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Agriculture and Environment Biotechnology Commission (AEBC) | |||
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Sub Groups |
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CONSULTATION
ABOUT GM CROPS 30 September 2002 Dear
colleague, The
Agriculture and Environment Biotechnology Commission (AEBC) was
established in June 2000 to advise the Government on strategic
developments in biotechnology as they impact on agriculture and the
environment. The Commission has already published two major reports: about
the Farm Scale Evaluations (Crops on Trial) in September
2001, leading to the public debate which the Government has now
commissioned, about the possible commercialization of GM crops; and about
animals and biotechnology in September 2002.
In addition, the AEBC published a horizon scanning study in April
2002. Commission Members have
substantial ongoing input into public debate about genetic modification.
Further details about the Commission’s work are on our website. The
issue of liability for any potential harm arising from the release of GMOs
to the environment, and who might pay if any damage (economic or
environmental) occurs, has become a key point of tension in the debate
about the possible commercialization of genetically modified (GM) crops in
the UK and elsewhere in Europe in recent years.
The Commission’s interest is primarily in the regime for
liability in the area of law known as tort (eg, actions for nuisance or
for trespass), which tends to serve also as a foundation for building
special additional statutory rules enabling the State to bring
proceedings. Current examples
of that approach can be found in relation to water pollution, and for the
remediation of contaminated land. The
Commission is conscious that issues of contractual liability, and product
liability, may also arise. Those
critical of GM crops are concerned about unforeseeable impacts from
growing GM crops and argue that it is only fair that the biotechnology
companies and others profiting from GM crops should pay for any damage
that might arise. On the other hand, supporters of GM crops argue that
singling out GM technology for special attention is unwarranted and
unfair. There is no special liability regime for other developments
in crop improvement or agronomic practice, and the release of GMOs is
already more tightly regulated than any other agriculturally-related
activity. Since the benefits
of GM crops would be for society as well as the companies, it would be
appropriate for society to pay for some of the risks, particularly for
harm of a type that was unforeseen and unforeseeable at the time of the
release of the GMOs concerned. A
sub-group of Commission Members is studying this area.
The Commission intends to report on the subject in 2003. This
consultation by the sub-group is partly about legal issues such as the way
in which existing liability rules could be expected to adapt, by analogy,
to possible harm from the release of GMOs.
But the group is also considering how far existing, or specially
extended, liability rules are capable of providing an adequate regime for
post-commercialisation, and whether there are other legal or policy
instruments that should also be considered. The
group has been discussing the issues with a wide range of people,
including lawyers, insurers, government officials, plant breeders,
environmental NGOs and representatives of the biotechnology industry.
The sub-group has also considered the possible implications of the
draft EU Directive on environmental liability, and the new directive on
the deliberate release of GMOs to the environment (2001/18/EC), which
takes effect from 17 October 2002). It
is interested in the relationship between the regulatory regime for
release of GMOs and a liability regime relating to the effects of
releases. The
sub-group is aware that there are limits to what may be achieved by any
liability regime. Rules that
may work well between private landowners may need special development if
they are to be applied to ecological damage more generally, or to
instances of gradual and cumulative change from multiple sources of
emission, or in cases calling for swift response.
There may be a need to provide in such cases, as with river
pollution under present statutory rules, for the State to intervene to
undertake remedial works and to recover its expenses if possible from
liable parties. Again,
liability rules can only work properly if there is a solvent defendant, or
adequate indemnity cover through insurance or a special industry fund.
Otherwise, whatever the rules may say, the State may end up as the
ultimate guarantor of environmental protection. At
this stage in its work, the group would appreciate particular help from
stakeholders and others. In
order to assist the development of its thinking about the sorts of issues
that might arise, the sub-group has formulated a number of hypothetical
scenarios considering what might happen were GM crops to be grown
commercially in the UK, reflecting various direct and indirect impacts. To
an extent the scenarios focus on ‘worst case’ events. The sub-group is not endorsing a view that GM crops are
inherently more dangerous than other forms of agriculture.
