GM Crops: The European Context and Legal Precedents from Canada
Alliance for Natural Health, 10 March 2009. By Robert Urquhart Collins, Legal Consultant to the Alliance for Natural Health:
The article explores the background to the current push towards the introduction genetically modified (GM) crops into the EU. The most significant aspects of the current state of the legislation regulating the marketing of foods which inadvertently contain a GM element are described. The main protagonist in the industry, Monsanto is identified and its business model examined. The activities of this company are outlined and certain aspects of its legal and extra-legal activities are set-out. The article then examines two seminal cases, both of which were decided in the Canadian courts. Monsanto v Schmeiser and Hoffman v Monsanto are described and analysed. The conclusion is drawn that as precedents, these bode ill for the future of the regulation of the GM industry, particularly, in respect of their effect upon the legal redress available to conventional farmers who may be adversely affected by the unwanted presence of GM seeds and crops on their land.
Recent Developments in the European Union
To anyone who studies the introduction of Genetically Modified Organisms (GMOs) into the European Union (EU), the period in which we now find ourselves might in retrospect appear to be one of the most significant in the history of that process. The closing months of 2008 and the start of 2009 bring news on almost a daily basis. Sadly, the general import of that news is that the wish of the vast majority of the population of the 27 Member States of the EU to be free from exposure to GM products in their foodstuffs and in their environment, will not be put into effect by the administration in Brussels. Poll after poll has confirmed the general antipathy of the majority of the citizens of Europe towards GMOs. For their employees in the European Commission in Brussels this antipathy is, however, an unjustifiable impediment to the enactment of the commercial interests of the companies who develop and market GM technology.
In October of 2008, Jose Manuel Barroso, the fiercely pro-GM President of the European Commission, convened a secret meeting in Brussels of special representatives of the 27 Member States in order to "speed up the introduction of GM modified crops and to "deal with" public resistance (reported by Geoffrey Lean, Independent on Sunday, 26th October 2008). The Commission is impatient with public opinion and with those countries that continue to ban the cultivation of GM crops, in particular, Monsanto's GM maize variety MON810 which expresses a toxin from the bacteria Bacillus thuringiensis (Bt) that in turn kills the complex of moth pests on the crop. France, Hungary, Austria and Greece all currently have bans in place. On 2nd March 2009, the Council of Ministers voted to uphold the right of Austria and Hungary to ban cultivation of two GM maize crops, Monsanto's MON810 and Bayer's T25, that have been approved by the European Commission for cultivation in the EU. Twenty one out of 27 environment ministers voted in support of Austria and Hungary's stand—and against the pro-GM position of the European Commission. While encouraging, this decision should not be seen as an outright victory for the anti-GM lobby; the Council is currently considering further action aimed at undermining this vote.
In this way we see the development of a process that has been dubbed "post democracy"; that is, rule by an unelected elite that places the interests of economically significant lobby-groups above those of the electorate that it is supposed to serve.
In the case of GMOs the most powerful lobbying comes from the industry association EuropaBio which represents the interests of all the major operators in the biotechnology and pharmaceutical industry, including Monsanto, Bayer, Syngenta, BASF, Merck, Dow Agrosciences, Pfizer, GlaxoSmithkline, Wyeth Biotech together with a host of other players, large and smaller. It was pressure from this lobby-group that facilitated the promulgation in 1998 of an EU Directive on the legal protection of biotechnological inventions (also known as the EU Life Patent Directive; Directive 98/44/EC). This piece of legislation is for EU wide "harmonization" of policy for the approval of patents for life forms whether genetically invented or it would seem, belonging to natural species within which such genetically produced strains belong. EuropaBio is also responsible for the misinformation that led last year to the Commission accepting and propounding the false assertion that the world food crisis was attributable to impediments that had been placed in the way of the GM industry rather than to the simpler and more accurately identifiable factors of poor weather conditions, the high price of fuel and the use of agricultural land to produce biofuels.
