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Agriculture and Environment Biotechnology Commission (AEBC) | |||
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AGRICULTURE AND ENVIRONMENT BIOTECHNOLOGY COMMISSION
LIABILITY SUB-GROUP NOTE OF STAKEHOLDER SEMINAR HELD ON 8 APRIL 2003 AT THE ROYAL HORTICULTURAL HALLS CONFERENCE CENTRE, LONDON SW1: 12.30-4.30PM Introduction 1. Professor Malcolm Grant, Chair of the AEBC and of the independent GM public debate steering board, welcomed everyone to the seminar. The Commission aimed to publish its advice to Government on liability for GM crops in June. It would feed into Ministerial policy thinking and be a resource for the GM public debate. 2. Justine Thornton, convenor of the liability sub-group thanked stakeholders for the time they were giving to discuss these issues with members of the Commission. She explained that Chatham House rules would apply, and an unattributed note of the meeting would be posted on the AEBC website. The seminar would be important to test out and develop the group’s tentative conclusions and to consider unanswered questions. Seminar discussions would focus particularly on the paper sent to attendees in advance of the meeting. As identified in the paper, the Commission’s work on consumer choice and coexistence and liability were closely linked. A seminar on coexistence was planned by the consumer choice and coexistence sub-group for later in April. Main points covered in the discussion Economic impacts 3. The main potential economic problem related to GM crop growing is for farm incomes. The theme recurs that some conventional non-GM and organic farmers are concerned about their livelihoods being affected by possible adventitious presence from commercial GM crop growing, and conversely others’ concerns that they might be unable to grow GM crops if the conditions applied were very restrictive, which could threaten their ability to survive in international markets. 4. Attendees discussed the emerging conclusion that the way forward was to seek a system of compliance with protocols, in order to avoid as far as possible litigation between farmers, to deal with any economic loss arising from adventitious presence of GM material in non-GM crops. Protocols of litigation 5. All stakeholders welcomed the objective of achieving coexistence and compliance, based on an agreed system being in place before commercial GM crop growing rather than relying on law, to avoid the potential for extensive litigation. 6. Some had doubts about practicability: how effectively the proposals would achieve this objective. For example:
7. A European Commission Joint Research Centre report on coexistence scenarios in May 2002 had assumed all parties would be equally responsible for the integrity of their own land, and would all be bound by protocols, with enforcement by an independent third party. 8. Stakeholders discussed whether protocols should be statutory. Some said that experience led to that conclusion, while others thought that voluntary protocols could be effective. 9. Supermarkets would want to be involved in negotiating protocols. There were financial penalties where suppliers did not meet their contractual requirements. They accepted the separation distances in the FSEs. In their own products they currently worked to 0.1% adventitious presence, as the limit of detectability. 10. A stakeholder asked whether protocols in themselves might provide the basis of a strict liability regime. If not, their purpose seemed unclear, and if so, the liability would need to fall appropriately – perhaps with the supplier rather than the GM farmer. There would also be questions of how to apportion liability if more than one GM farmer had crops that might have caused adventitious presence. 11. Beekeepers and honey producers might face a particular economic problem. Adventitious presence might quite commonly be detectable – though well below threshold levels, and though farmers had adhered to protocols – and in this case the honey might well become devalued through market forces. In drawing up protocols for oilseed rape and maize, reference to beekeeping and honey production might be needed. 12. If there were a breach of a protocol, and adventitious presence over the agreed threshold, stakeholders agreed with the AEBC’s emerging conclusion that courts would probably come to the view that there was physical damage, for which GM farmer would be liable. No-fault cases 13. Particularly difficult cases could occur if adventitious presence were found in non-GM crops above the agreed limit, and if there was no evidence of fault. The aim should be for the protocols to be sufficiently robust for this to be rare. The AEBC sought views on how best to deal with them. The option of an industry fund was discussed for these cases, as a way of achieving equitable outcomes. Some stakeholders thought a fund could be open to exploitation, or that it would be expensive to administer – a high proportion of money coming in might be used to work out who should benefit. It would not be clear who should contribute, and in what proportions, among biotech companies, farmers and the insurance industry, and those in the food chain. Since industry stood behind all their products and had stewardship programmes for their products, there seemed no need for a fund. 14. There was discussion of whether NGOs considered a fund would be a confidence building measure. Views ranged from considering a fund important to underpin a coexistence regime, to being unacceptable and a fudge unless the protocols were tightly drawn because, if not, they considered the fund might be used as a compensation measure whilst AP became so widespread as to be irreversible. 15. A stakeholder thought it might not be feasible to organise a fund with fair contributions across industry, since risks for adventitious presence would be quite variable. They would vary between different transgenes and with different species eg because of variation in ease of cross-pollination, or of seed mixing. Government support might be more appropriate, but would rely on Government also being party to the protocols. 16. The question was important and so far unanswered. Who would put their hand in their pocket – would it be fair for farmers to carry the loss, should it be underwritten by Government, or some other body? Should society more widely pay? GM crops would only be grown if there were a market demand, so arguably if the public would benefit and should also contribute. Answers would depend partly on the amounts of money involved and frequency with which cases might arise. 17. Despite this uncertainty about mechanism, many stakeholders considered that this was an issue that had to be resolved, and that it was unacceptable to leave such losses where they fell. Insurance 18. There was currently little crop contamination insurance, to cover physical damage or crop value. On the whole the insurance industry was conservative, but would provide cover for which there was a market demand. 