ChapterPDF Available

Genetically Modified Organisms and the Public: Participation, Preferences, and Protest

April 2010

DOI:10.1093/acprof:oso/9780199542482.003.0002

In book: The Regulation of Genetically Modified Organisms: Comparative Approaches (pp.11-36)

Authors:

Luc Bodiguel

French National Centre for Scientific Research

Michael Norman Cardwell

University of Leeds

There has been a high level of public engagement in the regulation of GMOs and this chapter seeks to explore this engagement, whether conducted through formal or informal channels. In the case of formal channels, it examines the opportunities for public participation under measures enacted at international, European Union, and national levels, addressing, inter alia, the detailed provisions of the Cartagena Protocol and Aarhus Convention. In the case of informal channels, attention is directed to consumer preferences and public protest, and a salient feature identified is the reluctance of United Kingdom juries to convict anti-GM activists, as compared with the willingness of (non-jury) courts in France to convict Faucheurs Volontaires.

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PART I

THE PUBLIC, ECONOMICS,

AND RISK

Genetically Modiﬁed Organisms and

the Public: Participation,

Preferences and Protest

Luc Bodiguel and Michael Cardwell

1. Introduction

A deﬁning feature of the controversy surrounding genetically modiﬁed

organisms (GMOs) has been the high level of engagement by the general

public and, indeed, the degree of inﬂuence exerted by the general public, as

may be exempliﬁed by the GM Nation debate conducted by the UK

Government in 2003.

Moreover, the informing and educating of the public

is widely perceived as central to gaining acceptance of biotechnology,

although there is also considerable evidence that increased information and

education on the scientiﬁc underpinnings of GMOs do not necessarily gen-

erate increased acceptance.

The heat of this debate has arguably been raised

by the high media proﬁle of GMOs. Again in the United Kingdom, the

generally negative attitudes of journalists have incurred the criticism of the

Government Chief Science Adviser, who had little sympathy with the Daily

Mail for its use of such charged language as ‘Frankenfoods’ or with John

Humphrys of the BBC Today programme for his pro-organic stance.

See, for the results, Department of Trade and Industry, GM Nation? The Findings of the Public

Debate (London: Department of Trade and Industry, 2003) (‘GM Nation’).

See, eg MJ Navarro, Bridging the Knowledge Divide: Experiences in Communicating Crop

Biotechnology (Manila, Philippines: International Service for the Acquisition of Agri-biotech Appli-

cations (ISAAA), 2008).

See, eg D Brossard and J Shanahan, ‘Perspectives on Communication about Agricultural

Biotechnology’ in D Brossard, J Shanahan, and TC Nesbitt (eds), The Public, the Media and

Agricultural Biotechnology (Wallingford, Oxon: CAB International, 2007) 3.

House of Commons Innovation, Universities, Science and Skills Committee, Session

2007–08, HC 115-I, Oral Evidence given by Professor Sir David King (available at <http://

www.publications.parliament.uk/pa/cm200708/cmselect/cmdius/115/7120501.htm>, last accessed

1 September 2009).

Likewise, in France, the activities of the Faucheurs Volontaires (and notably

Jose

´Bove

´) have been conducted in the full glare of publicity.

That the public should have so strong a ‘voice’ is arguably not surprising.

First and foremost, it is the public as consumers who will eat GMOs; and there

is evidence of widespread support for the view that regulation should impose at

least a labelling obligation. For example, one UK survey found that only one

per cent of respondents did not think it necessary to label all GM products;

and, in the United States, where labelling is not required, a clear majority

would appear unhappy with Government policy.

Further, the concerns of this

majority are unlikely to be allayed by the US Food and Drug Administration

taking the stance that even cloned food should not be subject to speciﬁc

labelling rules.

Two other factors liable to engage the public may be highlighted. First, it

is generally accepted that consumers are not always convinced by the con-

clusions of government and industry scientists; and yet it is government and

industry scientists who have been accorded so prominent a role in the reg-

ulation of GMOs.

The bovine spongiform encephalopathy (BSE) crisis may

carry much responsibility for this. As concluded in the BSE Inquiry con-

ducted by Lord Phillips, ‘[e]veryone agrees that the Government had a pro-

blem with credibility’; and the recommendation was that, ‘[w]hen responding

to public or media demand for advice, the Government must resist the

temptation to appear to have all the answers in a situation of uncertainty’.

Further, in GM Nation only seven per cent of respondents were conﬁdent

that the development of GM crops was being carefully regulated.

Such

For the activities of the Faucheurs Volontaires, see, eg G Hayes, ‘Collective action and

civil disobedience: the anti-GMO campaign of the Faucheurs Volontaires’ (2007) 5 French

Politics 293.

W Poortinga and N Pidgeon, ‘Public Perceptions of Agricultural Biotechnology in the UK:

the Case of Genetically Modiﬁed Food’ in Brossard, Shanahan, and Nesbitt (n 3 above) 21.

See, eg M McGarry Wolf, P Bertolini, and J Parker-Garcia, ‘A Comparison of Consumer

Attitudes Towards GM Food in Italy and the USA’ in RE Evenson and V Santaniello (eds),

Consumer Acceptance of Genetically Modiﬁed Foods (Wallingford, Oxon: CABI Publishing, 2004)

131 (89.6 being in favour of mandatory labelling).

Food and Drug Administration, Guidance No. 179: Guidance for Industry Use of Animal

Clones and Clone Progeny for Human Food and Animal Feed (Food and Drug Administration, 15

January 2008).

This ‘turn to science’ is well-illustrated in the World Trade Organization EC-Biotech

case, EC-Approval and Marketing of Biotech Products WT/DS291/R, WT/DS292/R, and

WT/DS293/R, 29 September 2006. See, further, eg J Scott, The WTO Agreement on Sani-

tary and Phytosanitary Measures: a Commentary (Oxford: Oxford University Press, 2007) and

Chapter 13.

The BSE Inquiry: the Report-Vol. 1, Findings and Conclusions paras 1300–1301 (available at

<http://www.bseinquiry.gov.uk.html>, last accessed 17 August 2009). See, generally, eg G Little,

‘BSE and the regulation of risk’ (2001) 64 Modern Law Review 730.

GM Nation (n 1 above) para 122.

Genetically Modiﬁed Organisms and the Public12

scepticism is not conﬁned to the United Kingdom or even Europe.

Amer-

ican consumers would generally appear to place more trust in the regulatory

authorities;

but the StarLink

incident, where GM material was found in

taco shells, did shake this greater conﬁdence.

Secondly, there is also evidence that the general public does not see the

immediate advantages of GMOs for consumers (as opposed to the immediate

advantages for farmers or seed companies). Thus, in GM Nation 85 per cent of

respondents agreed that GM crops would mainly beneﬁt producers as opposed

to ordinary people.

That said, there would seem to be considerable support

for employing agricultural biotechnology to achieve greater food security in

developing countries, as clearly articulated by the UK Environment Minister at

the time of the global food crisis in June 2008.

Yet, it may also be noted that

non-governmental organizations (NGOs) such as Oxfam have long rejected

the idea that food security can be remedied by ‘technological ﬁxes’.

The

questionable utility of GM crops (at least from the point of view of the general

populace) may also explain ﬁndings that, although as a rule they do not give

rise to pressing fear, they may nonetheless generate strong resistance;

and this

paradox is consistent with broader evidence that only a minority of Europeans

believe some degree of risk to be justiﬁed in order to promote economic

competitiveness.

Accordingly, against this background, two aspects may be examined: ﬁrst, the

extent to which the public have the ability at a formal level to contribute to the

regulation of agricultural biotechnology; and, secondly, the extent to which

the public have exerted inﬂuence through less-formal channels. In the latter case,

there will be the opportunity to examine both the effect of consumer preferences

and the impact of public protest against GM crops (including the approach

taken by the courts).

See, eg K Brooks, ‘History, change and policy: factors leading to current opposition to food

biotechnology’ (2000) 5 Georgetown Public Policy Review 153. On European aspects, see,

D Chalmers, ‘Risk, anxiety and the European mediation of the politics of life’ (2005) 30 European

Law Review 649.

See, eg M Costa-Font, JM Gil, and WB Traill, ‘Consumer acceptance, valuation of and

attitudes towards genetically modiﬁed food: review and implications for food policy’ (2008) 33

Food Policy 99.

For the StarLink litigation, see In re StarLink Corn Products Liability Litigation 212 F Supp 2d

828, 838, 840 (ND Ill 2002); and see further Chapter 12.

GM Nation (n 1 above) para 121.

See, eg ‘Genetically Modiﬁed Crops “May be Answer to Global Food Crisis”’ Telegraph,

19 June 2008 (Phil Woolas).

For an early statement to this effect, see Policy Department of Oxfam (Great Britain),

Genetically Modiﬁed Crops, World Trade and Food Security: Position Paper November 1999 (Oxfam,

1999) 3.

Poortinga and Pidgeon (n 6 above).

See, generally, Directorate-General XII, Eurobarometer 46.1: the Europeans and Modern

Biotechnology (Brussels: European Commission, 1999) (28%) 55.

Introduction 13

2. Formal Public Inﬂuence on the Regulation of

Agricultural Biotechnology

There are several legislative frameworks which provide for public input into the

regulation of agricultural biotechnology, these ranging from international agree-

ments where GMOs are merely a part of their focus, to targeted national regimes.

2.1 International Level

In this context, a leading role is undoubtedly played by the Cartagena Protocol

to the Convention on Biological Diversity (concluded on 29 January 2000),

since it is both a genuinely international agreement and speciﬁcally directed to

GMOs.

However, it should be noted that the question of public participation

had already been addressed by the Convention on Biological Diversity itself

(concluded on 5 June 1992).

Article 14(1)(a) stipulates that ‘as far as possible

and as appropriate’, the contracting parties were to ‘introduce appropriate pro-

cedures requiring environmental impact assessment of its proposed projects that

are likely to have signiﬁcant adverse effects on biological diversity with a view to

avoiding or minimizing such effects and, where appropriate, allow for public

participation in such procedures’. Nonetheless, Article 23(2) of the Cartagena

Protocol takes this further, Article 23(2) requiring that the parties, in accordance

with their respective laws and regulations, shall ‘consult the public in the deci-

sion-making process regarding living modiﬁed organisms and shall make the

results of such decisions available to the public’. Accordingly, not only is there

express reference to GMOs, but also the obligation seems less qualiﬁed, with no

proviso that public participation should only be undertaken as appropriate. That

said, there would seem to be an obligation only to consult, not an obligation to

feed the responses into the decision-making process; and the allowance made for

national laws and regulations has apparently resulted in considerable variation,

with information being accorded priority over participation.

For a useful survey, see, eg L Glowka, Law and Modern Biotechnology: Selected Issues of

Relevance to Food and Agriculture: FAO Legislative Study 78 (Rome: Food and Agriculture Orga-

nization, 2003).

Available at <http://www.cbd.int/biosafety/protocol/shtml>. To date, 156 instruments of

ratiﬁcation or accession have been deposited with the United Nations Secretary General: see

<http://www.cbd.int/biosafety/signinglist.shtml>, last accessed 2 September 2009.

