Issue 170: Labelling and Liability

The 27th session of the Codex Alimentarius Committee on Food Labelling met in Ottawa, 27-30 April of this year. (Canada is the host country for this aspect of the work of Codex.) Canada, along with a number of other countries, went to the meeting with draft recommendations, which were complementary, if not identical, to the U.S. draft. Codex Alimentarius was established in 1962 by the World Health Organization (WHO) and the Food and Agriculture Organization (FAO) of the United Nations "to guide and promote the elaboration and establishment of definitions and requirements for foods, to assist in their harmonization and, in doing so, to facilitate international trade". (This is Codex Alimentarius, 1995) Like other international agencies and processes of a governmental or para-statal nature, very often the real power points and issues of Codex may be hidden in subtle linguistic formulations. Shifts in political position may never be stated, but the keen observer can note them in changes in language, as with the April meeting of the Codex Committee on Food Labelling.

Canada went into the meeting in full agreement with the US, apparently, that there can and should be NO labelling of 'foods produced through biotechnology.' This phrase, which does not distinguish between product and process, has been the terminology used in Codex up to now.

Canada came out of the meeting as chair of a committee charged with trying to negotiate a way out of the impasse over the labelling of GE foods which was created by the intransigence of the US and its corporate sponsors that there can be no labelling of GE foods on the one hand, and the insistence by the vast majority of Codex members that there must be labelling.

These unofficial definitions may help you interpret the following discussion:
€ modern biotechnology: genetic engineering [warning, a dirty word]
€ substantial equivalence: we say it's the same
€ no longer equivalent: the regulator has to prove it is different
€ sound science: magic blessing

Going into the meeting, Canada's recommendations included the following: "Canada considers that Codex standards must be based on sound science and be consistent with international trade agreements... Canada ... supports the proposed mandatory labelling of foods and food ingredients obtained by modern biotechnology ... which are 'no longer equivalent' to the existing or conventionally produced food or food ingredients in respect to composition, nutritional value, or intended use."

This recommendation was elaborated in a note: Foods obtained through modern biotechnology are no longer equivalent if it can be demonstrated, through an appropriate analysis of data, that the characteristics assessed, in comparison to the conventional comparator (conventional foods or food components already available in the food supply), are different with respect to accepted limits of natural variation for that food. Three items are notable here: 1) the adherence to traditional reductionist logic that it is only the object, the product, that counts; 2) the use of the term 'modern biotechnology' in order to avoid having to speak the more accurate phrase 'genetic engineering'; and 3) the shift from use of the term 'substantial equivalence' to 'no longer equivalent'.

What lies behind this are the issues of 'burden of proof' and liability.

In its draft comments prior to the meeting, the United States pointed to the dissatisfaction of many countries and public interest groups with the idea of 'substantial equivalence' and said that it, "believes that currently there is still a lack of uniformity in the international community regarding the application of substantial equivalence, and it would be difficult for Codex to reach a consensus on the use of the term 'substantial equivalence' for the purpose of labelling foods obtained through biotechnology... Thus, the United States believes that the term 'substantial equivalence' should be removed from the proposed draft recommendations, and the proposed draft recommendations should be modified as follows: 'When a food or food ingredient obtained through biotechnology ... differs significantly from a corresponding existing food or food ingredient...'"

Up to now, when Monsanto has applied for approval of a transgenic product it has had to show that the product is 'substantially equivalent' to its natural counterpart in order to avoid regulation of the product as a 'novel food'. The burden of proof, as weak and unscientific as it was, rested on Monsanto. But the company, and others, have wanted to shift the burden of proof, and with it the liability in case of bad consequences, to the regulator. To avoid drawing public attention to the matter, Monsanto and the industry as a whole have tried to make subtle changes in language, such as from 'substantial equivalence' to 'no longer equivalent.' If accepted, this would mean that it is now up to the regulator to find, or prove, the product in question 'no longer equivalent' to an accepted food. This shift would also mean that liability for the product would rest on the regulator, not the company, which is the whole point.

The drafters of the US position obviously knew that they were using the acknowledged disagreement over the term 'substantial equivalence' as an excuse to replace it with 'differs significantly' in order to avoid public discussion and any democratic interference, while shifting of the burden of proof and liability. The desire to do so is, of course, an interesting acknowledgement that there may well be consequences of genetic engineering for which the industry does not want to be held responsible!

