3rd May, 2002 Mixed reception for EU GMO plans

Mainstream EU and US consumer groups have welcomed European Commission initiatives designed to set up a new regulatory framework for genetically modified organisms (GMOs), but not everyone is convinced.

The Transatlantic Consumer Dialogue (TACD), which represents  65 transatlantic consumer organisations, this week wrote to EU Consumer Affairs  Commissioner David Byrne indicating its strong support for the European Commission's proposed system of labelling and traceability. The proposal includes a requirement to label all GM derivatives. 

Traceability and labelling of GMOs has long been a priority for TACD. Although the EU already has some labelling requirements, these have been largely ineffective, while the US, under pressure from biotech-agribusiness giants, refuses to contemplate any labelling requirements at all, claiming GMOs are no different to their non-GM equivalents. 

A spokeswoman for TACD explained that the group believed that consumers “must be able to choose whether or not to eat GM foods, a choice which is being undermined by the mixing of GM products with conventional varieties. An alternative to GM must be available to consumers. It is crucial to have traceability throughout the food chain, both to guarantee that consumers receive accurate information, and to ensure that action can be taken should a food safety problem arise in the future. The Commission's proposals will extend current labelling proposals to include all GM derivatives based on a system of traceability.”

Bureau of European Union Consumers (BEUC) director Jim Murray added: "The last five years have shown that GM food will never be accepted in Europe without consumer choice. Supporters of GM food have tried everything else, without success."

A spokesman for the European Parliament United Left Group (GUE-NGL), however, said that “whilst we support labelling, we also want to see very tight control of this new technology, which we believe is being foisted on people with no regard to the potential consequences. Industry claims that it is impossible to segregate GM material from non-GM material throughout the food production, processing and distribution chain are straightforward lies. We will continue to fight for the best possible protection for the environment, public health and the consumer, but our ideal remains a GM-free Europe in a GM-free world.”

Meanwhile, separate EU proposals on liability for environmental damage have been slated as hopelessly inadequate by environmental campaigners. As things stand, liability for damage caused by the release of GMOs is not covered in any EU legislation.  Last year, when new rules governing cultivation of GMOs were agreed after a bitter struggle in the European Parliament and between different member states, the European Commission and its friends in the biotech industry fought hard and successfully to prevent liability for GMO producers being included, promising that the issue would be covered in forthcoming horizontal legislation.  When the Commission finally presented its long-awaited Proposal for a Directive on Environmental Liability, however, those assurances were shown to be little more than empty words.  The text, which has been unanimously condemned by environmental NGOs and progressive MEPs, is so weak and full of loop-holes that GMO producers and operators could escape liability in a majority of cases.

For one thing, the crucial definition of “biodiversity” is limited to include only sites and species protected under the EU’s Habitats Directive and Birds Directive (plus anything covered  under national legislation in the Member States, e.g. national parks).  Under this definition, it is estimated that the directive will apply to only 13% of the EU’s territory and will be irrelevant to the remaining 87%.  This is clearly unacceptable since most activities concerning GMOs, e.g. planting, growing and handling GM crops, would take place outside the scope of the Directive.

Exemptions are foreseen in the draft Directive that would let GMO producers and operators off the hook for any damage to the environment.   According to the Commission, liability is precluded for any events or activities which have been authorised or which were not considered harmful based on scientific knowledge at the time.  These exemptions are necessary, says the Commission, as a measure that “safeguards incentives for innovation”.  In reality it would mean that any harmful effects caused by a GMO that has been authorised for market release would never be subject to environmental liability.  Even worse, it could also mean that even unauthorised GMOs would escape liability since companies can argue that “it was not possible to foresee the damaging effect of the GMO”.

Damage to private or public property and public health are not covered in the draft Directive, despite the fact that GMOs are authorised for release at EU-level.  Damage and loss of income to organic or conventional farmers whose livelihood is compromised by contamination from GM crops is therefore excluded from the scope of the draft Directive.

The limited time frame and exemption for activities already carried out provide even more loopholes for GMO producers and operators to avoid liability.  Under the draft Directive, any activities that took place before the Directive enters into force (bearing in mind that it is likely not to be transposed into Member States’ law until 2004-2005) are excluded.  Even in cases where competent authorities could prosecute an operator for damage, they are hampered by a time restriction under which they may only initiate action for compensation and redress during a five-year period.  Given the unpredictability of the long-term effects of GMOs, that is clearly not acceptable.

No financial obligations are foreseen under which GMO producers would have to ensure adequate insurance or compensation funds in order to be able to pay for repair of damage.  The Commission says simply  that the Member States should ”encourage” operators to take measures regarding financial security.  In the case of so-called orphan damage, where the operator can either not be identified or is unable to pay for the redress of damage, Member States should consider creating ”safety nets”.  In other words, the taxpayer should, as is now becoming the norm, cough up for damage caused by profit-making activities. We make money, we keep it; we lose it, you fork out. This may sound familiar to US readers, but it’s catching on everywhere.

Individuals and groups such as NGOs cannot initiate action according to the Commission’s Proposal.   Instead the responsibility for taking action against an operator who causes environmental damage lies with the national competent authority (which may also be the body that delivered the licence to conduct the activity in the first place).  “Third parties” can only submit observations and request the competent authority to take action, and may initiate a judicial review if they consider that the CA does not act appropriately.

To say that the draft Directive on Environmental Liability falls short of what was promised is an understatement.  Whatever polluting activity is concerned, it is clearly not a legal instrument that will go very far towards either deterring operators from causing environmental pollution or making them liable for damage they cause.  As far as GMOs are concerned, the Commission has clearly failed to live up to the commitments it made when it argued against liability being included in the revised Deliberate Release Directive.  It stated then that: ”a horizontal approach to liability is the most efficient way to guarantee a comprehensive responsibility regime for environmental damage.  This will provide clarity for complainants and prevent loopholes”.  It is apparent now, however, that the Environmental Liability proposal is neither ‘comprehensive’, nor does it ‘prevent loopholes’ - on the contrary.

According to various reports, a majority of Member States is also sceptical about the Proposal.  At a recent Council meeting, 8 countries – Austria, Finland, Portugal, Luxembourg, Sweden, France, Belgium and Germany – said that GMOs pose particular problems to the environment which are not covered in the draft Directive, several called for traditional damage to be covered, others do not want licences to exempt operators from liability, and some argued in favour of mandatory financial security for companies.  In general, most member states seem to think that the draft Directive undermines the Polluter Pays principle. Might be a good time to write to your national government, your MP or Euro-MP, and anyone else who might be able to help stop the EU from bringing in a liability regime tailored to the greed and irresponsibility of the biotech giants.

Thanks to Gill Lacroix, Biotechnology Coordinator, for much of the information in this important, longer-than-usual news item.