EXTRACT FROM NOTE OF AEBC LIABILITY GROUP MEETING ON 15 NOVEMBER 2002
Brainstorming discussion
1. The main item for the meeting was a brainstorming session. The aim was to tease out some possible emerging conclusions. These might be broad eg about the type of policy decisions to be made, or more detailed eg principles for a liability regime. Questions included whether GMOs were intrinsically different, (from what and for what purpose) and so needed a new liability regime; whether GMOs raised different kinds of liability questions from other agricultural activities, and whether liability regimes were in fact fit for this particular purpose, in comparison with/ alongside other mechanisms.
2. Members agreed to consider environmental, product and economic liability separately from each other in the liability report.
3. The recommendations in the liability report would need to be robust.
Economic issues and liability
4. Discussions focussed initially on economic issues. An underlying theme, - with considerable emphasis – should be tolerance and co-existence. The necessity of give and take, to maintain good relationships in the countryside. The group would take it as a principle that, in this country’s agriculture, there was no alternative to finding rules and principles for co-existence. This would apply because of imports, even if there were no GM crop commercialisation in the UK. This probably involved setting thresholds.
5. It was essential to resolve the question of co-existence, so the issue then became how to secure co-existence in a pragmatic way. Economic liability turned on tolerance, co-existence and thresholds.
6. Members agreed that problems of co-existence might be more apparent than real. There might be a tendency for over-concern, particularly in relation to organic farming. For example issues over growing of oil seed rape, sugar beet and maize looked feasible to sort out in practice at a local level. GM grass and clover were very unlikely to be grown in the UK. Any GM introduction was likely to be gradual. Of future potential crops, wheat pollen travelled only a few metres, barley a little further. Potatoes and willow might be introduced subsequently, and looked manageable. Potential problems arose mostly with seed mixing, rather than pollen transfer.
7. High erucic acid oil seed rape (HEAR), a non-GM crop currently in cultivation, which must be kept separate from other oil seed rape, might make a useful case study on how to handling crops which have to be kept apart.
8. Differing thresholds might be needed/appropriate for different crops. The first step could be setting rules for co-existence. There was scope for negotiation over thresholds. Afterwards a question could be whether extra liability provisions were needed. How to enforce those would need consideration. Ultimately it was probably an economic liability question.
9. If there were a sensible working rule, an insurance market might develop.
10. To have liability, damage would have to be defined. Setting a threshold could be a way of defining when damage had been done. And if someone damaged a neighbour’s goods, that would be harm.
11. For a desirable outcome, a workable threshold was a basic need. This could be a message from the liability group’s work for the UK organic farming movement. That zero was unrealistic, and unmeasurable. (There might be a need for different rules for imported, and in-country adventitious presence, and different relationships with the regulatory system.)
12. The group agreed that it would rule out ‘zoning’ as a potential way forward. Reasons would include conflicting with the notions in Part C consents, and with principles of freedom to farm. There were good social policy reasons why there should be no zoning.
13. To achieve co-existence, there would have to be hard negotiation over threshold levels. The group would make it clear that this is not cost-free. The more stringent the conditions, the higher the costs – which consumers and/ or farmers would ultimately have to pay. Since much of the cost was related to analytical work, the lower the threshold the higher the cost – analysis being more difficult and time intensive.
14. Distinction between GM and non-GM plants might be argued as appropriate for some economic aspects, because people feel very differently about the two.
15. The group agreed to note that there was a conflict if rules were applied to GM and not other plant breeding methods. This might suggest any regime should be more broadly cast than just GM. As conventional breeding becomes ever more sophisticated, breeders could avoid any rules relating just to GM, by using non-GM methods to achieve a very similar end, where the outcomes might be potentially worse – for example producing herbicide tolerance by mutagenesis, with the herbicide being a more toxic one.
16. It was important to understand the existing legal and regulatory framework, and to be realistic. For example on European legislation, a UK environmental liability regime could be established to extend an EU regime, but AEBC recommendations would have limited impact on WTO discussions.
Environmental liability
17. Environmental effects could well be diffuse, emerge over many years and might not have a distinct plaintiff. The first step to consider was whether a liability regime would make a difference. There were subsets of biodiversity loss and ’traditional’ loss – physical damage to property.
18. If there were grounds for an environmental liability regime, the group would not want a distinction drawn between GM and other agriculture. The net should then be cast wider, on an equal basis – perhaps based on novelty.
19. The group might conclude that the distinctions in the EU draft liability directive made it of limited relevance in the UK, as it would impact on few agricultural areas.
20. One of the tricky issues was unforeseen impacts, and whether liability had anything to offer here. This was a driver of public concerns, alongside views on whether there were any ‘benefits’ from GM technology. Members noted that there was no system for incorporating ‘need’ in regulations – and this applied equally to mobile phones as to seeds. A helpful distinction might be made – as in the Commission’s Animals and biotechnology report – between ‘trivial’ and ‘morally compelling’ uses of a technology. Considering whether there was a mechanism for considering social benefits, members noted that with BST there were perceived animal welfare issues, alongside the view that additional milk was not needed. Similarly for US hormone beef – and the UK was paying an economic penalty to the US.
Liability and regulation
21. The report must analyse what liability is for, and what are its limits. Liability is a legal tool. What are its relationships to other tools? Can you achieve outcomes in other ways eg through regulation? Liability should not be used to make public policy.
22. Members considered this an important division - some things being better dealt with by liability and others by regulation. Monitoring and reflection was an important principle, especially where there are concerns over irreversibility.
23. A cap on liability might be a useful tool to give certainty, by providing circumscribed liability. It would be useful to know how industry would view this approach.
Some ‘headlines’
24. A brief summary of ‘headlines’ could include:
· The importance of co-existence and tolerance. The scope for a way forward, given the specific GM crops on the horizon, the gradual nature they would be introduced, and the relative geographic locations of organic farms and those which might include GM crops.
· That zoning was not appropriate
· That economic and environmental liability raised distinct issues and should be considered separately. Any environmental provisions should have a broader scope that GM alone.
AEBC Secretariat
November 2002