Available at <http://www.cbd.int/convention/convention.shtml>.

See, eg Institute for Development Studies, Public Participation and the Cartagena Protocol on

Biosafety: a Review for DfID and UNEP-GEF (Institute for Development Studies, University of

Sussex, 2003) 58–9; and see G Jaffe, ‘Implementing the Cartagena Biosafety Protocol through

national biosafety regulatory systems: an analysis of key unresolved issues’ (2005) 5 Journal of

Public Affairs 299. For a more general survey, see Secretariat of the Convention on Biological

Diversity, Special Focus: Public awareness and Participation: Experiences and Lessons Learned from

Recent Initiatives, Biosafety Protocol News, July 2009, Issue 6.

Genetically Modiﬁed Organisms and the Public14

Also featuring prominently in the former category is the Aarhus Conven-

tion,

as ratiﬁed by the Community in 2005.

While its coverage extends to

environmental matters generally, the recitals expressly recognise ‘the concerns of

the public about the deliberate release of genetically modiﬁed organisms into the

environment and the need for increased transparency and greater public parti-

cipation in the decision-making in this ﬁeld’. Further, all its three ‘pillars’ have

the capacity to impact upon the regulation of GMOs (respectively access to

information, public participation in decision-making, and access to justice); but

it is the second which arguably provides the strongest lever for the public, since

generosity in terms of access to information and even in terms of access to justice

would appear materially circumscribed if a restrictive approach is taken to par-

ticipation in the decision-making process itself.

Under the second ‘pillar’, provision is made for public participation in

respect of decisions on: ﬁrst, proposed environmental activities (Article 6); sec-

ondly, programmes and policies relating to the environment (Article 7); and,

thirdly, the preparation of executive regulations and/or generally applicable

legally binding normative instruments (Article 8). The scope of Article 8 would

seem wide enough to engage participation rights when enacting Community or

national legislation on GMOs. Further, and importantly, the original text of

Article 6 was not thought sufﬁciently precise or robust in comparison with the

Cartagena Protocol and, by the Almaty amendment of May 2005, it was

reconﬁgured to introduce a speciﬁc regime for public participation in decisions

on the deliberate release into the environment and placing on the market of

GMOs.

The new Article 6bis requires parties to the Aarhus Convention to

Aarhus Convention on Access to Information, Public Participation in Decision-making and

Access to Justice in Environmental Matters 1998 (available at <http://www.unece.org/env/pp/

documents/cep43e.pdf>, last accessed 26 June 2009). This was concluded under the auspices of the

United Nations Economic Commission for Europe. See also, generally, eg M Lee, EU Environmental

Law: Challenges, Change and Decision-making (Oxford: Hart Publishing, 2005) 113–49; M Lee and

C Abbott, ‘The usual suspects? Public participation under the Aarhus Convention’ (2003) 66

Modern Law Review 80; and C Nadal, ‘Pursuing substantive environmental justice: the Aarhus

Convention as a “pillar” of empowerment’ (2008) 10 Environmental Law Review 28.

Council Decision (EC) 2005/370 of 17 February 2005 on the conclusion, on behalf of the

European Community, of the Convention on Access to Information, Public Participation in Deci-

sion-making and Access to Justice in Environmental Matters [2005] OJ L124/1; and see also Reg-

ulation (EC) 1367/2006 of the European Parliament and of the Council on the application of the

Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to

Justice in Environmental Matters to Community institutions and bodies [2006] OJ L264/13.

For detailed commentary on the second ‘pillar’, see, eg Economic Commission for Europe,

The Aarhus Convention: an Implementation Guide (Geneva: Economic Commission for Europe,

2000) 85–122. It may also be noted that the public may enjoy a role in the enforcement of the

Aarhus Convention, since the arrangements to review compliance ‘shall allow for appropriate

public involvement and may include the option of considering communications from members of

the public on matters related to the Convention’ (Art 15); and see, generally, eg S Kravchenko,

‘The Aarhus Convention and innovations in compliance with multilateral environmental agree-

ments’ (2007) 18 Colorado Journal of International Environmental Law and Policy 1.

The Almaty amendment is available at <http://www.unece.org/env/pp/mop2/mop2.

decisions.htm>, last accessed 2 September 2009.

Public Inﬂuence on Regulation of Agricultural Biotechnology 15

‘provide for early and effective information and public participation prior to

making [such] decisions’. Further, the accompanying modalities stipulate that

each party should ‘endeavour to ensure that, when decisions are taken on whe-

ther to permit the deliberate release of GMOs into the environment, including

placing on the market, due account is taken of the outcome of the public par-

ticipation procedure’.

This would seem more prescriptive than the Cartagena

Protocol, but it must be recognized that the amendment is not yet in force.

Further, a party has the opportunity, if appropriate, to provide for exceptions to

its public participation procedure subject to certain conditions: for example, in

the case of a deliberate release of a GMO into the environment (other than for

its placing on the market), such release under comparable bio-geographical

conditions must have already been approved by the party concerned and sufﬁ-

cient experience must previously have been gained with the release of that GMO

in comparable ecosystems.

That said, it should be emphasized that the Aarhus

Convention confers speciﬁc rights on environmental NGOs. For the purposes of

access to justice (as opposed to public participation under the second ‘pillar’),

NGOs promoting environmental protection and meeting any requirements

under national law are deemed to have sufﬁcient interest, and to have rights

capable of being impaired, for the purposes of obtaining access to a review

procedure before a court of law and/or other independent and impartial body

established by law.

An example of national rules would be the twin criteria

applicable in France, requiring that the NGO has existed for three years and acts

in the ﬁeld of environmental protection.

This provision of the Aarhus Con-

vention may prove particularly relevant in the case of GMOs, where the avail-

ability of the substantial resources and expertise would seem necessary to mount

an effective challenge.

While the Convention on Biological Diversity and the Aarhus Convention

represent two important initiatives by the United Nations, participation rights

may also be found at international level in more avowedly regional measures. By

way of illustration, the Organization of African Union (now the African Union

(AU)) encourages states to harmonize their measures in accordance with the

African Model Law on Safety in Biotechnology. This provides that the public

should participate in decision-making by means of both a notice-and-comment

procedure and by means of public consultations; and, in addition, national

authorities are to take into account the views and concerns of the public.

Annex Ibis, para 7.

Twenty parties have ratiﬁed the amendment; but eight more must do so.

Annex Ibis, para. 2.

Art 9(2) (by reference to Art 2(5)).

Milieu Ltd, Summary Report on the Inventory of EU Member States Measures on Access to Justice

in Environmental Matters (prepared under contract for European Commission DG Environment)

(Brussels: Milieu Ltd, 2007) Executive Summary, 10.

African Model Law on Safety in Biotechnology, Art 5.2–4 (available at <http://www.

nepadst.org>, last accessed 26 June 2009). See further Chapter 9.

Genetically Modiﬁed Organisms and the Public16

Likewise, within the EU it is expressly provided that, in the case of proposed

deliberate releases into the environment of GMOs, Member States shall consult

the public and, where appropriate, groups.

Indeed, Directive (EC) 2001/18

of the European Parliament and of the Council on the deliberate release into

the environment of genetically modiﬁed organisms (‘Deliberate Release

Directive’) recites that: ‘[f]or a comprehensive and transparent legislative fra-

mework, it is necessary to ensure that the public is consulted by either the

Commission or the Member States during the preparation of measures and that

they are informed of the measures taken during the implementation of this

Directive’; and that ‘[c]omments by the public should be taken into con-

sideration in the drafts of measures submitted to the Regulatory Committee’.

A matter of some interest is that, as with the Aarhus Convention, the Com-

munity has conferred certain privileges on NGOs. These privileges are enjoyed

not in the context of the authorization of deliberate releases into the environ-

ment of GMOs, but rather for the purposes of preventing or remedying

environmental damage under Directive (EC) 2004/35 of the European Par-

liament and of the Council on environmental liability with regard to the pre-

vention and remedying of environmental damage (‘Environmental Liability

Directive’).

However, this provision may prove of limited application in the

case of GMOs. Not least environmental damage is deﬁned by reference to

protected species and natural habitats; and GMOs are more likely to be grown

in areas without conservation status.

2.2 National Level

At national level there would seem to be considerable variation in the degree to

which public participation is accommodated within the legislative process. In

the United States, such participation is largely conﬁned to comment within a

regulatory framework where federal agencies shoulder the greatest responsi-

bilities.

To take one example, where a petition is lodged for determination that

a GM crop should receive unregulated status under the Plant Protection Act

Directive (EC) 2001/18 of the European Parliament and of the Council on the deliberate

release into the environment of genetically modiﬁed organisms (‘Deliberate Release Directive’)

[2001] OJ L106/1, Art 9.

Ibid Preamble (10) and (46). It may also be noted that enhanced participatory rights are

conferred on the public under Directive (EC) 2000/60 of the European Parliament and of the

Council establishing a framework for Community action in the ﬁeld of water policy (‘Water

Framework Directive’) [2000] OJ L327/1. The legislation provides that Member States must

‘encourage the active involvement of all interested parties’: ibid Art 14.

[2004] OJ L143/56, Art 12(1).

See, eg M Cardwell, ‘The release of genetically modiﬁed organisms into the environment:

public concerns and regulatory responses’ (2002) 4 Environmental Law Review 156; and see fur-

ther Chapter 8.

See, eg R Lyster, ‘Sustainability, regulatory dilemmas and GMOs: the US and EU compared’

(2004) 8 Asia Paciﬁc Journal of Environmental Law 111; and see further Chapter 12.

Public Inﬂuence on Regulation of Agricultural Biotechnology 17

2000, the Animal and Plant Health Inspection Service must ﬁle notice of the

petition in the Federal Register, inviting public comment.

By contrast, in the

United Kingdom there has been extensive consultation.

As has been seen,

GM Nation was unusual in the degree to which the public was engaged in the

consultation process (it being estimated that nearly 20,000 people attended

meetings);

and it may be highlighted that more recently (over 2006–7) there

has also been speciﬁc consultation on coexistence.

Besides, an innovative

approach has been to employ stakeholder workshops to address key issues such

as voluntary GM-free zones and the effects upon the organic sector.

That said,

the results of such consultation do not appear to have found easy accommoda-

tion within the regulatory process. For example, GM Nation was but one of

three strands in the overall ‘GM Dialogue’ to inform policy-making, the others

being the scientiﬁc review and the cost-beneﬁt analysis;

and it was openly

accepted that the interaction between these three strands had been less effective

than had been hoped.

Further, in the Government response to the GM Dia-

logue, commitment was afﬁrmed to ‘evidence-based policy-making’, with

emphasis on science.

Away from Europe, and again at national level, it may be highlighted that a

distinctly participatory approach has been adopted in New Zealand.

