Legal loopholes and strained relationships?

BEYOND GM has highlighted that post-Brexit relationships with Scotland and Wales and the EU could be strained following Westminster's decision on the GM Bill on Wednesday (June 15th), while ambiguities leave the door open for several future legal challenges. 

Beyond GM, which was established in 2014 as an independent initiative with the goal of involving the public more in discussions around genetically modified organisms (GMOs) has pointed out that the Bill to deregulate genetic engineering technologies in farming and food is not one Scotland will favour, as the country had already indicated that it would not change its regulations around gene-edited products.

It also questions whether the bill breaks the UK/EU TCA non-regression clause which requires that parties do not weaken or reduce their levels of social, labour and environmental protection below those in place at the end of 2020. 

While the bill’s impact assessment states that the EU cannot realistically demand verification checks for whether non-GE foods are truly non-gene edited foods because there is no validated method of differentiating between them. The government’s white paper response to the National Food Strategy, leaked by the Guardian, notes that for gene-edited (‘precision bred’) foods there will be a move away from the standard EU checking levels.

A recent EFRA committee session on the UK/Australia trade deal suggests that, in fact, the UK no longer has the funds or staff to carry out border checks for things like GMOs or the presence of pesticides, the group claims. 

The group also stresses that the future situation could also become ambiguous, with developers left open to legal challenge. 

This is because the Environment Act 2021 states that environmental principles must be taken into account when making future government policy, but the Genetic Technology bill states that no environmental assessment is necessary for gene-edited organisms grown in open fields in England. 

"Early coverage of the Bill has suggested that gene editing is different from genetic modification in that it does not involve the insertion of foreign DNA. This is not correct. Gene editing is a term that encompasses a broad range of techniques. It can and does involve multiple cuts in an organisms’ DNA and it can and does involve the insertion of foreign DNA. The more ambitious the traits, such as disease or drought resistance or producing specific nutrients a plant would not naturally produce, the more likely that the developer will use foreign DNA. Both field trials currently being conducted in England under new regulations involve plants that were created using foreign DNA," the group states.

"The current ACRE guidance on organisms that will be exempt from regulation under the terms of the bill suggests organisms created using foreign DNA could have occurred naturally (via “natural transformation”). This is purely hypothetical and not a sound basis for such a significant change in legislation." 

The group also stresses that the future situation could also become ambiguous, with developers left open to legal challenge. 

The Environment Act 2021 states that environmental principles must be taken into account when making future government policy, but the Genetic Technology bill states that no environmental assessment is necessary for gene-edited organisms grown in open fields in England, creating one area of potential conflict. 

Another area for legal challenge involves patents surrounding the processes and (in some cases) organisms created using gene editing. The primary condition of such a patent is that the developer must prove their invention could not have occurred in nature and was the result of a man-made “inventive step”. But Beyond GM says it is not possible for a developer to have used a patented process to create an organism and then claim that that organism is the result of natural transformation. 

"The language and the permissions granted within the bill may open developers up to legal challenge," the group states.