ILLEGAL GM RICE IN THE UK - FRIENDS OF THE EARTH TAKES FSA TO COURT
Judicial Review: 20/21 February Press Office: 020 7566 1649
Friends of the Earth Press Release
Friends of the Earth's judicial review of the Food Standards Agency (FSA) for its failure to act over illegal genetically modified (GM) rice that entered the UK food chain last year will be heard in the High Court on Tuesday/ Wednesday 20th and 21st February. The case centres on the contamination of US long grain rice with an experimental GM strain grown in the US - the most significant illegal GM food contamination incident to affect the UK to date. It is now known to have contaminated rice on sale in supermarkets in the UK and around the world.
Friends of the Earth believes that the FSA has failed in its legal obligations to check for contaminated rice on the market in the UK, and should have done more to work with local authorities and the food industry to make sure illegal GM rice was detected and removed from shelves and other parts of the market .
What does Friends of the Earth want?
Friends of the Earth is seeking a legal declaration that the FSA failed in its legal obligations over this incident. Concerns include:
*Failing to take action to implement emergency EU legislation to make sure that illegal GM rice was not sold to UK consumers
*Ignoring potentially contaminated rice that reached the market since January 2006. Instead it focused on "preventing any further GM-containing stocks entering the UK markets".
*Ignoring the precautionary principle enshrined in EU GM law. Instead it stated early on in the incident that the presence of GM rice in the food chain "is not a health concern" despite the lack of scientific evidence to back this up
*Meeting privately with the food industry and telling them that there was no need to withdraw any contaminated rice that they found, despite the fact that any presence of unapproved GM ingredients is illegal
*Failing to require enforcement action by local food authorities such as testing for contaminated rice in their areas.
A declaration stating that the FSA failed in its legal obligations would set an important precedent and ensure that if such a GM contamination incident happens in the future, the FSA would take much more effective action to ensure that UK consumers are not exposed to illegal GM ingredients. Friends of the Earth is also calling for the FSA to carry out a thorough review of its approach to GM foods (which has been described as giving "the impression that it supported the concept of GM foods" in an independent review in 2005) and to ensure that it puts in place a more pro-active policy on testing food imports for illegal contamination.
Illegal GM rice found in the food chain
On 18 August last year, the US Department of Agriculture announced that an illegal GM rice strain, unapproved for human consumption, had contaminated long grain rice supplies destined for export. The rice, LLRICE601, owned by biotechnology company Bayer CropScience, has been genetically modified to be resistant to the company's weedkiller, Liberty (glufosinate). The contamination was initially discovered in January 2006, but it wasnt until July that its identity was confirmed as LLRICE601. Contaminated long grain rice had been exported from the US for at least seven months.
LLRICE601 was grown experimentally in the US from 1999 to 2001 and following the field trials, Bayer were not intending to pursue commercialisation. At the time the contamination was revealed, the rice had not been approved as safe for cultivation or food use anywhere in the world. Bayer has developed two other GM rice strains also resistant to the Liberty herbicide LL62 (for which it has applied for import approval in the EU), and LL06.
The European Commission takes action
Five days after the contamination was revealed, the European Commission put in place emergency legal measures to deal with the incident. All long grain rice imported from the US had to have a certificate stating that it was free of LLRICE601 before it could be marketed in the EU. Furthermore, member states were also required to take action in relation to products already on the market, such as rice imported into the EU before the contamination came to light, in order to "verify the absence of genetically modified rice 'LL RICE 601' ". This is where Friends of the Earth believes the FSA failed to act, and it forms the central issue for the judicial review.
Following an incident in Rotterdam, where a shipment of long grain rice was tested positive for LLRICE601 by Dutch authorities after holding a certificate saying it was GM-free, the EC tightened up the emergency legislation to require counter testing of all US long grain rice by EU member states at the port of entry. The discrepancy over testing resulted from a more sensitive test being used in Europe than in the US. These emergency measures are still in place .
Extent of contamination
Illegal contamination of long grain rice has been found across Europe and worldwide. Friends of the Earth commissioned testing of rice on supermarket shelves and found positive products in Morrisons and Somerfield. Further testing by supermarkets has confirmed positive samples in Sainsbury's, Tesco and Asda and Marks & Spencer in Ireland.