In 1999

the Independent Biotechnology Advisory Council was established to inform and

consult the public on matters of biotechnology; and the following year the Royal

Commission on Genetic Modiﬁcation was established to investigate ‘strategic

options available to enable New Zealanders to address, now and in the future,

7 CFR 340.6.

On consultation in the United Kingdom, see, generally, eg Lee and Abbott (n 23 above); and

S Hartley and G Skogstad, ‘Regulating genetically modiﬁed crops and foods in Canada and the

United Kingdom: democratizing risk regulation’ (2005) 48 Canadian Public Administration 305.

GM Nation (n 1 above) 25.

Department for Environment, Food and Rural Affairs (DEFRA), Consultation on Proposals for

Managing the Coexistence of GM, Conventional and Organic Crops (London: DEFRA, 2006); and

for the results, see DEFRA, Summary of Responses to Defra Consultation Paper on Proposals for

Managing the Coexistence of GM, Conventional and Organic Crops (London: DEFRA, 2007).

Details of the workshops, held in 2004, are available at <http://www.defra.gov.uk/

environment/gm/crops/index.htm>,last accessed 26 June 2006.

For the scientiﬁc review, see GM Science Review Panel, GM Science Review: First Report—an

Open Review of the Science Relevant to GM Crops and Food Based on Interests and Concerns of the

Public (London: GM Science Review Panel, 2003); and GM Science Review: Second Report—an

Open Review of the Science Relevant to GM Crops and Food Based on Interests and Concerns of the

Public (London: GM Science Review Panel, 2004); and, for the cost-beneﬁt analysis, see Strategy

Unit, Field Work: Weighing Up the Costs and Beneﬁts of GM Crops (London: Strategy Unit, 2003).

DEFRA, The GM Public Debate: Learning Lessons from the Process (London: DEFRA, 2004)

para 29. It was also noted that the six-week timescale was not ideal: ibid para 24.

DEFRA, The GM Dialogue: Government Response (London: DEFRA, 2004) Executive

Summary, para 11.

See, generally, eg Glowka (n 20 above) 27; R Walters, ‘Criminology and genetically modiﬁed

food’ (2004) 44 British Journal of Criminology 151; and R Hindmarsh and R Du Plessis, ‘GMO

regulation and civic participation at the “edge of the world”: the case of Australia and New

Zealand’ (2008) 27 New Genetics and Society 181.

Genetically Modiﬁed Organisms and the Public18

genetic modiﬁcation, genetically modiﬁed organisms, and products’, together

with ‘any changes considered desirable to the current legislative, regulatory,

policy or institutional arrangements’.

A matter of some signiﬁcance was the

extent of public input into the process. This included scoping meetings, formal

hearings, public meetings, Maori consultation workshops, and a youth forum.

2.3 Effectiveness of Formal Public Participation

Nonetheless, despite these initiatives, the effect of formal public participation

would seem to be blunted by a combination of factors; and four such factors

may be mentioned. First, not all the measures which have been considered are

prescriptive in nature. For example, while the AU encourages states to harmo-

nize their measures in accordance with the African Model Law on Safety in

Biotechnology, there is no binding obligation to do so. Accordingly, to take two

instances, while the legislative framework in South Africa does at least provide a

framework for public participation, in Malawi such a requirement is effectively

excluded.

On the other hand, as has been seen, the Cartagena Protocol

imposes an obligation to consult, while the Almaty amendment to the Aarhus

Convention would also require that due account is taken of the outcome of its

public participation procedure.

Secondly, doubts have been raised as to the effectiveness of any consultation

procedure. For example, it may be reiterated that the Cartagena Protocol does

not expressly require that responses from the public be fed into the decision-

making process. Indeed, as stated by Glowka:

[t]he extent to which public participation is actually facilitated or exists in a country is

difﬁcult to determine from a simple review of the country’s biotechnology related leg-

islative instruments. For example, general references to public participation may not

translate into actual public participation if additional criteria are not provided on the

form that public participation can take. Also, the best public participation provisions

may not be used if the public cannot have the capacity to effectively participate.

That said, two UK cases may be cited where consultation obligations were taken

seriously. In Berkeley v Secretary of State for the Environment the House of Lords

quashed planning permission to redevelop the Fulham Football Club ground at

Craven Cottage, with a reason for the decision being non-compliance with the

public participation procedures laid down under the Community regime for

environmental impact assessments.

In particular, the public had not been

Royal Commission on Genetic Modiﬁcation, Report of the Royal Commission on Genetic

Modiﬁcation (2001) 364. The major conclusion was that New Zealand should keep its options

open, with a recommendation that coexistence be encouraged between all types of agriculture: ibid

Executive Summary, 2.

Ibid Appendix 1, section 3.

See further Chapter 9.

Glowka (n 20 above) 51.

[2001] AC 603. For the Community legislation concerned, see Council Directive (EEC)

85/337 on the assessment of the effects of certain public and private projects on the environment

Public Inﬂuence on Regulation of Agricultural Biotechnology 19

afforded an opportunity to express an opinion before the project was initiated.

Lord Hoffmann stated that ‘[t]the directly enforceable right of the citizen which

is accorded by the [EIA] Directive is not merely a right to a fully informed

decision on the substantive issue’: rather, what was required was ‘the inclusive

and democratic procedure prescribed by the [EIA] Directive in which the

public, however misguided or wrongheaded its views may be, is given an

opportunity to express its opinion on the environmental issues’.

Subsequently,

a similar approach was adopted in R (Greenpeace Ltd) v Secretary of State for the

Environment.

A 2003 White Paper

had indicated that there would be ‘the

fullest public consultation’ before the Government reached any decision to

change its policy of non-support for the building of new nuclear power stations.

Subsequently, in 2006, a consultation exercise on energy policy was initiated,

through what appeared to be merely an ‘Issues Paper’, which would be followed

by a more detailed document containing proposals upon which the public could

make informed comment. The court found this ‘Issues Paper’ to be manifestly

inadequate where the matter under consideration was of such importance and

complexity. In particular, the information on building costs and nuclear waste

was insufﬁcient; and the consultation period of 12 weeks was too short.

Accordingly, ‘[t]here could be no proper consultation, let alone “the fullest

possible consultation” as promised in the 2003 White Paper’;

and this

amounted to procedural unfairness and a breach of the legitimate expectation of

the claimant. Signiﬁcantly, express reference was made by the court to obliga-

tions under the Aarhus Convention, and notably Article 7, requiring each party,

to the extent appropriate, to endeavour to provide opportunities for public

participation in the preparation of policies relating to the environment.

Thirdly, a potential weakness in regulatory frameworks is the heavy ﬁnancial

cost of challenging non-compliance with environmental measures (whether of

participation requirements or otherwise).

This weakness would, nevertheless,

(‘EIA Directive’) [1985] OJ L175/40, Art 6. The original legislation in this regard was amended by

Council Directive (EC) 97/11 [1997] OJ L73/5 and, to meet the obligations of the European

Community under the Aarhus Convention, by Directive (EC) 2003/35 of the European Parlia-

ment and of the Council relating to the drawing up of certain plans and programmes relating to the

environment [2003] OJ L156/17. On environmental impact assessment generally, see, eg J Holder,

Environmental Assessment: the Regulation of Decision Making (Oxford: Oxford University Press,

2004); and J Holder and D McGillivray (eds), Taking Stock of Environmental Assessment: Law,

Policy and Practice (London: Routledge-Cavendish, 2007).

The relevant provisions at that date were contained in Art 6(2) of the EIA Directive.

[2001] AC 603, 615.

[2007] EWHC 311 (Admin); [2007] Environmental Law Reports 29. See also P Thompson,

‘Consultation and the authorisation of major infrastructure projects’ [2009] Journal of Planning

and Environmental Law 174.

Our Energy Future—Creating a Low Carbon Economy, Cmnd 5761 (2003).

In this regard it may be reiterated that the consultation period for the 2003 GM Public

Debate was six weeks.

[2007] EWHC 311 (Admin) [117].

Art 7 is, however, subject to the qualiﬁcation that it is for the relevant public authority to

identify the public which may participate, taking into account the objectives of the Aarhus Con-

vention.

See, eg Lee and Abbott (n 24 above).

Genetically Modiﬁed Organisms and the Public20

seem to be recognized by the Aarhus Convention, with Article 9(4) providing

that review procedures should not be ‘prohibitively expensive’; and several

national regimes would appear vulnerable (not least, when the ‘loser-pays’

principle applies).

Thus, the UK report Ensuring Access to Environmental Jus-

tice in England and Wales stated that ‘the current principles concerning costs and

potential exposure to costs in judicial review proceedings in England and Wales

inhibit compliance with the requirements of Aarhus concerning access to

environmental justice’;

and the same view has been taken by the Court of

Appeal in R (Burkett) v London Borough of Hammersmith and Fulham, where

Brooke LJ declared that ‘if the ﬁgures revealed by this case were in any sense

typical of the costs reasonably incurred in litigating such cases up to the highest

level, very serious questions would be raised as to the possibility of ever living up

to the Aarhus ideals within our present legal system’.

In the speciﬁc context of

GMOs, such cost implications were thrown into sharp relief by the recent

decision of the Saskatchewan Court of Appeal in Hoffman and Beaudoin v

Monsanto Canada and Bayer Cropscience Inc.

Central to the action was whether

or not the farmers alleging cross-contamination could establish a class action

with all the attendant advantages of sharing costs; and the refusal of the Court of

Appeal to so certify effectively brought the case to an end.

It is perhaps no

coincidence, therefore, that NGOs (as opposed to individual farmers) have

played so prominent a role in challenging the regulatory framework for

GMOs;

and the provision in the Aarhus Convention granting NGOs privi-

leged status in review procedures may yet prove material.

Fourthly, while public participation is inevitably dependent on access to

information, in many regimes such access is substantially limited for reasons of

conﬁdentiality. Thus, the Aarhus Convention exempts from disclosure the

proceedings of public authorities, where provided by national law, and com-

mercial and industrial information (but on condition that this information is

See, eg Milieu Ltd (n 32 above) Executive Summary, 13–16.

Report of the Working Group on Access to Environmental Justice, Ensuring Access to Envir-

onmental Justice in England and Wales (2008) 34 (available at <http://www.unece.org/env/pp/

compliance/C2008-23/Amicus%20brief/AnnexNjusticereport08.pdf>, last accessed 2 July 2009).

[2004] EWCA Civ 1342 [76]. See also Morgan and Baker v Hinton Organics (Wessex) Ltd

[2009] EWCA Civ 107 (where the Court of Appeal was prepared to proceed on the basis that the

Aarhus obligations extended to private nuisance actions); and Case C-427/07 Commission v Ireland

(ECJ 16 July 2009).

(2007) 283 DLR (4th) 190 (Sask CA).

See, eg H McLeod-Kilmurray, ‘Hoffman v Monsanto: courts, class actions and perceptions of

the problem of GM drift’ (2007) 27 Bulletin of Science, Technology and Society 188; and see

further Chapter 10.

