The growth and sale of genetically modified organisms (GMOs) are permitted in England and Wales, subject to an intensive authorization process that occurs primarily at the European Union (EU) level. Most legislation in England and Wales that applies to GMOs is implementing legislation for EU law. The general attitude in England is averse to genetically modified (GM) products; however, a slight shift in attitude towards GM products has recently been reported, and the UK government’s policy indicates a more receptive attitude towards these products.

I. Introduction

The UK is generally viewed as having a restrictive approach towards genetically modified organisms (GMOs) and crops; however, recently there appears to have been a slow shift toward greater acceptance of them.[1] Genetically modified (GM) crops are currently not grown commercially in the UK, but they are imported. These crops are primarily used in animal feed and a few food products.[2] There is no general prohibition on the planting of GM crops, but planting them is only permitted “if a robust risk assessment indicates that it is safe for people and the environment.”[3] The government has stated that if GM crops are commercially grown in the UK, it will implement “pragmatic and proportionate measures to segregate these from conventional and organic crops, so that choice can be exercised and economic interests appropriately protected.”[4] In the past, there have been protests when GM crops have been planted, and anti-GM groups frequently destroy such areas. There are strict labeling rules in place that require the disclosure of GM products if they have been used.

The primary purpose of the UK’s legislation and policy approach is the protection of people and the environment. Specifically, the government states that it will “only agree to the planting of GM crops, the release of other types of GM organism, or the marketing of GM food or feed products, if a robust risk assessment indicates that it is safe for people and the environment.”[5] Each application for GM products is determined on a case-by-case basis, and includes consideration of all scientific information available, with the protection of public health and the environment being overriding priorities.

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II. Public and Scholarly Opinion

Newspaper reports generally depict the British public as averse to the use of genetically modified crops and food products, with newspapers describing Britain as a country that is impenetrable by biotech companies interested in developing and selling GM products.[6] This strong resistance developed in the late 1990s when there was a move to introduce GM crops into the country. The public was not receptive to these crops and, over fears of cross pollination, staged demonstrations, and even pulled up known GM crops out of the ground to stop work.[7] GM crops became widely known as “frankenfoods,” and the British public was strongly opposed to their growth, sale, and consumption.[8] A newspaper report reflecting on this time noted that the opposition was largely aimed at the large multinational companies that were seen as heavy-handed in their approach to the public’s concern as to the safety of consuming such crops.[9] Some newspaper reports even refer to this time as the “GM wars,” as activists, led on at least one occasion by a government minister, armed themselves with lawnmowers to shred crops while farmers fought back by using their tractors as battering rams.[10] 2007 and 2008 saw similar moves, when two fields planted with GM crops were subsequently raided overnight by activists, who pulled out the plants despite twenty-four-hour security guards, fencing, and court injunctions.[11] More recent GM crop cultivation has been met with some resistance, but not quite the outrage that was seen in the 1990s.[12] When anti-GM groups in 2012 threatened to pull up the experimental GM crops of public-sector scientists, the scientists recorded a video plea to the protesters, asking them not to not destroy their work. In this instance, the media were sympathetic to the scientists and condemned the activists’ threat to pull up the crops as an act of vandalism.[13] Because public opinion in both Britain and the EU remains generally opposed to GM crops, giant biotech seed producer Monsanto announced that it was withdrawing all applications for European Union (EU) approval for its GM crops as “the EU today is effectively a conventional seed market.”[14]

The resistance of the UK to GM crops has been criticized by the government’s former chief science adviser, who estimated that Britain has lost around £4 billion (approximately US$7.2 billion) worth of revenue.[15] The current government, led by the Environment Secretary and Science Minister, is reportedly moving to push the UK towards eating more GM foods,[16] with the current policy statement on GM foods indicating support. Government policy states that, provided it is used safely, GM foods could be a tool with which to address global food security and climate change, and help with sustainable agricultural protection.[17]

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III. Structure of Pertinent Legislation

Legislation in England and Wales governing GMOs serves to implement EU law. The Environmental Protection Act 1990 is the primary piece of legislation that addresses GMOs and provides the Secretary of State with the authority and responsibility to control the deliberate release of GMOs in England.[18]

A. Definition of GMO

Part IV, section 6 of the Environmental Protection Act 1990 defines an organism as genetically modified if

• (4) . . . any of the genes or other genetic material in the organism—
• [^F4(a) have been artificially modified, or]
• (b) are inherited or otherwise derived, through any number of replications, from genes or other genetic material (from any source) which were so modified.

