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New Forms of GMOs Highlight Biosecurity Loophole

7 March 2006

New Forms of GMOs Highlight Biosecurity Loophole

Threats posed by new forms of GMOs under development represent a fundamental challenge to New Zealand’s approach to biosecurity labelling requirements.

Food plants genetically engineered to produce pharmaceuticals and industrial substances are being field trialled in the US and carry a wholly different level of risk for New Zealand’s environment and the integrity of its food supply, according to a Sustainability Council report released today.

A relatively new treaty that regulates the international trade in living GMOs, the Cartagena Protocol, has the potential to be a leading tool in checking the unintended flow of such GMOs across the border.

However, at the last meeting of the parties to the Protocol in May, New Zealand vetoed the development of rules that would oblige anyone sending food and animal feed to specify not just the intended content of shipments but the actual content, as it relates to living GMOs. New Zealand was one of just two countries – of 119 present - to object to proposals for requiring actual content of these shipments to be labelled. It was also the only one to question whether liability rules were required at all under the Protocol.

Its position to date appears to have been driven by concerns that labelling requirements would create additional costs for New Zealand’s conventional agricultural exporters. However these exporters are increasingly required to give assurances that food products have no detectable GMO content as a result of strong consumer resistance in major markets to GMOs of any form, and at any level.

It is the potential "unintended" flow of GMOs across the border and into the environment and the food chain that is the bigger issue for New Zealand. Small amounts of these new forms of GMOs can do the same damage whether or not their import is intended. Mainstream institutions recognise that new forms of GMOs in particular pose environmental risks that differ from other organisms, and any contamination of food by GMOs carrying pharmaceuticals would have very serious commercial consequences. Yet prior clearance is currently required under the Hazardous Substances and New Organisms Act only if GMOs are "knowingly" imported.

The Council’s report, Brave New Biosecurity, concludes that it is very likely that on the basis of trade interests alone the nation should be a supporter of strict labelling rules for unintended GMO content, not an ardent opponent. When the parties to the Protocol meet again next week, New Zealand has the chance to realign its stance.

The report is available at: http://www.s


Executive Summary

The Cartagena Protocol is a treaty designed to enhance biosecurity by providing for prior consent to international shipments of living GMOs – known as Living Modified Organisms (LMOs). It is motivated by concern to protect biodiversity and also carries significant trade implications.

The Protocol has the potential to deliver two important upgrades on New Zealand’s existing biosecurity:

- Requirements for labelling that would identify those LMOs not intended to be a part of a shipment, which could otherwise escape detection; and

- A new liability regime to provide compensation for any harm resulting from importing an LMO, when redress would otherwise generally not be available.

Such provisions (currently under negotiation) are brave new biosecurity in response to a new world in which the range of LMOs on offer will include threats such as organisms carrying pharmaceuticals, plastics, or sterility characteristics.

At the time Government considered ratifying the Protocol in September 2004, the balance of officials’ advice leaned towards deferment. Ministers however announced they had decided to ratify:

- "Because New Zealand is a good international citizen"; and because

- "We are committed to comprehensive biosecurity";

- "We support people being informed about what's imported and exported"; and

- "To ensure the best interests of New Zealand and other agricultural exporters are taken into account in the development of the Protocol".

In May 2005 officials from the Ministry of Foreign Affairs and Ministry for the Environment submitted their proposed negotiating positions for a Protocol meeting in Montreal. The proposed positions narrowed the focus to the pursuit of not just trade interests, but largely ones that depend on New Zealand becoming a significant LMO exporter, and were approved.

At those Montreal negotiations, New Zealand was the strongest opponent of measures that would provide for:

- effective prior informed consent of LMO contaminated shipments; and

- effective sanctions for any harm caused and non-compliance.

New Zealand was one of only two nations to reject a series of proposed framings of the labelling provisions that are required to properly operationalise the Protocol, and it alone questioned whether a liability regime was required at all.


While the Protocol carries clear measures for handling intended shipments of LMOs, unintended LMO contaminants in food and feed are a critical point of negotiation. New Zealand supports requiring labelling for "intended" content, but not for the "actual content" of such shipments. The concern underlying the position is that this may impose testing costs on conventional (non-LMO) exporters. However, given persistent consumer resistance to LMO contamination, such testing is increasingly becoming routine.

A focus on such risks to exporters in official documentation has been at the expense of examining risks on the other side of the equation – the damage that could result from unintended imports of LMOs. Labelling requirements are a core biosecurity question with important environmental and economic dimensions.

Mainstream institutions recognise that new forms of LMOs in particular pose environmental risks that differ from other organisms. Prior informed consent requires that labelling specify the actual content. Labelling is a vital aid to checking a free flow across the border of unintended LMO contaminants.

In economic terms, conventional food producers are exposed to financial damage from LMO contaminants entering the supply chain – domestically and through re-export. Even if it is assumed New Zealand becomes a significant exporter of LMOs, it is likely that the balance of trade interests alone favours New Zealand supporting strict labelling rules for unintended LMO contaminants.


There are well documented financial risks arising from LMO contamination of conventional food products. Uncertainty surrounds the potential magnitude of environmental harm due to the lack of knowledge of environmental effects.

New Zealand’s approach to liability under the Protocol has been to relitigate the need for such rules and to seek to delimit their scope. A concern expressed in official documents is that if the Protocol were to set liability rules, it would force New Zealand to change its domestic law. This law currently provides a de facto subsidy for LMO operators via relief from liability for the more serious risks.

If considered in an international context, the national interest question is the overall balance of risk to New Zealand parties – financial risks from importing LMOs, versus the risk of claims for harm caused to others. The balance of advantage overwhelmingly favours New Zealand supporting strong liability arrangements if it does not become a significant LMO exporter. As in the case of labelling rules, even if the nation were to develop an LMO export industry, binding liability arrangements under the Protocol are still likely to be in New Zealand’s interest. They would also support the principles advanced at the time of ratification.

An assumption implicit through the official documentation is that New Zealand will become a significant exporter of LMOs. This is just one possible scenario for agricultural development, and ministers state that they are agnostic as to the desirability of LMO exports emerging, yet other scenarios are largely unexplored.

Moreover, there is no systematic analysis of the overall balance of risk with respect to imports and exports, and between trade and environment considerations. The Sustainability Council’s analysis is that key positions being taken are very likely to work against the balance of New Zealand’s interests.

The stakes are therefore not simply that New Zealand fails to back important environmental protection measures. Current negotiating positions are antagonistic to biosecurity procedures New Zealand will want to depend on in future to protect the integrity of its food products and access to premium export markets. Further, New Zealand’s willingness to use blocking tactics in Protocol negotiations is impairing the ability of the other nations to obtain such protection.


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