The biotechnology industry sees new PR opportunities in all of the crises that currently affect humankind. No member of that industry has been more adept at exploiting those opportunities than the United States based giant, Monsanto. This same company has the lion's share of European registrations for GM crops so all it needs now is a green light from the European Commission to get its crops into as much European soil as it possibly can.
Monsanto: A background of Litigation
Amongst their other achievements, Monsanto and its subsiduaries have given the world Agent Orange (which it produced in collaboration with Dow Chemicals for the American military and subsequently as a common and garden—albeit highly dangerous—broad spectrum herbicide), aspartame, the bovine growth hormone rBGH and of course, the current generation of genetically engineered agricultural crops. A few reminders about the history of those products are perhaps, apposite.
Agent Orange was the defoliant, now banned, that was directly responsible for sickness, cancers and birth defects amongst the population of Vietnam and amongst the servicemen who fought in the war in which it was so profligately used.
The use of rBGH is banned in the EU and in many other parts of the world on the grounds of safety concerns. In the US however, the Food and Drug Administration (FDA) approved the product. Not content simply with being allowed to market rBGH, Monsanto have sued and obtained out of court settlements against those dairies that label their milk as being from growth hormone free herds. They have extended this pressure to various state legislatures in attempting to obtain bans on labels that refer to the absence of growth hormone. Fortunately, in this respect at least, the tide appears to be turning against the company and it is widely reported that as a result of public pressure, these attempts have failed and the use of rBGH is declining.
The product with which Monsanto is perhaps most associated is the herbicide glyphosate, selling under the trade name Roundup. This product has also been the subject of litigation. In 1996, in New York and in 2007 in France, Monsanto were convicted of falsely claiming Roundup to be biodegradable, a claim made despite the fact that their own research had shown it to degrade in soil no more than 2% over a period of 28 days.
The purpose of this article is not to mount a general tirade against Monsanto, but for those who are unaware of the business model that the company espouses, a casual search on the internet will provide an extensive source of material.
Glyphosate resistant Crops
Monsanto's number one genetic modification of crops involves including a trait for resistance against its own herbicide RoundUp. The idea is that farmers growing so-called Roundup Ready GM crops can spray as much Roundup as they like to kill competing weeds while being secure in the fact that they won't kill off the crop itself. As a business proposition, it's a classic case of a double whammy in Monsanto's favour.
However, it hasn't been clear sailing for Monsanto as they have had to deal with a number of court cases, to which our attention will now turn.
The Canadian cases of Monsanto v Schmeiser  1 SCR 902 2004 SSC34 and Hoffman v Monsanto (2005) SKQB 225 are of particular import. Although these are decisions of a Canadian court, they have profound implications for the relationship between GM and non-GM farming across the world.
The herbicide glyphosate was developed by Monsanto in the 1970s and has been marketed under the trade name Roundup from 1973. Significantly, the US patent expired in 2000 and the chemical is now sold by other companies. Monsanto continues however, to increase its income from this product. Recently, it announced that its projection for 2009 of profits on Roundup of 2.1 to 2.2 billion US dollars was to be upped to 2.3 to 2.4 billion dollars. This is surprising, given that one would assume that the operation of the free market would eat into this profit as other manufacturers stepped in to undercut the price. That surprise is compounded by the fact that in the US the price of Roundup doubled during 2007 and the opening months of 2008. The answer to this conundrum is simple. The vast majority of soya and canola (oil see rape) in the US and Canada is grown from Monsanto Roundup Ready seeds, the technology for which was developed in the late 1990s shortly before the expiration of the patent. Farmers using this seed are contractually bound to use Roundup rather than a proprietary brand and the whole process of agronomy relating to these seeds centres on the use of glyphosate.
