FOOD PRODUCTION, CHOICE, AND SECURITY: THE IMPLICATIONS OF GENETIC ENGINEERING & THE ROLE OF THE BIOSAFETY PROTOCOL

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Food Production, Choice, and Security:

THE ROLE OF THE BIOSAFETY PROTOCOL & THE IMPLICATIONS OF GENETIC ENGINEERING

Paper written for the UKabc by:

Richard Tapper, Environment, Business & Development Group

November 1998

CONTENTS

Introduction

Draft Position on the Biosafety Protocol Negotiations

Genetic Engineering, Trade and Biosafety

Priorities for the Biosafety Protocol Negotiations

INTRODUCTION

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This paper considers genetic engineering and its implications and outlines progress and possibilities for the final stages of negotiation of a Biosafety Protocol. This Protocol is being developed under the Convention on Biological Diversity. Although it is limited to dealing with "transboundary movements of living modified organisms (LMOs)", the Protocol provides opportunities to address, in an international legal instrument, other issues concerning the wider biodiversity and trade agenda.

A strong Biosafety Protocol would allow States to make their own decisions over import and use of genetically-engineered organisms and/or their products, without those decisions being undermined by the rules of the WTO. Within the negotiations for the Biosafety Protocol, many developing countries are arguing for such strong provisions. The Cairns group along with some other grain exporting countries are seeking to negotiate a weak protocol that would cover little more than international harmonisation of information sharing on trade in genetically-engineered organisms and their products, and for biosafety provisions to be secondary to trade rules in event of any conflicts between the two.

DRAFT POSITION ON THE BIOSAFETY PROTOCOL

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The Biosafety Protocol, currently being negotiated under the auspices of the Convention on Biological Diversity, will be an important international instrument that could, within the specific Jakarta Mandate for the negotiations, help towards ensuring the rights of countries to decide for themselves how they wish to develop their agriculture, to implement sustainable development, to protect their genetic resources, and to ensure food security, in the context of genetic engineering and the growing trade in genetically-engineered organisms and their products.

To achieve this, the Biosafety Protocol should include provisions in its Articles for comprehensive risk assessment and risk management, public participation in decisions concerning LMOs or their products, unintentional as well as deliberate releases of LMOs or their products, and capacity building for biosafety. The scope of the Protocol should cover all LMOs and their parts, including commodities being shipped for food use (eg. soyabeans) and products of LMOs (eg. flour or meal and other processed items).

To be an effective international instrument for biosafety, the Protocol should include Articles providing for the following:

Precautionary Principle

The Precautionary Principle should be a central principle of the Biosafety Protocol, consistent with Principle 15 of the Rio Declaration, and other international and regional environmental conventions. Genetic engineering is a technology with inherent uncertainties and little is known about its effects, despite claims made by companies that are developing and marketing LMOs or their products. The Protocol should make it clear that it is legitimate for States to apply the Precautionary Principle when deciding whether or not to allow the import, introduction, transfer, handling or use of LMOs or their products within their territories, and for States to take into account risks to human health, socio-economic and cultural factors, as well as scientific information, in reaching such decisions.

Liability and Compensation

In the event of harm to the environment, biodiversity, human or animal health or socio-economic welfare, arising as a consequence of LMOs or products of LMOs, the exporter, or the Party of origin of those LMOs or products should the exporter be unable to discharge its obligations, should be strictly liable for that harm and for providing compensation. This strict liability should extend to any failure of LMOs to perform and deliver anticipated benefits claimed by the exporter.

The principle of strict liability is well established, and most treaties dealing with civil liability provide for strict liability. Strict liability means that there is no need for the victim of damage to prove fault on the part of the legal person to be held liable. Strict liability would mean that the exporter, or Party of origin, assumes the risks of harm arising from LMOs or their products, consistent with the Precautionary Principle as set out in the Rio Declaration.

While it is sometimes argued that liability and compensation in relation to biosafety are already covered by existing laws and agreements, the report from the Workshop on Liability and Redress Issues Arising in Relation to the Draft Biosafety Protocol organised by the UK Government and the European Commission in London, 30 June - 2 July 1998, notes that this is not, in fact, the case. Existing domestic legislation on liability and compensation is also patchy, and has not been drafted with the specific issues of biosafety in mind. Inclusion of a clear provision for strict liability and compensation would close the gap in existing laws and agreements in relation to biosafety.

Some delegations from industrialised countries have tried to stall the issue, by raising concerns that there is insufficient time to undertake a negotiation on liability and compensation, given the complexity of the issues and the range of international law on these matters. However, experience in other areas has shown that a failure to include provisions for these matters until after an agreement has been signed, leads to a failure to address them adequately at all. As a compromise, it is suggested that strict liability for harm arising as a consequence of LMOs or their products could be set out in the Articles of the Protocol, with provision for details of the rules and procedures for this to be elaborated as a priority by the Meeting of the Parties to the Biosafety Protocol.

