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



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.
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://>, last accessed
1 September 2009).
Likewise, in France, the activities of the Faucheurs Volontaires (and notably
´) 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.
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
<>, 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.
ican consumers would generally appear to place more trust in the regulatory
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’.
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
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
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 <>. To date, 156 instruments of
ratification or accession have been deposited with the United Nations Secretary General: see
<>, last accessed 2 September 2009.
Available at <>.
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-
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
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 <
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 <
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.>, 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
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-
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
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 <
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
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’.
a similar approach was adopted in R (Greenpeace Ltd) v Secretary of State for the
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-
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
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 <
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
[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).
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.
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
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 <
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;
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
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
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
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 (<
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.
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
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.
Five years later Greenpeace volunteers were
again before a jury charged with causing a public nuisance.
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 <
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 <
theft-in-lyng-gm-trial>, last accessed 20 January 2009).
Greenpeace Press Release, 28 Greenpeace Volunteers Acquitted in GM Trial, 20 September
2000 (available at <
acquitted-in-gm-trial>, last accessed 26 June 2009).
BBC, GM Protestors Cleared of Charges, 16 September 2005 (available at <
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.
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.
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
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.
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.
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
A similar decision was reached four years later in Director of Public
The Times, 13 March 2001; and [2001] Criminal Law Review 564.
Magistrates’ Court Act 1980, s 22(1).
The Times, 30 November 1999.
For the GenetiX Snowball Handbook see <>
(last accessed 10 September 2009) (which refers expressly to non-violent action).
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.
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
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
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’.
[2003] EWHC 2567 (Admin), [2004] 1 WLR 2856; and [2004] Criminal Law Review 663.
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.
See, eg Greenpeace UK, Breaking News: Kingsnorth Six Found Not Guilty (available at
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.
3.2.2 France 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.
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
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,
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.
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
On this aspect more generally, see, eg T Brooks, ‘A defence of jury nullification’ (2004) 10
Res Publica 401.
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
´issance Civile. Approches Politiques et Juridique (Lille:
Septentrion, 2008) 176.
See <>, last accessed 25 June 2009. For the Charter of the
Faucheurs Volontaires, see <
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).
Law No 2008-595 of 25 June 2008 relating to GMOs, Journal Officiel de la Re
Franc¸aise (JORF) No 148 of 26 June 2008, NOR: DEVX0771876L (codified at Arts L.531-1ff of
the Code de l’Environnement).
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
´’ [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.
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,
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).
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.
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 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
CA Orle
´ans, 26 February 2008, CT0028, No 07:00472.
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.
As indicated, this proposal was subsequently enacted as Law No 2008-595 of 25 June 2008.
They did not dispute that they had carried out acts of destruction: indeed, they celebrated the
fact that they had destroyed the crops.
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).
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;
and that fear based only on a
future possibility can never be regarded as present and imminent danger.
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.
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.
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
See also CAA Nantes, Second Chamber, 28 March 2007, No 06NT00627, Commune de
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-
´nale des faucheurs juge
´ans. Un Etat des lieux du cadre juridique des OGM’ [2007]
Revue Juridique de l’Environnement 56.
CA Versailles, 22 March 2007, No 06/01902; and see also P Billet, ‘Fauchage d’OGM: une
relaxe sans ne
´’ (2006) 339 Revue de Droit Rural 60.
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
See further Chapter 7.
Informal Public Influence on Regulation of Agricultural Biotechnology 31
dangerous tool (‘dangereux outil’) for the propagation of GMOs.
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. 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-
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-
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,
European Convention on Human Rights,
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).
This aspect was not fully addressed by the Court of Appeal,
notwithstanding that it could be argued that the lack of insurance constitutes a
Monteillet (n 121 above) 64.
The French Charter of the Environment is available at <
constitution/const03.htm>, last accessed 25 June 2009.
In particular, a buffer of only four rows of conventional maize was considered insufficient to
prevent the dispersal of GMOs.
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.
Available at <
5C9014916D7A/0/EnglishAnglais.pdf>, last accessed 25 June 2009.