The use of Roundup Ready crops together with the application of the herbicide Roundup means there is no need to till the soil as a means of killing weeds, which, as a consequence, retains more moisture than would otherwise be the case. Additionally, the farmer uses less labour and is able to reduce dependence on oil-reliant machinery. However, as a result of this process, levels of glyphosate use have increased dramatically. Using figures supplied by the United States Department of Agriculture (USDA), the Centre For Food Safety has shown that between 1994 and 2005 the use of Roundup Ready crops led to a 15-fold annual increase in the use of glyphosate, rising from 7,933,189 pounds to 119,071,000 pounds (Centre for Food Safety "Genetically Modified Crops (GM crops) and Pesticide Use" Jan 2008).
The overall effect of GM agriculture on herbicide and pesticide use is a topic that has generated a great deal of controversy and conflicting evidence. In general, it would be safe to say that the widespread planting of Roundup Ready and Bt crops has not been accompanied by any dramatic decrease in the use of chemical pesticides and herbicides and in the view of many scientists has resulted in an increase in such use. In passing, it is interesting to note that USDA announced in early 2008 that the programme that tracks pesticide and herbicide use would be discontinued for budgetary reasons.
Cynical voices have suggested that the true reason for this discontinuance can be attributed to the efforts of the lobbyists from the biotech industry. This assertion, whether true or not, reflects a degree of skepticism in the United States about the impartiality of USDA. Its detractors point to a relationship with the biotech industry which is close and uncritical. The nature of this relationship will soon be put to the test. The United States Court of Appeals for the Ninth Circuit gave judgment in September 2008 ordering the USDA to produce an Environmental Impact Assessment in respect of Roundup Ready alfalfa. Until that is completed, planting of GM alfalfa will be halted. Initially, USDA cleared GM alfalfa without an assessment and the crop was marketed and put under cultivation. In supporting earlier decisions in the case the Court recognized the irreversible harm that would be done to the interests of growers and consumers who wanted a non-GM crop, were the cultivation of the Monsanto strain to continue. The outcome of the assessment is expected soon. Alfalfa is a highly important crop for the animal feed industry and the resolution of this case will be a landmark battle in the wider conflict between conventional and GM agriculture in the United States.
Monsanto claims that Roundup Ready crops and its other GM varieties are not only benign but will help to mitigate the adverse effects of climate change and resource depletion. It is this claim that currently forms the centrepiece of Monsanto's public relations offensive. In February, Jerry Steiner, the vice president of Monsanto was in Spain at a conference on world hunger, and is reported as saying that "Los transgénicos son parte de la solución contra el hambre" (transgenics are part of the solution against hunger) (El Pais 9th February 2009) and is reported also as dismissing fears of "terminator seeds" as an urban myth (ibid.). There are in fact no unequivocal data that show GM crops as providing higher yields or as having the potential to alleviate world hunger. Also, one wonders why if terminator seed technology is an urban myth there is a company, Delta Pine and Land, that with the aid of USDA grants developed terminator seed technology and owns jointly with the US government, US patent no 5,723,765 entitled "Control of Plant Gene Expression". This patent is unequivocally "terminator seed" technology. One wonders too how Mr Jerry Steiner can be so ignorant of the reality of this technology given that Monsanto purchased Delta Land and Pine in 2006 for the very real sum of $1.5 billion.
The view that GM crops provide the answer to world hunger is also strongly contradicted by a United Nations study by some 400 scientists from 60 countries. The scientists published their findings in April 2008 in a study known as the International Assessment of Agricultural Knowledge, Science and Technology for Development (IAASTD). The executive summary of the report concludes that GM raises numerous contentious issues for developing countries, ranging from gene transfer, contamination of organic crops, undermining of local practices, reduced food security and unpredictable or reduced yields. In short, the scientists are saying that GM—at least in its present form—is not the solution to food shortages in the developing world.