• [^F5(4A) Genes or other genetic material in an organism are “artificially modified” for the purposes of subsection (4) above if they are altered otherwise than by a process which occurs naturally in mating or natural recombination.[19]

B. Environmental Laws

The laws that govern the environment and the use of GMOs are primarily based on EU law. As stated above, the main piece of national legislation that regulates the environment is the Environmental Protection Act, which provides the Secretary of State with the power and responsibility to control the deliberate release of GMOs in England. At the EU level, the main EU directive that regulates the release of GMOs across Member States is Directive 2001/18.[20] This was implemented in the national law of England through the Genetically Modified (Deliberate Release) Regulations 2002.[21]

The Department for Environment, Food and Rural Affairs (DEFRA) is the lead government department in England for protecting the environment. How it conducts these responsibilities with regard to GMOs is detailed in Part V, below.

C. Food Laws

The laws that govern the use and labeling of GMOs in food are extensive, and are again primarily based upon EU law. The EU Regulations that govern the use of GMOs in food products across Member States are Regulations 1829/2003 and 1830/2003.[22] These are implemented in England by theGenetically Modified Food (England) Regulations 2004,[23]the Genetically Modified Animal Feed (England) Regulations,[24] and theGenetically Modified Organisms (Traceability and Labelling) (England) Regulation.[25] These laws are discussed further in Part VI, below.

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IV. Restrictions on Research, Production, and Marketing

Any person who wishes to release a GMO into the environment must get formal authorization to do so. Whether the decision is made at the EU or national level depends upon the purpose of the release. The EU has the authority to approve the marketing of products (including crop seeds or food), while the national government has the authority to approve the release of GMOs for research and development purposes.[26] The assessment of applications for marketing GMO products is discussed in Part VI, below.

The regulatory regime that governs GMO research is extensive. According to the government, the “strict legislation controlling the deliberate release into the environment of genetically modified organisms (GMOs)” is based on the need “to protect human health and the environment and ensure consumer choice.”[27] To obtain consent to release GMOs into the environment for research and development, an application must be made in writing to the Secretary of State.[28] Within ten days of submitting the application, applicants must publish information in a national newspaper that includes their contact information, the description of the GMO that will be released, and the location, date, and purpose of the release.[29] The assessment process for research or release of GMOs is the responsibility of DEFRA, and undertaken by the Advisory Committee on the Release to the Environment (ACRE), an independent statutory advisory committee of experts appointed under the Environmental Protection Act.[30] The Committee advises government ministers on the “risks to human health and the environment from the release and marketing of genetically modified organisms.”[31] The Committee considers a number of factors when assessing applications for GMO release or marketing, including safety factors such as toxicity, potential allergens, or the transfer of new genes to other organisms.[32]

Prior to granting an application for research involving the deliberate release of a GMO, the Committee ensures that

• the crops produced as a result of the research will not be put into the human food chain,
• a barrier of crops will be planted around the GMO crops to prevent the transfer of any GMO crops,
• any workers or farm machinery will be sanitized after handling the GMO crops, and
• the field will be left fallow for one year after the research period.[33]

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V. Restrictions on Releasing Organisms into the Environment

As noted above, any person who wishes to release a GMO into the environment must get formal authorization to do so, at the EU level for marketing products, and at the national level for research and development purposes.[34] The Genetically Modified Organisms (Deliberate Release) Regulations 2002 implemented in the national law of England EU Directive 2001/18/ECregulating the release of GMOs into the environment.[35] The release of GMOs into the environment in England and Wales is subject to any conditions that the Secretary of State wishes to impose that are necessary “for the purpose of ensuring that all appropriate measures are taken to avoid damage to the environment which may arise from the activity permitted by the consent.”[36]

A. Reporting Requirements

The regulations that govern GMOs require a great degree of transparency. As noted above, the application requires publishing in a national newspaper the applicant’s name and address, and the location and dates of the GM crop’s introduction. Any trials of GM crops require publishing in a register[37] information that essentially reveals the locations of the crops. Many biotech corporations have expressed frustration at this regulation, as they consider that to be a “gift to the activists,” who learn exactly where the crops are planted and then come and destroy them. Farmers have also been intimidated by these activists and have pulled out of trials because of the fear of vandalism to the crops or concern from neighboring farmers about cross-pollination/ contamination. The requirement to provide the location of a GM crop is based on EU Directive 2001/18/EC; however, the manner in which the directive was implemented in the UK has reportedly been described by biotech firms as being “introduced in the most draconian way possibly by Michael Meacher, Tony Blair’s anti-GM former environment minister. Elsewhere in Europe, fields are not pinpointed so clearly, with companies giving only the region in which a trial will take place, or submitting the details to a tightly-controlled public register.”[38]

