Liability for the Escape of GM Seeds: Pursuing the ‘Victim’?
| Published date | 01 July 2002 |
| Date | 01 July 2002 |
| DOI | http://doi.org/10.1111/1468-2230.00393 |
Liability for the Escape of GM Seeds: Pursuing
the ‘Victim’?
Maria Lee* and Robert Burrell**
The widespread commercial cultivation of GM crops in the EU and the UK is
getting closer. Intense concerns about the uncertain health and environmental
effects of GM farming have been the subject of high profile debate. The effects of
GM farming on existing forms of agriculture, raised by the prospect of cross-
pollination by GM seed, provoke similarly polarised views. However, whilst
regulatory developments have been strongly influenced by environmental and
health concerns, the socio-economic impact of GM agriculture is relatively
neglected in current regulatory approaches. The authors examine various
possible legal responses to unwanted cross-pollination by GM seed, and contend
that the law is likely to struggle to cope with the conflicts that may arise.
The argument that Europe should not press ahead with the commercial growing of
genetically modified (GM) crops has probably now been lost. No GM crop has
been authorised for commercial release in the EU since 1998, but the agreement on
a new directive1setting out harmonised risk assessment procedures for the
authorisation process is likely to be the first step in bringing this de facto
moratorium on authorisation to an end.2
Although the potentially disruptive effects of new technologies are often
exaggerated,3genetic modification really does pose some new and difficult
problems for lawyers and hence may require an innovative regulatory response.
That the possible environmental and health impacts of genetically modified
organisms (GMOs) are controversial and uncertain has been recognised in the
broadly precautionary stance taken to these issues in regulation at both the EU and
ßThe Modern Law Review Limited 2002 (MLR 65:4, July). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA. 517
*Lecturer in Law, King’s College London.
**Senior Lecturer in Law, ACIPA, Australian National University.
Our thanks go to Carolyn Abbot, Lionel Bently, Paul Mitchell and participants in a staff seminar at
University of Hertfordshire, 26 November 2001. We are also grateful to the editors and anonymous referees
at the MLR for their helpful comments.
1 Directive 2001/18/EC of the European Parliament and of the Council of 12 March 2001 on the
deliberate release into the environment of genetically modified organisms and repealing Council
Directive 90/220/EEC.
2 There is, however, no guarantee that the moratorium will be lifted, and attempts to resolve the
impasse are ongoing, see for example European Commission press release IP 01/1095 25 July 2001
accompanying Proposal for a Regulation of the European Parliament and of the Council concerning
traceability and labelling of genetically modified organisms and traceability of food and feed
products produced from genetically modified organisms and amending Directive 2001/18/EC COM
(2001) 182 final. Both documents are available at <http://europa.eu.int/comm/food/fs/biotech/
biotech_index_en.html >. See also ‘EU digs in its heels over GM products’, ENDS 29 October 2001,
reporting on political reluctance to bring the moratorium to an end.
3 See, generally, T. Roszak, The Cult of Information: A Neo-Luddite Treatise on High-Tech, Artificial
Intelligence and the True Art of Thinking (Berkeley: University of California Press, 1994); E. Tenner,
Why Things Bite Back (London: Fourth Estate, 1996). In relation to some of the overblown claims
made for biotechnology, see R. Lewontin, The Doctrine of DNA (London: Penguin, 1993) in
particular ch 4; D. Nelkin and M. Lindee, The DNA Mystique: The Gene as a Cultural Icon (New
York: Freeman, 1993) in particular ch 10.
UK level. Regulation requires a case-by-case assessment of new seed varieties,
with an emphasis on scientific testing in advance of release, and continued
monitoring after authorisation. Whilst we would by no means want to imply that
the adequacy of this approach is uncontested (in particular, we would not wish to
leave unquestioned the application of traditional risk assessment techniques to
essentially unknowable threats), the legitimacy of health and environmental
concerns is at least clearly acknowledged and addressed within the regulatory
framework. Legal responses to genetic modification are, however, currently failing
to engage directly with other concerns. As well as the much-publicised
environmental and public health issues, widespread cultivation of GM crops is
likely to have a major impact on existing forms of agriculture. Any technological
innovation can have an adverse effect on existing industry, but the concern here is
not the loss of market share to producers of cheaper and/or better products. The
concern is, rather, that existing industry will simply be unable to continue,
regardless of consumer demand for the original product. Cross-pollination by GM
seeds of neighbouring sexually compatible crops is inevitable,4and those whose
crops are cross-pollinated may be harmed in various ways.
The most obvious harm that a non-GM farmer may suffer is the loss of ‘GM
free’ status. In particular, conflict is likely to arise between organic and GM
farming. The Soil Association, the largest organic certification authority in the UK,
has set a ‘zero tolerance’ threshold for GM contamination.5An organic farmer
whose crop became contaminated by GM material would face financial ruin – she
would lose her Soil Association Certificate and would almost certainly be unable to
recoup production costs if forced to sell products in competition with non-organic
producers.6Non-organic farmers might also suffer, however, if (as seems likely)
anxiety about GMOs means that there will be a market advantage from being ‘GM
free’. The response of major supermarkets to hostility from consumers and the
media to GM crops has been to avoid selling products with genetically modified
ingredients. Moreover, the requirement that GMOs placed on the market ‘as or in
products’ are labelled as such7means that a market premium on crops that do not
contain GMOs is a continuing possibility. Ultimately, however, the market and the
regulatory environment are likely to adjust to widespread cross-pollination: ‘GM-
free’ will no longer mean ‘no GMOs present’; ‘organic’ will not mean ‘GM-free’.
Indeed the first steps in this direction have already been taken. For example, while
4 This is implied in reports of both the House of Commons Select Committee on Agriculture, Third
Report 1999–2000 The Segregation of Genetically Modified Foods and of the Agriculture and
Environment Biotechnology Commission (AEBC), Crops on Trial September 2001.The AEBC is an
independent advisory body set up to advise government. D. Barling, ‘GM Crops, Biodiversity and the
European Agri-environment: Regulatory Regime Lacunae and Revision’ [2000] 10 Eur Env 167,
reviews some of the evidence on cross-pollination.
5 The accredited body is the Soil Association’s wholly owned subsidiary, Soil Association Certification
Limited. Organic agriculture is regulated in EC law, see Council Regulation (EEC) No 2092/91 of 24
June 1991 on organic production of agricultural products and indications referring thereto on
agricultural products and foodstuffs, and Council Regulation (EC) 1804/1999 of 19 July 1999
supplementing Regulation (EEC) No 2092/91 of 24 June 1991 on organic production of agricultural
products and indications referring thereto on agricultural products and foodstuffs to include livestock
production. The control body in the UK, the United Kingdom Register of Organic Food Standards
(UKROFS), accredits organic certification authorities, including the Soil Association. UKROFS does
not set its own standards, but ensures that those it accredits comply with EC legislation.
6 Such a farmer may, however, ultimately turn to an alternative certification body, as discussed below.
7 Directive 2001/18/EC, n 1 above, Article 21. For food, see also European Commission, Proposal for a
Regulation of the European Parliament and of the Council on Genetically Modified Food and Feed,
COM (2001) 425 final.
The Modern Law Review [Vol. 65
518 ßThe Modern Law Review Limited 2002
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