In its advertising for Roundup Ready crops the company estimates that on a 1000 acre farm, the elimination of tilling will result in the saving of 3500 gallons of diesel fuel per year and in a sophisticated public relations strategy the company stresses its "green" credentials by suggesting that GM will reduce carbon output and free up land. This strategy avoids however, any reference to the wider detrimental environmental and social effects of GM agriculture. In Argentina, the growing of GM soya has resulted in an environmentally threatening monoculture and widespread rural unemployment. In the US, Roundup Ready crops have cross pollinated with common weeds to produce strains that are resistant to Roundup and can only be controlled by the use of other, more toxic, herbicides. Their purported green credentials notwithstanding, Monsanto and the biotechnology industry in general accept that there can be no co-existence with organic crops that does not to some degree entail the pollution of the organic system with non- GM products. According to the EuropaBio website:
"Realistic thresholds must urgently be established at Community level for the unintended presence of GMO in non-GM material (be it in seeds or in commodities), including in organic crops."
In Europe, that realistic level has now effectively, been set in accordance with the requirements of the bio technology industry at 0.9%. The new regulation setting out organic practice in Europe came into force on the 1st January 2009 (EC Regulation No 034/2007). Whilst retaining the general ban on GM production methods in organic farming the regulation allows for the marketing of food as organic so long as any GM contamination is "adventitious or technically unavoidable" and does not exceed 0.9%. No indication need be given on the product label if the GM content does not exceed this percentage. The wish of the organic industry was that the level should reflect the stated EU position that organic foods should be produced without GM. In practice, this would indicate a level of 0.1%, the minimum at which such GM contamination can be detected. By setting the higher level, the EC has in effect, ensured that the days of pure organic produce free from GM material, are numbered in respect of those crops that exist side by side. By so doing it rides roughshod over the wishes of consumers and the burgeoning organic food industry.
The Schmeiser and Hoffman Cases
It is upon this issue of co-existence that the Schmeiser and Hoffman cases hinge. The decisions in these cases provide a glimpse of how any European issues of cross-contamination might be dealt with and the results that would flow from them. The implications are truly disturbing.
The case of Monsanto v. Schmeiser is well-known and has been the subject of much commentary. It should however, be constantly revisited so that we can keep in mind the issues that will undoubtedly surface in Europe and other parts of the world should the current march towards GM acceptance prove successful.
Monsanto v Schmeiser
Percy Schmeiser was a successful famer in Saskatchewan who grew a 1000 acre crop of canola (oilseed rape). He did not farm organically but kept his use of herbicides to a minimum. Over the years he had developed his own strain of canola by means of selecting seed from his harvest and he had no wish to plant the Monsanto Roundup Ready product.
In 1997 Mr Schmeiser's crop was contaminated by the growth of Roundup Ready canola. Initially, Monsanto claimed that Mr Schmeiser had illicitly procured and planted their product. This claim was subsequently dropped. The most likely source of the intrusion of these plants onto his land was from wind-borne seed carried from vehicles that were bound for farms that did cultivate the GM crop. Following his usual practice, Mr Schmeiser saved seed from his 1997 harvest to plant in 1998. In that year, his crop was found to contain a high proportion of canola of the Roundup Ready strain and accordingly, he was sued by Monsanto. Their claim was for the profits that he had earned from the crop; that claim being based on the fact that Roundup Ready canola was subject to a patent held by Monsanto. In summary, Mr Schemiser had sown seeds from plants which through no fault of his, had germinated on his land, and was being sued for the cultivation of that seed. In effect, the crop, which had arrived unwanted on his land, belonged to Monsanto.
After losing to Monsanto in the Saskatchewan Court and in the Court of Appeal, Mr Schmeiser finally took the matter to the Supreme Court of Canada. There, the following points were determined.
