The StarLink Scandal by dfgh4bnmu


									                    FoEE Biotech Mailout
      Information from the Biotechnology Programme of Friends of the Earth Europe

Volume 6, Issue 7                                                                                  31st October 2000
      The StarLink Scandal
                             StarLink : more bad news for biotech
                             This issue of the FoEE Biotech Mailout is mainly dedicated to the StarLink Scandal,
                             with articles by guest authors, Ronnie Cummins of the Organic Consumers Associa-
                             tion, and Kristin Dawkins of the Institute for Agriculture and Trade Policy

                             The Gene Giants suffered a serious set-         warn of a suspected link between food al-
                             back on September 18th when the Geneti-         lergies and asthma. Even the staid New
                             cally Engineered Food Alert (GEFA) coali-       England Journal of Medicine warned in its
                             tion(*) ( revealed that     March 14th, 1996 issue that unlabelled ge-
                             an illegal, likely allergenic variety (Cry9C)   netically engineered foods are "uncertain,
                             of genetically engineered (GE) maize            unpredictable, and un-testable."
                             called StarLink had been detected in a
                             major US consumer food product, Kraft           In 1996, a gene-altered soybean spliced
                             taco shells. The GE Food Alert Coalition,       with Brazil nut DNA patented by what is
                             which tested the taco shells and broke the      now Dupont's seed subsidiary, Pioneer Hi-
                             news about StarLink, is made up of seven        Bred, was pulled off the market before
                             US groups: Friends of the Earth, Organic        commercialisation after researchers
                             Consumers Association, Pesticide Action         learned that it could set off a deadly allergy
                             Network, Center for Food Safety, Institute      in humans. Even after this near-disaster,
                             for Agriculture and Trade Policy, National      Plant Genetic Systems, the developer of
                             Environmental Trust, and the US Public          StarLink maize (PGS was later bought out
                             Interest Research Group.                        by Aventis), apparently continued gene-
                                                                             splicing Brazil Nut DNA into rape seed, po-
                             The StarLink scandal made headlines,            tatoes, tobacco, beans, and peas in Euro-
                             generated thousands of news articles and        pean field tests in the open environment.
                             TV clips, and brought home the realisation      (See Plan Molecular Biology (1998)
                             to American consumers that the nation's         37:829-838)
                             supermarkets are filled with an extensive
                             inventory of untested, unlabelled, geneti-      Denials - Then Mass Recalls
                             cally engineered foods. In 1998, the US
                             Environmental Protection Agency had ap-         The biotech industry, Kraft/Phillip Morris,
                             proved the commercial cultivation of Star-      and the EPA at first tried to deny the valid-
                             Link - maize spliced with a powerful Bt         ity of the GEFA lab tests, but within days
                             toxin (bacillus thuringiensis). Developed       public pressure forced Kraft, the largest
                             by a subsidiary of the French-German bio-       food corporation in America, to recall 2.5
                             tech conglomerate Aventis, StarLink was         million boxes of the maize tacos. This ac-
                             approved only for animal feed because of        tion was followed by a halt of sales of
                             fears that this controversial Cry9C variety     Cry9C seeds by Aventis on September
                             (50 to100 times more potent than other          26th, and a formal recall order issued by the
                             Bt-spliced varieties) could set off food al-    USDA on October 9th for all 350,000 acres
                             lergies in humans.                              of StarLink maize planted across the US.
                                                                             GEFA then struck again and forced further
                             Critics of GE food have warned for years        recalls (Safeway maize taco shells, Mission
                             that splicing foreign proteins into common      Foods maize products, Western Family
                             food products, proteins which in most           brand maize tacos) by announcing on Oc-
                             cases humans have never eaten before,           tober 11th and October 25th that StarLink
                             can set off dangerous food allergies-with       maize had been detected in other brand
                             symptoms ranging from fever, rashes, and        name products being sold in thousands of
                             diarrhoea to anaphylactic shock and sud-        supermarkets. In the wake of the StarLink
                             den death. The FDA admits that eight            crisis, some of the largest US food and ani-
                             percent of all US children are now              mal feed processors - Kellogg, ConAgra,
Friends of the Earth         plagued by food allergies, and that the         Archer Daniels Midland, and Tyson - either
                             situation is growing worse. Nutritionists       temporarily closed their grain mills or an-
PAGE 2                                             FO E E B I O T E C H MA I LO U T                          VOLUME 6, I S S UE 7

nounced mandatory testing for              In effect, the grain cartel and the White    FDA - No Labelling, No Safety
Cry9C maize. Meanwhile, the White          House were telling America's best            Testing
House sent emergency teams to Ja-          overseas customers: Here, take this
pan and Europe, trying to reassure         contaminated maize. Americans are           The US government's "no labelling"
major US trading partners that the         refusing to eat this stuff, Tyson Foods,    and "no safety testing" policy has be-
StarLink controversy would be kept         the largest poultry producer in the US,     come a serious liability and source of
under control.                             won't even feed it to their chickens, but   controversy. The Center for Food
                                           you can eat it.                             Safety and other public interest
By the end of October, consumer                                                        groups filed a major lawsuit in 1998
confidence in the safety of GE foods       The fallout and collateral damage from      in US Federal Court to take GE
was severely shaken. Thousands of          the StarLink scandal will likely con-       foods and crops off the market. On
farmers and grain elevator operators       tinue. As the New York Times stated         October 2nd, the lawsuit was headed
expressed anger at Aventis and the         October 17th, Aventis may be hit with a     off by the FDA, but only by admitting
biotech industry. The state Attorney       barrage of lawsuits: "Just what farmers     in court that they actually have had
General's office in Iowa criticised        knew and when they knew it could end        no real policy in place on genetically
Aventis and seed dealers for not tell-     up playing a role in lawsuits growing       engineered foods and crops since
ing farmers to keep StarLink out of        out of the affair, according to lawyers     1992.       In effect, all so-called
the human food chain. As one Iowa          who handle agriculture cases. Aventis       "regulation" up until now has been
grain elevator operator told the           and the seed companies might have a         completely voluntary on the part of
Washington Post on October 25th, "I        hard time fending off liability for the ex- Monsanto, Aventis, and the rest of
think we're just hitting the tip of the    penses of farmers, grain elevators, mill-   the biotech industry. Commenting
iceberg here. We just don't know           ers and food companies in sorting out       on the October 2nd decision, Center
what's in those elevators, and when        the mess if they did not do enough to       for Food Safety attorney Andrew
we start letting this stuff go and it's    head off foreseeable risks that mixing      Kimbrell stated: "This court decision
tested, it's going to get worse."          would occur."                               means that for almost a decade
                                                                                              these novel foods have gone
StarLink Hits the Fan                                                                         virtually unregulated in the
                                                                                              United States. American con-
Aventis, Kraft, Safeway, Mis-                     The only way the European Union’s sumers have been used as
sion Foods, Western Family,                         de facto moratorium on new GM             unknowing guinea pigs..."
