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Debate on GM Food and Law

The discussion will cover Bovine Spongiform Encephalopathy (BSE) as this was a major food safety crisis.  However, it dates from 1996.  Therefore, it would be more useful to examine the recent European debate surrounding genetically modified (GM) food.  Antibiotics in animal feed and chemical contaminants in food (dioxin) will also be considered.

One of the main problems with the quotation[1] is that it is like an organisational mission statement.  Such statements can make claims over what can be achieved.  But they overlook how such claims can be implemented in practice.  In this context, it may not be possible for the health objectives to be achieved.  MacMaolain[2] suggests that the aims of the White Paper, such as “independence, excellence and transparency”, could be interpreted as “subjective and abstract in their application”. 

The quotation[3] states a health aim.  The commission tries to use language that is not political; but its use of words could be seen as ambiguous.  This language does not explicitly aim to defend public health.  The use of the term “adventitious”[4] is not helpful.  It could be open to interpretation.  It could be interpreted as an accidental or co-incidental contamination of a normal crop by a genetically modified plant.  Such contamination, if there were a harmful effect to a consumer, could leave the legal situation in doubt.   A farmer causing the contamination could claim it was accidental.

Before discussing GM food and crops in detail, the regulation of antibiotics will be examined.  This is interesting because it provides an example of where the precautionary principle has been implemented and where the protection of human health has been delivered.

Precautionary action can be taken to prevent harmful effects “from occurring in the first place”[5].  A manufacturer of an antibiotic claimed that E.U. “institutions should wait for the adverse effects of a product to materialise before taking precautionary action”[6].  This was rejected to maintain the precautionary principle and to protect public health. The implementation of the ‘precautionary principle’ has though been criticized for being “arbitrary and uncertain”[7].  It becomes difficult to implement when new scientific information becomes available.  Officials and scientists need to keep on examining the latest scientific information to see if the precautionary principle still holds.

This section will examine the health implications of GM food.  Genetically modified crops could have “unanticipated health impacts when they are consumed”[8].   But it could be difficult to apply strict liability to GM crops.  Strict liability is where someone is responsible for damage, regardless of whether they are to blame for the harm.  The author is not aware of any cases of where the nuclear power industry has paid compensation for any ill-health that it may have caused.  However, this is not the same as stating that, British civil nuclear power, has not caused any ill health, to anyone, since 1950.  It may have been difficult for the public to hold the nuclear industry to account for any illness.  A similar problem of holding producers of GM food to account may be emerging in Britain.  The law may not be helpful in dealing with any ill-health that GM products may cause.   A farmer producing GM food could claim that the spread of say GM pollen was adventitious.  This is where pollen could have been spread by the wind in an accidental or random way. 

The problem of liability can be seen with the difficulty of co-existence.  Co-existence is when GM and non-GM crops are supposed to be segregated.  However, co-existence, and the ‘segregation of crops’ cannot address questions of human health protection[9]; for the reason given above.  This casts doubt on the comprehensiveness of the EU proposals.

The White Paper claims to be proactive but perhaps it is more ‘reactive’ in terms of leaving the standing of GM food to the market.  But the co-existence of crops cannot “be left to the market”[10].  This is because non-GM farmers may not be able to sue for damages.  First, there is a cost issue.  Second, there is the problem that any such legal action could fail; a GM farmer could claim that any GM pollination was ‘adventitious’.

The E.U. laws on GM food are not ‘fully coherent’.  GM foods can be GM free, but still contain 0.9% of the GM product.  A producer does not have to aim for 0% they can produce 0.9%[11]and still qualify for GM-free status.  Such small quantities could be relevant to a debate on food safety.  This is because it is unclear whether small quantities of infective material were responsible for deaths from Creutzfeldt–Jakob Disease (CJD) in the UK.

The law does not make sure that there can be GM free produce. “Much of the burden of ensuring GM-free produce seems to fall on voluntary agreements ... between farmers”[12] to prevent the contamination of neighbouring farms.    Organic farmers could be relying on neighbouring farmers from not contaminating their crop with GM material.  There appear to be problems over whether farmers producing GM crops have insurance to cover the liability if they were to contaminate another farmer’s crop.  There is the problem of organic growers feeling that they need insurance to cover themselves from GM contamination.  They might not be able to provide the consumer with organic food.  They could lose their rights to organic certification in this case.

The law is not protecting farmers who lose organic status.  Problems over coexistence have not been clarified.  To further explain the seriousness of this potential problem; there could be a similarity between GM Food and the case of BSE.  Measures regarding BSE, such as the removal of diseased cattle, relied upon the compliance of farmers.    