The scenarios are set out in the attached paper, which also
provides a brief analysis of the likely outcome under existing liability
rules. We
would like to know your views as to: (1)
whether the scenarios capture all the issues likely to arise, and
if not, what others you believe need to be considered; (2)
the extent to which these are issues that are unique to GM crops,
or which might equally flow from other approaches to crop development,
such as through changes in agricultural practice or conventional crop
breeding; (3)
the extent to which, whether the issues are unique or not, current
liability rules are adequate to protect the environment or other
interests, including economic interests, from harm; (4)
whether changes to liability rules are requires, and if so what; (5)
whether other changes in law or policy are required, and if so
what. We
have posed a number of questions in the scenarios, but we realise that you
may want also to comment on other aspects which could also help us take
this study forward. You
might like to know that the AEBC liability group will be holding a meeting
on 5 November in London which will be open to all to observe, at which we
shall be taking evidence from a number of people.
We shall be discussing liability and related issues with lawyers,
farming representatives and a social scientist. If you would like further details of the time and place of
this meeting, please contact the secretariat.
If it is possible to send any comments in advance of 5 November
that would be helpful, though the meeting itself will be an
evidence-taking session rather than focusing on the scenarios.
We
should find it very helpful if all responses could reach the Commission by
12 November. The
contact details are: Bay
479 1
Victoria Street, London
SW1H 0ET Telephone:
020 7215 3863 Fax:
020 7215 3863 We
look forward to hearing from you. Justine
Thornton For
the AEBC liability group AGRICULTURE
AND ENVIRONMENT BIOTECHNOLOGY COMMISSION GM
CROPS - POST COMMERCIALISATION SCENARIOS Introduction 1.
The Agriculture and Environment Biotechnology Commission (AEBC)
liability sub-group looking at a liability regime for GMOs has developed a
range of hypothetical scenarios, in order to consider what might happen
were GM crops to be grown commercially in the UK and whether and how the
law might respond. To an
extent therefore the scenarios focus on ‘worst case’ events.
The sub-group is not endorsing a view that GM crops are inherently
more dangerous than other forms of agriculture; rather, the aim is to test
out whether GM crops raise new and different issues, whether current laws
are considered to be adequate and whether there are other potential ways
of providing redress. 2.
In
the scenarios, it is assumed that: ·
no
specific new legal provisions have been set in place to redress any harms
occurring. ·
GM crops have moved into commercial cultivation. Questions
to Consultees 1.
The sub-group would be grateful for consultees' views on any or all
of the following: (i)
Are there any issues that may arise from the commercial growing of
GM crops which are not captured by the scenarios? (ii)
Are the issues raised by the scenarios unique to GM crops, or might
they equally flow from other approaches to crop development, such as
through changes in agricultural practice or conventional plant breeding? (iii) Whether unique or not in
that sense, how far are current liability rules adequate to impose the
environmental costs of the harm on the person who has caused it? (iv)
If unique in that sense, need liability rules be changed to reflect
that uniqueness, and if so, how? Are
there issues about aspects of a regime, such as burden of proof, threshold
of liability (eg fault based or strict), foreseeability, costs or
otherwise on which you would wish to comment? (v)
To
what extent is it likely that the EU’s development of a directive for
environmental liability more generally will introduce a special regime for
GM crops? (vi)
How far are current liability rules able to secure redress for the
grower of a non-Gm crop in the event of GM contamination of that crop?
Should they provide for such redress?
If so, how? (vii)
Are
insurance or other indemnity mechanisms likely to be able to underpin a
liability regime for GM crops, and if not, how might they be so developed? (viii)
Are there other instruments, of law or policy, which might better
achieve the objectives of an extended liability regime? Scenario
1. Monoculture. A
variety of GM winter wheat has been genetically modified to be resistant
to all important pests and diseases and to be tolerant to a herbicide in
order that farmers can control weeds more effectively.
Due to its success more farmers have chosen to grow the variety to
the exclusion of other crops. The
result has been a decline in soil fertility which in turn has led to a
reduction in weed and insect biodiversity. The
reduction in soil fertility appears to have occurred as a result of
changes to farming practices. It is difficult to see how any of the people
involved (seed companies or individual farmers) could be made liable for
this. In
addition, the impacts on biodiversity are not recoverable unless it can be
shown to have interfered with crop production.
