The production and sale of certain genetically modified organisms (GMOs) are legal in France, but are subject to very restrictive rules. French legislation regarding GMOs falls within the broader framework of European regulation, but France has supplementary national rules that provide additional restrictions. These rules are particularly focused on the potential release of GMOs in the environment, and on labeling requirements for GM products. French legislation also requires that the location of GM crops be public information, and establishes strict liability rules regarding the possible release of GM crops into non-GM fields. As a result of both public hostility to GMOs and these legal restrictions, there are currently no GM crops grown in France, even though France imports substantial amounts of GMOs from abroad.

I. Introduction

France is considered to be very restrictive on genetically modified organisms (GMOs).[1] Though some aspects of French legislation ostensibly promote a balanced approach to GMOs by guaranteeing the “freedom to consume and produce with or without genetically modified organisms,”[2] French authorities have generally not been favorable to agricultural biotechnology.[3]Although France remains very active in GMO laboratory research,[4] and imports large amounts of GM crops to feed its livestock,[5] there is a complete absence of commercially grown GMOs in French agriculture,[6] and the last French open-field GMO research project ended in July 2013.[7]

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II. Public and Scholarly Opinion

French opinion is quite divided on the issue of genetically modified organisms. The U.S. Department of Agriculture notes that “[m]arket acceptance of plant biotech products is high among stakeholders that need the products, i.e., importers, animal feed compounders, as well as poultry/swine/cattle ranchers who all depend upon largely imported soybean products.”[8] Furthermore, many French scientists are favorable to continued biotechnology research.[9] However, anti-GMO nongovernmental organizations are very active in France,[10] and a strong majority of consumers are hostile to GMOs. Indeed, a 2012 poll found that 79% of respondents said they were worried about the presence of GMOs in foodstuffs,[11] and a 2011 poll found that 80% opposed the cultivation of GMO crops in open fields.[12]

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III. Structure of Pertinent Legislation

A. EU Regulations

As France is a member of the European Union, its laws and regulations regarding genetically modified organisms are strongly affected by EU-level rules.[13] As is the case for other members of the EU, France’s national legislation is subordinate to EU regulation regarding consumer and environmental protection.[14] However, as these are issues of shared competence between the EU and Member States, the French government has some latitude to enact and implement its own laws and regulations, as long as these are consistent with EU-level regulations.[15] Furthermore, the European authority in charge of approving GMOs may seek advice from national food safety agencies.[16] In the case of France, the food safety agency is the Agence nationale de sécurité sanitaire, de l’alimentation, de l’environnement et du travail(National Agency on Sanitary, Food, Environmental, and Workplace Safety).[17]

B. Domestic Provisions

In France, at the national level, GMOs are principally regulated under a comprehensive 2008 law on this matter.[18] The provisions of this law were inserted in the French legal codes.[19] Most of the provisions of the 2008 law were incorporated into the Code de l’environnement (Environmental Code), but several were inserted in the Code rural (Rural Code) and a couple of provisions were inserted in the Code de la santé publique (Public Health Code) and the Code de la recherche (Research Code).[20] Most of the substance of the 2008 law was put in the Environmental Code, but certain provisions dealing with the production, transportation, and sale of agricultural products were placed in the Rural Code. The provisions that were inserted in the Public Health Code have to do with GMOs in medication, and the article modifying the Research Code (art. 16 of the 2008 law) has to do with the evaluation of research and higher education.[21] For greater ease of reference, the present report will cite to relevant provisions in these codes rather than to the 2008 law.

One of the key elements of French legislation on GMOs is the establishment of a special high council called the Haut Conseil des biotechnologies (High Council for Biotechnologies).[22] This high council is comprised of a number of experts and representatives from the political sphere, from community organizations, and from relevant advocacy and professional groups. It is divided into a scientific committee, and an economic, ethical, and social committee.[23] As will be seen below, many French legislative provisions require the governmental authorities to seek advice from the Haut Conseil des biotechnologies on the topic of GMOs.

At the local level, many mayors and town councils have tried to issue regulations prohibiting the cultivation of genetically modified organisms within their jurisdictions, but such measures have been systematically challenged by the prefects and struck down by administrative courts.[24]

C. Definition of GMO

The French Code de l’environnement (Environmental Code) defines a genetically modified organism as an “organism, the genetic material of which has been modified in a manner other than by natural reproduction or recombination [organisme dont le matériel génétique a été modifié autrement que par multiplication ou recombinaison naturelles].”[25] This definition is essentially identical to the one given at the European level by Directive 2001/18/EC of the European Parliament and of the Council, according to which a genetically modified organism “means an organism, with the exception of human beings, in which the genetic material has been altered in a way that does not occur naturally by mating and/or natural recombination.”[26]

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IV. Restrictions on Research, Production, and Marketing

French law requires that GMOs only be grown, sold, or used “in a manner that respects the environment and public health, agricultural structures, local ecosystems, production and commercial channels labeled as ‘without genetically modified organisms,’ and with full transparency.”[27] To further these goals, French law subjects the research, production, and sale of GMOs to prior governmental authorization, and subjects the cultivation of GM crops to transparency rules.

