Better Biosafe than Sorry

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Better Biosafe than SorryLissa Harris, Grist Magazine

October 20, 2003

All but eclipsed by the somber anniversary of the terrorist attacks of Sept. 11,

2001, the Cartagena Protocol on Biosafety became international law with little

fanfare. Nonetheless, its entry into force could mark the beginning of a new era

in international trade -- with potentially sweeping consequences for the

environment.

 

The protocol is the first international convention to regulate trade in living

modified organisms (LMOs), a subset of the more widely known -- and in some

circles widely reviled -- category of genetically modified organisms (GMOs). It

spans 30 pages of definitions, provisions, procedures, agreements, and

arrangements, but the most important piece of it is less than a sentence long:

an easily overlooked reference, in the preamble, to " Principle 15 of the Rio

Declaration on Environment and Development " -- a.k.a. the Precautionary

Principle.

 

The Rio Declaration was crafted in the eponymous Brazilian city during the 1992

United Nations Conference on Environment and Development, better known as the

Earth Summit. In Principle 15, the international community addresses the

perennial problem of how to regulate to protect the environment in the face of

massive scientific uncertainty about the causes and consequences of ecological

problems. " Where there are threats of serious or irreversible damage, lack of

full scientific certainty shall not be used as a reason for postponing

cost-effective measures to prevent environmental degradation, " the document

proclaims. In other words, better safe than sorry.

 

Whether or not GMOs pose " threats of serious or irreversible damage " is a

question that has polarized the global community. Nations that are net importers

of GMOs are increasingly trying to regulate the flood of imports destined for

their farmers' fields and their supermarkets' shelves; net exporters of GMOs are

crying foul. The debate has reached the chambers of the World Trade

Organization, where the U.S. -- which is not a signatory to the Cartagena

Protocol -- has brought a suit against the European Union for imposing labeling

requirements on genetically altered foods and a moratorium on new genetically

modified crops, calling the E.U.'s regulations protectionism in disguise.

 

The Cartagena Protocol bolsters the E.U.'s position, because its invocation of

the Precautionary Principle affirms the right of nations to regulate biotech

imports -- such as GMOs -- whose environmental and human health risks remain

unknown. " This [protocol] is a fundamental step towards better global governance

in the GMO field, which is badly needed to maximize the benefits deriving from

biotechnology and minimize the risks for the environment and human health, " says

Nicola Notaro, an official in the Development and Global Biodiversity Unit of

the European Commission.

 

But at the WTO, the rules are different. Under the Sanitary and Phytosanitary

(SPS) Regulations that govern trade in food, imports are considered innocent

until proven guilty. " Members shall ensure that any sanitary or phytosanitary

measure is applied only to the extent necessary to protect human, animal, or

plant life or health, is based on scientific principles and is not maintained

without sufficient scientific evidence, " the SPS rules state.

 

In other words, under the WTO rules, " the burden of proof [is] on the country

that wants to have higher standards, " says Kristin Dawkins, vice president for

international programs at the Institute for Agriculture and Trade Policy in

Minnesota. " Under the Cartagena Protocol, the Precautionary Principle basically

reverses those things. "

 

It remains to be seen whether the newly inaugurated Cartagena Protocol will come

into open conflict with the WTO's existing regulations. But one thing seems

certain: Proponents of genetically modified food, led by the U.S. and Canada,

will not give up the golden age of unregulated biotech trade without a fight.

 

Chew on This

 

How intense a fight? Well, consider the negotiations that led up to the adoption

of the Cartagena Protocol in 2000, which were themselves long and contentious.

Since the U.S. did not ratify the Convention on Biological Diversity (the treaty

that underlies the Cartagena Protocol), it was not an official party to the

development of the protocol. As a trading partner of many countries that did

sign on to the protocol, however, the U.S. maintained a keen interest in the

proceedings.

 

" If you were to encapsulate this from a U.S. government point of view, we hope

that the debate and discussion are based on scientific evidence, rather than

hearsay and emotion, " says a senior official with the Bureau of Oceans,

Environment, and Science in the U.S. State Department. " Our interests have

focused around trying to ensure that when the protocol goes into force, it will

not unnecessarily disrupt trade. "

 

Beth Burrows, founder and director of the Edmonds Institute, a small environment

and technology think tank that works to promote more scientific study of the

health risks of GMOs, has a different view. " I don't know that the U.S. has a

cogent policy, except to export its own products, " she says. " The U.S. brought

quite a large delegation and played quite the bully ... throughout the

negotiations. It's like the old joke -- what does a 900-pound gorilla eat?

Anything it wants. "

 

At the Cartagena negotiations, the U.S. and the other major GMO exporters

(Canada, Argentina, Australia, Chile, and Uruguay) were known as the " Miami

Group, " after the location of their first meeting to develop a unified position.

