Briefing for MOP 3 (9/3/2006)

Below is an important briefing - by Lim Li Lin of the Third World Network - for the 3rd Meeting of the Parties (MOP 3) to the Cartagena Protocol on Biosafety. Visit TWN's website (www.biosafety-info.net) for all their briefings and more.

Briefings for MOP 3
3rd Meeting of the Parties to the Cartagena Protocol on Biosafety, 13-17 March 2006, Curitiba, Brazil
GMO contamination, identification and Article 18.2(a)
By Lim Li Lin, Third World Network

At stake at the 3rd Meeting of the Parties (MOP 3) to the Cartagena Protocol on Biosafety is whether we continue to allow contamination of bulk commodity shipments of GMOs, or whether we put in place a system that will protect countries which do not have the laws or regulations (most developing countries) that the exporting countries themselves have to protect against this contamination. At stake is also the ability to track and trace particular GMOs, which is necessary for many important biosafety functions, such as monitoring, emergency measures, liability and redress and meaningful labelling.

Contamination of bulk commodity shipments of LMO-FFPs (GMOs intended for food, animal feed and for processing)

Different points at which contamination can occur:

* Seed contamination (e.g. via cross-pollination, horizontal gene transfer, co-mingling, regulatory and management failures)

* Contamination in the field (e.g. via cross-pollination, horizontal gene transfer)

* Contamination in handling, storage, transport etc. (e.g. via spillage, co-mingling, regulatory and management failures, and where remnants of a particular GMO can be found in non-GMO shipments or shipments of other GMOs)

* "Adventitious presence" e.g. where traces of a particular GMO can be found in all of the above, which could occur during seed production, cultivation, harvest, transport or processing.

Contamination by what?

* Completely unapproved (in the country of export and import), illegal, unknown GMOs

* Unapproved (for commercialisation in the country of export), experimental GMOs e.g. in research, in ‘confined’, open field trials

* Commercially approved in the country of export, but unapproved/illegal in the country of import

Contaminated bulk shipments to the importing country can include:

* GMOs unapproved in the country of export and in the country of import (e.g. Starlink was unapproved for food use, but was found in shipments all over the world and entered the food chain)

* Mixtures of unapproved (in the country of export and import) GMOs with approved GMOs in the country of import (e.g. Bt 10 in Bt 11 shipments to Europe)

* Approved (in the country of export) GMOs that are unapproved GMOs in the country of import

* Mixtures of all of the above with non-GMO shipments

What are the current scenarios for export?

When exporting commodity grains, the following are the scenarios:

1. An intended shipment of a GM-free commodity grain (this commands a premium price on the market, and exporters are preserving their identity).

Shipments would rarely, if at all, contain a single intended GMO destined for the country of import. Instead, shipments are usually comprised of:

2. Mixtures of various GMOs (because of non-segregation in storage, handling, transport etc.), and also mixtures of various GMOs with non-GMOs.

3. Traces and remnants of particular GMOs in shipments of non-GMOs or other GMOs (because of failure to clean out thoroughly storage and transport vessels, as well as due to contamination at seed production, during cultivation and at harvest).

It is important to understand these scenarios to comprehend the global system of segregation, identity preservation and testing that urgently needs to be put in place.

Why is it important to prevent contamination of bulk commodity shipments?

The bulk of GMOs that are moving around the world today are these LMO-FFPs (around 99%). If such contaminated shipments are finding their way to countries, unknown and untested, there will be contamination in the food and animal feed supply chain.

Such contaminated grains, even though intended for food, animal feed and for processing may end up being planted (as is the Mexican maize contamination case), further adding to the potential contamination problems that already exist.

What does this mean for GE free zones, region, countries? What does this mean for countries that simply do not want unapproved GMOs entering into their territory, and which would like to know the details about which approved GMOs are being imported?

What are industry and the exporters trying to do?

Because contamination of bulk commodity shipments is a fact and reality that industry as well as the exporting countries, have to deal with, they are attempting to:

1. obtain approvals in importing countries for a whole range of GMOs approved in the country of export all at once. If one out of a whole range of GMOs is not approved by the importing country, this poses problems to industry and the exporters as they have difficulty ensuring that the shipment does not contain the unapproved (in the county of import) GMO.

2. obtain approvals in all or most countries that import that particular commodity grain (e.g. soya) from the exporting country

3. obtain approvals in countries that import that particular commodity grain before actually commercially planting the GMO in the country of export, or before they receive commercial approval in the country of export, in some cases

4. set threshold levels for contamination, under which, contamination does not trigger identification requirements

How can the Biosafety Protocol help?

The issue of Article 18.2 (a) of the Cartagena Protocol on Biosafety which urgently needs to be resolved at MOP 3 in Brazil in March 2006, is the international legally binding provision that can help address the contamination of bulk commodity shipments. This is because clear identification will mean that a system of testing, segregation and identity preservation would need to be set up in the exporting countries, that could go a long way towards avoiding and identifying contamination before a shipment leaves a country of export.

