AGRICULTURE
AND ENVIRONMENT BIOTECHNOLOGY COMMISSION
LIABILITY SUB-GROUP
MEETINGS AT 11.00AM ON WEDNESDAY
5 DECEMBER AND 2.00PM ON THURSDAY 6 DECEMBER 2001 AT
ALBANY HOUSE, LONDON SW1
Note:
These are the views of the group, and not necessarily of the full Commission
Present:
Phil Dale
Matthew
Freeman
John Gilliland
Malcolm Grant
Derek Langslow
(not 6 December)
Sue Mayer
Justine
Thornton (Convenor)
Roger Turner
Anne Packer
(Secretariat)
Alessandra
Norman (Press office)
1.
Justine Thornton welcomed three new members to the group,
Sue Mayer, Roger Turner and Phil Dale; this was now a full sub-group of the
Commission rather than a developmental group.
The secretariat circulated a note from Justine Thornton on possible
principles, as a basis for debate at a later meeting. Alessandra Norman was attending the meeting to learn about
liability issues.
2.
Justine Thornton welcomed Penny Maplestone from the British
Society of Plant Breeders (BSPB) and Anthony Keeling from Elsoms Seeds
(BSPB member and President of the
European Seed Association) to informal discussions with the group. She explained the background to the AEBC
liability group’s work, including its current series of briefing discussions.
3.
The plant breeding industry is concerned that its
future - and much government-funded
biotechnology work (including environmentally beneficial work) - could be in
jeopardy because of the proposals from the European Commission to set legal
thresholds for the adventitious presence of GM material in non-GM seed. Thresholds for adventitious presence of GMOs
need to be reasonable and practical: BSPB see an urgent need for a feasible,
practical legislative framework to allow producers of non-GM seed to continue
to supply the UK farming and food industries with improved, high quality seed
that people have come to expect.
4.
BSPB concerns centre particularly on economic
liability. They have particular
concerns about setting a zero threshold, with a zero tolerance, for unapproved
GM events: if a single seed contained an unapproved event then it would be
illegal to market and sow the seed batch.
A zero threshold was unrealistic, because of the circulation of pollen. The risk would be so high that it would
become impossible for seed companies to insure in important crops. The onus would be on the producer of non-GM
seed to comply, and to carry the cost.
It could also mean the end of GM crop trials in Europe and the
impossibility of co-existence between GM and non-GM farming. (Anthony Keeling illustrated the problem
with an environmental clean-up genetic transformation project which is at risk
due to this proposed legislation.)
5.
In practice, small companies with no involvement in GM crops
could be hardest hit, because of the onus on ensuring there were no unapproved
events and the ensuing costs. This
would exacerbate trends towards fewer and larger, multinational,
companies. Smaller companies have limited
resources to make sure they keep out others’ transgenes. Mixing could occur in open fields eg from
wind blown pollen grains, and during cleaning and processing of seed from
different crops. Potential liability
could be enormous, and it seemed that Government planned no legislative provision
for cover if companies take all reasonable steps to avoid mixing. (If the threshold were set around 1%, with
proper disciplines, this would be feasible.)
6.
Companies with both conventional seed production and
biotechnology programmes would probably discontinue their research and development
programmes in Europe. There was
evidence of this starting to happen.
The possibility of cross-pollination could be a major deterrent for
companies to grow both breeding material and experimental crops. Similarly, work to develop transgenic plants
for bioremediation of contaminated soils would probably stop. Research investment would dwindle, as
universities and research institutes would not be prepared to risk the
possibility of liability claims in case an unapproved event from their research
was found in another company’s seed crop.
People would not be prepared to take risks for enormous potential
liability, and would back away from the possibility. It was not possible to get insurance cover for any potential
future legislation, as its scope was inevitably uncertain. BSPB did not think companies would have
sufficient funds to provide sufficient for an industry-wide compensation fund,
so this did not seem a viable option.
7.
Members asked whether Penny Maplestone and Anthony Keeling
could let the group have evidence or views
- in the future - on what provisions could be manageable, based on their
experience. They said they were not
sure whether this would be feasible, but would certainly consider the
request.
8.