Shaw's, Food Lion, Randalls,
                                                 (genetically modified) seeds is likely
Kroger, Albertson's, H.E.B.,                                                                    Inside sources report that the
and scores of other food                          to be lifted is for US farmers to be          FDA has postponed publishing
companies and supermarket                          required to segregate genetically            new proposed regulations on
chains (not to mention grain                       modified crops from those grown              genetically engineered foods,
elevators and farmers) have                             from traditional seeds.                 at least until after the Novem-
begun totalling up several                                                                      ber elections. In the aftermath
hundred million dollars in                                                                      of the StarLink controversy,
losses. Consumers claiming                                                                      the FDA understands that its
to have been poisoned by StarLink          The appalling lack of US government          forthcoming propos regulations (no
maize products filed a multi-million       regulation and the greed of so-called        mandatory labelling, no mandatory
dollar class-action suit in Chicago.       Life Science corporations to rush un-        safety testing, no required liability in-
Kraft and a number of supermarket          tested and, in this case, likely danger-     surance) will likely set off a huge
chains have voiced dissatisfaction         ous products to market have now be-          public backlash during the legally re-
with the lack of oversight of GE crops     come obvious, even in the heartland of       quired public comment period. But
by US regulatory agencies.                 agbiotech, the United States. Polls          federal officials and the Gene Giants
                                           taken before the StarLink scandal            are caught in a terrible bind. If they
The EPA is caught between a rock           broke showed that the majority (51% in       do what most of the public wants and
and a hard place: fending off pres-        a poll by Angus Reid) of Americans           require mandatory pre-market safety
sure by the biotech industry to re-        and Canadians (60% in a poll by Unile-       testing and labelling, leading food
verse itself and declare that Cry9C        ver) were already opposed to geneti-         corporations and supermarkets will
maize was safe for humans and, on          cally engineered foods, while an over-       do what they are already doing in
the other hand, resisting pressure         whelming majority (80-94%) support           Europe and Asia, that is remove GE
from public interest groups to take all    mandatory labelling, mainly so that          foods and ingredients from their
of the nation's Bt crops-maize, cot-       they can avoid buying these controver-       brand-name products. Stores won't
ton, potatoes, and soybeans off the        sial foods. US farmers, and even a           sell products branded with the "skull
market because of their ever more          number of large food corporations,           and crossbones" of the GE label,
obvious hazards. Meanwhile, Amer-          have already begun cutting back on           and farmers will be very reluctant to
ica's overseas allies are trying to fig-   their use of GE seeds or food ingredi-       grow these crops. On the other
ure out what to do about the growing       ents, as reported previously in BioDe-       hand, if the FDA, USDA, and EPA
demand on the part of consumers in         mocracy News #29           continue to do the bidding of the bio-
their own countries to close the door      While 33% of US maize acreage was            technology industry, they risk losing
on billions of dollars of GE-tainted       GE last year, this year it fell to 19.5%.    billions of dollars in US export sales,
US agricultural imports.                   Whether or not the StarLink debacle          not to mention the political risks of
                                           represents a mortal blow to the first        provoking the ire of US consumers,
The US announcement on October             generation of GE foods and crops re-         who are now apparently awakening
27th that they would let Archer Da-        mains to be seen. Certainly a review of      to the GE food controversy with a
niels Midland, Cargill, ConAgra and        recent global developments indicates         vengeance.
other grain exporters ship StarLink-       that the crisis of credibility surrounding
contaminated maize to international        genetically engineered foods is steadily
markets only made matters worse.           increasing.
PAGE 3                                             FO E E B I O T E C H MA I LO U T                         VOLUME 6, I S S UE 7

International Fallout                      pean Commission and the Food and              Uni-Food Enterprises, Taiwan's larg-
                                           Agriculture Organisation of the United        est food company, reacted to the
On the international front, the leading    Nations are now both calling for man-         news by promising to comply with
producers of genetically engineered        datory labelling of animal feeds, a           the labelling requirements and move
crops, the US (74% of all GE crops),       move that analysts predict will all but       toward using non-genetically engi-
Canada (15% of all GE crops), and          kill non-segregated, GE-tainted US            neered ingredients. Uni-Food Enter-
Argentina (10%), face a similar di-        grain exports to Europe and Asia.             prises, with $2.6 billion in annual
lemma. If they try to use the ham-                                                       sales, produces animal feeds, dairy
mer of economic sanctions from the         Cargill Segregating                           products, frozen foods, instant noo-
World Trade Organisation to force                                                        dles, and soft drinks.