A. The Use of GMOs in Confined Environments

The use of genetically modified organisms in confined spaces for research and educational purposes is subject to prior authorization from the ministry in charge of research.[28] The ministry must receive the opinion of the Haut Conseil des biotechnologies before giving its authorization.[29] Prior authorization is not necessary if potential risks for public health or the environment are inexistent or negligible, but the use of genetically modified organisms must be declared to the government even in such circumstances.[30] The use of genetically modified organisms in confined environments for industrial purposes is subject to the same rules, except that the competent authority is the local prefect rather than the ministry in charge of research.[31]

B. Deliberate Release of GMOs in Open Environments for Research Purposes

The deliberate release of genetically modified organisms in open environments for research purposes is also subject to prior approval by the government (usually through the ministry in charge of the environment, although other executive bodies may be competent with regard to certain specific products).[32] The government must receive the opinion of the Haut Conseil des biotechnologies regarding possible risks for public health and the environment before granting an authorization.[33] The government must also consult the public at large through a website.[34] Furthermore, the government must provide advance notice to the local authorities of areas where genetically modified organisms are to be disseminated.[35] The authorization to disseminate genetically modified organisms may be amended or suspended if new information justifies it.[36]

C. Distribution and Release of GMOs for Commercial Purposes

The marketing and release of genetically modified organisms for commercial purposes are subject to prior approval by the government (generally through the ministry in charge of the environment, although other government bodies may be competent with regard to certain specific products).[37] Before granting its approval, the government must evaluate potential risks for the environment and for public health, and obtain the opinion of the Haut Conseil des biotechnologies.[38] Article L533-6 of the Code de l’environnement states that an authorization issued by another EU Member State or by the competent EU authority in compliance with EU regulations is equivalent to a French governmental approval.[39] However, even after an authorization has been issued, the government can suspend or prohibit the use or sale of a genetically modified product if new or additional information brings to light risks to the environment or public health.[40]

D. Transparency Rules for GM Crops

In addition to the authorization requirements described above, French legislation requires that the location where genetically modified crops are being grown be declared to the government.[41] The government authorities then enter this information into a national register, which is made available online.[42] This rule has been controversial, as the availability of this information can be used by anti-GMO activists seeking to destroy the crops in question.[43] French lawmakers therefore attempted to establish a compromise: on the one hand, failure to declare the location of genetically modified crops is punishable by a €30,000 fine (approximately US$41,000) and six months of incarceration,[44] and on the other hand, the destruction or degradation of authorized GM crops is punishable by a €75,000 fine (approximately US$102,600) and two years of incarceration.[45] The destruction or degradation of GM crops that were planted for research purposes is punished even more severely, by a €150,000 fine (approximately US$205,000) and three years of incarceration.[46]

In addition to informing the government authorities, a GM farmer is required to notify the farmers of surrounding land of his intention to plant GM crops, prior to sowing.[47]

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V. Restrictions on Releasing Organisms into the Environment

Given the potential for GMOs to spread through the environment, the coexistence of genetically modified, conventional, and organic crops has become an important focus of regulation in Europe.[48] The use and sale of GMOs are authorized at the EU level in accordance with Directive 2001/18/EC of the European Parliament and of the Council with regards to deliberate release of GMOs into the environment.[49] European regulations prevent Member States from outright prohibiting the cultivation or sale of GMOs.[50] However, Member States are allowed to take “appropriate measures to avoid the unintended presence of GMOs in other products.”[51] France has therefore enacted certain measures towards that purpose.

As mentioned earlier, article 531-2-1 of the Environmental Code requires that GMOs only be grown, sold, or used “in a manner that respects the environment and public health, agricultural structures, local ecosystems, production and commercial channels labeled as ‘without genetically modified organisms,’ and with full transparency.”[52] The same article guarantees the “freedom to consume and produce with or without genetically modified organisms.”[53] In order to promote these goals, French legislation aims to limit the spread of GMOs to areas outside of their intended fields. Article L663-2 of the Code rural thus states that the cultivation, harvest, storage, and transportation of genetically modified crops are subject to certain technical rules.[54] These rules are established by the minister in charge of agriculture, after consultation with the Haut Conseil des biotechnologies and the minister in charge of the environment.[55] Article L663-2 highlights rules governing distances between genetically modified crops and other fields as being particularly important to avoid the accidental presence of GMOs in other crops.[56] Violations of these technical rules on separation distances can be punished by particularly serious penalties: article L671-15 of the Code rural states that the penalty for non-compliance is a fine of €75,000 and two years of incarceration.[57] However, it is important to note that these distance rules, which are supposed to be set by the Minister of Agriculture, have not yet been defined.[58]

In addition to the rules discussed above, French legislation provides for “biological monitoring” of French territory, to observe the health of plant life and watch for possible unforeseen consequences of agricultural practices, including the use of GMOs.[59] This is coordinated by theComité de surveillance biologique du territoire (Committee for Biological Monitoring of the Territory), which was created for that purpose by the 2008 law on GMOs.[60] This body gives an annual report to both houses of the French Parliament (the Senate and the National Assembly), and can alert the government if it finds that certain unintended consequences require special measures to be taken.[61]