Greenpeace, for example, has frequently been the claimant before the European Court of

Justice: see, eg Case C-6/99 Association Greenpeace France v Ministe

`re de l’Agriculture et de la Pe

ˆche

[2000] ECR I-1651. See, generally, eg A Warleigh, ‘“Europeanizing” civil society: NGOs as agents

of political socialization’ (2001) 39 Journal of Common Market Studies 619; C Hilson, ‘Greening

citizenship: boundaries of membership and the environment’ (2001) 13 Journal of Environmental

Law 335; and J Teel, ‘Have NGOs distorted or illuminated the beneﬁts and hazards of genetically

modiﬁed organisms?’ (2002) 13 Colorado Journal of Environmental Law and Policy 137.

Public Inﬂuence on Regulation of Agricultural Biotechnology 21

protected by law in order to protect a legitimate economic interest).

The

exemptions must, nonetheless, be ‘interpreted in a restrictive way, taking into

account the public interest served in disclosure’.

While the African Model Law

limits public access to information that may be considered conﬁdential, it gen-

erally adopts an open approach and goes so far as to list types of information

that may not be considered conﬁdential.

That said, its non-binding nature

again weakens the force of these measures. In consequence, even in states such as

South Africa, where, as has been seen, there is provision for public participation,

considerable power is conferred on the Executive Council as to what informa-

tion may be held back from the public domain.

A similar pattern is again

adopted in the European Union. In the case of deliberate releases into the

environment, the European Commission and the competent authorities are not

to divulge to third parties conﬁdential information and are to protect intellectual

property rights relating to the data received.

That said, there are again cir-

cumstances where information may not be held back and this information

includes the location of release and intended uses, methods, and plans. Sig-

niﬁcantly, notwithstanding the activities of anti-GM protestors, the European

Court of Justice in Commune de Sausheim v Azelvandre has expressly held that

the location of release cannot be kept conﬁdential on the ground of protecting

public order.

3. Informal Public Inﬂuence on the Regulation of

Agricultural Biotechnology

Against this legislative background, and not least its relatively restrictive approach

towards public participation, there may be considered two ways in which wider

civil society would yet appear to have shaped the development of GM crops, the

ﬁrst being consumer preferences and the second being public protest.

3.1 Consumer Preferences

As indicated, consumer resistance to GM food in Europe remains substantial.

Indeed, there is evidence that, while support may have increased between

1999 and 2002, it then decreased between 2002 and 2005.

Further, empirical

evidence would suggest that agricultural biotechnology is perceived as less

Art 4(4)(a) and (d).

Art 4 (4).

African Model Law on Safety in Biotechnology, Art 12.

Genetically Modiﬁed Organisms Act (No 15 of 1997), Art 18.

Deliberate Release Directive, Art 25.

Case C-552/07 (ECJ 17 February 2009).

G Gaskell et al, Europeans and Biotechnology in 2005: Patterns and Trends—Final Report on

Eurobarometer 64.3 (Brussels: European Commission, 2006) 21. See also, generally, eg S Bonny,

‘Factors Explaining Opposition to GMOs in France and the Rest of Europe’ in Evenson and

Santaniello (n 7 above) 169.

Genetically Modiﬁed Organisms and the Public22

beneﬁcial than other forms of biotechnology. By way of illustration, a survey

conducted in 2005 found that, in comparison with nanotechnology, pharma-

cogenetics, and gene therapy, GM foods were regarded as the least morally

acceptable, the least useful, the most risky, and the least to be encouraged.

The

same survey sought to ascertain the reasons for buying and not buying

GM foods. While a majority were prepared to buy if the product was healthier

or contained less pesticide residues, only 44 per cent were inﬂuenced to do so by

reason of approval from the relevant authorities and only 36 per cent by reason

of cheaper price.

At the level of the Member State, GM Nation in the United

Kingdom revealed a very negative attitude towards eating GM food, with only

eight per cent of respondents being happy to do so.

Similar views may be found outside Europe. As has again been seen, in the

United States public concerns have been exacerbated by the StarLink

incident; and, while there is evident a generally more pro-GM stance among

consumers,

it is of interest that the elapse of time has not seen support materially

increase. This continued resistance may be detected in the series of polls com-

missioned by the Pew Initiative on Food and Biotechnology.

In the case of the

ﬁrst poll, conducted in 2001, 38 per cent of respondents said that they were likely

to eat GM foods, while 54 per cent said that they were unlikely to do so. By 2003

the proportions had changed to respectively 43 and 50 per cent; but by 2006 they

had reverted to respectively 38 and 43 per cent.

It is also of interest that US

consumers would seem to place more trust in regulators than in Europe. Thus,

while the same polls found considerable concern at the lack of regulation (in 2006,

41 per cent said that there was too little regulation, as opposed to 16 per cent who

said that there was too much), nearly half of those claiming a basic awareness of

the regulatory framework were more likely to eat GM foods when supplied with

speciﬁc information on the role of the Federal Drug Administration.

At the

same time, research would point to the fact that US farmers are likewise far from

oblivious to the broader social and environmental issues raised by GMOs.

Gaskell et al (n 73 above) 17. Gene therapy was also considered risky, but respondents were

clearly of the view that the risk was one worth taking (a view not replicated in the case of GMOs).

Ibid 22.

GM Nation (n 1 above) 32. See also, eg Poortinga and Pidgeon (n 6 above).

See, eg McGarry Wolf, Bertolini, and Parker-Garcia (n 7 above); and JL Lusk et al, ‘Effect of

information about beneﬁts of biotechnology on consumer acceptance of genetically modiﬁed food:

evidence from experimental auctions in the United States, England and France’ (2004) 31 Eur-

opean Journal of Agricultural Economics 179.

The Pew Initiative on Food and Biotechnology was established in 2001 by The Pew Chari-

table Trusts, with the aim of serving as an ‘honest broker’ to the various stakeholders in agricultural

biotechnology. Its work was discontinued in March 2007.

Memorandum from the Mellman Group to the Pew Initiative on Food and Biotechnology on

Review of Public Opinion Research (available at <http://www.pewtrusts.org/uploadedFiles/

wwwpewtrustsorg/Public_Opinion/Food_and_Biotechnology/ 2006summary.pdf>, last accessed

19 January 2008) 3–4.

Ibid 5.

See, eg NP Guehlstorf, ‘Understanding the scope of farmer perceptions of risk: considering

farmer opinions on the use of genetically modiﬁed (GM) crops as a stakeholder voice in policy’

(2008) 21 Journal of Agricultural and Environmental Ethics 541.

Informal Public Inﬂuence on Regulation of Agricultural Biotechnology 23

Accordingly, empirical surveys do present a fairly consistent picture of con-

sumer hostility to GMOs. That said, a note of caution may be sounded. As has

been seen, only 36 per cent of the sample in a 2005 European survey stated that

they were likely to buy GM crops on the basis that they were cheaper; but the

report itself expressed concern that they might be ‘responding as citizens rather

than as consumers’.

Indeed, such discounting of price as a factor is not con-

ﬁned to GMOs. In the case of food quality the European Commission has long

been perturbed by the gap between the preference for quality as expressed by

consumers and their behaviour when actually shopping.

However, in the case

of GMOs, particularly compelling evidence has recently been presented by

research conducted for the European Commission, Do European Consumers Buy

GM Foods? (‘Consumerchoice’).

This found that ‘[w]hatever they may have said

in responses to questions, most shoppers did not actively avoid GM-products,

suggesting that they are not greatly concerned with the GM issue’. Further, there

was evidence that ‘the way people respond to prompting via questionnaires and

polls is itself not a reliable guide to what they will buy in a grocery store;

and

the overall conclusion was ‘that a major factor in governing the purchase of GM-

products by Europeans is the decision of retailers to make them available to

consumers’.

It may also be highlighted that the research addressed in some

depth the question of labelling. Meetings with focus groups produced data to

the effect that, while participants were strongly in favour of labels, few would

actually look at them when buying food.

Although such a position might at

ﬁrst seem illogical, the prominence and wording of the labels were identiﬁed as

very relevant criteria, with ‘GM-free’ in large print on the front of the package

more likely to inﬂuence shoppers than ‘containing GM’ in small print on the

rear.

Indeed, the extent to which consumers look at labels may largely reﬂect

pressure of time.

In light of the overall conclusion of the Consumerchoice report, the role of

supermarkets and other retailers can only be reinforced. And, notwithstanding

Gaskell et al (n 72 above) 22. See also, on price aspects, M Burton et al, ‘Consumer attitudes

to genetically modiﬁed organisms in food in the UK’ (2001) 28 European Review of Agricultural

Economics 479.

See, eg European Commission, Mid-term Review of the Common Agricultural Policy COM

(2002)394, 6; and A Herrup, ‘Eco-labels: beneﬁts uncertain, impacts unclear?’ [1999] European

Environmental Law Review 144.

King’s College London, Do European Consumers Buy GM Foods? (‘Consumerchoice’) (London:

Kings College London, 2008).

Ibid paras 1.9–1.10.

Ibid para 1–6.

Ibid para 5–8.

Ibid para 1–10. To take an extreme example, it may be questioned whether consumer

responses would be as sanguine as that of the focus groups if the presence of GM material was

indicated with the same force as health warnings on packets of cigarettes.

See, eg A Warde, E Shove, and S Dale, Convenience, Schedules and Sustainability (Department

of Sociology, University of Lancaster, 1998); and, on print size and comprehension of food labels,

see, eg Food Standards Agency (FSA), Consumer Attitudes to Food Standards: England Report

(London: FSA, 2007) 52–3.

Genetically Modiﬁed Organisms and the Public24

such evidence that consumers will in fact buy GM foods if presented with them

on the shelves, retailers across Europe have been reluctant to do so. In fact, they

have made a virtue of not doing so. For example, Tesco has not only decided not

to stock GM products, but has even banned suppliers from growing fruit and

vegetables on land used for GM crop trials.

The strength of this approach was

also conﬁrmed in GM Crops? Coexistence and Liability, the 2003 report prepared

by the Agriculture and Environment Biotechnology Commission (AEBC),

where it was concluded that ‘there appear to [be] no signs at present as far as we

can judge of a signiﬁcant shift on the part of UK retailers from a stated policy of

avoiding GM in their own produce’.

However, even though consumers might

buy GM food if stocked by supermarkets, the approach adopted by super-

markets is also not perhaps so illogical. There is the ﬁrmest of evidence that at

least some potential customers would carefully avoid GM food, while there is

little, if any, evidence of customers actually demanding GM food. A blanket ban

would have the advantage of retaining the former, while the latter may be

regarded as so few in number that their alienation would not materially affect

proﬁtability. The position might change if GM foods were to be sold at a sub-

stantial discount to conventional food, with consumers placing ﬁnancial savings

above perceived risks;

but such discounts may be difﬁcult to achieve in the case

of many food products, owing to the fact that the amounts paid for raw mate-

rials (such as soya or maize), whether GM or non-GM, comprise but a small

proportion of the price on the shelves.

3.2 Public Protest

A feature of the GM revolution has been the extent to which it has generated

public protest. In this context a leading role has been played by well-organised

NGOs in Europe, with Friends of the Earth and Greenpeace very much to the

fore.