Frankenfoods down the throats of           Cargill, the world's largest grain com-
the WTO's other 131 nation-state           pany, announced in September that             Japan Says No Thanks
members, they risk provoking a trade       they are expanding their contract pro-
war and possibly even a meltdown of        duction and marketing of non-             According to an Associated Press
the entire global "Free Trade" sys-        genetically engineered maize, and will    story October 25th, Japanese authori-
tem. If they don't use the police and      strictly segregate these varieties at     ties have warned the United States
enforcement power of the WTO,              their processing plants in Paris, Illinois,
                                                                                     not to export StarLink maize to Ja-
however, more and more countries           Indianapolis, Indiana, and Liverpool,     pan. Government officials were em-
are going to make it harder and            England. As Cropchoice News (www.         barrassed after a public interest
harder for untested and unlabeled reported on Septem-       group, the Consumers Union of Ja-
GE products to get into their coun-        ber 29th, "Cargill's latest parlay into   pan, announced in Tokyo that it had
tries. For example:                        non-GMO comes at time when it and         found traces of StarLink maize in
                                           other big grain processors continue to    snack foods sold in Japanese stores
Europe, which has not approved a           downplay the demand for non-biotech       as well as in imported animal feed.
new GE crop since April 1998, told         grain. But like ADM and ConAgra, Car-     StarLink maize is prohibited in both
the US on October 11th, ac-                                                                  human and animal feed in Ja-
cording to the Bureau of Na-                                                                 pan. An earlier AP story on
tional Affairs journal, "that the                                                            October 24th reported that an
only way the European Un-                         If biotech companies and the FDA are entire 55,000 ton shipload of
ion's de facto moratorium on                           unable to keep an unapproved          US maize destined for Japan
new GM (genetically modified)
                                                  variety like StarLink out of the human was rejected after testing
seeds is likely to be lifted is                                                              positive for StarLink, "sending
for US farmers to be required                      food chain … what are they going to shock waves through import-
to segregate genetically modi-                         do once the next generation of        ers in Japan as well as other
fied crops from those grown                            bio-pharm plants begins to be         Asian countries such as
from traditional seeds..."                                    commercialised?                South Korea and Taiwan."
                                                                                             According to the AP "Japan
Meanwhile new human health                                                                   imports about 60 percent of
fears over antibiotic-resistant                                                              its food, much of it from the
genes in GE cattle feeds are prompt-       gill is making moves into the non-GMO     United States. In 1999, Japan im-
ing Europe's leading food producers        market even as they suggest it is unim-   ported 15.9 million tons of maize
and supermarket chains to ban GE           portant." Cargill's shift reaffirms the   from the United States, including
animal feeds in their meat and dairy       conclusion of a recent study carried out  10.8 million tons for animal feed, the
production. Recently a government          by professor David Bullock at the Uni-    Foreign Ministry said. The remaining
advisory board in Britain, the Advi-       versity of Illinois which found that US   5.1 million tons were for food, mostly
sory Committee on Animal Feeding           grain handlers can efficiently and eco-   for maize starch." Korea imports
Stuffs, admitted that antibiotic-          nomically segregate GE and non-GE         about eight million tons of maize per
resistant marker genes found in ge-        grain varieties by simply designating     year from the US. The Consumers
netically engineered foods and ani-        specific grain elevators, grain process-  Union of Japan and allied consumer
mal feeds may be able to transfer          ing plants, and transportation facilities groups in South Korea are calling for
antibiotic resistance to the bacteria in   as either GE or non-GE.                   a moratorium on the importation of
animals' guts, giving rise to danger-                                                all GE foods into their countries. In a
ous pathogens in humans that can't         Government officials in Taiwan an-        recent poll 82% of Japanese con-
be killed by traditional antibiotics.      nounced October 17th that they will fol-  sumers said they were opposed to
German scientists earlier this year -      low the lead of other Asian and Pacific   genetically engineered food-the high-
in a story widely reported across          countries and require mandatory label-    est level of resistance in the world.
Europe - found that antibiotic-            ling of food with genetically engineered
resistant genes from GE rape seed          ingredients. According to officials, la-  Worried officials from the U.S.
plants were combining with bacteria        belling requirements will come into       Grains Council and the National
in the stomachs and intestines of          force in 2001 - with similar measures     Maize Growers Association, two ma-
bees. The BBC reported on October          being implemented in South Korea and      jor agribusiness trade association
6th that the UK's major grocery            Japan. Taiwan is a major importer of      groups, rushed to Tokyo in late Sep-
chains, Iceland, Sainsbury, Waitrose,      US grains, importing over 4.5 million     tember to outline industry plans to
Marks & Spencer's, and Asda, are all       metric tons of maize last year. Accord-   channel StarLink into "approved mar-
removing GE ingredients from animal        ing to Cropchoice News, "The govern-      kets" and keep it out of shipments to
feed. A recent UK poll commis-             ment's decision is in response to in-     Japan. The White House also dis-
sioned by Friends of the Earth found       tense pressure and follows publication    patched a trade delegation to
63% of British shoppers wanting su-        of a Gallup poll in which 74% of Tai-     Europe. According to www.AgWeb.