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VI. Restrictions on GMOs in Foodstuffs

The sale of GMOs is authorized at the European level in accordance with Regulation (EC) 1829/2003 of the European Parliament and of the Council with regards to food for human or animal consumption.[62] Additionally, rules on traceability and labeling are established through Regulation (EC) 1830/2003 of the European Parliament and of the Council concerning traceability and labeling of genetically modified organisms and the traceability of food and feed products produced from genetically modified organisms.[63]

Beyond those EU-level regulations, some restrictions exist at the national level as well. Specifically, the marketing of foodstuffs containing genetically modified organisms is subject to prior governmental approval, as explained earlier.[64] Furthermore, genetically modified products are subject to specific labeling rules. Some of these rules are set at the European level, as mentioned above. Specifically, food containing more than 0.9% of GMO per ingredient must be labeled as containing GMOs (food containing less that 0.9% of GMO per ingredient is only exempt from labeling to the extent that the GMO presence is adventitious or technically unavoidable).[65] Similar rules apply to feed meant for livestock.[66] In addition to these European rules, a 2012 French decree provides for a special, optional label for GMO-free products.[67] The “GMO-free” label can only be placed on the front of a product’s packaging when the GMO-free ingredient makes up 95% of the product. Otherwise, the “GMO-free” label can only be placed in the ingredients list at the back of the packaging, and must be written in the same size, color and font as the ingredients list.[68] This labeling is separate from other, voluntary labeling initiatives that were previously put in place by the food industry and supermarket chains,[69] but these voluntary private initiatives must now comply with the 2012 decree on “GMO-free” labeling.[70]

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VII. Liability Regime

The Code rural provides that a GMO cultivator will be automatically liable when the accidental spread of his or her GMO causes economic harm to a non-GMO cultivator.[71] This liability arises even if the accidental spread occurred through no fault of the GMO cultivator.[72] Under this law, if a non-GMO cultivator ends up having to label his or her crops as GM because of contamination from a nearby field, he or she can seek compensation for the resulting depreciation of his or her crop’s value.[73] The Code rural also makes it mandatory for any cultivator who uses GMOs to obtain liability insurance coverage.[74] In practice, this severely limits the use of GMOs in agriculture, as insurance companies have been unwilling to cover GM crops in France.[75]

Furthermore, though this scenario has not happened yet, it may be possible for someone whose property was adversely affected by another’s use of GMOs to sue for damages through an “abnormal neighborhood disturbance” theory under European law.[76]

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VIII. Judicial Decisions / Prominent Cases

As GMOs are highly controversial in France, they have been at the heart of several judicial cases over the last several years. Some of the most publicized cases have involved the trials of anti-GMO activists charged with the destruction or degradation of GM crops. The first incident of GM crop destruction by a group of faucheurs volontaires (volunteer reapers), as these activists call themselves, happened in 1997.[77] Many more similar incidents happened in the following years, to the point where these activists could claim to have destroyed 70% of GM research fields in 2004.[78] Many of these incidents have led to arrests and criminal charges against some of these anti-GMO activists, but courts have been very inconsistent in their treatment of such cases, with results ranging from acquittals to prison sentences.[79] Despite these inconsistencies, however, and despite the fact that such trials have been used by activists to publicize their cause, defending against these criminal charges has also proven quite costly for anti-GMO groups over the long run. This has lead many of them to conduct their destructions of GM crops at night in order to avoid detection and arrest.[80]

Aside from these trials, there have been other judicial decisions that have had a significant impact on the regulation of GMOs in France. The most recent case is a decision from the French Conseil d’Etat (Council of State, France’s highest court for administrative matters) of August 1, 2013.[81] In this case, the Conseil d’Etat was asked to rule on the legality of a French governmental decree prohibiting the use of a GM maize called MON 810. Although the MON 810 maize had been approved by the European Commission, the French government had the authority to ban it in case of a situation of emergency or a “serious risk to human health, animal health, or the environment” under article 34 of European Regulation 1829/2003.[82] However, the Conseil d’Etat ruled that neither a serious risk, nor a situation of emergency, existed with regard to MON 810, and that the government therefore exceeded its authority in banning it. Thus, this decision essentially legalized that particular GMO in France. This result was received quite negatively by the French public, and the government expressed its intention to seek other ways to maintain the moratorium on MON 810 maize.[83]

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Update: June 19, 2014

On May 5, 2014, a judge from France’s highest court for administrative matters rejected a request from corn producers to strike down a government regulation prohibiting the sale, use, and growing of MON810 genetically modified corn. Furthermore, on that same date, the French Parliament adopted a law banning that same type of genetically modified corn. A group of senators has referred this law to the Conseil constitutional (Constitutional Council) to have it determine whether it is constitutionally valid.

Additional information on this topic is available.

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Nicolas Boring
Foreign Law Specialist
March 2014
Updated June 2014

 

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Last Updated: 12/30/2020