BIOTECH LEGAL DISPUTES: PAST, PRESENT, AND PROMISED
Phillip Jones
Last year, about 2.5 million people in
drought-stricken Zambia faced severe food shortages. Yet
Zambia's President Levy Mwanawasa resisted international
pressure to accept aid in the form of genetically modified
(GM) food, citing apprehension about how the "poison"
would affect public health. Zambia's agricultural minister
voiced another fear about the offered food: GM corn might
cross-pollinate with indigenous crops and choke off the
European market for Zambian agricultural exports. In the end,
the Zambian government refused 26,000 tons of U.S. food aid.
Referring to the European Union's anti-GM food
crusade, U.S. Trade Representative Robert Zoellick accused
the organization of immoral behavior and claimed that
some Member States had linked their aid to Africa with
a rejection of GM foods. The Bush administration was
also concerned about a domino effect with Asia, Latin
America, and the Middle East following Zambia's lead in
rejecting GM exports from the United States.
Impatient with the EU's glacial progress in ending its
GM food moratorium and fearful that EU policy is creating
a chilling effect around the world, U.S. officials came
up with a plan. The United States would file an
international trade case against the European Union in the World
Trade Organization.
An Unsavory Alternative to the GM Food Moratorium?
The European Union has not allowed any new GM food
or GM crop to enter its market since October 1998. This
de facto moratorium has hit U.S. corn exporters the
hardest by blocking an estimated $250-300 million in annual
sales. Other U.S. crops have been hurt by the EU's
exclusion: about 70 percent of U.S. soybeans and 40 percent
of cotton crops are modified to withstand pesticides or
to resist pests.
In an effort to end the moratorium, the EU enacted
a measure (Directive 2001/18/EC) in October to pave
the way for authorization of new GM crops. The new
directive creates a comprehensive approval process based on
the assessment of risks to human health and the
environment, which must be followed before any GM product,
or product containing a GM ingredient, can be released
into the environment or placed on the market. The
directive includes monitoring requirements and rules on
mandatory labeling and traceability. The traceability regulations
impose new obligations on business operators to retain
information about each stage of market placement. The objective is
to create records that document the progress of GM
ingredients through the production and distribution chain.
At first, Europe's council of agricultural ministers failed
to agree about the new rules. For instance, the
European Commission had proposed that all food containing
more than 1% GM ingredients should be labeled, but
other Member States called for tighter limits. A meeting
of Europe's environment ministers also failed to achieve
an agreement about the rules.
Around the end of the year, the EU's effort to replace
the moratorium with regulations bore fruit. The EU's
agricultural and environmental ministers agreed to rules
that would become law if authorized by the European
Parliament. According to their proposal, products
containing more than 0.9 percent EU-approved GM material will
have to be labeled. All foods derived from GM material
would have to be labeled, regardless of whether the final
product contains detectable GM protein or GM DNA. For
example, glucose syrup made from GM corn would have to
be labeled. In addition, products that contain more than
0.5 percent of unauthorized GM material will be banned.
"Unenforceable and impractical" is how a
spokeswoman for the United Kingdom's Food Standards Agency
characterized the proposed rules. A lobbyist for the
American Farm Bureau asserted that the labeling process would
be so expensive that it would shut down exports. The rules
did not sit well with the Bush administration either.
Overcoming the Moratorium at its Roots
Early this year, Bush administration officials said that
they must file a case at the World Trade Organization
against the EU's moratorium. The suit would center on
allegations that the ban on GM crop and GM food approval acts as
a nontariff trade barrier and a discriminatory practice
under WTO rules. If a trade restriction, like the GM
moratorium, is purported to be based on health concerns, then it must
be backed up by scientific evidence. But there is little
evidence to suggest that GM foods pose a health threat.
Robert Zoellick indicated that the United States was
likely to bring its international trade case by the end of
January. During early February, however, a Cabinet meeting
that would have considered the suit was canceled. In light
of the growing conflict in Iraq, the administration
decided against antagonizing its European allies and postponed
filing a case against the moratorium.
Suppose that the U.S. does file a complaint with the
WTO and wins. Then the EU would face two choices: pay
trade sanctions to compensate companies for the lost business,
or lift the moratorium. In 1999, the U.S. fought and won
a similar action when EU officials banned exports of
U.S. beef products on the grounds that the meat
contained growth hormones. But instead of allowing the beef
products to enter its market, the EU decided to pay a
$100 million fine each year. It is possible, therefore, that the
EU would choose to pay sanctions while maintaining the
GM product moratorium.
On the other hand, if the European Union disbands
the moratorium under pressure from the United States and
the WTO, U.S. exporters will probably face a
consumer backlash in Europe. Furthermore, the ban would be
replaced with traceability and labeling requirements
many deem prohibitively expensive, escalating the cost of
a Pyrrhic victory.