According to the rice industry, around 50% of long grain rice imported into the EU is likely to have been contaminated at low levels. In Europe, 17 countries have reported contamination. And testing by Friends of the Earth in West Africa found contaminated rice in food aid and commercial rice supplies in Sierra Leone and Ghana.
Why is Friends of the Earth legally challenging the FSA?
The FSA is responsible for dealing with this contamination incident in the UK, but it has failed to make sure consumers in the UK are not exposed to illegal GM rice. The FSA has focused on preventing further contaminated rice entering the UK for example by commissioning testing of long grain rice held at rice mills, but has ignored contaminated rice already on the market. This includes rice on sale in shops, and used by commercial and public sector caterers (eg the NHS and school meals). An internal meeting note reveals that this decision was taken shortly after a meeting with the rice industry "It was decided not to sample from supermarket shelves because of the massive resource implications in tracing all contaminated end products
". The European Commission confirmed that "intensive and targeted controls on products, which are already on the market, are absolutely necessary".
The FSA has attempted to wash its hands of any responsibility for enforcement by stating that local food authorities are responsible for enforcement of GM legislation. Local authorities clearly look to the FSA for guidance and many of them have stated that they have not carried out any testing in their areas specifically because the FSA had not instructed them to do so. One of the key ways the FSA communicates with local authorities is by issuing food alerts. The FSA has not issued any food alerts in this case an action which is likely to have prompted local authorities to take enforcement action, such as testing local rice samples.
During discussions with the food industry, the FSA told the Food and Drink Federation and the British Retail Consortium that it did not expect them to test products or withdraw them from sale. The FSA later amended its advice, but only after Friends of the Earth threatened legal proceedings.
Not given all clear on safety
The FSA also put out very bold statements about the safety of LLRICE601 early on in the incident claiming in a press release that the presence of low levels of GM rice was "not a health concern"  and advising consumers to carry on eating US long grain rice. It later transpired that this was based on conversations with two members of the Advisory Committee (ACNFP) who had seen only a limited amount of safety data. Two weeks later, the European Food Safety Authority put out a much more cautious statement that there is "insufficient data to provide a full risk assessment in accordance with EFSA's GM guidance", but on the basis of available data, it is "not likely to pose an imminent safety concern to humans or animals" .
Impact on rice industry
This incident has had a devastating impact on the rice industry. Rice 'futures' prices plummeted $150 million - the sharpest one-day decline in years. Experts have predicted that US rice exports may decline by as much as16% in 2006/2007. Several multi-million dollar lawsuits and several individual lawsuits have been filed against Bayer by US farmers who have suffered severe financial losses. Rice millers, traders and retailers around the globe are facing significant costs, including testing and recall costs, cancelled orders, import bans, brand damage and consumer distrust. However, 41 of the world's biggest rice exporters, processors and retailers have issued written commitments to stay GM free .
Who is liable?
Neither the US Government, nor Bayer CropScience, can explain how this illegal GM rice got into the food chain and an investigation by US authorities is still underway. Meanwhile, Bayers immediate response to the incident was to apply for the GM rice to be legalised in the US (or 'deregulated'), in an attempt to limit liability. Although the USDA approved the deregulation on 24 November, the rice is still illegal in Europe.
This incident highlights the urgent need for legislation to make biotech companies liable for damage caused by their products. It is unacceptable that farmers have to resort to the courts to seek compensation from Bayer, and that food companies, farmers and taxpayers end up paying for the biotech industrys mistakes. If companies wish to experiment with, and seek commercialisation for, GM crops and food, they must accept full liability for any damage their products cause, both economic damage, and any harm caused to the environment or health.
 For Friends of the Earth's witness statements and skeleton legal arguments, contact the press office
 Amended Emergency Decision 2006/754/EC on emergency measures regarding the non-authorised genetically modified organism LL RICE 601 in rice products: http://eur-lex.europa.eu/LexUriServ/site/en/oj/2006/l_306/l_30620061107en00170020.pdf
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