For example, in 2005 Friends of the Earth initiated a protest campaign

‘GM Ban is Extended by Tesco’, The Guardian, 7 January 2000; but it should be noted that in

February 2009 the Chief Executive of Tesco, Sir Terry Leahy, showed support for reopening the

GM debate (<http://greenbio.checkbiotech.org/news/leahy_says_supermarkets_too_hasty_judging_

gm>, last accessed 11 May 2009).

AEBC, GM Crops? Coexistence and Liability (London: AEBC, 2003), 30. The AEBC provided

the Government with independent strategic advice on biotechnology issues before being wound up

in 2005.

On price implications see, eg Burton et al (n 82 above); and Lusk et al (n 77 above).

See, eg GBC Backus et al, EU Policy on GMOs: a Quick Scan of the Economic Consequences

(Wageningen: LEI, 2008) 41.

On anti-GM campaigns by NGOs, see, eg Teel (n 65 above). For an interesting survey of the

membership of anti-GM and environmental campaign groups (including both Friends of the Earth

and Greenpeace), see C Hall and D Moran, ‘Investigating GM risk perceptions: a survey of anti-

GM and environmental campaign group members’ (2006) 22 Journal of Rural Studies 29. This

found, inter alia, that women and those living near ﬁeld trial sites had lower expectations of future

beneﬁts ﬂowing from GMOs. See also, generally, S Tromans and C Thomann, ‘Environmental

protest and the law’ [2003] Journal of Planning and Environmental Law 1367.

Informal Public Inﬂuence on Regulation of Agricultural Biotechnology 25

against Sainsburys in the United Kingdom, on the basis that the supermarket

was continuing to sell milk and meat produced using GM feed.

Less-struc-

tured action may also be detected, and in all four corners of the globe. Thus, as

early as 1999 there were several incidents in the United States, undertaken by

individuals or groups with names such as ‘Seeds of Resistance’, which did not

receive the endorsement of Greenpeace.

Indeed, in 2003 members of a local

NGO in the Philippines undertook a hunger strike.

A distinctive aspect of the

campaigns has been the extent to which those participating have been prepared

to take actions liable to render themselves criminally liable. This has evinced

very different responses from the courts, but a salient fact has been the consistent

acquittal of such protestors by juries in the United Kingdom. With juries being

the representatives of ‘the public’, this marks a perhaps unexpected engagement

of wider society in the governance of GMOs. Accordingly, anti-GM protest will

be examined in two jurisdictions—the United Kingdom and France; the chapter

will then conclude by considering civil disobedience more generally in this

context.

3.2.1 United Kingdom

In 2000, Lord Peter Melchett, together with 27 other Greenpeace volunteers,

appeared in court charged with theft and criminal damage for their ‘deconta-

mination’ of a GM farm-scale trial.

They were acquitted of theft by the jury in

Norwich Crown Court on 19 April 2000, but a verdict could not be reached on

the second charge of criminal damage.

Subsequently, on 20 September 2000,

they were also acquitted of criminal damage, on the basis that their actions were

justiﬁed to protect property.

100

Five years later Greenpeace volunteers were

again before a jury charged with causing a public nuisance.

101

The charge related

to their boarding a merchant vessel, the MV Etoile, which they claimed was

carrying illegal GM animal feed, on the basis that non-GM and GM material

had been mixed in the United States. Again they were acquitted. Moreover, the

Friends of the Earth Press Release, Sainsbury’s Targeted in Week of GM Protest, 10 June

2005 (available at <http://www.foe.co.uk/resources/press_releases/sainsburys_targeted_in_wee_

10062005.html>, last accessed 26 June 2009).

JL Fox, ‘Anti-GM crop protestors increase activity in the US’ (1999) 17 Nature Bio-

technology 1053.

‘Anti-GM protest continues in the Philippines’ (2003) 3(8) Bridges Trade BioRes 2.

See, generally, eg M Stallworthy, ‘Damage to crops—Part 1’ (2000) 143 New Law Journal

728; and ‘Damage to crops—Part 2’ (2000) 143 New Law Journal 801.

Greenpeace Press Release, Jury Fails to Convict Greenpeace Volunteers, 19 April 2000 (avail-

able at <http://www.greenpeace.org.uk/media/press-releases/greenpeace-volunteers-cleared-of-

theft-in-lyng-gm-trial>, last accessed 20 January 2009).

100

Greenpeace Press Release, 28 Greenpeace Volunteers Acquitted in GM Trial, 20 September

2000 (available at <http://www.greenpeace.org.uk/media/press-releases/28-greenpeace-volunteers-

acquitted-in-gm-trial>, last accessed 26 June 2009).

101

BBC, GM Protestors Cleared of Charges, 16 September 2005 (available at <http://news.bbc.co.

uk/1/hi/england/bristol/4253212.stm>, last accessed 26 June 2009).

Genetically Modiﬁed Organisms and the Public26

willingness of juries to acquit gave rise to the novel case of R v Colchester Justices

ex p Abbott.

102

Anti-GM protestors were charged with causing criminal damage

to a ﬁeld-trial site, and an issue was whether the case should be tried summarily

or whether they could elect for trial by jury. This right to elect for trial by jury

arose only if the value of the criminal damage was over £5,000 or if it was

unclear whether the value was over £5,000.

103

The scientiﬁc report prepared on

behalf of the anti-GM protestors estimated the loss to be £13,900, as opposed to

loss of £3,250 as advanced by the prosecution; and, with an eye to securing jury

trial, it was submitted to the magistrates that it was unclear whether the value of

the criminal damage was over £5,000. Although this argument failed before the

magistrates, and the Divisional Court dismissed the subsequent challenge to the

decision of the magistrates, it remains a pertinent fact that defendants were

prepared to place a higher ﬁgure on the loss than the prosecution, and conse-

quently to risk greater penalties, with a view to appearing before a jury of 12

citizens.

Where juries have not had the ﬁnal say, anti-GM protestors have generally

fared less well. Thus, in Monsanto plc v Tilly the Court of Appeal found, inter

alia, that environmental campaigners did not have an arguable defence to a

claim in trespass to land and goods on the basis that their action was necessary to

protect third parties or in the public interest.

104

The ﬁrst ﬁve defendants, who

were members of GenetiX Snowball, an anti-GM NGO, had only uprooted a

relatively small proportion of the crop. Indeed, members of GenetiX Snowball

involved in such actions had undertaken not to uproot more than 100 plants.

105

For this reason, Stuart-Smith LJ found the argument that they were averting

danger to be inconsistent, since to achieve their stated purpose, they would have

had to eradicate the whole crop. Importantly, he went on to say that ‘[t]he

defendants are frustrated that they have been unable to change government

policy by the strengths of their arguments. It is breaking of the law, with its

potential for martyrdom which affords far better publicity than any other’; and

this desire for publicity was regarded the more powerful motive for their actions.

The Court of Appeal was also of the view that only in very restricted circum-

stances could individuals have the right to destroy the property of another in the

public interest; and such a right would not be conferred in order to attract

publicity for what was alleged to be a good cause or to persuade government to

legislate against a perceived danger. Further, the danger must be immediate and

obvious; and the defence of justiﬁcation by necessity was very limited in

scope.

106

A similar decision was reached four years later in Director of Public

102

The Times, 13 March 2001; and [2001] Criminal Law Review 564.

103

Magistrates’ Court Act 1980, s 22(1).

104

The Times, 30 November 1999.

105

For the GenetiX Snowball Handbook see <http://www.gene.ch/pmhp/gs/handbook.htm>

(last accessed 10 September 2009) (which refers expressly to non-violent action).

106

Reference was made to Southwark Borough Council v Williams [1971] 1 Ch 734. In that case,

the defendants, who were homeless, entered empty houses owned by the council and then pleaded

Informal Public Inﬂuence on Regulation of Agricultural Biotechnology 27

Prosecutions v Bayer.

107

The defendants attached themselves to tractors in order

to disrupt the lawful drilling of GM maize. When charged with aggravated

trespass contrary to s 68(1) of the Criminal Justice and Public Order Act 1994,

they initially enjoyed success before the district judge. Although he was of the

opinion that they were aggravated trespassers, he held that they could rely on the

defence at common law of defence of property on the grounds that: they had

honest and genuine beliefs about the dangers of GM crops; they had genuine

fears for surrounding property; they had reasonable grounds for those beliefs and

fears given their scientiﬁc knowledge concerning GM crop tests and given their

knowledge of the locality; and they acted with all good intentions and had gone

no further than was absolutely necessary to try to prevent the sowing of the

crops.

108

By contrast, on appeal, the Divisional Court stated that, where a

defence of justiﬁcation was put forward, it was for the court to ﬁrst determine as

a matter of law whether the defence was available to the defendants on the facts

of the case and then whether the defence, if available, entitled the defendant to

succeed in rebutting the charge. Further, and signiﬁcantly, it held that a requisite

ingredient of the common law defence was that what was being experienced or

feared was an unlawful or criminal act; and, notwithstanding that the defendants

believed so strongly that the seed represented a danger to neighbouring property,

they also knew quite well that the drilling of the GM seed was not unlawful.

In consequence, the common law defence was not available.

That said, it may highlighted that in September 2008 a jury felt able to acquit

six Greenpeace activists charged with causing criminal damage to Kingsnorth

coal-ﬁred power station; and, perhaps somewhat surprisingly, the jury accepted

their defence that they were acting to prevent greater damage caused by climate

change.

109

While the case did not concern GMOs as such, the susceptibility of

juries towards arguments based upon ‘the greater good’ environmentally would

the defence of necessity. This defence was rejected, Lord Denning MR stating: ‘[i]f homelessness

were once admitted as a defence to trespass, no one’s house could be safe. Necessity would open a

door which no man could shut. . . . Each man would say his need was greater than the next man’s.

The plea would be an excuse for all sorts of wrongdoing’.

107

[2003] EWHC 2567 (Admin), [2004] 1 WLR 2856; and [2004] Criminal Law Review 663.

108

Criminal Justice and Public Order Act 1994, s 68(1) provides that ‘[a] person commits the

offence of aggravated trespass if he trespasses on land in the open air and, in relation to any lawful

activity which persons are engaging in or are about to engage in on that or adjoining land in the

open air, does there anything which is intended by him to have the effect—(a) of intimidating

those persons or any of them from engaging in that activity, (b) of obstructing that activity, or (c)

of disrupting that activity’. See also, again in the context of GM crops, Tilly v Director of Public

Prosecutions, The Times, 27 November 2001; and [2002] Criminal Law Review 128. In that case

the High Court held that the offence of aggravated trespass required that there be persons present

engaging or about to engage in lawful activity; and it contemplated that they be intimidated or

were not able to proceed with what they intended to do. Accordingly, crop destruction in itself was

insufﬁcient to make out the offence.

109

See, eg Greenpeace UK, Breaking News: Kingsnorth Six Found Not Guilty (available at

<http://www.greenpeace.org.uk/blog/climate/kingsnorth-trial-breaking-news-verdict-20080910>,

last accessed 4 September). Evidence for the defendants was given by, among others, Jim Hansen

of NASA.