First, it was held that Monsanto's patent was invalid. In coming to this decision the court had to surmount a particularly difficult hurdle. At the same time that the Schmeiser case was going through the courts the Supreme Court ruled in what has come to be known as the "Harvard Mouse" case. This was an appeal against the decision of the Canadian Commissioner of Patents to refuse a patent on a mouse that had been genetically designed for research into cancer; the so-called "onco-mouse". The Supreme Court held in that case that there could be no patent of a higher living organism; a ruling that would include plants. At first sight therefore, it would seem that the Monsanto patent on the canola was invalid. The resolution of this problem in the favour of Monsanto was ingenious. The court ruled that although the plant itself was not patented, the genes and cells that it contained were. So, use of the plant would be analogous to someone using machinery of which a part was patented. The commonsense viewpoint is perhaps, that since the plant would have no identifiable form without its cells and genes, the plant and its constituent parts could be said to be one and the same thing. This is not however the world of commonsense but rather an arcane world in which a farmer can be in breach of a patent for growing seed from a windblown stray. In passing, it should be noted that under the EU Life Patent Directive, neither the patent upon the canola plant nor that upon the Harvard Mouse would be contentious.
Having decided upon the validity of the patent the question for the court was whether Mr Schmeiser was in breach of that patent. Inevitably they held that he was. By cultivating the plant, harvesting and selling it, he was using it. The fact that Mr Schmeiser had not introduced the crop onto his land nor had wished it to be there was irrelevant. So too was the fact that the purpose for which the canola was genetically altered, that is to make it resistant to Roundup, was of no interest to him as he did not use glyphosate herbicides on his crop. The Court likened that benefit to a fire extinguisher which can be said to be in use if it is only fixed to a wall in case of an emergency. According to the Court's logic, Mr Schmeiser had the Roundup resistance available to him and could have used it had the need arisen.
In giving judgment against Mr Schmeiser, the court took the view that he could not have been unaware of the presence of the GM plants and seeds. This left open the question as to whether a farmer who is ignorant of the presence of GM crops within his or her land will be similarly liable. In fact, the breach exists whether the farmer is aware, should be aware or is ignorant of the pollution of his crop. This is because for there to be breach of patent, no guilty knowledge is required. In leaving this question open it is possible that the Court was reluctant to spell out the full implications of its judgment. Perhaps, it feared that public indignation might simply have been too great. In a similar fashion they blunted the impact of the judgment by allowing Mr Schmeiser's appeal against the payment of damages to Monsanto. It was held that as he had made no additional profit over and above that which he would have received for his usual crop without the GM element; there was no additional benefit that should be rendered to the plaintiff company.
In fact, having decided that the patent in question was in fact valid, the court was bound to follow the course that it did in the remainder of the judgment. By equating the patent on the canola to that which could be held on a piece of machinery it was perfectly logical to hold that Mr Schmeiser had used it without a licence. The wider question is of course, whether or not it is appropriate to treat plants as commodities and bring them within the aegis of patent laws. Within the EU, that question has now been settled in the affirmative.
A postscript to the Schmeiser case that deserves more attention than it has received, is that in March of 2008, Monsanto settled out of court Mr Schmeiser's claim for the cost of clearing his fields of the Roundup Ready canola. It is significant that the company does have a voluntary scheme under which it cleans contaminated fields. The cost of so doing is however, that the affected farmer agrees to say nothing publically about the pollution of his crop. Mr Schmeiser would not agree to such a gagging order and had to resort to the courts. That Monsanto settled the action indicates that the company recognises an obligation to remove its unwanted products. This is significant in the context of the Hoffman v Monsanto case and in examining the shape of any future legal action in the EEC.
The Monsanto v Schmeiser case concerned the obligations of a farmer in relation to property belonging to Monsanto that came onto his land. In contrast, the case of Hoffman v. Monsanto set out the nature of the responsibility owed by Monsanto to farmers to protect their property from the "adventitious presence" of GM seeds. Putting the two cases together leads to the inevitable conclusion that the obligations are all on the side of the farmer. In fact, the Hoffman case is of far greater significance and is perhaps more disturbing in its implications than the Schmeiser case.