Socio-economic factors

States should be permitted to take full account of socio-economic impacts within their country and its environment, for example through use of social impact assessment, when deciding whether or not to allow the import, introduction, transfer, handling or use of LMOs or their products within their territories.

Maintenance of food security and biodiversity is closely linked to the ways in which economies and societies manage their resources, as, for example, in the activities of indigenous peoples and local communities, in maintaining traditional knowledge, innovation and practices that conserve biodiversity and use it sustainably

Methods for social impact assessment are well developed and in wide use throughout the world. They include the World Bank's social assessment procedures, and provisions of the US National Environmental Policy Act (NEPA). The Protocol should include language that would allow a Party to refuse consent to import any particular LMO based on evidence gathered during a social impact assessment that such an LMO might have negative impacts of any type, including socio-economic impacts.

Conditions for import

States should be permitted to impose limitations and ceilings on imports of LMOs and products of LMOs, and to impose conditions on their use, for example, on where and how they are to be grown and used.

Labelling and Segregation

All LMOs and products of LMOs should be clearly labelled. LMOs and products of LMOs should be segregated from non-LMOs in their handling, storage and transport.

Exporter-based responsibilities

Responsibilities should be placed on exporters, or where an exporter defaults for any reason, on the Party of origin, of LMOs or products of LMOs, for provision of accurate information relating to risk assessment, and to the Advanced Informed Consent procedures; for liability and compensation; for compliance with all relevant provisions of the Biosafety Protocol; and for ensuring that conditions which a State may set for import of an LMO or product of an LMO are met.

Explicit consent

In the event of a lack of a response from the Party of import to a notification of a proposed transboundary movement of an LMO or product of an LMO, export should not proceed, and the Party of import should not be deemed to have approved the import of the LMO or product of an LMO, concerned.

Trade

The provisions of the Biosafety Protocol should take precedence over the provisions of international trade agreements should there be any conflicts between the two. Articles 24 (Non Discrimination) and Article 34 (Relationship with Other International Agreements) of the draft Protocol, both of which would ensure that trade takes precedence over biosafety issues, should therefore be deleted.

The Protocol should include provisions to require Parties to it, to ensure that any trade with non-Parties is carried out in a way that meets that objectives and provisions of the Protocol; and to take measures to prevent and penalise illegal traffic of LMOs and products thereof.

Monitoring and compliance

The Protocol should include provisions for the implementation of its obligations by Parties to be monitored, and for procedures and mechanisms to promote compliance and to address cases of non-compliance.

Adverse impact reporting

The Biosafety Clearing-House that is to be established under the Protocol, should include a mechanism for reporting and sharing of information on any adverse effects of LMOs or products of LMOs.

GENETIC ENGINEERING, TRADE & BIOSAFETY

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Genetic engineering and its implications

Genetic engineering has huge implications for food production, choice, and security. In particular, the introduction of genetically engineered crops and livestock raises the following issues:

Consumer choice and health

At present, there is no mandatory labelling of products to inform consumers which products include ingredients that are genetically engineered or derived from genetically engineered crops or livestock. It is estimated that nearly two-thirds of processed food products are already likely to contain vegetable oils derived from genetically-engineered crops. In the UK, supermarket chains, such as Sainsbury's have initiated voluntary labelling schemes - but retailers have acknowledged that they face difficulties in finding out whether some of the products they sell are genetically engineered or derived from genetically engineered crops or livestock. The Iceland chain has taken steps to exclude use of ingredients derived from genetically-engineered organisms in its own brand products.

In the US, Monsanto challenged the right of producers and retailers to identify milk as being produced with or without rBST (a recombinant based form of growth hormone used to increase milk volume yields) in the courts. A recent proposal by the US FDA to change US organic food standards to include food produced from genetically-engineered crops and livestock failed when US consumers lodged over 400,000 objections - the largest number of objections ever recorded for such a consultation in the US. However, biotechnology companies are likely to continue to try and have standards rewritten in ways that will make it difficult or impossible for consumers to know whether or not they are buying food items that are genetically engineered or derived from genetically engineered crops or livestock.

Health issues are also important. For example, crops engineered for resistance to insect pests may contain significant levels of toxins, to which consumers would not otherwise be exposed, such as that produced by toxin genes from Bacillus thuringiensis; some may contain marker genes for antibiotic resistance, which are inserted purely to aid selection of genetically-engineered strains and which have no agronomic or nutritional value; some may contain genes derived from peanuts. There are risks that there may be health effects from increased exposure to allergens or toxins that may affect digestion, certainly in a proportion of the population, or in the case of antibiotic resistance genes, that these will be transferred to bacterial populations once ingested, and contribute to further build up of bacteria resistant to important antibiotics.