permarkets to drop GM ingredients          wanese said they expected the govern-     com, an "emergency meeting" took
from animal feeds. As reported in          ment to require labels on GMO food."      place in Washington on October 6th
BioDemocracy News #29, the Euro-           According to Reuters news agency,         with agribusiness representatives
PAGE 4                                            FO E E B I O T E C H MA I LO U T                          VOLUME 6, I S S UE 7

meeting with high officials from the      This may soon change however as EU            As Larry Bohlen of Friends of the
Clinton/Gore administration. A Na-        markets for Argentina's processed oils        Earth stated in a press release Octo-
tional Maize Growers Association of-      and animal feed begin to close down,          ber 20th, "The EPA should not allow
ficial expressed the hope at this         and as EU and Asian markets for Bra-          Bt maize to be planted next year un-
meeting that Japan would soon ap-         zilian soybeans (where GE soya is ille-       less they can assure mill workers,
prove StarLink for animal feed, but       gal) continue to rapidly expand.              farmers and rural residents that they
after the recent developments in Ja-                                                    will not develop allergies and respira-
pan, this scenario appears unlikely.      Scientific Warning                            tory problems. Farmers could be af-
                                                                                        fected and not even know the reason
Latin Fallout                             On the scientific front, the StarLink con-    why due to the EPA's failure to test
                                          troversy has shone the spotlight once         for health impacts."
The StarLink scandal has spread into      again on the hazards of Bt-spliced
Mexico and Latin America as well,         crops in general, not just the Cry9C va-    In a related scientific development,
with TV coverage by networks such         riety. In dramatic testimony presented      researchers at the University of Min-
as Telemundo, Univision, and CNN.         to the EPA October 20th, a highly re-       nesota have found that Bt maize
According to Reuters, Mexico Green-       garded international expert, Dr. Michael    does indeed pose a major hazard to
peace protesters on October 11th          Hansen of the Consumers Union,              Monarch butterflies, since Monarchs
"wearing white overalls and mime-         pointed out that: (1) The EPA has ig-       are found in concentrated numbers
like white masks entered an upscale       nored an EPA-funded study that shows        in and around milkweed plants in
Mexico City supermarket and boldly        that Bt toxins have induced signs of al-    maize fields throughout the maize
labelled mainstream maize flour           lergenicity in agricultural field workers,  growing season. Researchers were
products that contain genetically         as well as an additional study indicating   surprised to find, according to an Oc-
modified maize with stickers bearing      allergenicity in lab rats; (2) the EPA has  tober 25th article in the Los Angeles
a giant "X," for "X-perimental." Maize    failed to require tests of all Bt crops for Times, "just as many" Monarchs
flour is the main ingredient in tortil-   allergenicity using the blood serum and     were breeding and feeding within
las, Mexico's most important                                                                  maize fields as in non-
food product.       Greenpeace                                                                agricultural sites.   In other
also announced in October                                                                     words, millions of Monarch
that 450 tortilla factories                     Why was it left to Friends of the Earth butterflies throughout the Mid-
across Mexico will use only                       to commission the tests that found          west maize belt are feeding
locally produced (non-GE)                                                                     on their only food source,
                                                         StarLink in taco shells?
maize in their products. Mex-                                                                 milkweed plants, just at the
ico is the world centre of                         The food industry needs to get its         same time that Bt maize
biodiversity for maize, with                                    act together                  plants are shedding their toxic
25,000 varieties found in the                           (New Scientist magazine               pollen, pollen which lab and
country.      Environmentalists                             7th October 2000)                 field tests have conclusively
warn that pollen and "genetic                                                                 shown are poisonous to the
pollution" from genetically en-                                                               butterflies. The biotech in-
gineered maize plants could                                                                   dustry has worked overtime in
cause irreparable harm to Mexico's        chemical reagents from these earlier        the past year trying to maintain that
native maize varieties. Mexico is         studies-even though these tests could       Bt pollen poses insignificant risks to
also the winter home for Monarch          be done quickly with little expense; (3)    Monarch butterflies. Besides the Bt
butterflies, who migrate south from       the EPA have failed to carry out ade-       threat, scientists have warned that
Canada and the United States. An          quate safety tests for StarLink or any of   Monsanto's Roundup herbicide,
important study at Cornell University     the other Bt crops which they have ap-      sprayed on GE soybeans and other
in 1999 found that the pollen from Bt     proved; (4) government "acute toxicity"     crops, kills off the Monarch caterpil-
maize kills Monarch butterflies.          protocols are based on the erroneous        lar's sole food source, the milkweed
                                          scientific assumption that Bt toxins        plant.