19. Stakeholders discussed what preconditions might enable an insurance market for GMO cover to grow, noting that insurance dealt effectively for example with cases of spray drift via public liability cover. AEBC would want to provide parameters so that an insurance market could develop. Environmental liability 20. Introducing discussion of environmental liability, AEBC liability group members explained the reasons - described in the seminar paper - for the liability group’s emerging thinking that there was not a case for setting up a separate regime for remediation to deal with environmental damage which might arise from cultivation of GM crops. Assessing potential direct, indirect, short and long-term environmental harm was a key part of the regulatory process for GMOs. The group considered that the possible advent of GM technology should be seized as an opportunity to raise environmental standards. Environmental standards 21. There was discussion about raising environmental standards across the board, particularly through the spread of good practice in farming. It was noted that there was increasing recognition that all agriculture had impacts on the environment. (For example, current use of atrazine had a major impact on water.) It was also noted that agriculture received substantial financial support. The group’s attention had been drawn to proposed reforms to the Common Agricultural Policy, which would require farmers to comply with a broad range of environmental requirements as a prerequisite for receiving subsidies. 22. A stakeholder considered it important to be aware that there could well be circumstances in which GM crops could enhance biodiversity. 23. A stakeholder pointed out that under the environmental protection legislation, remediation could only be forced on someone convicted of a criminal offence, and suggested that arguably the power should not be related to criminal offences. Another stakeholder said that the reason behind this had been to encourage reporting of incidents. 24. A number of stakeholders considered that specific provisions were not needed for GM crops, because the environmental impact issues they raised were similar to those from other activities. There were real or potential problems from searching for and importing new plants that could become pervasive: for example Japanese knotweed and rhododendrons, and importing exotic plants for cross-breeding using ‘conventional ‘ methods. Non-GM techniques in biotechnology could be more risky and were far less regulated than GM technology. It was not appropriate to single out GM technology in environmental provisions. Though perceptions might be different, fundamental changes could be made with conventional crops too. 25. The liability group had concluded from their scenarios consultation that there were parallels between environmental impacts of GM and of conventional crops. The widespread change for spring to winter sowing of wheat was an example of indirect effects of conventional farming – it has had a substantial impact on farmland wildlife, flowing from individual decisions by individual farmers. 26. Other stakeholders, though agreeing that GM crops might not raise unique environmental problems, considered that timing was a key difference. There was an opportunity to deal proactively with GMOs at this point, at the start of their introduction, and the opportunity should be used rather than allowed to pass by and be sidelined on the grounds of impacts from other current activities. Some stakeholders felt that GMOs had specific and different features, such as being self-replicating, which distinguished them from other innovations, and would make new environmental protection measures important, to back up regulatory provisions. It was better to avoid harm than to deal with it later. Interactions might arise in ways that could not currently be envisaged. Others pointed out that all varieties were self-replicating and in this respect GM was not unique. 27. Reverting to first principles, two distinct types of provision were needed for environmental damage. First, a structure to control the release of GMOs eg with powers for withdrawal and destruction if there were imminent risk. (These powers are in EC Directive 2001/18.) In cases of breakdown in control, there should be powers to restore damage, particularly where there was deliberate release otherwise than in accordance with consent conditions. In this framework, GMOs would be considered in similar ways to other emissions into the environment. Secondly, it was appropriate to use a different approach to broader changes in agriculture, where there were large numbers of people involved, where diffuse changes happened over a long tome and where cause was difficult to assess. It would be hard to pursue cases effectively, as this required a solvent defendant, a solvent plaintiff and clear evidence of a direct cause, so liability law was not an appropriate vehicle. Link between economic and environmental impacts 28. Stakeholders noted that for organic farming, changes might occur through an environmental route, but they would have economic effects. Scope for other measures 29. Measures using the concept of ‘responsibility’, such as stewardship schemes, were an approach the group had considered as a way of building confidence alongside regulation. 30. Considering whether there should be an industry fund to deal with remediation for diffuse environmental problems:
32. Amongst the uncertainties to be taken into consideration, a stakeholder suggested that the Commission should consider the speed at which a GM crop market might grow. 33. Some stakeholders felt that experience with GM crops has shown that there have not been environmental problems, and gave no opinion on the proposal for a fund. Others considered that GM experience was still very limited, and that industry should, in advance, take responsibility for possible adverse environmental impacts. We were starting from only limited knowledge, and there could be significant effects in a couple of decades. 34. Some stakeholders commented that lack of provisions would be likely to lead to adverse public reactions, and to political pressures. They considered that it was unlikely that Government would want to pay out in the future for problems caused by agriculture. Close 35. Drawing the meeting to a close, Justine Thornton thanked stakeholders for their constructive approach and helpful contributions during the seminar, which would be valuable in taking forward the Commission’s work. AEBC Secretariat April 2003 ANNEX AEBC LIABILITY SUB-GROUP STAKEHOLDERS’ SEMINAR, 8 APRIL 2003 Attendees
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