The United States argued its position in these words: "The United States does not believe that disclosure of the method of production should be required. ... The United States has seen no evidence to support that, as a class, foods obtained through biotechnology are inherently less safe or differ in quality or any other manner from foods obtained through conventional methods."

The U.S., with its customary arrogance, then adds that international standards that are not consistent with US domestic requirements are ipso facto 'impractical and inequitable': "Mandatory labelling of the method of plant modification would be inconsistent with applicable United States laws and resulting food labelling regulations and policy. ... Providing information regarding the method of production on the food label would be highly impractical and inequitable."

The logical alternative not to engage in genetic engineering in the first place is clearly beyond con-sideration, however rational it might be.

The outcome of the April meeting certainly was not what might have been predicted. By the end of the meeting only Argentina supported the US, while Canada and everyone else distanced themselves from the hard-line position of the US. (Argentina's position is easily explained by the figures on page 6 indicating that it is the second largest producer of transgenic crops after the US.) The chair ruled that the meeting "agreed to return to Step 3 for redrafting." In other words, the issue was at a standstill.

The following "Proposed Draft Recommendations for the Labelling of Foods Obtained Through Biotechnology" are from the official report of the meeting:

(41) The Delegation of the United States pointed out that there was no scientific basis to require systematic labelling of foods containing or obtained from genetically modified organisms and that only those foods which differed significantly from their conventional counterpart as regards composition, use or nutritional quality should be specifically labelled. The Delegation also stressed the difficulties of implementing systematic labelling requirements, indicated that distinctions based on the mode of production might imply that foods produced from GMOS were not safe, and expressed concern about the possibility of misleading negative labelling by competitors. This position was supported by the Observers from IFCGA, ASSINSEL and CRN [all industry organizations] who stressed that labelling of all foods produced from GMOs would be contrary to the general principles of labelling in Codex, would provide misleading information to consumers and would not be enforceable in practice.

(42) The Delegation of Argentina stressed the importance of the role of science and risk analysis as a basis for decisions in Codex, and pointed out that there was no scientific basis for requesting information on the mode of production in the specific case of biotechnology, especially as this would not offer any additional guarantee concerning the safety of the food.

(43) The Delegation of Germany, speaking on behalf of the member states of the European Union, indicated its clear preference for the alternative proposal based on the principle of mandatory labelling, noting however that this proposal required some amendments. The Observer from the EC indicated that, in order to allow consumers to make an informed choice, EC legislation required systematic labelling of all foods or ingredients consisting of or containing GMOs and labelling of foods and ingredients produced from GMOs but not containing them, when they were not any longer equivalent to existing foods or ingredients. The Observer stated that the notion of equivalence was currently evaluated according to the presence in foods or ingredients of DNA or protein resulting from genetic modification, and that these provisions allowed to take into account specific health problems (allergy) and ethical considerations. This position was supported by several delegations, which recalled that there was a strong demand for information on the mode of production from consumers in Europe.

(44) The Delegation of Norway supported mandatory labelling of all products containing or issued from GMOs, as ethical concerns of consumers related to the mode of production should be addressed, and comprehensive labelling [is] essential to ensure consumer confidence in food labelling in general. ... The Delegation of Denmark expressed concern about the fact that the mode of production should be taken into account and therefore all foods containing or derived from biotechnology should be labelled.

(47) The Committee had an exchange of views on the opportunity of applying the recommendations to novel foods which were not produced through biotechnology; some delegations stressed that changes in composition, nutritional value or other characteristics of all foods should be made known to the consumers irrespective of the mode of production, while other delegations and observers supported limiting the scope of the text to foods derived from GMOs. The Committee did not come to a conclusion on this matter.

(48) ... The Committee agreed with the proposal of the Delegation of Canada to consider further how the concept of equivalence could be clarified for the purpose of labelling, which could be achieved by a working group.

(49) The Committee agreed to return the Proposed Draft Recommendations to Step 3 for redrafting by a Working Group coordinated by the Delegation of Canada, which would prepare a revised version for circulation and consideration by the next session.