During a March 5 hearing of the U.S. Committee
on Finance, Robert Zoellick said that, if the U.S. does bring
a case against the EU, it would not be just a legal
matter. Rather, the U.S. must "win the debate about biotech
in world public opinion." To convince the EU to authorize
GM products with agreeable rules on tracing and labeling,
the U.S. will need to convince European consumers that
GM food is safe, if not beneficial.
Other Disputes In The News
Porcine Panic: This Little GM Piggy Went to Market
In February, the Food and Drug Administration
announced its efforts to track down 386 piglets that were part
of genetic engineering experiments and that were sold into
the U.S. food supply. Researchers at the University of
Illinois in Urbana-Champaign had been engineering pigs with
a bovine gene that increases milk production and a
synthetic gene for improving a piglet's ability to digest milk. Their
goal was to raise healthier, bigger pigs faster and without
drugs.
Between April 2001 and January 2003, UI
researchers tested the offspring of genetically engineered pigs.
Piglets with the new genes were kept in the study, whereas
those lacking the new genes were sold to a livestock broker.
UI researchers insist that the non-transgenic pigs were
not "investigational" and did not fall under FDA scrutiny.
Both the FDA and the university assure that the sold pigs do
not pose a risk to consumers. Nevertheless, the
university faces the problem that FDA rules require the offspring
of genetically engineered animals to be destroyed. The
FDA may impose sanctions and fines on the university.
Patent Polemics
Turning to other porcine-related matters, the Court
of Appeals for the Federal Circuit recently issued
their decision on whether Schering-Plough
Corporation's PrimePac vaccine infringes Boehringer Ingelheim's
patent for producing Porcine Reproductive and
Respiratory Syndrome (PRRS) virus. Following the severe
financial consequences of the PRRS epidemic in the
1980s, Boehringer researchers discovered a new virus in
tissue samples from diseased pigs. The company patented
its process for growing and isolating the PRRS virus
(U.S. patent No. 5,476,778). Boehringer sued Schering,
which produces a vaccine against PRRS by attenuating the
virus in cell culture. A jury decided that Schering infringed
the patent, and the judge issued an injunction prohibiting
the company from selling its infringing vaccine. On appeal,
the Federal Circuit affirmed the decision.
In another patent case, the alleged infringer won.
Plant Genetic Systems, N.V. (which became Aventis CropScience, N.V., which was then purchased by
Bayer AG) sued DeKalb Genetics Corporation (now a part
of Monsanto Company) for infringing U.S. Patent
No. 5,561,236. The `236 patent claims transgenic plant
cells, plants, and seeds; DeKalb made and sold transgenic
corn seeds. After PGS lost in a district court, the
company appealed to the Federal Circuit. A key issue in the
case was whether PGS's broad claims should cover any
transgenic plant or transgenic plant cell. The Federal
Circuit agreed with the district court that the patent claims did
not cover transgenic monocots, like corn. The court
concluded that, in 1987 when PGS had filed the patent, stable
transformation of monocot cells would have required
undue experimentation. The teachings of the `236 patent,
the Federal Circuit explained, supported methods for
transforming dicots, but not monocots.
Copies of the Boehringer and PGS decisions can be
found on the Federal Circuit's website (http://www.fedcir.gov
/dailylog.html).
Selected References
Anonymous. 2002. Science and technology: Better dead
than GM-fed? The Economist 364:76, September 21, 2002.
Becker R. 2003. University of Illinois at
Urbana-Champaign probes sale of gene-research pigs.
Knight Ridder Tribune Business News (Washington), 1, February 9, 2003.
Blustein P. 2003. U.S., EU downplay trade differences.
The Washington Post, E03, March 4, 2003.
FDA. 2003. FDA investigates improper disposal of
bioengineered pigs. FDA Talk Papers, February 5, 2003, Available at the
FDA website (
http://www.fda.gov/bbs/topics/ANSWERS/2003/ANS01197.html).
Sparshott J. 2003. Senators press for biotech case in WTO.
The Washington Times, C11, March 6, 2003.
Phillip B. C. Jones, PhD., J.D.
Seattle, Washington
phillipjones5939@msn.com
NEW JOURNAL FILLS UNIQUE SCIENTIFIC NICHE
The Environmental Biosafety Research (EBR)
journal has recently been launched to provide a single forum
for the reporting and discussion of environmental GMO
bio-safety issues involving bacteria, plants or animals. EBR
will publish peer-reviewed original research papers and
review articles, as well as scientific correspondence. All
areas pertinent to the biosafety of organisms introduced into
the environment will be considered, including: ecological
studies of the impact of novel organisms; studies of their
interactions with pests and pathogens; food and feed
safety evaluation; impact of novel organisms on agronomy
and farming practice; effect on microbial populations;
economic and sociological studies; means for reducing or
managing risk; and assessment of horizontal gene flow. Studies
on non-GMOs that illuminate or parallel GMO issues will
also be considered. Access at http://www.edpsciences.org/ebr

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