Genetically Modiﬁed Organisms and the Public28

seem to continue; and anti-GM protestors may still expect a sympathetic hearing

if they can secure jury trial. Further, and more broadly, the integrity of the

current GMO regime can only be weakened by repeated failure to secure the

public endorsement conferred by the decision of a jury.

110

3.2.2 France

3.2.2.1 Introduction

Even if protest in France and the United Kingdom commenced at roughly the

same time (1997), it has developed along different lines, not least in terms of its

organizational structure.

111

Importantly, the main form of protest in France has

been that undertaken by the Faucheurs Volontaires, a group originally formed

around the leader of the peasants’ union, Jose

´Bove

´.

112

The destruction of GM

crops on both private and public land has bulked large among the activities of

this group, although it has had to yield place in terms of publicity to the trashing

of a McDonalds on 11 August 1999.

Confronted with these actions, the French courts have in general rejected the

arguments of the Faucheurs and found them guilty of destroying property

belonging to another, contrary to Article L.322-1 of the Code Pe

´nal. Moreover,

since enactment of Law No 2008–595 of 25 June 2008 relating to GMOs,

113

speciﬁc offence has been created whereby the destruction or damaging of crops

authorized under the GM regime can be punished by two years’ imprisonment

and a ﬁne of 75,000; and the penalty can increase to three years’ imprisonment

and a ﬁne of 150,000 if the GMOs destroyed or damaged are for research.

114

These provisions, contained in the new Article L.671-15 of the Code Rural, thus

raise the level of sanction above that stipulated in general law, since the penalty

110

On this aspect more generally, see, eg T Brooks, ‘A defence of jury nulliﬁcation’ (2004) 10

Res Publica 401.

111

A leading role has been played by established French unions, while in the United Kingdom

campaigning NGOs have been to the fore (and, most notably, Greenpeace): see, eg B Doherty and

G Hayes, ‘A Tale of Two Movements. Manifestation anti OGM en Grande-Bretagne et en France’

in D Hiez andt B Villaba (eds), La De

´sobe

´issance Civile. Approches Politiques et Juridique (Lille:

Septentrion, 2008) 176.

112

See <http://www.monde-solidaire.org/>, last accessed 25 June 2009. For the Charter of the

Faucheurs Volontaires, see <http://www.monde-solidaire.org/spip/IMG/pdf/Charte_faucheurs.

pdf>, last accessed 25 June 2009. See also, generally, C Heller, ‘From scientiﬁc risk to paysan

savoir-faire: peasant expertise in the French and global debate over GM crops’ (2002) 11 Science as

Culture 5; and Hayes (n 5 above).

113

Law No 2008-595 of 25 June 2008 relating to GMOs, Journal Ofﬁciel de la Re

´publique

Franc¸aise (JORF) No 148 of 26 June 2008, NOR: DEVX0771876L (codiﬁed at Arts L.531-1ff of

the Code de l’Environnement).

114

Art L.671-15 of the Code Rural. See V Verges Etienne, ‘Loi n˚2008-595 relative aux OGM.

La recherche d’un e

´quilibre entre respect de l’environnement et respect de la proprie

´te

´’ [2008]

Revue de Science Criminelle 943: except in the case of research, where the penalties are heavier, the

penalties for fauchage are the same as those provided for failure to meet the legal rules governing

GM cropping, which would indicate that the legislature wishes to attach equal weight to protecting

the environment and protecting economic imperatives.

Informal Public Inﬂuence on Regulation of Agricultural Biotechnology 29

under Article L.322-1 of the Code Pe

´nal is only two years’ imprisonment and a

ﬁne of 30,000.

In this context, the decision of the Court of Appeal in Orle

´ans on 26

February 2008 provides a particularly good illustration of the approach adopted

by the French judiciary.

115

There was the opportunity to rehearse all the main

arguments fully; and, in addition, this was very much regarded as a test case,

since the anti-GM movement was hoping for a change of tack by the courts, in

line with the recent enactment of legislation to ban MON810,

116

and that such

a change of tack might impact upon the proposal for a law relating to GMOs

(which at that time was being debated in Parliament).

117

In the event, these

hopes were dashed, as almost all the defendants received suspended sentences of

two, three, or four months and ﬁnes ranging from 1,500 to 3,000. A matter of

some signiﬁcance is that in this case Monsanto relied on the lawfulness of its

GM crops, authorized in accordance with the procedure then in force. It argued

for convictions in respect of the destruction of the crops and for damages of

313,108 to cover its losses. In response, the main argument of the Faucheurs

was that they should be free of criminal liability on the basis that they had acted

through necessity.

118

Reliance was placed on the Code Pe

´nal, which provides

that a person is not criminally liable if, confronted by a present or imminent

danger (‘un danger actuel or imminent’) to himself, another person, or property,

he performs an act necessary to protect the person or property, except where the

means used are disproportionate to the seriousness of the threat.

119

3.2.2.2 No danger presented by GMOs?

In the case before the Court of Appeal in Orle

´ans, it was argued that the

requisite ‘present and imminent danger’ was generated by three factors:

ﬁrst, proof of cross-contamination by gene transfer or cross-pollination; sec-

ondly, recognition by the public authorities of the need to evaluate health

and environmental aspects of GMOs and to suspend authorizations for

115

CA Orle

´ans, 26 February 2008, CT0028, No 07:00472.

116

Ministerial Decree of 7 February 2008 Suspending the Cropping of Genetically Modiﬁed

Maize Seed (Zea Mays L Line MON810), JORF No 34 of 9 February 2008, NOR:

AGRG0803466A, amended 13 February 2008, NOR: AGRG0803888A.

117

As indicated, this proposal was subsequently enacted as Law No 2008-595 of 25 June 2008.

118

They did not dispute that they had carried out acts of destruction: indeed, they celebrated the

fact that they had destroyed the crops.

119

Art 122–7 of the Code Pe

´nal. It should be noted that persons suspected of damaging GM

crops sometimes also invoke the defence provided by Art 122–5 of the Code Pe

´nal, which absolves

from criminal liability any person who, confronted by an unjustiﬁed attack upon himself or

another, performs at that moment an action compelled by the necessity of self-defence or the

defence of another person, except where the means of defence used are not proportionate to the

seriousness of the attack. This line of defence was not advanced in the instant case before the Court

of Appeal, but has frequently been invoked and rejected at ﬁrst instance: see, eg Tribunal de

Grande Instance in Orle

´ans, 9 December 2005, No 2345/S3/2005; and see also J-P Feldman, ‘Les

“Faucheurs d’OGM” et la Charte de l’Environnement’ [2006] Recueil Dalloz 814.

Genetically Modiﬁed Organisms and the Public30

commercialization in France pending further assessment (the MON810 mor-

atorium); and, thirdly, the views of national health-regulation bodies, according

to which it was impossible to achieve zero risk. Besides, the danger would be the

greater in that the damage was irreversible and irremediable.

The appeal judges rejected these arguments. They considered that it was not

possible to characterize the danger fully in the absence of a clear answer from

science; and they laid emphasis on the fact that the risk of cross-contamination

had not been demonstrated either generally (looking to the consequences for

other forms of agriculture) or with particular reference to the land concerned

(looking to whether in practice it had been contaminated).

120

Further, accord-

ing to the appeal judges, it was not possible to calculate the risk ﬂowing from the

only political choices open to government, namely to invoke the safeguard

clause or ban GM crops; and, in any event, such choices formed no part of the

criminal action, nor could they remove the criminal liability of the defendants.

The decision therefore entrenched the rule that it is not possible to plead

necessity where the danger is only potential or hypothetical. More speciﬁcally,

the Court of Appeal adopted earlier judicial reasoning that scientiﬁc doubt and

imminent peril fall into different categories;

121

and that fear based only on a

future possibility can never be regarded as present and imminent danger.

122

The

Court of Appeal also went on to ﬁnd that, even if there was risk, this did not

justify such action by the Faucheurs, since, under the Deliberate Release Direc-

tive, risk did not provide a lawful reason for the destruction of the crops grown

for research purposes, only for precaution. The arguments advanced by the

Faucheurs were thus rejected, with the appeal judges adopting the following

logic: the Deliberate Release Directive addresses the authorization of GMOs;

authorizations are only given after a risk assessment; and, in consequence, the

degree of probability of adverse impact after authorization is so small as not to

justify collective actions of destruction.

123

Importantly, similar logic may be

detected in the decisions of administrative judges in coexistence cases: author-

ization closes the matter and renders lawful the sowing of the GM crop; and this

precludes any action intended to avert an imminent risk, the risk having already

been assessed and adjudged innocuous.

124

Against such a background, it is easy

to understand how the Deliberate Release Directive has come to be regarded in

certain circles, not as a barrier against alleged dangers, but, on the contrary, as a

120

See also CAA Nantes, Second Chamber, 28 March 2007, No 06NT00627, Commune de

Saran.

121

CAA Lyon, 26 August 2005, No 03LY000696, Commune de Me

´nat (Actualite

´s Juridiques—

Droit Administratif (AJDA), 9 January 2006, 38); and see further S Monteillet, ‘De la respons-

abilite

´pe

´nale des faucheurs juge

´sa

`Orle

´ans. Un Etat des lieux du cadre juridique des OGM’ [2007]

Revue Juridique de l’Environnement 56.

122

CA Versailles, 22 March 2007, No 06/01902; and see also P Billet, ‘Fauchage d’OGM: une

relaxe sans ne

´cessite

´’ (2006) 339 Revue de Droit Rural 60.

123

It was also claimed that the actions taken had been only symbolic, but the appeal judges held

that such a defence could not be used when the defendants had acted in concert and after careful

preparation.

124

See further Chapter 7.

Informal Public Inﬂuence on Regulation of Agricultural Biotechnology 31

dangerous tool (‘dangereux outil’) for the propagation of GMOs.

125

It might be

suggested that such ﬁndings by the Court of Appeal should have ended the

matter, since, in the absence of any danger, there should have been no need to

investigate further the person or property threatened or, more generally, the

question of necessity. However, this did not prevent the Court of Appeal

moving on to address these further considerations.

3.2.2.3 The defence of necessity more generally

The Faucheurs had presented their actions as necessary to safeguard the envir-

onment, which is enshrined as the patrimoine commun of humanity in the

Preamble to the Charter on the Environment (itself incorporated in the Con-

stitution).

126

Indeed, they saw such protective steps as even more necessary in

view of the lack of precautions taken by seed companies against risk of cross-

contamination.

127

They also advanced two constitutional principles to counter

any argument that they had breached the right to property, namely the protec-

tion of public health and the precautionary principle. In the event, the Court of

Appeal did not examine these matters in depth, being swift to hold ineffective

any arguments drawn from the French Charter on the Environment,

128

the

European Convention on Human Rights,

129

the Cartagena Protocol and the

Aarhus Convention. In particular, it was not prepared to grant immunity in

criminal law to actions taken in defence of the common heritage or in defence of

a law, subjective in nature, which was difﬁcult to identify or categorize.