All the Parties to the Biosafety Protocol, except Brazil and New Zealand who are supported by the US, other non-Party exporters and industry, would like to have:

1. unambiguity in the identification of the bulk commodity shipments that the documentation accompanying a shipment clearly identifies that it "contains" GMOs, and not "may contain" GMOs, which is the language in Article 18.2(a) that should be clarified in a decision by MOP 3.

"May contain" poses legal uncertainty, as a shipment may or may not contain a particular GMO. Even if the term "may contain" is used together with the provision of a list of GMOs that could be in the shipment, this potentially means that an exporter could simply list a whole range of GMOs that may be in the shipment. Both scenarios will not allow for traceability, or for product recall or ascertaining liability in case it becomes necessary.

2. the names and details, including transformation event code or unique identifier, of all the GMOs which are present in the shipment

3. assurances that no GMOs which have not been approved by the Party of import are present in the shipment

Even if the main exporting countries are not Parties to the Biosafety Protocol, having a good decision on Article 18.2(a) means that Parties will have to implement it at the national level as a minimum standard. Exporting countries, whether or not they are Parties, will have to comply with the laws of importing countries.

In addition, a good decision on Article 18.2(a) will be important for other reasons, even if there is no contamination. It will remove ambiguity, allowing countries of import to know exactly what GMOs are in a shipment, enabling traceability, assigning liability and allowing correlation with the risk assessments for that GMO.

Where should the burden lie?

A good decision on Article 18.2(a) would in effect mean that the burden of ensuring that contaminated shipments are not entering the country does not rest on the importing countries. Most developing countries are importing countries, and lack the capacity and resources to test shipments at the port. There are also many difficulties with sampling and testing (e.g. the randomness of sampling, and obtaining false negatives in the testing results) and trying to always ensure that all contaminated shipments are accurately detected is difficult.

This would mean that the exporting countries would rightfully bear the burden of ensuring that contaminated shipments do not leave their country and of ensuring that the exact GM components and all necessary information linked to those events (including risk assessment information via the BCH) are communicated to the country of import. A strict segregation and an identity preservation system must be put in place by the exporting country to ensure that such contamination does not occur. In addition, testing before the shipments leave the port in the country of export will help to ensure that the systems is working, and identify problems, if it is not.

Traceability, segregation and identity preservation

A global system of traceability, segregation and identity preservation will be beneficial for all, including for the exporters in the long term. Segregation and identity preservation will aid traceability.

The market demands GM-free products, and ‘GM-free’ commands a premium price. The contamination problems are real, and must be addressed in good faith. The cost of potential liability and clean-up measures would by far surpass the cost of implementing a strict and equitable segregation and identity preservation system, which can be considerable. For example, the Starlink contamination case was reported to have cost USD 1 billion.

In fact, industry very often does implement a segregation and identity preservation system to enforce their intellectual property rights. Monsanto, for example, has "established a system in which more than 95% of the grain elevators in two Southern Brazil states (Rio Grande de Sul and Santa Catarina) test the genetics of soyabeans that pass through for the presence of Monsanto traits". This is projected to increase earnings for Monsanto. (UBS Investment Research: Monsanto, 2004) Furthermore, many grain elevators are already requiring segregation, to take advantage of the GM-free market, and identity preservation of grains is predicted to expand.

For the importing country, a global system of traceability, segregation and identity preservation would help to also facilitate more meaningful labeling at the national level.

For risk management, reviews of decisions in the light of new scientific information and for monitoring requirements, it is important to be able to track and trace the GMOs that are entering a country.

In case something goes wrong, such a system is critical to be able to ensure product recall and to take emergency measures. For liability and redress, it is also critical to have a clear system of traceability, to be able to identify what caused the damage.

Other considerations under Article 18.2(a)

Contact points for further information

It is also important to clearly extend the contact points for further information beyond the exporter and importer in the supply chain, as usually it is the same grain trading company that is both the exporter and importer. For example, grain exported from Brazil to South Africa may likely be exported from Cargill in Brazil to Cargill in South Africa. It is therefore very important to extend biosafety regulatory oversight beyond the last exporter and first importer because the grain trading companies may not hold important biosafety information, which may reside with the companies and producers of the GMOs.

Stand-alone documents

Another important issue is that the documentation accompanying the shipments of LMO-FFPs should be in a separate, ‘stand-alone’ document. The information should not simply be added onto an existing commercial invoice. At stake is the oversight by the biosafety competent authorities to easily and clearly identify and regulate the shipments that are coming into the country.

Further reading: Report of MOP 2 (June 2005): ‘Brazil, New Zealand block decision on documentation of GMOs’, Lim Li Ching and Lim Li Lin

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