If so, any compensation is likely to be for the damage to the crop
rather than for biodiversity impacts. Scenario
2. Direct ecological effects. Forage
grass has been genetically modified to make it resistant to droughts and
sugar beet has been genetically modified to make it resistant to salt
However, the drought tolerance transfers to a wild relative of the
forage grass and the salinity resistance transfers to a relative of sugar
beet. As a result the wild
plants gain a competitive advantage and displace or reduce other plants in
the surrounding area. How
would current laws respond? If
the plants affected are other crops belonging to the farmer who is growing
the GM forage grass or sugar beet then it might be possible to claim
against the seed company who sold him the GM seed but this would depend
whether there were any provisions in his contract with the company to
protect him from any effects of the GM crops.
In addition, if the farmer was growing the forage grass or sugar
beet for his own consumption and not as part of his business then he might
have a claim against the seed company on the basis of a claim that the GM
crops are 'defective'. The
legal test for this is whether the 'safety of the product is not such as
might reasonably be expected'. It
is not clear how or whether this would apply to gene transfer, when the GM
crop itself is unaffected. If
the plants affected belong to a neighbouring farmer then he may be able to
bring a claim against the GM farmer.
Any court would need to decide whether growing GM crops amounts to
a 'reasonable use' or 'special use' of the land and whether the gene
transfer was a foreseeable consequence of growing the crops.
If the court decided that growing GM crops was not a 'reasonable
use' or was a 'special use'
and the gene transfer was a foreseeable consequence then it might find the
GM farmer liable for the impacts of the plants and require him/her to
compensate the neighbouring farmer for his/her loss. If
the plants affected are wild flowers or weeds then no-one will be liable
for their loss unless the flowers or weeds are particularly important
examples of their type and have been designated as worthy of protection
under nature conservation laws, in which case the GM farmer might be
prosecuted for damaging them. Scenario
3. Indirect effects on
groundwater. Oil
seed rape is genetically modified to be tolerant to the herbicide
glyphosate. Cross pollination
occurs between the oil seed rape and wild turnip, a weed. The wild turnip becomes tolerant to glyphosate and becomes
difficult to control. As a
result farmers growing conventional crops are forced to use more
persistent conventional herbicides to control weeds.
Local authorities are also forced to do the same to control the
weed population on railway tracks and pavements.
This leads in turn to higher levels of persistent herbicides in
groundwater. How
would current laws respond? The
conventional farmers and the local authorities are at risk of prosecution
for polluting the groundwater under the Water Resources Act 1991.
However, if, as appears to be the case, the impacts on the
groundwater have resulted from herbicides from a number of sources then it
will probably be difficult to identify particular people for prosecution. Scenario
4. Loss in value of crops. Neighbouring
farms grow oilseed rape on adjacent fields.
One crop is organic, the other is a GM crop for certified seed
production*. Both farmers
need to maintain a high level of genetic purity by minimising pollination
with adjacent crops. Cross
pollination (both ways) results in the organic farmer losing his organic
premium and the GM farmer losing his certified seed premium. *Note:
Certified seed has high genetic purity and is required for supplying to
farmers to grow crops. There
is a requirement for certified seed to reach a statutory level of genetic
purity. How
would current laws respond? Each
of the farmers could bring a claim against the other farmer.
However, how easy it is for each to recover compensation is likely
to depend upon whether a court views the loss as primarily economic in
that whilst the crop is physically the same crop, its market value has
declined. As a general rule
it is not possible to recover for any economic losses.
The only way in which the courts might however be prepared to allow
this type of loss to be recovered on the basis that the cross pollination
has altered the genetic make-up of the plant (which amounts to a physical
alteration) as a result of which the crop has lost value.
It
may also be that a court decides that either organic farming or certified
seed production amount to a sensitive use of the land in which case the
law will not protect the use of the land for this type of production. Scenario
5. Decline in market demand
for other products. A
leading potato variety is made resistant by GM plant breeding to all
important virus diseases. The
product proves very popular and significantly reduces the demand for seed
potatoes grown in Scotland and Northern Ireland.
