Assembly can take action on GM contamination

The Welsh Assembly Government may be able to adopt a very restrictive approach to the growing of GM crops to prevent contamination following the publication of a legal opinion revealing that European Commission guidelines on coexistence between GM and non-GM crops [1] are "fundamentally flawed".

Paul Lasok QC, a leading European Lawyer, was asked by Which?, Friends of the Earth, The Soil Association, Greenpeace, the Five Year Freeze and Genewatch UK to advise on the EC Recommendation on the growing of GM crops alongside conventional and organic crops.

The Recommendation says that co-existence measures should not go further than to keep GM contamination of non-GM and organic crops below the threshold set down in European GM labeling legislation ( currently 0.9 per cent) . It also says that measures should ignore environmental concerns and be limited to economic issues. If member states put in place measures, like separation distances, based on this guidance, widespread GM contamination of crops and food is likely to occur.

This legal opinion, [3] presented to the EC Commissioners for Agriculture, Environment and Consumers, condemns the EC position as " fundamentally flawed " and criticises the UK Government for following this approach which has no basis in community legislation and is legally incorrect. The opinion concludes:

".the Recommendation is based on a fundamental misunderstanding of the relevant legal provisions, and risks advising Member States to adopt coexistence measures that are incompatible with the aims of the legislation or which would result in preventing, in practice, the use of the "organic" label and the reliance on the GM labeling exemption."

Friends of the Earth Cymru Director, Julian Rosser said

"The Assembly has already started discussing laws to control contamination from GM crops but it is being misguided by this flawed Commission recommendation [4]. The Assembly Government is one of the leading voices in a growing movement for GM free areas in Europe , and consumer demand for GM free food remains as strong as ever. This important legal opinion should be warmly welcomed in Cardiff Bay - it shows that Wales can take a tough line on GM contamination while still obeying European Law."

Ben Ayliffe, GM Campaigner for Greenpeace said:

"The European Commission may have to go back to the drawing board with GM crops now. If their assumptions about how to stop contamination between GM and normal crops are wrong, then it follows that subsequent decisions to allow some GM crops to be grown in Europe and proposals for permissable levels of GM contamination of regular seeds may also be flawed. Our legal opinion could really place the cat amongst the pigeons in the Commission and enable regions, like Wales, which are strongly opposed to GM crops to protect their environment from GM contamination to a much greater extent than was previously thought possible."

Peter Melchett, Policy Director of The Soil Association said:

"One reason consumers choose organic food is to avoid eating GM products, yet the European Commission is trying, we believe illegally, to impose rules that could mean almost one in every hundred mouthfuls of organic food was actually GM food, with no requirement to tell people what they are really eating ."

Notes

1. Following the publication of the European Commission Recommendation on "guidelines for the development of national strategies and best practices to ensure the coexistence of genetically modified with conventional and organic farming" on 23 rd July 2003 , Member States were requested to draft their own rules on how GM crops should be grown alongside conventional and organic crops. Member states were told to base these rules on the 0.9 per cent threshold set down in the labeling regulations. However, Paul Lasok's opinion says that the 0.9 per cent labeling contamination threshold for GM material in conventional and organic GM crops, is "legally irrelevant" to coexistence rules and members states can and should aim for lower thresholds.

2. At today's meeting in Brussels , European Commissioners will discuss GMO policy, current applications for the import of GM food and feed and the national bans on GMOs in Austria , France , Greece and Italy .

3. Advice - In the matter of Coexistence, traceability and labeling of GMOs. K.P.E. Lasok QC and Rebecca Haynes, Monkton Chambers, 21 January 2005 available at 11am Monday 21 st March on

www.foe.co.uk/campaigns/real_food/ ¬
resource/media.html

4. On 29 November 2004 Carwyn Jones, Assembly Agriculture Minister wrote to David Davies AM stating:

"The Welsh Assembly Government has continued to maintain its policy of taking the most restrictive approach to GM crop cultivation that is consistent with European and UK legislation. the Commission has been clear in its guidance on developing coexistence measures, that measures must be efficient, cost effective and proportionate to achieving the tolerance threshold - the measures should not go beyond what is necessary for staying within the statutory threshold (0.9%)"

Paul Lasok is one of the English Bar's most pre-eminent practitioners in
European Law, having practised in the field since 1979. His diverse European practice covers all manner of areas including, in particular: agriculture, trade law and environmental issues. Notably, he led the team for Greenpeace that successfully got the European Commission to examine the granting of aid to British Energy. This was a landmark case in the field of State aid and
the environment.

Rebecca Haynes is a barrister practising in European Community law and judicial review with a particular focus and specialism in environmental issues. She has acted for and advised extensively both governmental and non-governmental bodies in relation to diverse issues ranging from State aid, WTO and trade law to freedom of information, habitats conservation and GM.

Summary of Advice of Paul Lasok in relation to Coexistence, Traceability and Labelling

March 2005

Co-existence

European legislation gives Member States the power to introduce co-existence measures. The power is very broadly described, allowing member states to take " appropriate measures to avoid the unintended presence of GMOs in other products ".

In July 2003 the European Commission issued a 'Recommendation' which gave the Commission's views on how member states should use that power. Although not having force of law the Recommendation is important because it sets out the Commission's thinking and because it is being relied on by Member States throughout Europe , including the UK , in drawing up their co-existence strategies. The Recommendation tried significantly to narrow the power given to Member States. In particular, the Commission stated that:

1. Member States are not allowed to take into account environmental and human health matters in preparing their co-existence measures . The only issues allowed to be dealt with in coexistence measures are 'economic issues'. This is because the Commission believes that environmental and health matters are already fully addressed during the consent process for each crop;
2. Member States are not allowed to make their co-existence measures stricter than is necessary to keep contamination below 0.9% . This is because 0.9% is the level of contamination at which products must be labelled as containing GMOs.

Paul Lasok QC looked at the arguments and concluded that:

The Recommendation is ' fundamentally flawed ' (para. 55) and that the approaches of the Commission (and the UK Government in following the Recommendation) have ' no basis in Community legislation and are wrong in law' (para. 20). In particular:

1. The labelling thresholds (0.9%) are ' legally irrelevant' to deciding how to implement co-existence measures (para. 25, 26).
2. The objectives of coexistence must not be restricted to 'economic issues' only. Member States must have regard to the aims of protecting human health and the environment in adopting any coexistence measures. (para. 38)
3. Any co-existence measures that were based on the labelling threshold of 0.9% would make it extremely difficult for operators to avoid labelling their products as containing GMOs even where their products contained GMOs at less than 0.9%. (para. 42-45)
4. The Organic Regulation provides that, in order to be labelled or referred to as organic, a product must not contain GMOs in any quantity. If co-existence measures were to operate to a "baseline norm" (such as the 0.9% labelling thresholds) there is a very real risk that the "organic" label could become defunct" (para 52).