In terms of the development of GM crops; there seems to be little way that the law can deal with this ongoing situation.  It may be difficult to show that an industry is liable for ‘genetic pollution’.   Liability does not appear to work when a food regulatory body is dealing with contamination over a widespread area; where it is impossible to link the negative effects with failures by certain individuals or organisations[13].

This may have been a particular problem with dioxin contamination that could have been difficult to trace back to particular farms[14].  The “commission regulation 466/2001 sets a range of maximum acceptable levels for contaminants (such as dioxin) in foodstuffs”[15].  But there appear to be too many recent contamination incidents.  “New regimes of traceability have been implemented to enable companies to track food ingredients in order to eliminate subsequent legal or insurance liability consequences”[16].  Nevertheless, these ‘regimes of traceability appear to have been exposed as failing in this context. 

“It might be difficult in normal tort law to get at the industry rather than individual farmers”[17].  Tort law is where someone has caused damage to someone else.  For example, a factory could have discharged water pollution into a river.  This could have caused harm to fish down river.  It could have damaged the employment of people in the fishing industry.  The law allows people to seek payment to compensate for the loss which they incurred.  However, tort law as was stated earlier may not be good at tackling an industrial problem.

Also, there could be a problem if a GM farmer causes a contamination on their own farm, which later affects a customer who buys the food.  But tort law may not protect the final consumer in this context.

Strict liability may not work, in practice, as stated earlier with nuclear power.  Also, pioneers of GM food could use a “state of the art defence” [18] to protect themselves from any liability.  They could argue that their “innovation is in the public interest”[19].  This represents a significant problem.  There is not a consensus over biotechnology so “the application of the defence is ... contentious”[20].  Since there is not an agreement, across society, on whether GM food is acceptable or not; then there is a not a view on whether such a defence is appropriate.  

Consumer protection is not upheld as the industry is resistant to labelling.  This makes it difficult for the consumer to make a choice over what they buy.  “The industry has ... resisted calls for mandatory labelling, arguing that there are no legitimate grounds for distinguishing between GM and non-GM products”[21].   There is a problem here that consumers are supposed to be able to make informed choices through labelling; but the industry wanted to deny them such choices. The industry may claim that labelling may stigmatize GM products and “discourage consumption of foods with no known health risks”[22].  But even if GM products are labelled, they are not labelled to identify health concerns.

The consumer does not have full information.  They are unaware of any GM material which is less than 0.9% of the total[23].  Also, labelling regulations do not apply to “the meat or milk of a cow fed on GM feed”[24].  “Food produced from, but not containing a GMO, in the finished product is exempt from additional labelling requirements”[25].  This presents a problem as the legal framework leaves the issue of consumer information unresolved.  It may be assumed that the public has consumer sovereignty but they do not.  The GM debate is in disarray with an “awkward compromise between a desire to facilitate marketing of GMOs and a desire to control it”[26].

Market based solutions do not resolve issues of public policy. “The potential for individual consumption decisions to respond fully to the collective political issues” is overstated[27].  Economic issues may override safety issues.  Too much emphasis appears to be placed upon the free movement of goods; in this case, the movement of food. It is argued that “free movement ... remains the priority in E.U. food laws”[28].

It is too optimistic to argue that different parts of the food chain will collaborate “to provide foods that are healthy to consumers”[29].   The problem is that industrial interests could pursue a business policy with “aggressive pricing and marketing”[30] to overcome individual preferences.  Cheap prices could overcome an individual’s desire to avoid certain types of food.  In this context there seem to be few legal protections for the consumer.  Arguably, the European Union has been slow to deal with poor quality, and cheap, foodstuffs and their variants.  A variation of mechanically recovered meat was only recently outlawed[31].

Another problem is that the public can find it difficult to express their views as decisions are “increasingly made at an international level”[32].  “The UK does not make autonomous decisions on GMOs, but contributes to EU level decisions, which in turn are subject to WTO disciplines”[33].  However, there are complexities in the situation.  The E.U. did listen to public fears and this could “explain the November 2004 failure of the regulatory committee to approve (the) import of Monsanto’s maize, MON 863”[34].

There have been some hopeful recent developments.  European policy making could be slowly incorporating public views into decision making.  “The Food and Feed Regulation explicitly provides that ‘other legitimate factors’ than risk assessment may be ‘relevant to the matter under consideration’. This formula (applying only to GMOs for food or feed) seems to allow considerable room for the incorporation into decisions of values and concern that go well beyond technical and scientific issues”[35].

It should be acknowledged that consumer protection extends beyond safety.  “Concerns about GMO’s are much broader than food safety.  They also concern issues of corporate control, biodiversity, the ethics of bioengineering and the industrialisation of agriculture”[36].