According to a report posted by UK        generated by gene-spliced plants in the
geneticist Mae-Wan Ho on the inter-       field are identical to Bt toxins produced   Critics have pointed out that not only
net October 18th, Argentina, the sec-     by bacteria in the laboratory; and (5)      is Bt killing Monarchs, but that it is
ond largest producer of genetically       the government continues to downplay        also killing beneficial soil micro-
engineered crops in the world after       the potential hazards of antibiotic resis-  organisms and thereby damaging the
the United States, "is having second      tant marker (ARM) genes-found in Bt         entire soil food web; as well as killing
thoughts as the world market [for GE      crops and all genetically engineered        beneficial insects such as lacewings
soybeans and maize] collapses.            foods-even though recent studies un-        and ladybugs. Scientists also warn
This was the message conveyed by          derline that ARM genes have the ability     that bees and birds are likely being
both the Environment Minister Ruben       to transfer antibiotic resistance to soil   harmed by eating insects that have
Dario Patrouilleauz, who headed the       bacteria, bees, mammals, and other          ingested the Bt toxin. In addition, or-
Argentinean delegation to the Bio-        organisms, including humans. As Han-        ganic farmers, 2/3 of whom in the
safety Protocol Conference in Mont-       sen reminded the EPA in May 1999,           United States use a non-genetically
real, and the Director General of Cul-    the British Medical Association, which      engineered form of Bt spray as an
tural Affairs, Raul Alfredo Estrado       represents some 85% of the doctors in       emergency pest management tool,
Oyuela. Both spoke at a special Par-      Britain, released a report calling, in      have pointed out that crop pests
liamentary debate on agricultural bio-    part, for a prohibition on the use of anti- (beetles, boll worms, maize borers)
technology in La Plata, Federal Prov-     biotic-resistant marker genes in geneti-    will inevitably develop resistance to
ince of Buenos Aires, on September        cally engineered plants. For Dr. Han-       widely cultivated Bt-spliced crops,
26th." Monsanto has been very suc-        sen's full testimony see:                   creating superpests that will over-
cessful thus far in getting 84% of Ar-          whelm organic farmers and make or-
gentina's soybean farmers to plant                                                    ganic agriculture more difficult, if not
GE (Roundup Ready) soybeans.                                                          impossible. For all of these reasons,
PAGE 5                                             FO E E B I O T E C H MA I LO U T                             VOLUME 6, I S S UE 7

Greenpeace, the Center for Food
Safety, and a broad coalition of pub-
lic interest groups - including the Or-    Who should pay for the costs
ganic Consumers Association - are
preparing litigation to have all geneti-
cally engineered Bt crops taken off
the market.
                                           of the StarLink scandal?
Finally, on another scientific note,       The US is exporting a variety of genetically engineered maize that has not been
even the pro-biotech New Scientist         approved for human consumption in the US. StarLink was grown in 1998 on
magazine (UK) pointed out on Octo-         about 10,000 acres in the US, some 250,000 acres in 1999, and more than
ber 7th what has now become pain-          350,000 acres in 2000. Who will pay for the costs to farmers, country elevators,
fully obvious: if biotech companies        distributors, food processors, retailers, exporters, and overseas entities in the
and the FDA are unable to keep an          maize-products food chain, to rid the global food supply of this potential allergen?
unapproved variety like StarLink out       What can importing countries do?
of the human food chain and con-
tained in restricted farm plots, what      Although the Cartagena Protocol on Biosafety is not yet in force, signatories may
are they going to do once the next
                                           wish to take action now to prevent the import or demand compensation for costs
generation of bio-pharm plants begin
                                           they may incur as a result of having already imported a variety of genetically-
to be commercialised, plants con-
                                           engineered maize from the United States that has not been approved for human
taining vaccines and pharmaceutical
drugs, crops that could harm and
poison unsuspecting consumers?
                                           International Legal Issues
As the magazine concluded, "We
can't ignore the taco fiasco... Why
was it left to Friends of the              According to customary international law, States do have a duty to ensure their
Earth to commission the tests                                                                       actions do not cause harm in
                                                                                                    other States. This common
that found StarLink in taco                      This would seem to indicate that the law principle was extended to
shells?    The food industry                        US government is liable for what
needs to get its act together                                                                       international environmental
                                                  could be characterised as reckless                pollution in the 1941 “Trail
before the new generation of
                                                  and negligent failure to ensure the               Smelter” arbitration and is
modified plants arrives. Next
time, the consequences could                         segregation of maize it has not                further elaborated in the 1972
be serious."                                     approved for human consumption -                   Stockholm Declaration and
                                                   because it could cause allergies -               the 1992 Rio Declaration, as
                                                                                                    well as several rulings of the
For the moment the propo-                            from maize that is destined for
nents of the Biotech Century                                                                        International Court of Justice
                                                                 human use.                         (ICJ). In 1996, the ICJ issued
seem to have survived the lat-
est storm. Unlike the FDA's                                                                         an advisory opinion regarding
last recall of a genetically engineered    the legality of nuclear weapons noting that “the environment is not an abstraction
product, the nutritional supplement l-     but represents the living space, the quality of life and the very health of human
Tryptophan, in 1989, which left in its     beings, including generations unborn. The existence of the general obligation of
wake 37 deaths and 5,000 injuries,         States to ensure that activities within their jurisdiction and control respect the envi-
there are no dead bodies of StarLink       ronment of other States or areas beyond national control is now a part of the cor-
victims visible on the TV news, but        pus of international law relating to the environment.”
the Frankenfoods controversy contin-
ues to grow. The question seems to         This would seem to indicate that the US government is liable for what could be
be no longer, if there will be a bio-      characterised as reckless and negligent failure to ensure the segregation of maize
tech Chernobyl, but only when.             it has not approved for human consumption - because it could cause allergies -
                                           from maize that is destined for human use. The maize in question contains the
                                           Bacillus thuringiensis subspecies tolworthi Cry9C protein and the DNA necessary
(Ronnie Cummins, Organic Consum-
                                           to produce this protein. There is evidence that Cry9C is heat stable and resistant
ers Association,
                                           to degradation in gastric juice, the two most important indicators of allergenicity.