Justine Thornton thanked Penny Maplestone and Anthony
Keeling for their useful discussions with the group, and said that they would
be welcome to let the AEBC group have any further issues, information or
queries which they would like the group to consider.
9.
Justine Thornton welcomed Graham Davis and Elizabeth
Jenkinson from the Department for Environment, Food and Rural Affairs (DEFRA)
to informal discussions with the group.
She explained the background to the AEBC liability group’s work,
including its current series of briefing discussions. The group hoped to have a first draft of a report for
consultation and consideration by the full AEBC in mid-2002. She explained that Alessandra Norman was
attending the meeting to learn about liability issues.
10.
Members agreed that issues for discussion and consideration
include whether GMOs are so different from other things that a special
liability regime may be needed; if a special regime were needed, in what
circumstances it might apply, and what such a regime might look like.
11.
There were three main types of loss relevant to liability
for GMOs:
12.
DEFRA described the legal framework in place for remediation
of environmental damage arising from release of GMOs, if an offence has been
proved under Part VI of the Environmental Protection Act 1990. Existing case law, in particular on
nuisance, might also apply. For
physical damage to property or land or personal injury, the laws of ‘nuisance’
and the rule in the case of Rylands and Fletcher provide for compensation for
‘traditional’ damage: individuals may take cases to court. For economic loss, it was unclear how
current law would apply specifically to GM crops issues.
13.
The EC had consulted on a White Paper on environmental liability
for a range of activities, including deliberate release of GMOs. In July it had produced a working paper, and
the Commission is working towards a draft Directive. The proposals include damage to biodiversity. The Working Paper proposals leave it to
member States to decide both on how far traditional damage is to be covered by
their liability regime, and whether – and if so how – economic loss is covered.
14.
DEFRA suggested that discussions at this meeting could focus
particularly on economic loss. As the
end of the FSEs approached, when considering commercialisation of GM crops, the
Government needed to consider the possible co-existence of GM, conventional and
organic farming – how co-existence might work in practice and what part separation
distances and liability might play. The
Government would welcome AEBC advice on the need for liability rules which
would be appropriate if there were commercial growing of GM crops and if there
were agreement on appropriate separation distances. There was also a question of timing - for example if new rules
were required, whether they need to be in place before commercial growing of GM
crops started.
15.
Under the approach taken in the EC White Paper, economic
loss would be for Member States to decide individually. The Government would welcome advice in this
area. Some possible elements in a
domestic liability regime for economic loss might include:
16.
There were several
relevant timetables: for agreeing and implementing any EC Directive; for
agreeing and implementing any primary domestic legislation; and for
decision-making on possible commercialisation of GM crops after the Farm Scale
Evaluations.
17.
In further
discussion, DEFRA said that some liability regimes include provision for state
of the art precautions being taken, in which case there would not be liability
for unforeseeable risks. There were
precedents for compensation funds in other industries and countries. There was discussion about the validity of a
distinction in any liability regime between for example plants which have been
modified genetically and plants modified in a different way, but which have
similar impacts; members noted that the animals and biotechnology group were
concluding that GM and non-GM animals should be covered within the same
regulatory regime. Farm saved seed
needed consideration. Co-existence
seemed a key issue in many areas, and there was the issue of who should bear
risks.
18.
DEFRA would provide AEBC with information about UK land
covered by the Natura 2000 designation, which appeared to be the land most
likely to be covered for environmental damage within any EC provisions.
19.
Justine Thornton thanked the officials for their helpful
input to the liability group’s work, and said that they would be welcome to
send in any further information.
20.
Some issues to carry forward for future discussions were
noted:
·
AEBC would need to
ensure it didn’t unintentionally endorse a system that by its nature rules out
development of a technology.
·
For insurance, issues included who bears what burden of
proof, whether or not there is a ‘state of the art’ provision. In some circumstances insurers could in
effect become regulators, and insurers can’t create insurance until they can
calculate the risks involved.
21.
The meeting on 20
December would now start at 10.00am and continue until 1pm to allow for
discussion both before and after the meetings with Victoria Beale from
Freshfields and Tim Humphries from ABI.
December 2001