Environmental consequences

Genetic engineering is being developed for use in intensive agriculture and food production systems, and will contribute to their further intensification, and to their spread into areas where it is not yet widespread - for example - development of cold-tolerant genetically-engineered fish will allow fish farming to be established in more northerly waters. A consequence of genetic engineering in food production will therefore be an increase in the impacts caused by intensive production practices, and a resultant loss of biodiversity and habitats.

There is strong evidence that significant gene flow occurs between genetically-engineered crops and non-genetically engineered weeds that are related to those crops, for example, in oil seed rape and its weedy relatives. This could result in considerable agronomic problems especially in weed control, as could genetically-engineered 'volunteers' from previous crops, coming up in subsequent crops.

Socio-economic consequences

Genetic engineering is a driving force in a new phase of concentration within the agro-industrial sector: Monsanto has joined with, or is buying, leading seed companies (Cargill, as well as Delta Land and Pine Land Company, which has developed 'Terminator Technology' with the USDA, and Plant Breeding International), and Pioneer Hybrid has joined with a major biotechnology company.

The marketing power of Monsanto before its recent strategic mergers, was immense - within six weeks of receiving approval to market its genetically-engineered BollGard cotton, a quarter of all the US's cotton acreage was planted with Monsanto's variety. Merging with a seed companies magnifies Monsanto's marketing power even further, in the US, and amongst its subsidiaries such as Monsanto do Brasil Ltda., the company's Brazilian arm.

The process of agricultural intensification coupled with further concentration within the agro-industrial sector will work its way throughout food production, processing and marketing, with small food producers and food security being the losers.

In an attempt to respond to criticism over the irrelevance of genetic engineering to small producers, Monsanto is trying to set up micro-credit schemes to assist purchase of its genetically engineered seeds and related agrochemical inputs. The risks of creeping corporate control over micro-credit and other social programmes are self-evident, and would curtail farmers' choices over which crops to sow, reduce crop diversity, and consumer choice.

There is the possibility of creating further surpluses in the North, which will then be exported to other countries, especially developing countries and countries undergoing economic transition, at subsidised prices, leading to an undermining of local agricultural production.

Import substitution by the North for products derived from significant export commodities in the South, is also likely. Development and commercialisation of crops genetically modified to produce oils and feedstocks for industrial use, such as laurates for soap manufacture, is already in progress, and could substitute rapidly for exports that are important for Southern producers and economies: for example, one of the main source of laurates at present is from copra produced mainly by smaller farmers in the Philippines. Genetic engineering is also underway to develop substitute sources for vanilla and pyrethrum.

Alongside these broad issues, there are several further factors to bear in mind:

Genetically-engineered crops are not as reliable as is often imagined, and strains are not necessarily stable. Also the performance of some genetically-engineered crops in commercial use has been poor. Examples are Calgene's FlavrSavr tomato; Monsanto's BollGard cotton - following law suits, Monsanto has paid damages to farmers to compensate for poor performance of the crop; and rBST has been reported to cause problems when used with cattle in hotter parts of the US. But although these genetically-engineered crops may not perform as predicted, the marketing push behind them has the potential to change patterns of agriculture quickly, and in ways that would take decades to rebuild.

The emphasis on genetic engineering as an economic sector with high growth potential has further distorted research funding and focus towards high tech. approaches and away from sustainable agriculture approaches.

Unrealistic 'feed the world' (and pro-conservation and "intensification to reduce extensification") claims made by the biotechnology industry for genetic engineering, risk affecting some thinking on development: the industry has already offered to supply grain from genetically-engineered crops to emergency food aid operations and genetically-modified seed for rehabilitation programmes. Attempts by the industry to establish micro-credit schemes raise major questions about the nature of appropriate private sector involvement in development and aid programmes.

Genetically engineered crops and foods so far developed have no significant agronomic or nutritional value. The products mainly satisfy purely commercial interests: for example, resistance to Monsanto's RoundUp herbicide, increased shelf and storage life, and uniformity.

Food security will be jeopardised through widespread introduction of genetic engineering and the current concentration within the agro-industries, which is being driven by genetic engineering. Adverse effects on food security will result from a variety of mechanisms which have been outlined above, including impacts on small farmers from intensification in agriculture and concentration within the industry (and potentially from debt linked to micro-credit schemes promoting genetically engineered crops); from import substitution by the North using genetically engineered crops to produce products previously obtained from commodities produced in the South; from the contribution of genetic engineering to further food surpluses in the North; and from the unreliable performance of genetically engineered crops.