                                           This maize is marketed with the trade name “StarLink,” a product of the Aventis
                                           CropScience company. But because the US commodities system is not prepared
(*) Genetically Engineered Food
                                           to keep bulk grains separated, StarLink maize has been distributed throughout the
Alert founding members include:
                                           US domestic and export markets. Independent DNA testing has found the Star-
Center for Food Safety, Friends of         Link protein in a variety of consumer products in the US and in Japan, where re-
the Earth, Institute for Agriculture       cent legislation sets a zero tolerance for the import of unapproved agricultural
and Trade Policy, National Envi-           products. In the absence of an effective segregation system, the US approval itself
ronmental Trust, Organic Consum-           could be considered reckless and negligent.
ers Association, Pesticide Action
Network North America, and the             Negligence is bad enough. How about intentional harm? Once the contamination
State Public Interest Research             was discovered (not by government inspectors, but by non-governmental organi-
Groups.                                    sations opposed to genetically-engineered foods), the US Department of Agricul-
                                           ture moved to get rid of the unwanted product by officially approving StarLink for
                                           export - placing the burden on importing countries to object to StarLink imports
                                           and to test their current supplies. Also, the US Environmental Protection Agency
                                           (EPA), which regulates StarLink as a plant pesticide, has published notice domes-
                                           tically that Aventis is seeking an exemption for StarLink’s Cry9C DNA and the
                                           Cry9C protein, to allow its appearance in human foods as well as animal foods.
PAGE 6                                            FO E E B I O T E C H MA I LO U T                          VOLUME 6, I S S UE 7

This approval is subject to a public      international law, States have the right      them. Maize futures prices have
comment period and a final ruling by      to seek compensation from another             slipped on the Chicago Mercantile
the EPA. The US may hope these            State responsible for the damages -           Exchange based on fears that the
actions will be construed by the          whether to persons, property, the envi-       continuing StarLink maize contro-
courts as immunisation from liability;    ronment, or economic. While States            versy will hamper the potential to
could they not also be construed as       have shown themselves, over time, to          make good on ambitious targets for
wilful and intentional disregard for      be reluctant to invoke international li-      U.S. maize exports.
public health and international law?      ability claims against other States,
                                          there have been cases in which com-         Who will pay for all of these eco-
It would be interesting to learn what     pensation was negotiated “without ref-      nomic disruptions? Attorneys in the
the International Court of Justice        erence to legal liability” - such as when   US are preparing for massive liability
(ICJ) might think about the United        the US paid Japan $2 million in 1944        litigation, as affected parties all sue
States’ StarLink-related acts of both     as compensation for injuries caused by      each other seeking recovery of their
omission and commission. The ICJ          nuclear testing in the Marshall Islands.    damages. Because StarLink’s regis-
could become involved in two ways.        Countries also have the right to impose     tration with the EPA was limited to
First, inter-governmental bodies          civil liability on private actors - such as animal feed and industrial use, in-
authorised by the United Nations          Aventis - in their own courts or in the     jured parties could seek to hold
Charter can ask the ICJ to render an      courts of the country where the act was     Aventis responsible for the failure to
advisory opinion on relevant legal        done.                                       segregate. Many farmers claim that
matters. For example, the World                                                       Aventis failed to advise them of the
Health Organisation or the United         In the United States, efforts to segre-     requirement to sell their StarLink
Nations’ food safety body, known as       gate StarLink after co-mingling are ex-     crops only for animal feed and other
the Codex Alimentarius Commission,        pected to cost between $100 million         uses than human consumption. Oth-
could ask the ICJ for an advisory         and $1 billion. The United States De-       ers claim the company failed to warn
opinion on the legality of exporting a    partment of Agriculture is attempting to    them of the need to plant 660-foot
potential allergen banned in                                                                   buffer zones of non-StarLink
the country of origin. But hu-                                                                 maize around their StarLink
man health is not the only                      Attorneys in the US are preparing for fields, to avoid genetic pollu-
consideration.      All maize                   massive liability litigation, as affected tion.         Cross-pollination be-
cross-pollinates freely. Any                       parties all sue each other seeking          tween adjoining crops could
StarLink grain that may be                                                                     constitute actionable trespass
                                                      recovery of their damages.
planted rather than eaten                                                                      where StarLink’s DNA in-
could result in genetic drift,                   Because StarLink’s registration with vades neighbouring fields and
affecting related varieties of                    the EPA was limited to animal feed           deprives non-StarLink pro-
plants and adjacent ecosys-                        and industrial use, injured parties         ducers, especially those who
tems - a matter of particular                   could seek to hold Aventis responsi- are certified organic, access
concern to those regions that                       ble for the failure to segregate.          to markets. No doubt antici-
are centres of diversity for                                                                   pating an onslaught of law-
maize. The Conference of                                                                       suits, Aventis is attempting to
the Parties to the Convention on Bio-     buy back crops from farmers who             get farmers to sign a notice, back-
logical Diversity could test whether it   planted StarLink seed on some               dated to April 2000, indicating they
qualifies as an “authorised” body un-     315,000 acres this year, for re-sale to     were aware of the segregation obli-
der the UN system, and ask for an         animal feedlots, dry-mill ethanol pro-      gations; those who do not sign may
ICJ advisory opinion on the environ-      ducers (as wet-milling generates a by-      not be eligible for the buy-back pro-
mental issues.                            product that re-enters the human food       gram underwritten by US taxpayers.
                                          system), or other industrial uses.