These are areas relatively free from insect-spread virus diseases
and where seed potato production is an important farming enterprise. The
effect is a decline in income for the seed potato farmers in Scotland and
Northern Ireland. How
would current laws respond? The
seed potato farmers have suffered a decline in income because of changes
in consumer demand. This is
likely to be regarded as a business risk rather than suitable for recovery
under a liability regime. Scenario
6. Introduction of GM seeds
into a non-GM crop. (a)
GM wheat seeds are introduced into non-GM seed stocks intentionally
by vandals. The farmer who
owns the seed grows wheat for a supplier who pays a non-GM price premium.
As a result of the GM introduction he either has to destroy the
crop or label it as GM and therefore lose the price premium. (b)
GM wheat seeds are introduced into non-GM stocks unintentionally
when a combine harvester contractor fails to clean his harvester
sufficiently after harvesting a GM crop.
The farmer who owns the seed either has to destroy it or label it
as GM, thereby losing THE price premium. (c)
conventional seed imported from abroad is found to contain GM seeds
in excess of the legally allowed threshold limits for the presence of GM
seeds and the seed has to be destroyed by the farmer who buys it.
How
would current laws respond? (a)
If they could be traced, the vandals might be prosecuted for
criminal damage to property which would not however assist the farmer in
recovering his loss of income. The farmer could bring a claim of trespass against the
vandals and recover the lost price premium if the Vandals have the money
to compensate him. (b)
The farmer might have a claim in negligence against the combine
harvester contractor but might find it difficult to recover the losses on
the basis the court regards the loss as economic which in general is not
recoverable. (c)
Whether the seed company marketing the conventional seed would be
liable to the farmer is likely to depend upon whether there are any
provisions in the contract between the seed company and the farmer
governing the issue. In
addition, if the farmer has bought the seeds for his own use, as opposed
to any business use, then he might be able to claim against the seed
company on the basis the crops are defective.
The test of liability is whether the ‘safety of the product’ is
not such as might reasonably be expected.
There has been no case law considering how and whether the presence
of excess seeds makes the crop defective.
When this scenario occurred in reality, the seed company
voluntarily paid compensation to those farmers affected, but without
accepting liability. Scenario
7. Loss of resistance
to Bt. A
maize variety is genetically modified to be resistant to important pests
by introduction of a Bt gene (Bt is Bacillus thuringiensis, a soil
bacterium that produces toxins that control some insects).
The maize variety becomes widely used and insects develop that are
able to overcome the resistance. The
maize fails because of pest damage causing loss to the GM farmer.
In addition organic farmers who use Bt as an insect control agent,
but who have never used the GM crop, also find their crops fail, because
of pest damage. How
would current laws respond? Resistance
has developed because of the wide use of the crop by farmers, which
amounts to a change in farming practices.
The effect is that the farmers who have suffered damage cannot
identify any one farmer who has caused the problem and therefore against
whom they could bring an action. If
these farmers who purchased the GM maize did so for personal use and not
as part of their business, they might be able to claim against the seed
company on the basis that the product becomes defective when used widely.
Liability may then depend on whether the seed company could have foreseen
this occurrence, which in turn will depend on expert evidence about the
particular crop. This option
would not however be available to the organic farmers who have not
purchased a product from the seed company. Scenario
8. Unpredictable impact. A
ryegrass variety is genetically modified to be tolerant to glyphosate
herbicide. The crop undergoes a risk assessment prior to being
authorised for growing and conditions are imposed requiring the crop to be
monitored for any impacts on, amongst other things, soil fertility and
wildlife biodiversity. Despite
these precautions an unexpected impact occurs that could not have been
predicted according to the state of scientific knowledge at the time crop
was marketed and sold. How
would current laws respond? Unforeseeable
damage cannot be compensated for under current laws. Any loss will therefore lie where it falls. Scenario
9. Decisions by supermarkets
and purchasers A
supermarket decides not to buy organic and conventional honey from farmers
within 6km of GM sites, because the honey may contain traces of GM
material and the supermarket considers this will be unacceptable to
consumers. On testing both
the organic and conventional honey show the presence of GM material,
though the levels are not high enough to require the honey to be labelled
as GM honey. The farmers cannot sell their honey and lose money.
How
would current laws respond? It
seems unlikely that the farmers would have any redress against the
decisions of the supermarket unless there was some provision in their
contracts with the supermarket requiring the supermarket to take the
produce in these circumstances. AEBC |
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