Despite these major issues and uncertainties, genetically-engineered crops and foods are already being commercialised rapidly. While it is not possible to turn back the tide of this technology, it is possible to contain it through campaigning for stronger regulatory frameworks; for segregation and labelling of genetically-engineered organisms and their products; for promotion of consumer health and choice issues; and for sustainable agricultural approaches.

Biosafety, the world trade regime, and genetic engineering

The issues raised by genetic engineering and its use in agriculture and food production are wrapped up with questions of international trade, and the way that the current world trade regime operates. The biosafety protocol will be another multi-lateral environmental agreement (MEA), and will face the same problems as other MEAs in relation to trade rules. Under the present rules, trade wins every time.

The key trade issues that affect biosafety are related to Articles III, XI, and XX of the GATT:

Article III states that "like products" from external sources must be treated the same as domestic goods. This has been interpreted as meaning that non-product related process and production methods (PPMs) - where the process used in production is not detectable in the end product - should not be used to distinguish between products.

Article XI limits the power of contracting parties to ban the import of products unilaterally.

Article XX specifies general exceptions to WTO rules providing that: "Subject to the requirement that such measures are not applied in a manner that would constitute a means of arbitrary or unjustifiable discrimination among countries where the same conditions apply, or as a disguised restriction on international trade, nothing in this Agreement shall be construed to prevent the adoption or enforcement by any contracting party of measures:

a) necessary to protect public morals

b) necessary to protect human, animal or plant life or health

...................

g) relating to the natural conservation of exhaustible natural resources."

In the context of genetically-engineered products, States that support such export will argue that these products are equivalent to non-genetically engineered equivalents. States wishing to ban the import of genetically-engineered products could therefore face action under Article III, and also under Article XI. Article XX provides a basis for States to ban imports of genetically-engineered products in certain cases. However, it could be difficult to make a strong case against genetically-engineered products that are already available in other countries.

Furthermore, the WTO uses FAO's Codex Alimentarius as the basis for assessing standards in relation to food and human health, and the SPS agreement in relation to other standards. Neither the Codex nor the SPS agreement provide specific standards relating to genetically-engineered products, and could not be relied on to support effective cases under the WTO rules. A case for an import ban in some circumstances "relating to the natural conservation of exhaustible natural resources" might be possible in a limited number of instances, for example, where a genetically-engineered product might be anticipated to have adverse impacts in centres of biological diversity.

It is for these reasons that it is important to achieve a strong biosafety protocol which would allow States to make their own decisions over genetically-engineered organisms and/or their products, without those decisions being undermined by the rules of the WTO.

PRIORITIES FOR THE BIOSAFETY PROTOCOL NEGOTIATIONS

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Whether or not many of the issues concerning consumer choice and health, environmental and socio-economic effects of genetically engineered organisms and their products can be taken into account by States in a trade context, will depend to a large degree on the provisions of the Biosafety Protocol. If the protocol is weak, it will only harmonise procedures for notifying States of impending imports, and for obtaining their Advanced Informed Agreement (AIA) for such imports, subject to 'science-based' risk assessment procedures that the importing State may require, and any conditions which that State may impose.

If the protocol is stronger, it will also include Articles establishing a Liability and Compensation regime, allowing Socio-Economic Considerations to be taken into account, strengthening Risk Assessment and obligations on exporters, and explicitly allowing application of the Precautionary Principle. Its scope would cover products of genetically-engineered organisms, such as partly processed foodstuffs (eg. flour or ground meal), and the Protocol's provisions would take precedence over WTO rules should their be any conflict between the two.

Whether the final outcome of the negotiations is a weak or a stronger protocol depends on the lobbying of Governments between now and the final negotiation session which is scheduled for February 1999 in Colombia. This will be followed immediately by a special session of the Conference of the Parties to the CBD to agree and initiate signature of the Protocol.

The mandate for the present negotiations on a Biosafety Protocol, which are being conducted under the Convention on Biological Diversity, is specifically focused on "transboundary movement of any LMO that may have an adverse effect on human health and biological diversity". There is also scope to include socio-economic considerations, liability and compensation, and financial issues, within the biosafety protocol, but it is up to countries to reach agreement on whether these issues should be addressed, and if so, how, through the biosafety negotiations. The draft Biosafety Protocol includes Articles on each of these issues, but there is no agreement that this wording should remain in the final protocol to be agreed in February 1999: efforts are needed to secure the inclusion of strong wording on these issues in the final Protocol.

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Dr. Richard Tapper

Director - Environment, Business & Development Group

16, Glenville Road, Kingston upon Thames, KT2 6DD, U.K.

Tel/Fax: (+44) 181 549 1988

E-mail: <rtapper@dircon.co.uk>

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