The question of necessity would, nevertheless, seem the more pertinent by

reason of the ineffectiveness of damages actions against GM producers. To the

extent that such actions can be maintained, they will almost certainly be of little

practical beneﬁt, since neither the person suffering the loss nor the person

causing the loss are likely to be carrying insurance cover. The fact is that, as of

today, insurance companies do not insure risks from GMOs (although, perhaps

somewhat optimistically, four Member States, including France, have already

proposed that insurance or alternative forms of ﬁnancial guarantee should be

legally required).

130

This aspect was not fully addressed by the Court of Appeal,

notwithstanding that it could be argued that the lack of insurance constitutes a

125

Monteillet (n 121 above) 64.

126

The French Charter of the Environment is available at <http://www.legifrance.gouv.fr/html/

constitution/const03.htm>, last accessed 25 June 2009.

127

In particular, a buffer of only four rows of conventional maize was considered insufﬁcient to

prevent the dispersal of GMOs.

128

See also Cour de Cassation, Chambre Criminelle, 7 February 2007, No 06–80.108, Dar-

sonville Autrey [2007] Recueil Dalloz 573; and, generally, J-P Feldman, ‘Les “faucheurs” fauche

´s par

la Cour de Cassation’ [2007] Recueil Dalloz 1310.

129

Available at <http://www.echr.coe.int/NR/rdonlyres/D5CC24A7-DC13-4318-B457-

5C9014916D7A/0/EnglishAnglais.pdf>, last accessed 25 June 2009.

130

See, eg European Commission, Report from the Commission to the Council and the European

Parliament on the Coexistence of Genetically Modiﬁed Crops with Conventional and Organic Farming

COM(2009)153, 5. In the case of France, see Art L.663–4-III of the Code Rural, under which

Genetically Modiﬁed Organisms and the Public32

material lacuna in the rights of persons who may suffer cross-contamination, so

prompting an action based on necessity. On the other hand, a requirement for

such an action would be to demonstrate an insurable risk; and, as has already

been seen, this is not something recognized by the courts, so that the need to

deal with its consequences evaporates.

According to the Faucheurs, a ﬁnal ground for justifying a defence of necessity

was the fact that France had not transposed (or, at least, not transposed cor-

rectly) the Deliberate Release Directive, as was the case prior to the enactment of

Law No 2008–595 of 25 June 2008. This argument, based on the failure of

national authorities to implement Community legislation correctly, raised issues

of general application at both European and French level. More precisely, the

Faucheurs maintained that the seed company did not have the beneﬁt of an

authorization which complied with Community law. The reasoning was again

rejected by the appeal judges. First, they considered that a defendant could only

rely on failure by a Member State to implement Community law correctly if the

provision in Community law was sufﬁciently clear and unconditional to have

direct effect; and, on the facts, the defendants did not have in mind any speciﬁc

provision of the Deliberate Release Directive. Secondly, they also considered

that a defendant could not invoke violation of a Community rule when the

objectives pursued by that rule had no link with the offence with which he was

charged; and the Deliberate Release Directive was not concerned with the

destruction of GM crops, let alone questions of potential grounds for escaping

criminal liability. The appeal judges went on to say that Community law did the

very opposite of banning ﬁeld trials. Rather, the purpose of the Deliberate

Release Directive was to regulate such releases. Accordingly, if the Directive had

been transposed correctly, it would deﬁnitely not have prevented the releases

that the defendants sought to bring to an end. Finally, the Court of Appeal

afﬁrmed that the non-transposition of the Community legislation engaged only

the liability of France as Member State and did not confer on any individuals the

right to commit criminal offences.

131

3.2.2.4 Some conclusions on the decisions of the French courts

The Court of Appeal in Orle

´ans deﬁnitely followed precedent.

132

In particular,

it held true to the tenet that in such circumstances any resort to a defence of

every farmer growing GM crops authorized for placing on the market must take out a ﬁnancial

guarantee to cover his liability as speciﬁed under that article.

131

On this aspect, see also CAA Lyon, 26 August 2005, No 03LY000696, Commune de Me

´nat

(AJDA, 9 January 2006, 38); and see further Monteillet (n 120 above).

132

For the earliest authority to this effect, see Cour de Cassation, Chambre Criminelle, 19

November 2002, No 02–80788 [2003] Recueil Dalloz 1315; and for cases supporting it see, eg

Cour de Cassation, Chambre Criminelle, 28 April 2004, No 03–83783; Cour de Cassation,

Chambre Criminelle, 18 February 2004, No 03–82951 (and see also [2004] Revue Environnement,

July, 22); CA Versailles, 22 March 2007, No 06/01902; Cour de Cassation, Chambre Criminelle,

7 February 2007, No 06–80.108, Darsonville Autrey [2007] Recueil Dalloz 573; and Cour de

Informal Public Inﬂuence on Regulation of Agricultural Biotechnology 33

necessity would be ineffective,

133

since there was no real or present danger, the

action was not necessary to protect any person or property, and there was a lack

of proportion between the means employed and the seriousness of the threat.

Accordingly, three propositions would seem fundamental. First, the courts have

consistently held that no danger exists, by reason of the fact that, under Com-

munity law, there is no clear proof of danger to the environment or to health

(and this proposition resonates loudly within the larger debate on the relation-

ship between the judiciary and science, including the question of the indepen-

dence and neutrality of scientists).

134

However, there remains the vexed issue of

what is to happen if the minority opinion of agro-biotechnologists proves

correct.

135

Secondly, the Faucheurs have pleaded a plethora of arguments to justify their

actions and this ‘chaff’ has arguably obscured key points in the eyes of the

courts. As indicated, resort has been made ‘pell-mell’ not just to the Deliberate

Release Directive, but also the French Charter on the Environment, the Eur-

opean Convention on Human Rights, the Cartagena Protocol, and the Aarhus

Convention. That said, the tactics of the Faucheurs may simply reﬂect the limits

of the defences available under criminal law, causing them to look to broaden

their arguments before the court. Not least, a hypothetical risk could perhaps be

categorized as a present danger to the wider public interest, so legitimating

collective and pre-meditated action. Further, there would seem to be incon-

sistencies with any potential application of the precautionary principle. On the

one hand, it could be advocated that the danger is effectively uncertain and that

the precautionary principle should be therefore employed. Yet, such reasoning

concurrently removes the possibility of employing a defence of necessity, which

requires immediate danger and, importantly, a high degree of certainty. On the

Cassation, Chambre Criminelle, 4 April 2007, No 06–80.512. It may be noted, nonetheless, that

some judges at ﬁrst instance have sought to adopt a different position. Thus, the Tribunal Cor-

rectionnel of Versailles took the view that the necessity could be pleaded in light of the fact that it

was not possible to take protective actions against GM crops: CA Versailles, 22 March 2007, No

06/01902; and see also TC Orle

´ans, 9 December 2005, No 2345/S3//2005, Socie

´te

´Monsanto v

Dufour (where 49 Faucheurs were acquitted on grounds of necessity). On the latter judgement,

generally, see A Gossement, ‘Le fauchage des OGM est-il ne

´cessaire?’ [2006] Revue Environnement,

January, 9; Billet (n 122 above); Feldman (n 128 above); and Monteillet (n 121 above).

133

On this aspect, see also Cour de Cassation, Chambre Criminelle, 7 February 2007, No

06–80.108, Darsonville Autrey [2007] Recueil Dalloz 573.

134

For excellent treatment of this larger debate, see, eg S Jasanoff, The Fifth Branch: Science

Advisers as Policymakers (Cambridge, Mass: Harvard University Press, 1990); S Jasanoff, Designs on

Nature: Science and Democracy in Europe and the United States (Princeton: Princeton University

Press, 2005) 1–93; and, in the context of the World Trade Organization, J Scott, The WTO

Agreement on Sanitary and Phytosanitary Measures: a Commentary (Oxford: Oxford University

Press, 2007) 76–138.

135

See, eg C Ve

´lot, OGM. Tout S’explique (Athe

´e: Edition Goutte de Sable, 2009) 89–191. It

may be noted that, in the world trade context, a minority scientiﬁc opinion may validate a sanitary

or phytosanitary measure: see, eg EC—Measures Concerning Meat and Meat Products (Hormones)

WT/DS26/AB/R and WT/DS48/AB/R, 16 January 1998, para 193; and Scott (n 134 above)

86–91.

Genetically Modiﬁed Organisms and the Public34

other hand, it could be advocated that there is clear and present danger, but

this would in turn preclude any recourse to the precautionary principle.

136

In consequence, it is understandable that the Court of Appeal did not entertain

these wider considerations (short of revolutionizing not only established law on

the destruction of GM crops, but also, more generally, the defence of necessity).

Thirdly, the judgment conﬁrmed that there was little mileage in seeking to

rely on constitutional principles or international law. The appeal judges

thus adopted a positivist view, which rejected recourse to overarching principles

of law—principles which have formed the spearhead of resort to civil

disobedience.

137

4. Conclusion

What would seem clear is that the public has engaged extensively in the con-

troversy which surrounds GMOs; and the regulation of GMOs is without doubt

an area of law where civil society seeks a ‘voice’. It would also seem clear that the

legislative framework does grant some latitude for public participation. In par-

ticular, the new Article 6bis of the Aarhus Convention, and its accompanying

modalities, will require that due account is taken of the outcome of its public

participation procedure, while in the United Kingdom the GM Nation debate

marks a level of public consultation that has rarely been equalled.

Nonetheless, there are arguably material limitations on effective inclusion

within legislative initiatives. Many regimes are less prescriptive than the Aarhus

Convention: for example, as has been seen, under the Cartagena Protocol there

is only an obligation to consult the public in the decision-making process and

make the results of such decisions available to the public. Further, and more

generally, there must be real doubt as to the extent the public can engage in

authorization procedures which are frequently technocratic and grounded in

science.

138

With so much depending on risk assessments and, in the context of

the Community, upon the opinions of the European Food Safety Authority,

139

there are relatively high hurdles for the public to cross, both in terms of

advancing the necessary expertise and in terms of securing the necessary ﬁnance

for research. As indicated, in this context, the resources of NGOs may therefore

prove material.

136

Billet (n 122 above).

137

See further the concluding Chapter 15.

138

See, eg Lee (n 24 above) 85–97; DJ Galligan, ‘Citizens’ Rights and Participation in the

Regulation of Biotechnology’, in F Francioni (ed), Biotechnologies and International Human Rights

(Oxford: Hart Publishing, 2007) 335; and M Kritikos, ‘Traditional risk analysis and releases of

GMOs into the European Union: space for non-scientiﬁc factors?’ (2009) 34 European Law

Review 405.

139

See Chapters 4 and 5. See also the crucial role of US federal agencies in the authorization of

GMOs, as discussed in Chapter 12.

Conclusion 35

By contrast, in spite of (and maybe even because of) these limitations, sec-

tions of the public in several countries would seem to have inﬂuenced the pace at

which GMOs are being developed, and also their market penetration. For

example, in the United Kingdom, for the time being, GM food is not on the

shelves of the major supermarkets; and the supermarkets have stated this to be a

response to consumer preferences. That said, evidence from surveys such as the

Consumerchoice report suggests that, if GM food were to be made widely avail-

able, it would almost certainly be widely purchased. However, there must be

something inherently unsatisfactory in the commercial decisions of super-

markets (as opposed to a regulatory system) playing so great a role in the dis-

semination of GM food.

