Please find below the Soil Association's written evidence to the Parliamentary Select Committee on Environment, Food and Rural Affairs (EFRA) inquiry into the Government's recent decision on GM crops, covering co-existence and liability.
The SA argue that co-existence measures must be based on a 0.1% limit of detection threshold, not 0.9%. Their 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. They have also obtained information that all the supermarkets are using a 0.1% threshold to implement their non-GM policies, so most UK farmers, not just organic farmers, will need their crops to be free of GMOs to below 0.1%.
They believe that were GM crops to be grown commercially in the UK, 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. Based on the scientific information on pollen dispersal, separation distances for maize would have to be of the order of 3km. For oilseed rape, the distances to combat pollen dispersal from crops 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 would have to be used.
The SA also argue that new legislation for a liability regime for GM crops must be introduced which makes the biotechnology companies strictly liable for all damages. The definition of damages must be the actual economic losses, not just damages in relation to official thresholds or from breaches of co-existence measures.
The Government's recent decision about GM
Written Evidence from the Soil Association to EFRA inquiry, April 2004
* 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)
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 GBP1 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 acrue 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 seedstocks 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:
1) 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.
2) 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.
3) 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.
4) Separation distances see below
5) Management of crop rotations including separation times between GM and ‘non-GM’ crops and to alternate with non-GM crops in the vicinity
6) Control of volunteers and bolters
7) 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.
8) Seed and crop storage GM crops must be stored in dedicated storage areas.
9) 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.
10) 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.
11) 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.
12) 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.
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 5 years for GM volunteers to fall below 1% following a GM HT rape crop. 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.
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
GA, 22.4.2004, GMregul050