Hoffman v Monsanto
The Hoffman case concerned a group of organic farmers who wished to sue Monsanto and another producer of genetically modified canola for the economic and physical effects of the contamination of their crops by the GM product. The action as it was heard was a preliminary to the suit brought by these farmers. What they sought was permission to pursue the matter as a class action, that is, to allow on the list of plaintiffs all those who as a class were adversely affected by the actions of the defendants. In hearing this preliminary application the Judge in the Saskatchewan court had to decide whether the case had any potential merit. This would not have been a decision on the extent of the merits but merely as to whether or not there was an arguable case. The decision of the Court was that there was no case at all and the application was refused. On appeal, this decision was upheld and leave to take the matter to the Supreme Court was refused.
The grounds on which the organic farmers brought their case were extensive. However, a few points taken from the judgment will illustrate the extent of the denial that was given to the organic farmers in their pursuit of what most would consider justice.
First, in dealing with the question as to whether or not the defendants had been negligent in failing to safeguard the plaintiff's access to export markets, the Court found that the fact that the European market for canola was no longer accessible to organic farmers was not of relevance. Any policy in Europe that related to GM foods was directed against the use of GM technology not its unintended presence in organic produce. Furthermore for technical legal reasons the Defendants could not be held responsible in negligence for pure economic loss. Perhaps however, the most telling point on the question of negligence is that which is expressed in the following paragraph from the judgment:
"In addition, there are policy considerations that,…, would in my view bar or limit the imposition of the duty of care alleged on the defendants in the circumstances of this case. First, as the plaintiffs clearly plead in paras. 15 and 19 of the claim, both defendants received approval of the federal government for the unconfined release of their GM canola varieties prior to their release. The imposition by the courts of a duty of care not to release these substances into the environment would therefore appear to be in conflict with express governmental policy".
The next point that was dealt with concerned an agreement that the Defendants had made to set up an "identification preservation programme" (IPP) to ensure that no GM contaminated canola entered the export market. Following the relaxing of rules for the importation of GM canola into the Japanese market, this programme was abandoned, the fact notwithstanding that this action would inevitably lead to the loss of the European market. This point was dealt with in a peremptory fashion. It was held that, as the contamination of the non-GM crop was inevitable then the intellectual property protection (IPP) would in any event have been of little or no use and furthermore that as the scheme was a voluntary undertaking by the industry, no liability could arise from the fact that it had been terminated.
The Plaintiffs then alleged that the Defendants had allowed the "escape" of a dangerous substance from their laboratories when the GM crops were brought into the public domain. This form of damage goes under the label of the rule in "Rylands and Fletcher" and is used by plaintiffs who suffer from the invasion of their land by dangerous substances which have been allowed to migrate from the land of another person. This ground was given short shrift.
"Regardless of whether one considers GM canola a "dangerous substance", or the field trials for GM canola an "unnatural" or "non- natural" use of land, it is not reasonably arguable that the commercial release and sale of Roundup Ready canola seed and Liberty Link canola seed constituted an "escape" of a substance, dangerous or otherwise, from property owned or controlled by the defendants in the sense of "escape" required by the rule in Rylands v. Fletcher. It is my conclusion that the pleadings do not disclose a reasonable cause of action based on the rule in Rylands v. Fletcher".
The next ground to be dealt with was that of private nuisance, that is that the actions of the defendants had caused injury to land owned by the plaintiffs or had affected their "enjoyment" of it. Although the court acknowledged that the presence of the GM canola and the herbicide resistant weeds that it might engender, could be said to constitute a nuisance, it promptly absolved the manufacturers of any liability in the following terms:
"The adventitious presence of canola in the crops and on the land of organic farmers required the intervention of neighbouring farmers who cultivated GM canola. Holding the defendants liable in nuisance on the basis of the commercial marketing of the product would be equivalent to holding the manufacturers of pesticide responsible for the nuisance caused by the harmful drift of the pesticide. While the "release" of the GM varieties of canola by the defendants may have been a necessary condition for the occurrence of the harm alleged, it was far from sufficient, in itself".
