Not long ago I wrote about the call for consultation on a proposal to change the regulations around what are not genetically modified organisms (GMOs) in New Zealand.
This was written in the absence of two useful sources of context:
- the options presented by the Ministry for the Environment (MfE)
- the consultation for these options to cabinet
At the time I wrote these sources were not linked to the call for consultation, so I was unaware of them.
Let me quickly outline the missing context of what I wrote previously, along with a brief comment on my current thoughts. I’ll put aside the response of cabinet until later as time is limited and to keep this shorter.
I’ll come to the point that restricting focus to techniques actually avoids dealing with the real concerns and is a distraction away from it. It’s an understandable distraction, but a distraction never-the-less.
As you can see, I’m going to keep this fairly light: those wanting formal correctness are best to read the original documents for themselves!
A High Court case raised concerns about regulation of ‘traditional’ [sic] techniques and that the current list of techniques considered exempt from regulation is now out of date. (More on this another time or in the comments, sorry.)
The MfE presented cabinet with a summary of why the regulations needed attention and four options:
- Do nothing, maintain the status quo
- Only address the High Court concerns, ignoring scientific advances since 1998
- Address the High Court concerns, by amending the Regulations, and proposing an update of the list of techniques considered exempt
- Review the rules on new organisms in the HSNO Act
MfE suggested #1 was not an option, as the problems the High Court noted would continue and potentially create wider problems in trade and so on.
They suggested #4 is good and should be approached at some time, but the current problems want immediate attention and that options #2 or #3 would give immediate attention to this. They noted that options #2 and #3 could only be temporary as a longer-term, proper, review is needed.
They suggested #2 would address the immediate concerns, was a bare-bones temporary ‘patch’: “is a bare minimum and is not considered a long term solution.” Cabinet elected to take this approach.
Reflecting that the current regulations are out of date, MfE note that “option 3 will be necessary in the near-medium term (within a year or two)”.
One of the things not clear to me when I wrote previously was that the recommendation was intended to be temporary. This is also important, and little (none as far as I know) of the media attention at the time of the announcement of this made that point clear. The proposed changes are considered a temporary ‘patch’ to fix an issue quickly, with more work needed later.
I have some reservations about temporary fixes to things needing further work: it seems that some regulatory things wind up being ‘permanently-temporary’! One solution might be to explicitly make the change temporary, i.e. explicitly set some sort of ‘drop-dead’ date or some date after which a further review will occur to enforce the bringing on of options 3, and ideally 4 and beyond. Without this it risk falling into limbo, especially in an election year. Bear in mind it is New Zealand’s ability to move forward that would be held in limbo here — not something that should be taken lightly.
My impression is that the current consultation is calling for comments on this temporary ‘patch’, not a consultation of medium- or longer term solutions.
One aspect that the discussion reveals is ‘waiting on other nations’ to see what approach they will take is a concern. I’ve deferred this to the Footnotes as it’s not my field, but I’m concerned that this is obstructing better legislation.
The proposed change
Unfortunately the solution chosen for option 2 is a double-edged sword.
They’ve elected to set 29th July 1998 as a date before which any ‘chemical’ technique that modifies DNA is considered ‘traditional’ and thence not to be a technique that creates a genetically modified organism (for the purpose of the HSNO Act).
This was one of four possible ways of tackling option 2 they presented to cabinet.
More skeptical readers will note that this argument has obvious flaws, a double standard over time even, with an arbitrary date setting up a divide where techniques prior to that time are ‘free’ and those developed after than time are placed under heavy regulation. What it doesn’t do is consider if the techniques are meaningfully of concern or not.
I could expand on this at length, but with time limited I’ll invite readers to express themselves in the comments below.
Option 3 and to the future
The discussion of ways to implement option 3 are interesting because they look at the different ways that you might determine if an organism needs to be regulated, including:
- Use based
- Genotype based
- Trait based (either novel or risk)
- Technique based
- Hybrid technique/genotype based
I’d further explore this, but let’s defer that to another article as it deserves an article in itself. (As a practical matter this will have to come after submissions close.)
MfE propose option 5. At first blush, I respectfully disagree.
Option 5 is better, maybe, but I don’t think it is best practice.
In particular, I would like to have seen in the discussion a comparison with regulation of species that are entirely new to New Zealand, such as those brought in for pest control. As a biologist, I have more concern over these than regulation of GMO crops, which are really varieties – small variants of existing crops that will for the most part behave in ways similar to their ‘parent’ crops.
Also, I feel the comparisons made for option 3 have an element of ‘regulation for regulation’ creeping into them. MfE is obliged by law to regulate. My impression is that it might be creating an emphasis on regulating fairly in terms of the regulations in front it, rather than allowing a wider brief that might better relate to the wider risk mitigation. In this respect, it might be worth comparing with the national plan for forestry management, which covers risk management of tree crops.
Furthermore, my impression is the elected option is in part from concern over causing controversy and/or legal challenges. We really must overcome this. A recent survey suggests those with conservative views are a minority.
A few current thoughts
My own current thoughts are that option 2 could be exercised but with added proviso of an explicit expiry of it’s temporary status.