Similarly, the consistent destruction of GM trials has had signiﬁcant impact

on research into modern biotechnology and, in the United Kingdom, it has been

reported that almost all 54 GM ﬁeld trials since 2000 have suffered some form

of vandalism.

140

A matter of some signiﬁcance is that the anti-GM protestors

undertaking these actions regard themselves as agents of the general public.

Thus, the Charter of the Faucheurs expressly recites that 70 per cent of French

citizens are opposed to GMOs and it claims that their campaign is one to pre-

serve democracy.

141

Such civil disobedience of this order will be further con-

sidered in Chapter 15, but for the time being it may be highlighted that

conﬁdence in the regulatory framework extends well beyond the anti-GM

movement, even to governments. This may be illustrated by the fact that by

early 2009 six Member States had banned MON810 maize; and it is perhaps

unlikely that the governments concerned implemented these bans without an

eye to the views of their electorate.

142

Accordingly, at risk of generalization, one

conclusion might be that, while members of the public have indeed participated

in the regulation of GMOs, informally they have exerted greater inﬂuence. And,

ﬂowing from this, it might also be suggested that greater accommodation of the

public will in the legislative process would have produced not only a more

widely accepted, but also, and importantly, a more structured response to the

introduction of modern biotechnology.

143

140

See, eg GM Researcher Despairs as Three Years’ Work Lost, Times Higher Education, 7 August

2008; and in 2004 over half of GM maize trials in Metropolitan France were destroyed: Hayes (n 5

above) 293, 296.

141

For the Charter of the Faucheurs, see <http://www.monde-solidaire.org/spip/IMG/pdf/

Charte_faucheurs.pdf>, last accessed 25 June 2009: ‘[d]ans l’e

´tat de ne

´cessite

´actuelle ou

`nous nous

trouvons, nous n’avons plus rien a

`notre disposition pour que la de

´mocratie reste une re

´alite

´’.

142

Agra Europe Weekly No 2357, 17 April 2009, EP/1.

143

For the advantages of including the public within the decision-making process so as to secure

better environmental regulation, see, in particular, J Steele, ‘Participation and deliberation in

environmental law: exploring a problem-solving approach’ (2001) 21 Oxford Journal of Legal

Studies 415.

Genetically Modiﬁed Organisms and the Public36

Karky, R. and Perry, M., Policy Choices for Biotech Legislative Enactment: Genetic Modifications in the Food Chain, (2013) 8 Universitas 1-28.

Article

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Perhaps the highest impact advancements from science over the last half a century are the applications of biology and computer sciences. However, the regulatory aspect of biotechnology is contentious, and it is at a stage of development. This paper covers the current issues on regulatory aspects of genetically modified (GMO) foods, and it examines the regulation of the nations who have biotechnological ability and a history of GMOs for both food and other product crops. There are some fundamental jurisdictional differences between GMOs and non-GM foods. GMOs are patentable in many jurisdictions, whereas the path to patent for conventional crops is more difficult as many have been in production for decades. A patent gives exclusive rights to a GMO patentee, whereas others do not have this right. Non-GM seeds typically can be planted, replanted, saved, or sold by farmers, but farmers do not have these same rights with GM seeds. GM plants or crops have cross-pollination effects and some say that they contaminate non-GM crops (foods too), which is not usually an issue with non-GM plants. This paper critically examines regulation on the risk assessment and commercialization process of genetically modified crops/foods in Canada, US and EU. It further looks at related cross-cutting issues such as precautionary principle, labelling GM foods, public participation and transparency in the decision making process and other cross-cutting issues such as co-existence between GM crops and non-GM crops, AP, liability, GM animal; and it discusses policy choices for legislative enactments focusing Canada. It has comparative approach and it offers biotech policy choices.

Multi-level Regulation of Agricultural Biotechnology: Determinants and Actor Strategies in Germany

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Ulrich Hartung

This thesis investigates the regulation of agricultural biotechnology in the multi-level system of the European Union focussing specifically on the Federal Republic of Germany. In particular, it aims to provide an improved understanding of the determinants underlying regulatory action on subnational levels and certain strategies adopted by political parties and private companies to maximize their respective interests in the unpopular and contested field of agricultural biotechnology. Based on various data sources and the combination of different theoretical and methodical approaches, the thesis provides several important insights. It shows that German municipalities regulate the cultivation of genetically modified crops for various reasons, but most importantly because of functional motivations to prevent negative socio-economic effects or impacts on the environment and human health. For the regional level, the thesis reveals among other things that strong environmental interest groups have positively conditioned German states’ symbolic policy-making, but with seemingly no effect on the adoption of hard regulations. With regards to the actor strategies, it proves that parties, here the German CDU, strategically de-emphasize their unpopular positions on green genetic engineering for various reasons including coalition formation prospects with B’90/Grüne and increasingly diverging policy preferences of their regional branches. Finally, the thesis demonstrates that biotechnology firms make strategic use of specific opportunity structures by lobbying institutionally closed and favorably embedded policy venues at member state level aiming thereby to promote the de-regulation of new plant breeding technologies in the European Union.

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IOWA LAW REV

K.A. Lundquist

The most notorious escapes of genetically modified organisms ("GMOs") included products still in the testing phase that the U.S. Department of Agriculture ("USDA") had never approved for sale or consumption. The USDA, more specifically, its subdivision, the Animal and Plant Health Inspection Service ("APHIS"), must change the current culture of noncompliance among growers. Changes in the regulation of field trials of GMO products would allow U.S. growers to certify to food distributors and importers of U.S. agricultural products that crops are what growers purport them to be and that unwanted and never-approved GMOs have not contaminated their products. Better regulation would shift the costs of preventing the escapes of these seeds on to the producers rather than farmers, who might suffer economic loss if GMO seed contaminates their crops, or the public, which suffers when agricultural markets across the globe are disrupted by discovering unwanted GMO strains in food or other agricultural products.

World Trade Organization

Article

Dec 2001

J. Whalley

Sustainability, Regulatory Dilemmas and GMOs: The US and the EU Compared

Article

May 2007

Rosemary Lyster

Agency decision-making regarding the release of genetically modified organisms (GMOs) into the environment, which has the potential to affect the environment and human health, must be consistent with the principles of sustainable development. This requires adherence to the principles of intergenerational equity, the conservation of biological diversity, the precautionary principle, and the polluter pays principle. The potential risks associated with GMOs make public participation an essential element of agency decision-making. This is because the scientific evidence about the safety, or otherwise, of GMOs is sufficiently uncertain. In such a case, decisions to release them must be politically negotiated. Yet when the regulatory arrangements for dealing with GMOs in the United States and the European Union are compared and contrasted markedly different regulatory frameworks emerge. In the case of the US, the regulation of GMOs falls short of the sustainability benchmark, while the EU's seems entirely consistent with it. How do we explain, then, the paradox of a US public which is so accepting of food derived under a relatively lax regulatory and administrative framework, and a fearful EU public protected by extensive regulation and risk assessment processes?

Understanding the Scope of Farmer Perceptions of Risk: Considering Farmer Opinions on the Use of Genetically Modified (GM) Crops as a Stakeholder Voice in Policy

Article

Dec 2008

Nicholas P. Guehlstorf

In the beginning, policy debates between critics and advocates of genetically modified (GM) crops focused on scientifically determined risks. Ten years later, the argument between environmentalists or consumers and regulators or industry has changed into a discussion about the implementation of more democratic policymaking about GM farming. A notable omission from the political debate about food biotechnology in the United States, however, is the opinion of farmers who cultivate the GM crops. Policymakers should value practical knowledge based on experiences from farmers, not only scientific industry reports or consumer product opinions. This project uses in-depth interviews to create an original mail survey that uses the practical discourse of farmers in order to explore the relationship of farmer attitudes and GM agriculture. Although national research indicates that larger yields are the most common reason for GM adoption, qualitative information suggest that the potential of GM crops to increase revenue per acre does not truly reflect all the concerns of modern farmers. For example, farmers who use GM seeds indicate that they constantly question the social impacts of their agricultural practices. As such, GM policies should be restructured as a political rationalization of both economic modeling and political theory because this research suggests that farmers’ business decisions are utility calucations that consider economics without ignoring environmental and political contexts. Farmers’ concerns about non-economic risks suggest that they need more information about GM crops and that governmental policies should respond to their interests, as they are more democratic or pluralistic than industry or consumer arguments.

Anti GM crop protesters increase activity in the US

Article

Dec 1999

Jeffrey L. Fox

Anti-GM crop protestors increase activity in the US' (1999) 17 Nature Biotechnology 1053. 97 'Anti-GM protest continues in the Philippines

Jan 2003

JL Fox, 'Anti-GM crop protestors increase activity in the US' (1999) 17 Nature Biotechnology 1053. 97 'Anti-GM protest continues in the Philippines' (2003) 3(8) Bridges Trade BioRes 2.

728; and 'Damage to crops-Part 2

Jan 2000
New Law J
143

See
Stallworthy

See, generally, eg M Stallworthy, 'Damage to crops-Part 1' (2000) 143 New Law Journal 728; and 'Damage to crops-Part 2' (2000) 143 New Law Journal 801.

Protestors Cleared of Charges

Sep 2005

G M Bbc

BBC, GM Protestors Cleared of Charges, 16 September 2005 (available at <http://news.bbc.co. uk/1/hi/england/bristol/4253212.stm>, last accessed 26 June 2009).

On this aspect, see also CAA Lyon

Aug 2005

On this aspect, see also CAA Lyon, 26 August 2005, No 03LY000696, Commune de Ménat (AJDA, 9 January 2006, 38); and see further Monteillet (n 120 above).

Recueil Dalloz 1315; and for cases supporting it see, eg Cour de Cassation, Chambre Criminelle

Nov 2002
3-82951

November 2002, No 02-80788 [2003] Recueil Dalloz 1315; and for cases supporting it see, eg Cour de Cassation, Chambre Criminelle, 28 April 2004, No 03-83783; Cour de Cassation, Chambre Criminelle, 18 February 2004, No 03-82951 (and see also [2004] Revue Environnement, July, 22);

It may be noted that, in the world trade context, a minority scientific opinion may validate a sanitary or phytosanitary measure: see, eg EC-Measures Concerning Meat and Meat Products (Hormones) WT/DS26/AB/R and WT/DS48/AB/R

Jan 1998
86-91

See
Ogm Vélot
Tout S'explique

See, eg C Vélot, OGM. Tout S'explique (Athée: Edition Goutte de Sable, 2009) 89-191. It may be noted that, in the world trade context, a minority scientific opinion may validate a sanitary or phytosanitary measure: see, eg EC-Measures Concerning Meat and Meat Products (Hormones) WT/DS26/AB/R and WT/DS48/AB/R, 16 January 1998, para 193; and Scott (n 134 above) 86-91.

Genetically Modified Organisms and the Public: Participation, Preferences, and Protest

Abstract

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