Are the GMO-related clauses of the Hazardous Substances and New Organisms (HSNO) Act 1996 out of date? Perhaps it’s time to start working on a replacement.
Recently a legal ruling in New Zealand overturned a previous opinion that using gene editing to create variants would not create genetically-modified organisms (GMOs). The key documents are gathered at the EPA website page for that query.
In part one, I offered a non-scientist’s introduction to what is intended with the type work being considered. I’ve since spent more time browsing the Act and the ruling than is healthy for someone who is not a lawyer. Here I’d like to offer some initial thoughts from this reading.
The HSNO Act (1996) also deals with hazardous chemicals. For simplicity, when I write ‘the Act’ below, I mean the portion of the Act referring to GMOs not the whole HSNO Act.
In a nutshell
The court noted difficulties in interpreting the Act. The court was very polite and modest about the difficulties it encountered: my reading suggests these difficulties run deeper and indicate the Act is not up to it’s task.
My opinion is that Act is out of date in fundamental ways. It will also expire on one of it’s founding premises at some time. Thus it would seem an opportune time to work towards what would follow the current Act. (To my reading the Act is time-limited, in that it uses a premise that once a class of techniques have stood the test of time organisms made using them are exempted from consideration; in time the techniques that create GMOs themselves will have stood this ‘test of time’ and be exempted, closing the Act. Consistent with this, a replacement for the Act would not be GMO-specific, but sit within food safety in general.)
On the ruling
Given the problems with the Act the court ruling noted, I was left wondering if a call to make no ruling could not have been made. I believe the issues run deeper than those noted in the ruling (see below).
I found the approach that the advisory experts were used was unexpected. This will reflect my not being familiar with law practices, but it left me wondering if this was the best way to resolve interpretation of an Act. In addition, I feel more comfortable with advisory experts drawn from overseas and independently of the parties involved.
On the Act
The process to add new techniques to those that are considered exempt from GMO status seems (to this non-lawyer) to be ill-defined and problematic. There appears to be no explicit provision in the Act for new techniques that will arise. (The current ruling was caught out on this.) It feels as if a constructive mechanism to add new techniques is needed.
The Act was written at a time when testing if a technique created unexpected genetic changes was challenging and seems to reflect this in it’s design. This has changed, and will continue to change. My feeling is that this leaves the Act out of date in a fundamental way.
One premise in drafting the current Act is that organisms derived from classes of techniques that have stood the test of time are considered acceptable. This means makes Act is self-limiting in time: once GMOs have been around a suitable length of time the techniques that make GMOs as a class must also be considered acceptable. Given GMOs have been around approximately 20 years now, it would seem prudent to start work towards a more appropriate longer-term solution fitting them within food safety in general rather than as a special case.
Finally, and to be fairly brutal about it, parts of the argument used in the Act look ill-formed, possibly even fallacious. This is not helped by that it’s not clear precisely what the argument is, as it’s not made explicit; the court noted similar difficulties. Perhaps symptomatically, some labels and terms are not used in a self-consistent way (to this reader), confusing different positions and at odds with what they might ordinarily mean.