Led by the U.S., the group attempted to exclude as many GMOs as possible from

regulation, says Dawkins of the Institute for Agriculture and Trade Policy.

" There was a while when people referred to this as the 'Animal Vaccine

Protocol,' because every other type of GMO or LMO was up for exclusion in the

U.S. proposal, " she says.

 

In a coup for processed-food exporters, the scope of the treaty was eventually

narrowed from all GMOs to only LMOs -- bioengineered organisms with viable DNA.

The shift in wording excludes most processed foods from the treaty, treating a

shipment of corn as an LMO subject to regulation, but exempting cereal made from

the same kernels. In another notable exclusion, the protocol does not apply to

pharmaceuticals, on the theory that drugs for human consumption are already

regulated by other international treaties.

 

However, in the few years since the protocol was finalized, another seemingly

science fiction-esque development has edged nearer to becoming fact: crops

bioengineered to produce drugs, such as the bananas developed by Cornell

scientist Charles Arntzen that contain an edible vaccine for Hepatitis B.

 

Whether such biopharmaceuticals will be regulated under the protocol remains to

be seen, says Dawkins: " That was still far enough into the future that it wasn't

addressed directly. It's another one of those gray areas that the lawyers can

have fun with. "

 

May the Enforcement Be With You

 

Although Cartagena is now international law, many questions remain about its

enactment and enforcement.

 

" In two years, they're supposed to come up with detailed regulations on labeling

of shipments, which is going to be very hot. And in four years, they're going to

start dealing with the liability issue on an international level, " says Dawkins.

 

The " liability issue " -- who pays when biotech experiments go awry -- is perhaps

the thorniest legal problem in the emerging debate over the regulation of GMOs.

Over the next four years, the protocol's signers will work to decide how to hold

GMO manufacturers accountable if their products cause negative environmental,

socioeconomic, or human health impacts. This may prove no small feat,

particularly as most GMO manufacturers are based in countries that have not

signed the protocol. (Cartagena applies to trade between signers and

non-signers, but enforcement will likely prove difficult.)

 

In the early days of genetically modified crops, biotech companies assured the

public that buffer zones around crop fields would prevent GMO crops from

escaping into the environment. But for the major GMO crops -- corn, soybeans,

canola, and cotton -- it is proving increasingly difficult to segregate

bioengineered varieties from ordinary crops. Genetically engineered genes have

shown up in cornfields in remote mountain regions of Mexico, where GM corn has

been banned since 1998. In 2000, bioengineered Starlink corn, banned for human

consumption because it contained a suspected allergen, found its way into the

food stream and prompted a massive recall of supermarket tortilla shells. Canada

has already given up on all efforts to grow GMO-free canola because of

widespread contamination. Faced with evidence that GMO crops are essentially

uncontainable, biotech producers now claim that the escape of bioengineered

genes is nothing to worry about.

 

Tell that to Percy Schmeiser, the Saskatchewan canola farmer who has become

something of an international celebrity for standing up to biotech giant

Monsanto. Schmeiser's troubles began when a few bioengineered Monsanto plants

showed up in his canola field -- according to Schmeiser, the result of GMO

pollen drifting from a nearby field. In 1998, acting on a tip from a toll-free,

anonymous " snitch line, " Monsanto discovered the plants and sued Schmeiser for

patent infringement. Schmeiser promptly slapped Monsanto with a $7.3 million

countersuit, claiming that the company had genetically polluted his crops.

 

Monsanto won the first round. In 2002, a Canadian federal judge ordered

Schmeiser to pay $125,000, ruling that he had violated Monsanto's patent even if

the company's plants had spread into his fields accidentally. Schmeiser has

appealed the case all the way to the Canadian Supreme Court, where it will be

heard early next year.

 

Cases like Schmeiser's reveal the limitations of conventional law when it comes

to dealing with patented life forms. On both national and international scales,

the question of who pays the price for unwanted gene flow remains unresolved.

But in the absence of legislation placing the burden of liability on the

shoulders of GMO manufacturers, the costs are likely to be borne by farmers and

consumers. And given the difficulty of keeping genes in their proper places, by

the time the Cartagena Protocol and all of its liability and labeling laws take

full effect, the proverbial genie may be long since out of the bottle.

 

But regardless of how much environmental impact it will have, says Dawkins,

Cartagena is a politically important treaty. " My hope is that it will give more

strength of conviction to countries and nations to insist on their sovereign

right to regulate these products, " she says.

 

" The whole point of this thing is ... to have some assurances that these GM

products are safe, " says Peter Jenkins, an attorney and policy analyst at the

Center for Food Safety in Washington, D.C. " I don't know why anyone would want

to argue with that. "

 

Lissa Harris is a freelance writer based in upstate New York.

 

 

 

© 2003 Independent Media Institute. All rights reserved.

 

 

 

 

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