Finally, the recurrent theme of this discussion is that the GM debate is wider than a marketing one.  The emphasis on marketing and labelling reduces the debate to one of branding; when there are fundamental concerns over health at stake.  The law needs to be stronger to protect European consumers.

References

Ansell C. and Vogell D. eds., What’s the Beef?  The Contested Governance of European Food Safety, The MIT Press, London, 2006

Commission of the European Communities, White Paper on Food Safety, COM (1999) 719 final, Brussels, 2000, 12/1/2000

Grossman M. ,  Traceability and Labelling of Genetically Modified Crops, Food, and Feed in the European Union, 2006, Originally published in the Journal of Food Law & Policy: 1 Journal of Food Law and Policy 43, 2005

Harrington R., EC to tighten up on dioxin monitoring as UK customers exposed to tainted food, 2011, 10/1/11, 

Holehouse M., End of cheap burgers and pies as meat removal process banned by Europe, Daily Telegraph, 2012, 05/04/12, available at 

Josling T., The Institutional Framework for Food Regulation and Trade, 2008, in Hartman M., Rudloff B., Heckelei T. , 2008,  Special Edition: Food Regulation and Trade, Institutional Framework, Concepts of Analysis and Empirical Evidence, available at 

Lee M., EU Regulation of GMOs: Law and Decision Making for a New Technology, Edward Elgar, Cheltenham, 2008

Lee M., The UK Regulatory System on GMOs: Expanding the Debate?, 2008, In Everson and Ellen Vos (eds.), Uncertain Risks Regulated (Routledge)

MacMaolain C., EU Food Law: Protecting Consumers and Health in a Common Market, Hart Publishing, Oxford, 2007

[1] Commission of the European Communities, White Paper on Food Safety, COM (1999) 719 final, Brussels, 2000, 12/1/2000, pp.8, 

[2] MacMaolain, C. , EU Food Law: Protecting Consumers and Health in a Common Market, Hart Publishing, Oxford , 2007, pp. 187

[3] Commission of the European Communities, op. cit. , p.8

[4] Lee, M.,  EU Regulation of GMOs: Law and Decision Making for a New Technology, Edward Elgar, Cheltenham, 2008, pp.105

[5] MacMaolain, C., op. cit., p. 200

[6] Ibid, p.202

[7] Ibid

[8] Lee, M. op. cit. , p.107

[9] Ibid, p.113

[10] Ibid, p.109

[11] Ibid, p.120

[12] Ibid, p.115

[13] Ibid, p. 134

[14] Harrington, R., EC to tighten up on dioxin monitoring as UK customers exposed to tainted food, 2011, 10/1/11 

[15] MacMaolain, C., op. cit., p. 219

[16] Heasman M. and Lang T. , Food Wars, The Global Battle for Mouths, Minds and Markets, Earthscan , London, 2004, pp. 331

[17] Lee, M. op. cit. , p.136

[18] Ibid, p.138

[19] Ibid

[20] Ibid

[21] Ibid, p.142

[22] Grossman, M.,  Traceability and Labelling of Genetically Modified Crops, Food, and Feed in the European Union, 2006, originally published in the Journal of Food Law and Policy: 1 Journal of Food Law and Policy 43, 2005

[23] MacMaolain, C., op. cit., p. 248

[24] Ibid

[25] Ibid

[26] Lee, M. , op. cit., p.144

[27] Ibid, p.141

[28] MacMaolain, C., op. cit., p. 185

[29] Josling, T., The Institutional Framework for Food Regulation and Trade, 2008, pp.20, in Hartman M., Rudloff B., Heckelei T. , 2008,  Special Edition: Food Regulation and Trade, Institutional Framework, Concepts of Analysis and Empirical Evidence

[30] Lee M. ,  op. cit. , p.147

[31] Holehouse M., End of cheap burgers and pies as meat removal process banned by Europe, Daily Telegraph, 05 April 2012

[32] Lee M. ,  op. cit. , p.244

[33] Lee, M., The UK Regulatory System on GMOs: Expanding the Debate? , 2008, pp. 32, In Everson and Ellen Vos (eds.), Uncertain Risks Regulated (Routledge), 

[34] Grossman M.R. , 2006, op cit. p. 43

[35] Lee, M. op. cit. , p. 29, in Everson and Ellen Vos (eds.), 2008

[36] Ansell, C., The Asymmetries of Governance, in Ansell, C. and Vogell, D. eds., What’s the Beef?  The Contested Governance of European Food Safety, The MIT Press, London, 2006, pp. 331 

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