Secondly, the Convention on Biologi-      Aventis has said it will reimburse the      However, the situation also opens
cal Diversity (CBD) stipulates that       US government for the costs of this         markets for non-StarLink producers,
disputes that cannot be settled other-    buy-back program. However, the buy-         an opportunity that other agricultural
wise may be submitted to the ICJ. A       back from farmers represents only a         countries are striving to fulfil. Japan,
dispute could easily arise, if parties    small portion of the total costs to be      which usually buys about 30 percent
choose not to import co-mingled US        incurred in post-harvest reclamation        of US maize exports worth some
maize or seek compensation and            throughout the food system.                 $1.5 billion, has asked the US to en-
redress from the US if they already                                                   sure that shipments do not include
have inadvertently done so.        Al-    So far, three multi-million dollar recalls  StarLink. Some Japanese compa-
though the US is not party to the         of taco shells found by anti-GMO activ-     nies, however, are looking else-
CBD, it is a signatory, which estab-      ists to contain StarLink maize have         where - to China, South Africa and
lishes an obligation on the US to not     been announced by the Kraft, Safeway        Argentina - for supplies, even if it has
undermine the objectives of the           and Western Family companies, while         to pay a premium price. The Euro-
CBD. In such a case, the ICJ could        the US Food and Drug Administration         pean Union, too, is questioning
be asked to settle the matter judi-       has posted a recall on 297 brand-name       whether the US can distinguish be-
ciously.                                  maize products. StarLink is costing         tween approved and non-approved
                                          Archer Daniels Midland (ADM) at least       products. The US has sent delega-
Compensation and Redress                  $10,000 a day for extensive testing and     tions to both Japan and Europe to try
                                          monitoring of maize shipments at its        to calm importers’ concerns about
Access to compensation may be-            processing plant in Decatur, Illinois.      Starlink contamination.
come important in countries where         Elevators whose shipments test posi-
efforts to identify and segregate Star-   tive for StarLink are losing as much as     Last year, the world’s first global
Link maize from maize destined for        $15,000 or more in extra freight costs      class action suit was filed in US fed-
human consumption will become ex-         as well as lower prices from the animal     eral court against Monsanto and
tremely costly.      Under customary      feed operations that eventually accept      other agribusiness corporations on
PAGE 7                                               FO E E B I O T E C H MA I LO U T                           VOLUME 6, I S S UE 7

behalf of all farmers everywhere. The          Disposal (Basel Protocol), the liabil-
suit contends that Monsanto hastened
the introduction of genetically engi-
                                               ity lies with the carrier, shipper, or
                                               other party found to be at fault.
                                                                                          Why Africa must
neered organisms into markets without
sufficiently assessing environmental or
                                               Where fault cannot be proven, strict
                                               liability is placed on the exporter for    not accept bio-
human health impacts, and that the cor-        transportation incidents or on the
porations deliberately sought to create
a cartel in order to monopolise the
                                               disposer should damages occur af-
                                               ter receipt. All potentially liable par-   technology in
global maize and soybean markets.              ties are required to carry insurance,
The suit is brought by a coalition of
prominent law firms specialising in anti-
                                               bonds, or other financial guarantees
                                               covering liability in advance.
                                                                                          agricultural sys-
trust litigation on a contingency basis,
meaning they will only be paid if they
win. A victory would hold Monsanto
                                               Do any of these models properly
                                               allocate the liability for environ-
and the other companies liable for envi-       mental, human health or socio-             In the last Mailout (Vol. 6, Issue 6,
ronmental damages, negative conse-             economic damage that may be                15.09.00), we reproduced a letter,
quences to public health, and any costs        caused by GMOs? In cases in                published in the Washington Post,
incurred by farmers around the world           which signatories properly imple-
                                                                                          from the Nigerian Minister of Agricul-
resulting from genetic contamination.          mented the Biosafety Protocol and
                                                                                          ture and Rural Development extolling
                                               damage resulted nonetheless, there
                                                                                          the virtues of agricultural biotechnol-
Need for a Biosafety Liability Regime          may be one answer. What about
                                                                                          ogy. Below is the reaction of Friends
                                               cases in which signatories may not
                                                                                          of the Earth Togo to the position of the
The Cartagena Protocol on Biosafety            properly follow the global biosafety
                                                                                          Nigerian Minister for Agriculture and
foresees that Parties should endeavour         rules? And what about cases in-
                                                                                          Rural Development concerning bio-
to complete the development of rules           volving non-parties?
on liability and
compensation for
damaged caused                                                                            No one can deny that plant varieties
by GMOs "within                                                                           grown today are the result of the slow
                                       Aventis is attempting to get farmers               and patient work of peasants over the
four years", but it                     to sign a notice, backdated to April
could take years                                                                          centuries. It is they who started by
                                       2000, indicating they were aware of                domesticating, then selecting and
to      reach      an
agreed        regime.                        the segregation obligations;                 crossing existent varieties to obtain
But ironically, it                       those who do not sign may not be                 new ones better adapted to their
may be the pri-                           eligible for the buy-back program               needs. It is also they who, every sea-
vate sector that                            underwritten by US taxpayers.                 son, kept back part of the harvested
cannot wait. Ac-                                                                          seed for replanting and thus preserved
cording to Swiss                                                                          for us, from harvest to harvest, a fabu-
Re       Life     and                                                                     lous heritage.
