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]