A legal expert and the German government are sceptical

GMWatch shares the scepticism voiced below about the feasibility and legal solidity of proposed national EU member state bans on GM food and feed imports.

1. Can you really be GM-free? Why new European laws pose a moral dilemma
2. Germany sceptical of national import ban on GM foods

1. Can you really be GM-free? Why new European laws pose a moral dilemma

Mary Dobbs
The Conversation, 24 April 2015

It’s all very well choosing not to eat genetically modified (GM) food, or even banning it entirely, but what if you then rear your cows on GM soya? Can you really maintain a consistent moral objection?

This is the dilemma many European countries are faced with now the EU has proposed measures that will further de-harmonise rules on genetically modified organisms (GMOs). The latest proposal would allow member states to “opt-out” from the use of GM food and animal feed, thereby mirroring legislation passed earlier this year that allowed members to opt-out from GM cultivation.

The official aim is to allow member states to impose restrictions on GM food and feed “in respect of democratic choice and in the interest of consistency”. But countries expecting to pick and choose from different GMOs, whether crops, food or feed, will find their freedom heavily constrained.

Any GM restrictions must still comply with EU law. This firstly requires that any measures be necessary to protect a “relevant legitimate objective”. Worries over the environment or public health don’t count – in theory these are dealt with under the initial authorisation process. This leaves objectives such as public morality, consumer protection or agricultural policy (preventing contamination between GM and non-GM crops, or having to change farms to use for GM crops). Even then, there must still be no arbitrary discrimination or disguised protectionism.

An Italo-Irish headache

Consider the example of Ireland and Italy: two green, agricultural nations who may shortly be faced with serious headaches. Both have mixed feelings regarding GMOs and both have interests in prohibiting certain products, but crucially not all.

In particular, a substantial proportion of animal feed used in both Italy and Ireland is of GM origin. A 2010 report indicated that more than 90% of protein feed for livestock in Ireland contained EU-authorised GM varieties – mostly soya, maize, cotton, and rapeseed.

As imported feed is vital to keep Ireland’s cows and sheep well fed, and since it’s tough to guarantee zero contamination by GM sources, the country supported an amendment to EU legislation allowing for temporary tolerances of unauthorised GM feed at a level of 0.1%. Even if they would avoid GM feed in neutral circumstances, the market has created a high level of dependency by national producers on GM feed.

Dilemma time

This adds to a dilemma surrounding specific products produced nationally with GM counterparts produced outside the EU.

Rapeseed is an important crop in Ireland, for instance, just as it is in the UK. Although GM rapeseed is not currently authorised for cultivation in the EU, GM rapeseed food and animal feed grown elsewhere, mostly in Canada, is authorised.

Italy is Europe’s main producer of soybeans. As with rapeseed, you can’t grow GM soya in the EU, but GM soya products are authorised if imported, with the main suppliers based in America, Brazil, and Argentina. Therefore European producers (all non-GM) are in competition with those beyond the EU, both GM and non-GM.

While Ireland and Italy depend on imported GM rapeseed and soya feed too much to impose restrictions, the two nations might be tempted to give their national producers a helping hand by attempting to prohibit GM rapeseed and soya food products. Yet if either were to prohibit these GM foods and not others, irrespective of any legitimate objective claimed, it would indicate “arbitrary discrimination” – whether direct or indirect.

Moral confusion

What of a general ban on GM food, based on consumer protection or public morality? Consumer protection won’t work. Shoppers could be sufficiently protected by labelling, which is already required (even if not considered full and accurate information).

Public morality might justify such restrictions, but if purely on GM food this would appear hypocritical. If public morality justifies a national ban on GM food, why is no such ban required for GM feed and GM crops also? Especially when the GM feed or crops lead eventually to food.

That just leaves environmental and health protection that could justify restricting one GM food and not another, or GM food generally and not feed or crops. However both are expressly excluded under the EU’s proposed legislation.

Consequently, Ireland and Italy may be able to impose unilateral restrictions on GM crops, food or feed for a range of legitimate objectives. They could indeed be truly “GM-free”. However, if you claim public morality justifies prohibiting GM crops or food, you cannot then backflip and still permit GM feed.

Restrictions on cultivation might be permitted without restrictions on other GM products, but this is due to it also promoting separate objectives such as protection of traditional farming or producer choice. For the measures to be acceptable, they must be consistent.

May Dobbs is a Lecturer in Law at Queen's University Belfast

2. Germany sceptical of national import ban on GM foods

Daniel Tost, 24 April 2015

* Despite overwhelming public disapproval of genetically modified crops, the Merkel government is reluctant to prohibit imports of GM soy and corn. EurActiv Germany reports

“The German government will thoroughly investigate the proposal,” said a spokesman from the Agriculture Ministry, in response to an initiative the European Commission presented on Wednesday (22 April).

But already, he said, “negative effects on the free movement of goods on the EU internal market can be feared”.

The European Commission has proposed giving member states the right to impose their own national import bans on genetically modified fruits and vegetables – even if these foods and feeds are permitted at the EU level.

“The new concept is intended to find the right balance between maintaining an EU approval system and giving member states the opportunity to freely decide on the use of GMOs within their own territory,” a Commission spokesman said.

Meanwhile, the German government is decidedly against cultivation of genetically modified organisms (GMOs) and is currently in the process of developing a national ban on cultivation. But Berlin has been more reserved on the issue of also imposing a national import ban on GM products, as proposed by the European Commission.

The Economic Affairs Ministry’s spokesman argued that a national import ban would raise considerable legal concerns in the World Trade Organisation. “It is also unclear (...), according to the proposal, how usage restrictions or bans are supposed to be monitored in practice,” he warned.

GMOs are already imported on a large-scale to be used as livestock feed in Germany. Pigs, for example, require a protein-rich diet to grow more quickly. The soy used as a protein supplement to mix into their feed is most often imported because less than 10% of Europe’s soybean consumption is covered by its own production.

Earlier statistics from the NGO World Wide Fund for Nature (WWF) showed over 80% of German soy imports come from genetically modified plants.

Meanwhile, the German Farmer’s Association (DBV) sharply criticised the European Commission’s plans. “Commission President Jean-Claude Juncker’s plans will ruin the European market,” said DBV secretary-general Udo Hemmerling. There should be uniform approval procedures for imports from third countries, he emphasised.

Greenpeace called the initiative deceptive packaging, saying it will lead to more GMO food consumption in the longer-term. National import bans come with significant legal problems and could be contested by the GMO industry, the NGO said.

According to Greenpeace’s numbers, 17 GM plants are just ahead of import approval in the EU, and another 40 have applied for approval.

Critics believe GM plants pose risks to the environment and health. Proponents indicate higher yields thanks to genetically engineered characteristics, such as resistance to parasites and herbicides.

Rejection of food produced from GM plants prevails among the German public, while there is overwhelming acceptance of the practice in the United States.

US companies like Monsanto, Dow Chemical and Dupont make billions in revenues on GM seed sold worldwide. In Europe, BASF, Syngenta, and Bayer Cropscience are among the leading GMO manufacturers. with Reuters
Daniel Tost
Translated from German by Erika Körner