In other words it was the neighbouring farmers who grew the crop who might be liable, not the manufacturers of the seed.
Finally the plaintiffs claimed that the property of the defendants had trespassed on their land. Again, this argument was dismissed in peremptory terms.
"It is my conclusion that action in trespass does not lie against the defendants as the inventors and marketers of GM canola for the adventitious presence of GM canola in the crops and on the lands of organic grain farmers".
Given the obligation that Mr Schmeiser was found to have in relation to Monsanto seeds it would be logical to assume that their presence on land belonging to another would constitute a trespass. If a farmer is not allowed to use seeds that arrive on his land because they contain patented material then surely, the beneficiary of that patent is under an obligation to prevent their presence on his land. In fact, this may be the view that Monsanto takes and it is this that impels them to offer a "cleaning up" service.
In summary, it would seem from the Hoffman judgment that in this type of situation the only possible action would lie, not against the producer of the seeds, but in nuisance or trespass against the individual farmers from whose land they migrated. Such an action would of course be stymied by the difficulty which would arise in pinpointing the source of the pollution.
From the European perspective the judgment offers two insights into the way in which the biotechnology industry may seek to isolate itself from the threat of legal action. First, it will rely on the fact that any GM product that goes onto the market will have been approved by the appropriate national and international regulator. For this reason it will be able to disclaim any liability for negligence; the blame will shift to the regulator for permitting the release of the product. Second, as far as farmers are concerned it will reassure them that locating the source of seeds that invade non GM farms is likely to prove an impossible task. Additionally it will benefit from the tolerant regime that the EU has put in place regarding permitted levels of GM in non GM or organic products and will no doubt hope that with the passage of time the current levels will be raised in order to accommodate the reality on the ground.
The GM industry and Current Legal Practice in the EU
The current shape of the law in Europe benefits the biotechnology industry and it is for this reason that the industry fears any statutory regulation that would displace existing law. Germany for example, enacted regulations to make GM farmers liable for the spread of their crops to neighbouring farms. This law dispensed with the requirement precisely to locate the source of the pollution. It is noteworthy that with the election of a more right wing government the law has been amended. Instead of allowing legal action based on contamination from non-specified sources, it now provides for the institution of compensation schemes which will be funded by the GM industry. Predictably, legislation of this kind does not find favour with the industry. According to EuropaBio:
"EU National laws already provide for recourse to address coexistence related liabilities, whether GM or non-GM related. EuropaBio considers that existing national laws on civil liability already provide the necessary mechanisms to determine fault and assess liability and the need for compensation. Additional Community or Member State liability legislation or funds that single out GMOs are not necessary, and would thus be disproportionate and discriminatory."
The present situation is critical. The recent vote in the European Parliament to phase out a number of commonly used pesticides and herbicides (13th January EP/SP01/2009) provides the GM promoters with a valuable propaganda tool, allowing them to promote the beguiling but false promise of reduced herbicide and pesticide use with their products.
As it stands, from the viewpoint of the natural health industry, we are now in a position in which the identification of 100% non-GM contaminated source materials has become problematic if not impossible. Looking to the future, we might have to accept that a total ban on GM products is going to be very difficulty to achieve in practice. Perhaps the best way of dealing with the problem is by oblique rather than direct means. Lobbying for stringent labeling requirements on products intended for food supplement use is undoubtedly a positive and useful stratagem.
The argument that 0.9% contamination is acceptable and need not be indicated on labels may be sustainable in relation to foodstuffs but is weaker when applied to products that will be taken as food supplements. What ultimately, may prove the best approach is to press governments at a national level to institute legal frameworks which address the glaring injustices of the Hoffman and Schmeiser cases.
There are reports that farmers are reluctant to plant GM because of the opacity of the legal situation with regard to other farmers who might adversely affected by their crop. It is upon these uncertainties that future campaigns need to focus.