Since I was unable to attend the meeting, and in the absence of any report on the meeting by the Canadian delegation, I have to rely on the reports of others, the essence of which are: G&M 30/4/99 (CP) "Canada has agreed to lead an international effort to reach consensus on what labelling should be required for genetically modified foods. Canadian officials agreed to chair a working group on the issue after it became apparent there was no hope of consensus at the regular meeting of Codex Alimentarius. ... The main issue is whether mandatory labelling should be required for foods produced through biotechnology. Representatives of 164 countries have been struggling to bridge a wide gap between the United States and the European Union. Consumer representatives say Canada, along with Australia, New Zealand and other countries, has retreated from previous support of the U.S. position, leaving the United States isolated. The U.S. view is that a biotech food should not have to be labelled if it is substantially equivalent to an existing conventional food in nutritional value and intended use. Canada's position has been virtually identical. But Canadian delegates told the meeting this week more work is required to define what is mean by 'substantially equivalent.'"

ACRES USA (e-mail): Steven Sprinkel reported that, "Twenty-three countries and a number of International NGOs were named to a Working Group on Biotechnology by CCFL chair Anne MacKenzie. The US Delegate deferred the chairmanship to Canada in a gesture demonstrating the need to have the leadership of the Working Group represented by a more neutral Codex member. ... Chairperson MacKenzie [noted] that whereas 24% of members showed significant interest in comprehensive labelling in 1998, this year a clear majority of member countries now support labelling of one sort or another."

CBC Radio, 5/ 5/99: Sandra Bartlett reported that "Only the US and Argentina remain opposed to all labelling. Robert Lake, the US delegate, said labelling could be misleading: 'Voluntary labelling will take the form of assertions, either direct or implied, that the food produced through biotechnology is unsafe. And we think that would be a terrible disservice to consumers as well as create an unlevel playing field'."

Somewhere between the time its recommendations for the meeting were made and the conclusion of the meeting itself, Canada's position shifted dramatically. This apparently sudden shift raises a question crucial to the issue of public participation in the Codex processes and the confidence the Canadian public ought to place in the Canadian Codex Interdepartmental Committee.

If the shift in Canada's position was a matter of genuine enlightenment, a sincere recognition of the increasingly vocal public demand for the labelling of foods produced through biotechnology coupled with the growing public antipathy toward the industry game of shifting definitions to obfuscate the issue and to maintain their control, then Canada is to be congratulated.

If, however, this is a case of opportunism in order to provide an opening for the US to back down from its arrogant and unacceptable position against any form of labelling of foods produced through biotechnology, then censure of Canada's deceit is called for.

The question is, which was it?

The following response to my question arrived too late for inclusion in The Ram's Horn #170. Unfortunately it makes it quite clear that Canada's "change" was not a change at all, just an opportunistic ploy. Note the emphasis on "no longer equivalent." - BK

16 Jun 1999
From: Diane Fournier
Consumer Protection and Food Policy Coordination Division
Canadian Food Inspection Agency

Mr. Kneen: ...

In response to your request for clarification on Canada's position on the labelling of foods derived through biotechnology, I would advise that Canada's position has not changed and continues to be that provision of essential label information respecting changes in food safety, composition and nutritional value must remain the first priority for consumers, whether or not foods are derived from biotechnology. Voluntary labelling is an option on condition that it is truthful and not misleading.

During discussions at the CCFL [Codex Committee on Food Labelling], Canada also indicated that the concept of "substantial equivalence" is more appropriate to food safety assessments rather than for labelling considerations. For this reason, Canada indicated support for the mandatory labelling of foods and food ingredients obtained by modern biotechnology which are "no longer equivalent " (as replacement for "no longer substantially equivalent") to the existing or conventionally produced foods in respect to composition, nutritional value or intended use.

Canada is committed to advancing progress on the labelling issue at the international level. In the meantime, the CFIA, in partnership with consumers, health professionals, and the food industry will continue to develop communications tools (for ex.toll-free line 1-877- FOOD-BIO) and explore ways to meet the information needs of consumers, including means other than product labelling.

I hope this clarifies our position.

Sincerely,
Diane Fournier

[Note: the phone number provided is that set up by the Food Biotechnology Communications Network, an industry organization jointly financed by the Canadian Government and the biotech industry. The information provided is not exactly unbiased. - BK]