B. Inspections

The Food and Environment Research Agency (FERA), an agency of DEFRA, is responsible under Part IV of the Environmental Protection Act for enforcing legislation in cases where GMOs have been deliberately released.[39] FERA undertakes this responsibility through a program of inspections and audits of companies that have authorization to release GMOs into the environment. This Agency is also responsible for investigating any suspected unauthorized release of GMOs.[40]

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VI. Restrictions on GMOs in Foodstuffs

A. Approval for the Sale of GM Foods

The approval regime for the evaluation and authorization of GM foods moved to the EU in 2003.[41] Safety assessments are now conducted by the European Food Safety Authority (EFSA). The EFSA provides a case-by-case review of each GM food, and assesses their safety for human consumption to ensure that the foods do “not present a risk to health, [do] not . . . mislead consumers, and [are] not of less nutritional value than the foods they are intended to replace.”[42] During any investigation into the safety of GM foods, the EFSA may consult the relevant body in each Member State. In the UK, the body responsible for food safety assessment is the Food Standards Agency.[43] If the consultation in the UK also includes issues of cultivating GM crops, DEFRA must also be included.[44]

B. Labeling GM Foods

Foods containing or consisting of GMOs must comply with EU regulations that require any approved GM products to be clearly labeled.[45] This requirement includes foods derived from GM crops, even if they do not have a detectable GM content. The labeling rules are extensive and require the disclosure of the presence of any GM material in the final product.[46] This brings such products as flour and oils under the labeling requirements, as any product from a GM source must be labeled as GM. However, foods produced with GM technology, such as cheese made with GM enzymes, are not required to be labeled, nor are products from animals that have been fed with GM products, such as milk or meat from cows fed with feed containing GM products.[47]

Any intentional use of GM ingredients in foods must be labeled as GM; however, there is a threshold of 0.9% for the accidental presence of GM foods. This threshold only applies to GM food that has been approved for sale by the EU. Thus, foods that contain any GM ingredients that are not approved by the EU may not be sold in the EU.[48]

C. Livestock Feed

The assessment and authorization of GMOs in livestock feed is the same process as for human food (discussed above in Part VI(A)) and is governed at the EU level.[49]

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VII. Liability Regime

Legislation in England that governs environmental damage is largely based on EU regulations and the principal that the “polluter pays.”[50] Liability for environmental damage in England is, in part, provided for by the Environmental Damage (Prevention and Remediation) Regulations.[51] These regulations place the responsibility on the “operator of an activity” that poses an environmental threat, or that has caused environmental damage, to identify when there is an imminent threat, or that damage has been caused, and to act immediately to prevent or rectify this damage.[52]Environmental liability is thus frequently described as a “backstop,” with emphasis on measures to prevent pollution, and to stop threats and damage from arising.[53]

The regulations apply only to serious cases of environmental damage. Such cases include where the integrity of a site of special scientific interest has been adversely affected, surface or ground water has been adversely affected, or land has been contaminated, resulting in an adverse effect on human health.[54]

Strict liability (liability without the need to show fault) applies in cases where GMOs are used and released, including during transportation.[55]In the case of actual or imminent environmental damage, the operator is required to take steps to prevent damage, or any further damage, and notify the relevant authority,[56] which in the majority of cases is the Environment Agency. The authority then determines whether the damage is environmental damage within the terms of the regulations and identifies the operator responsible. The authority then serves a remediation notice on the operator, who must then undertake the steps specified and pay any costs claimed by the authority for the environmental damage.[57]

Operators have rights of appeal that arise if they believe that

• – the activity did not cause the damage
• – the authority has unreasonably decided that the damage is ‘environmental damage’
• – the damage was the result of an act of a third party
• – the operator was not at fault or negligent and the emission or event was: authorized and in accordance with a permit, or in accordance with the state of scientific knowledge (this ground for appeal is not available in Wales for damage caused by GMOs).

Operators may also appeal against are [sic] mediation notice on the grounds that the contents of the remediation notice are unreasonable.[58]

General civil liability rules may also come into play, such as the laws of negligence and nuisance. There do not appear to be any reported cases that involve GMOs and civil liability in England. A law review article from 2005 notes that liability for negligence is “of limited use in the field of genetic contamination” because

it will be difficult to prove the absence of reasonable care for preventing cross-pollination or other gene transfer. Moreover, liability is for damage to land and other property. While ‘failed’ crops or propagation of wild relatives of GM plants as weeds may be considered as property damage, gene flow that affects only commerciability of crops does normally not constitute an actionable damage. Pure pecuniary damage is not covered in most common law jurisdictions.[59]

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VIII. Judicial Decisions / Prominent Cases

The majority of judicial decisions concerning GMOs that affect England are at the EU level and involve other countries. There appear to be no reported cases involving GMOs in England.

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Clare Feikert-Ahalt
Senior Foreign Law Specialist
March 2014

 

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