p.10 Back

65   Q204 Back

66   Ev 4, para 25; see also Ev 5 [Greenpeace] and Ev 8 [Soil Association]. Back

67   Q98 Back


 
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