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 Some conclusions on the decisions of the French courts
The Court of Appeal in Orle
´ans definitely followed precedent.
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.
On this aspect, see also CAA Lyon, 26 August 2005, No 03LY000696, Commune de Me
(AJDA, 9 January 2006, 38); and see further Monteillet (n 120 above).
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,
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).
However, there remains the vexed issue of
what is to happen if the minority opinion of agro-biotechnologists proves
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
´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).
On this aspect, see also Cour de Cassation, Chambre Criminelle, 7 February 2007, No
06–80.108, Darsonville Autrey [2007] Recueil Dalloz 573.
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.
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)
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.
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
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
With so much depending on risk assessments and, in the context of
the Community, upon the opinions of the European Food Safety Authority,
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.
Billet (n 122 above).
See further the concluding Chapter 15.
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.
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.
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.
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.
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.
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.
For the Charter of the Faucheurs, see <
Charte_faucheurs.pdf>, last accessed 25 June 2009: ‘[d]ans l’e
´tat de ne
´actuelle ou
`nous nous
trouvons, nous n’avons plus rien a
`notre disposition pour que la de
´mocratie reste une re
Agra Europe Weekly No 2357, 17 April 2009, EP/1.
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
... 72 "[N]ational authorities are to take into account the views and concerns of the public" (Bodiguel & Cardwell, 2010, p. 16). In the UK, the public are engaged extensively in the consultation process (Bodiguel& Cardwell, 2010). In New Zealand, a "participatory approach has been adopted" and "[i]n 1999 the Independent Biotechnology Advisory Council was established to inform and consult the public on matters of biotechnology" (Bodiguel & Cardwell, 2010, p. 18). ...
Full-text available
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.
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.
In July 2018, the Court of Justice of the European Union decided that new plant breeding techniques (NPBTs) fall within the scope of the restrictive provisions on genetically modified organisms (GMOs). Previously, various actors had lobbied in order to influence the European Union’s (EU’s) regulatory decision on NPBTs. This study examines the venue choices taken by Cibus, a biotech company that promoted NPBT deregulation. It shows that the firm bypassed the EU level and that it lobbied competent authorities (CAs) in certain member states to gain support for the deregulation of NPBTs. Cibus chose the CAs because their institutional “closedness” reduced the risk of the debate over the deregulation of NPBTs becoming public. However, the CA’s specific competences and their influence on EU decision making were of likewise importance. The firm lobbied CAs based in Finland, Germany, Ireland, Sweden, Spain, and the United Kingdom. Two factors appear to have influenced Cibus’ choices for these countries: high‐level political support for agribiotech and the high relevance of biotech sectors. In contrast, public support for GMOs turned out to have hardly any influence, and virtually no association could be observed for the agricultural application of biotechnology in the past nor for the weakness of domestic anti‐GMO lobby groups. Finally, the in‐depth study on Germany affirms that “closedness” was important for Cibus’ choices and reveals that technical information served as a venue‐internal factor that influenced the firm’s choices.
This piece critically analyses the development of a novel food technology: the Frankenburger, a type of cultured/in vitro meat (or ‘shmeat’, which stands for ‘sheet of meat’). It assesses the risks raised by cultured meat as well as the role it could play to alleviate environmental and food security concerns. The article argues that the current EU regulatory structures for cultured meat, and for novel foods more generally, ought to be strengthened. There is a necessity to transfer and develop food innovations in partnerships with all the relevant stakeholders (the public, scientists, the food industry, policy-makers and regulators). Including interested parties from the inception of a technology as well as within the decision-making process would provide a supporting framework for cultured meat.
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.
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?
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 protestors increase activity in the US' (1999) 17 Nature Biotechnology 1053. 97 'Anti-GM protest continues in the Philippines
  • Fox
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
  • 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
  • G M Bbc
BBC, GM Protestors Cleared of Charges, 16 September 2005 (available at < uk/1/hi/england/bristol/4253212.stm>, last accessed 26 June 2009).
On this aspect, see also CAA Lyon
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
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
  • 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.