We cannot let the a temporary fix become the new status quo.
It has to be noted that this legislation will need repeated re-examination unless it is altered, taking cabinet and ministry time. Put simply, it’s not a very practical approach.
Related to that, the law isn’t a good instrument for dealing with science itself. (The High Court case the brought this on in many ways is an illustration of this.) The specifics of the science might be better dealt with by explicitly deferring them to a science body, such as the EPA.
I feel there is need to look to the wider agricultural management scene, where emphasis is on risk management through sound agricultural practices. I’m not an agriculture expert, but it seems to me their approach is to recognise risk, acknowledge it, and mitigate it. The regulation then becomes one of encouraging and perhaps regulating good management practices. The draft national forestry management plan illustrates this approach for tree crops (setting aside the references to GMOs, as they would be circular references in this context).
A thought, then: is it this management of risk through agricultural and food production practice really what makes the ‘traditional’ crops ‘safe’?
In an interview, Nick Smith referred to references to GMOs as slogans. Indeed a key recommendation by the House of Commons Science and Technology Committee to the British parliament was to stop talking about GM. I’ll have more to say on this another day, but the focus on GM, or GE, is a distraction that has people looking away from where effects and concerns actually are felt.
Essentially the slogans encourage people to not look at the real issues, but carry the emotion-laden arguments attached to the ‘GMO’ slogan.
The Regulatory Impact Statement touches on this, noting it is the traits that are the thing that relate to the concerns,
Regulating traits is a good way to manage risk as any risks an organism poses to health and the environment are directly and exclusively related to its traits and intended use — a product with a specific trait will have the same environmental effects regardless of which technique was used to develop it.
Regulation of technique seems a (very) poor substitute for this, even if it is appealing from a purely regulatory point of view. (And you can see this regulatory appeal in discussion of ways you might tackle for option 3.) Legislation of technique really is mostly legislation-by-fear, even when rationalised: you’re shutting down a technique, rather than looking at what was made.
The GM clauses in the HSNO Act look to be a case where slogans have led the legislation, where some approaches to creating new crops in a more directed way have been sent to a purgatory bin not because they are unsafe or actually ‘evil’, but because what is essentially a fear-based campaign has caught the imagination of a number of people.
People are entitled to their fears, of course. Better communication efforts might help (along with funding to do them).
The current rulings actually widen this umbrella of trapping by fear to include techniques that are in fact strictly outside of GM.
The discussion notes (and confusing a little) that enzyme-based mutagens have become classified as ‘creating GMOs’ whereas their longer-established small molecule counterparts are considered not to.
This is incorrect logic, one that plays around an arbitrary date in time rather than either the techniques or the outcome of applying the techniques. (Note I’m ‘blaming’ anyone here, but making an observation.)
It’s an annoying thing that many new technologies instill an unnecessary fear. It might be hard to imagine now, but when blood transfusions were introduced in the 1950s they, too, caused public consternation. There are countless other examples.
The issue is compounded by politicians feeling obliged to respond to public opinion, despite that popularity does not mean effectiveness or sensibility.
It has the effect that a certain amount of politic action plays to one of the more basic logical fallacies, the appeal to popularity.
As it happens, a recent survey suggests that popular opinion has swung to an acceptance of genetic engineering in New Zealand.
While this would suggest that it is time for the legislation for this technology to be revisited, we need to recognise that this issue is dominated by fears rather than actual concerns, and that the actual concerns can be mitigated with agricultural practices (rather than legislation per se).
Finally, I’m left wondering if there isn’t some way to organise legislation-creating practice so that the worst excesses of ‘legislation-from-unfounded-fear’ can be headed off. It must be a theme in legislation down the decades, if not centuries. Law isn’t my field, but I can imagine it’s an area of investigation, or at least I hope it is. Perhaps the real long-term need lies there?
2. In fact, When I look at the GM clauses in the HSNO Act themselves, they read as things that might be imposed for, say, six months while a permanent replacement is developed.
3. Waiting on others…
Generally if you want to do something, better to just get on with it?
One aspect that the discussion reveals is ‘waiting on other nations’ to see what approach they will take.
In discussing option #2, MfE go on to say “However, it may be protective of trade for now and gives New Zealand the option of making regulatory amendments at a later date with a clearer picture of international direction and market reaction in regards to new techniques.”
While I respect what they are dealing with, I see two problems here. One is that “waiting on others” will induce that silliness we so often see of international policy, where things track in circles with no-one wanting to break the stalemate. (Witness the lack of progress on climate change, perhaps.) These things are also readily exploited by those with ideological opposition as it’s easy to inject fear-based ‘what ifs’ that stall progress.
Related to this I’m not convinced the potential impact on trade being worried over is real. I lack time to expand on this but comments are welcome.
The discussion talks about fitting with other nation’s legislation, but doesn’t cover those nations with quite different approaches, for example Canada. I understand Brazil also allows ‘GM’ crops, but under a different approach.
4. It’s perhaps worth adding in this context that many of the ‘real’ concerns raised over GM agriculture are properly problems from the ‘Green Revolution’ of the 1930s-60s.