New GM “Opinion” divides opinion
On 18 January 2018, the European Court of Justice’s (ECJ) Advocate General Michal Bobek published an Opinion that, depending on your interpretation, either opened the door to unregulated genetic engineering, or simply shifted the terms of the debate.
France asked the ECJ to rule on the status of certain genetic engineering techniques back in 2016, after a group of farmers and environmental organisations called for crops created by these techniques to be treated as GMOs. The status of newer genetic engineering techniques, including genome editing, is incredibly important because if they are not classed as GM there will be few safeguards in place to control their use or monitor any impact their release into the environment may have. Bobek’s Opinion is a kind of staging post in the ECJ process. Such opinions are usually reflected in the court’s final judgements, but that is by no means guaranteed.
The headline in the ECJ’s press release stated, rather alarmingly, that “According to Advocate General Bobek, organisms obtained by mutagenesis are, in principle, exempted from the obligations in the Genetically Modified Organisms Directive”. The media, and the GM industry, quickly claimed that Bobek was backing an exemption for gene editing. Dr Wendy Harwood, from the John Innes Centre said that the opinion “will hopefully encourage further use of valuable new technologies in the production of improved crops”.
However, the Opinion also stated that
an organism obtained by mutagenesis can be a GMO if it fulfils the substantive criteria laid down in the GM directive
so the devil is very much in the detail.
In that detail, Bobek states that organisms created by mutagenesis are only exempt from regulation as GMOs if the techniques used to create them do not involve the use of recombinant nucleic acid molecules. But, what counts as a recombinant nucleic acid technique?
Michael Antoniou, Head of the Gene Expression and Therapy Group at King’s College London considers that the vast majority of mutagenesis techniques, including the much-publicised CRISPR, do involve the use of recombinant nucleic acid. However, as he told GM Watch:
Interpretation of this Opinion will remain controversial until somebody tests it in court or by trying to market… a product based on the claim that [the technique used] …falls outside the definition of a GMO.
Ricarda Steinbrecher, molecular geneticist and Co-Director of EcoNexus, further points out that
CRISPR is made up of one half protein and one half recombined ribonucleic acid (RNA). In any case, from a scientific perspective all the new techniques under investigation are genetic engineering so must be properly regulated.
You can find more detail on the EcoNexus website, www.econexus.info
GM Freeze members and our colleagues in civil society organisations across Europe are now examining the questions raised by the Opinion from both a scientific and a legal perspective. Many are also considering the significance of Bobek’s additional view that Member States (ie the countries of the European Union) are free to impose their own regulation on organisms obtained by mutagenesis provided that they respect EU legal obligations.
One clear and very positive point in the Opinion is that Bobek specifically states that the definition of a GMO does not include any requirement for transgenesis, ie for “foreign” DNA to be inserted. This is important because some in the GM industry have argued that cisgenesis, which involves inserting DNA from the same or closely related species, doesn’t count as GM. While early campaigns against GM often highlighted the insertion of “foreign” DNA, the whole process of forcing a change to the genome is inherently risky, wherever the DNA comes from.
GM Freeze Director Liz O’Neill discussed the Advocate General’s Opinion on BBC Radio Four’s Farming Today on 22 January. Acknowledging that Bobek had largely answered the question “is it GM?” with another question, “is it recombinant nucleic acid?”, she went on to widen the discussion. Key to our position is that, whatever happens next, the ECJ case is never going to address the really important question of whether the use of any genetic engineering techniques will make our food system more or less responsible, fair and sustainable.
Similar sentiments were included, alongside a great deal of technical information, when the International Federation of Organic Agriculture Movement’s (IFOAM) EU group published a position paper, Compatiblity of Breeding Techniques in Organic Systems, ahead of the Advocate General’s Opinion, on 14 January. The paper stated unequivocally that a long list of techniques under consideration
are genetic engineering techniques that are not compatible with organic farming and that must not be used in organic breeding or organic production
Explaining their reasoning they included key issues such as safeguarding seed sources, the value of biodiversity and, mirroring one of GM Freeze’s core values, a statement that
No patents should be granted on genetic resources.
This post originally appeared in Issue 47 of our newsletter Thin Ice, published in March 2018