Liability and GMOs

By Guest Author 04/11/2010

By Jack Heinemann

The world has just met in Nagoya Japan (11-15 October 2010) for negotiations on the Cartagena Protocol on Biosafety, an international treaty which also binds New Zealand. The Biosafety Protocol regulates the transboundary movement of Living genetically engineered/Modified Organisms (in treaty language, LMOs)[1]. This cumbersome language means LMOs that are shipped across national borders.

A central issue this year was an agreement on liability and redress for damage that might arise from LMOs. (The new agreement has been called the Nagoya-Kuala Lumpur Supplementary Protocol.) Liability for any harm that might come from an LMO follows the ’operator’, usually the developer of the LMO, the agent selling or in control of it. Liability is one of the oldest and deeply contentious issues of the Cartagena Protocol on Biosafety, and an agreement was several years behind schedule.

Liabilities should New Zealand export LMOs

New Zealand should think carefully about this issue both as an importing nation of LMOs and as a potentially aspiring commercial exporter. Especially considering the growing investment in GM grass and tree research, the time for this discussion is now. Trees are long lived and any adverse effect that might come from a product of this type of LMO might produce long-term liabilities for New Zealand. Through gene flow or its use as an animal feed, GM pasture grasses might also be products with special liabilities.

Domestic law should be reviewed and updated to protect New Zealand as an importer of LMOs

While all nations that have ratified the Biosafety Protocol agree that LMOs shipped across national boundaries should be subject to a notification procedure and a risk assessment, there is controversy about how to legally associate damage with the LMO.

The Biosafety Protocol captures this fuzzy boundary with the language ’LMOs and products thereof’. This language is meant to exclude from the scope of the Biosafety Protocol bio-compounds that are extracted and purified from an LMO and then shipped across borders. These kinds of compounds often come under the watch of other agreements, such as those for food or drug safety. An exclusion of this type does not seem to be controversial.

What is controversial is when this liability shifts to someone else, especially society, should any subsequent harm be caused to ’the conservation and sustainable use of biological diversity, taking also into account risks to human health’ by compounds or material derived from an LMO after it has shipped. Some consider that any damage must be caused by something that is ’alive’ as defined by the Protocol. The Protocol’s definition of life is genetic: effectively equating living with ability to reproduce in some fashion. So only the LMO or other LMOs that are shipped with the products of an LMO can be regulated under the Protocol. For example, if in a consignment of cotton lint there were LMO cotton seeds, then the seeds would be covered by the Protocol.

Others consider that the harm must derive from a material uniquely linked to the LMO that has been shipped across international borders, but at the time the material causes damage it may no longer be alive. Provided that the material exists because it was derived from an LMO shipped across borders, it no longer matters if the harm it caused is in association with the LMO in the receiving environment.

For example, imagine an LMO algae genetically engineered to produce a fat-soluble molecule that might be used in a biofuel. Because the molecule is fat-soluble, it may bio-accumulate in fat tissue of fish or insects, or within the membranes of bacteria. Imagine as well that this molecule becomes toxic when it reaches a certain concentration threshold in these animals or microbes, or higher up the food chain. If this algae were imported into New Zealand to be used in contained ponds, and the molecule where to leach out of the pond at some low but continuous rate, then it might ultimately cause an environmental harm through bio-accumulation. It is possible that this harm would not be legally linked to those who exported the LMO to New Zealand under the view that the harm must be caused by something alive at the time it causes harm, but could be under the view that the exporter may be held responsible for harms that arise from materials of LMO origin, that have been subject to transboundary movement, but not alive.

Linking the liability for damage of LMOs to exporters prevents exporters from limiting the costs of redress for the damage. In other words, especially for developing countries, it strengthens enforcement of the ’polluter pays’ principle. It could be more difficult, for example for large multinational companies that hold the intellectual property and are the primary producers of some LMOs to distribute the liability amongst ’shell companies’ or licensees of weak financial stature that are dispensable.

The Protocol ultimately left it to governments to decide how they will establish the ’causal link’ between the LMO and any damage. It is thus up to New Zealand to settle how it perceives LMOs and products thereof.

Action plan

I would encourage the Royal Society to take a leading role in guiding a truly transparent discussion in New Zealand on this matter. For this to be a success, the Society should be sure to run the discussion using Fellows or others that do not have a commercial or pre-commercial stake in genetically modified organisms or bindings to the community that does, allowing those voices to be heard only along with other stakeholders in New Zealand’s future. There are many in New Zealand with the qualifications and experience needed to run this discussion, including those with legal or social research backgrounds working in academia or civil society.

Furthermore, I would suggest that the electronic model established at the recent Tropentag meeting in Zurich Switzerland be replicated for making the results of this discussion available to all. In the Tropentag conference, postgraduate students wrote daily blogs on speakers and conducted interviews with speakers and participants. This function could be provided by students or civil society here, in the model of the Earth Negotiations Bulletin published daily during the meeting in Nagoya. The Swiss portal also hosted abstracts and pdfs of presentations. Perhaps Sciblog would have the abilities to host such a repository, along with written contributions from those who prefer to contribute only in this format?

Professor Jack Heinemann is based at the College of Science (Biological Sciences), University of Canterbury

[1] See UNEP/CBD/BS/COP-MOP/5/11 at