Health, one of the giant Swiss insur-
ance companies, “Genetic engineering            It will be years before the parties to    The Convention on Biological Diversity
is changing the risk profiles of the phar-      the Cartagena Protocol on Biosafety       (CBD), which came into force in De-
maceuticals, agricultural and nutritional       negotiate a liability regime. The ex-     cember 1993 and has been ratified by
sectors permanently, without it being           perience with StarLink suggests it        more than 170 countries, requires sig-
possible to predict the risk potential…         would be prudent to begin the effort      natories to protect and maintain the
the decisive factor is not whether it is        immediately. Meanwhile, existing          rights of communities, farmers and
dangerous, but rather how dangerous it          international law provides ample          indigenous peoples concerning their
is perceived to be.”                            scope for States to seek compensa-        natural resources and traditional
                                                tion and otherwise defend them-           knowledge systems (Art. 8j and 10 of
Numerous international agreements               selves from StarLink contamination        the Convention). The CBD also stipu-
have been negotiated to deal with liabil-       and resulting economic dislocation.       lates that the benefits arising from
ity and compensation that may be                                                          commercial use of natural resources
caused by other risky business. For             (Kristin Dawkins, Institute for Agri-     and communities’ traditional knowl-
example, in the case of oil pollution at        culture and Trade Policy, www.iatp.       edge will be shared equitably.
sea, liability rests with the private sec-      org)
tor, backed up by an international oil                                                    The Convention thus explicitly recog-
pollution compensation fund. In the                                                       nises the intrinsic value of community
case of nuclear damage, the duty to                                                       knowledge systems, and gives more
compensate rests on the operator of                                                       importance to the use and conserva-
the nuclear installation, exonerating all                                                 tion therefore than it does to systems
other parties who may have been in-                                                       used and commercialised by multina-
volved in the development of this high-                                                   tional companies.
risk form of energy. The Convention on
International Liability for Damage                                                        Despite this fact, Mr. Hassan Adamu,
Caused by Space Objects places the                                                        Minister for Agriculture and Rural De-
liability on States, but only for personal                                                velopment of Nigeria, published an
injury and not damage to or loss of                                                       article in the Washington Post of
property. Under the Basel Protocol on                                                     11.09.2000 encouraging the introduc-
Liability and Compensation for Damage                                                     tion of biotechnology into the agricul-
Resulting from Transboundary Move-                                                        ture of developing countries, Africa in
ments of Hazardous Wastes and their                                                       particular.
PAGE 8                                               FO E E B I O T E C H MA I LO U T                         VOLUME 6, I S S UE 7

  According to Mr. Adamu, agricultural       are generally the products of large-        American groups that are advising
  biotechnology is a solution to end the     scale cultivation (maize, soya, etc.)       Africans to be wary of agricultural bio-
  suffering endured by millions of Afri-     destined for export and/or for animal       technology. They claim to have the
  cans, principally children, as a result    feed, rather than food crops eaten          environment and public health at the
  of malnutrition and starvation. While      every day by peasants.                      core of their opposition, but scientific
  protesting against those who oppose                                                    evidence disproves their claims that
  agricultural biotechnology, he lists its   We wish also to remind Mr. Adamu of         enhanced crops are anything but
  strong points:                             two points:                                 safe".

  "Agricultural biotechnology, whereby       §   Biotechnology companies are not         On the contrary, bearing in mind that
  seeds are enhanced to instil herbicide         always honest, in particular re-        Friends of the Earth’s campaign
  tolerance or provide resistance to in-         garding their real objectives           against agro-biotechnology is based
  sects and disease, holds great prom-           which are none other than a mad         on the experiences, knowledge and
  ise for Africa and other areas of the          race for profit and for patents.        opinions of scientists, farmers and
  world where circumstances such as                                                      non-governmental organisations
  poverty and poor growing conditions        §   The complexity of the science           which are developing throughout the
  make farming difficult. Fertiliser, her-       involved, the degree of technical-      world different agricultural models
  bicides, pesticides, machinery, fuel           ity, and the cost can only margi-       which rely on local knowledge rather
  and other tools that richer nations            nalise peasant farmers while giv-       than on imported and expensive tech-
  take for granted as part of their farm-        ing the advantage to those who          nologies.
  ing regimen are luxuries in poorer             are the most well off.
  countries. Moreover, the soil in tropi-                                                Friends of the Earth Togo calls on
  cal climates, or in areas with inhospi-    It is not therefore agricultural biotech-   African countries to resist the use of
  table weather; can not be farmed suc-      nology, which is going to solve the         agricultural biotechnology as long as
  cessfully in the more traditional          problems of hunger throughout the           there is evidence, which confirms the
  ways".                                     world.                                      real risks of this technology. FoE is
                                                                                         surprised to see an African minister
  Friends of the Earth Togo believes         What Friends of the Earth Togo pro-         encouraging the use of agro-
  that this politically correct argument     poses is that the strategy to combat        biotechnology without having secured
  hardly stands up to examination of         hunger must be part of a sustainable        concrete guarantees from the multi-
  the facts since transgenic varieties       development process which incorpo-          national companies concerned which
  currently commercialised by multina-       rates a number of measures: cancel-         are the sole players in this market.
  tional companies have been devel-          ling the debts of southern countries,
  oped to meet the needs of farmers in       redistribution of land to small peasant     Today more than ever it is vital to in-
  developed countries, not those of de-      farmers, adoption of techniques             voke the Precautionary Principle
  veloping countries. The truth is that a    adapted to local conditions which re-       against the introduction of biotechnol-
  majority of transgenic plants contain a    spect the environment, increase of          ogy in Africa. A single word has to be
  herbicide-tolerant gene, which is far      foreign aid.                                enforced: caution.
  from being a priority for countries in
  the South. Even if research is start-      As far as Mr; Adamu is concerned,           (Bernard Hakizimana, FoE Togo)
  ing to be undertaken to develop ge-        the above proposal:
  netically modified seeds resistant to
  salinity or to drought, the long-term      "could be the result of the well-
  results are far from conclusive. It is     meaning but extremely misguided
  not by chance either that GM seeds         attempts by European and North

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B-1060 Brussels,                                  articles. Opinions expressed in this publication do not necessarily re-
Belgium,                                          flect the opinion of the FoEE Biotechnology Programme unless it is
T. 32-2-542.01.80,                                explicitly stated.
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