The Analysis of Influential Factors on Legal Regulation of Genetically Modified Food in EU: A Perspective of Chinese Scholars*
QIN Tianbao** XIANG Wen***
Abstract: Genetically modified (GM) food’s safety is always a controversial issue in the world. The European Union enacted strict laws to regulate GM food by virtue of various reasons such as religion, ethics, legal tradition and economy, etc. This paper focus on the influential factors on legal regulation of GM food in EU and believe the following factors should be considered: Firstly, the GM food is unacceptable in EU because of the religious traditions ,and the module of “Integration system of religion and politics” makes religious belief possible to become public policies；Secondly, EU countries would rather suffer from the increasing rate of unemployment than to loosen the limits on GM technology because of its ethical view; Thirdly, Owing to the economic interests, The EU countries would like to regulate the GM food in order to set technical barrier in the foreign trade.；Finally, the legal tradition of continental law system leads to several serious problems in the regulation on GM food in EU country In fact, EU tries its best to improve the transgenic technology while it set force strict regulation on GM food, we believe that EU may modify its policies and regulations against GM food actually accompanying by the advancement of GM technology and the change of viewpoint of ethical values or religion.
Key words: European Union; Genetically modified food; Legal Regulation; Influential factors
I. Introduction
Nowadays, Genetically Modified (GM) plants have been widely growing across the world. According to the report by the Intl Service for the Acquisition of Agri-biotech Appl. Tech (ISAAA), the area of GM corps has been up to 58,700,000 acres till the year of 2002, and more than one fifth of the total number of soybean, corn, cotton and oilseeds are transgenic. Also, such GM food as corps, vegetables and fruits has already appeared on the market.
Up to now, there hasn’t been any generally-recognized evidence to prove that the GM food on the market could bring negative effects on human beings and environment. The research reports of some international organizations, including WHO, FAO and OECD have demonstrated the safety of GM food on the market.
However, transgenic technology has changed the steady gene structure formed by the evolution over billons of years. The safety of GM food is still in dispute. Different law-enforced methods have been adopted in the light of GM food across the world. Some governments take the guarded attitude in controlling GM food in order to prevent human beings from being harmed. For example, EU has taken some strict measures to control GM food. After two years of revision and discussion, two new regulations were enacted, i.e. Regulation (EC) No1829/2003 of the European Parliament and of the Council of 22 September 2003 on Genetically Modified food and Feed and Regulation (EC) No1830/2003 of the European Parliament and of the Council of 22 September 2003 concerning the Traceability and Labeling of Genetically Modified Organisms and the Traceability of Food and Feed Products Produced from Genetically Modified Organisms and Amending Directive2001/18/EC which made the controlling system of EU much stricter. In contrast with EU, such big exporters of GM food as the USA and Canada differ in controlling system by law. It is for some deep reasons that they vary in concepts, measures and methods of regulation.
In effect, as the research on a certain phenomenon, the proper way is to verify through researches on historical science, including language, law, religion and system. Only through probing into the corresponding background of the law enforcement in European countries could we find in what way they are diverse, which will help anticipate and judge the developing trend of their law systems.
This paper focuses on the influential factors of legal regulation on GM food in Europe, and expecting to provide some feasible suggestions on how to establish proper legal management, based on the analysis of the influential factors for GM food regulation in EU.
II. Impacts of Religion on GM Food Law in EU.
Governance module of Integration of politics and religion played a significant role about the impaction on the relationship between politics and religion in European countries in the middle ages. Martin Ruther initiated the Reformation which accelerated the independence of national state in Western Europe, however, the national government made agreements with domestic church to be political union hereby pursuing interests to the large extent, and this kind of cooperation existing in Europe became legalization or tradition even if there is no regulation in some countries: Rulers granted special privilege to the Church whereas the Church in favor of the domination of rulers. Strictly speaking, the “Separation of State and Religion” has never occurred yet. The relationship between national governments and Churches was no more than the issues on which kind of Church played domestic role or had special privilege in certain country.
In fact, not only had some Churches have privilege, but also the leadership of the Churches became a part of structure of national political authority, and then the rulers of states were certainly the backers and protectors of Churches. This can be seen in the following example, Northern European countries such as Republic of Iceland, Norway, Kingdom of Denmark, Sweden and Republic of Finland regarded Lutheran Church of Christian as established church since the Reformation in 16th century, and made regulation to support it. In addition, the provisions in Constitution of Norway and Republic of Denmark demanded that the King of State had to believe in Lutheran Church and maintained it. In England, the State Church is Anglican Communion and the King or Queen of England was the leader of it, furthermore, the two Archbishops and 24 bishops have always been the members of Upper House of parliament in United of Kingdom.
This kind of co-operation resulted in the integration of Christian Church and national bureaucratic administration in a long history and made Churches become a part of politics which played significant role in such aspects as politics, law and culture, etc.
Hence EU appearing to be likely to reject the GM food not only depended on the security, but also the religion consideration. In other words, Human beings ought to live in the virgin state without any technological interference due to the doctrine of European religion. The same circumstances came to the experiments of GM food because the changed structure of traditional food is regarded against the Christian doctrine. For example, some religious organization argued that species were created by the God and could not be interfered by human being, which is just the reason to explain why the transformation of gene in traditional food is unacceptable. The Doctrinal Note reminded Catholics involved in public life that “a well-formed Christian conscience does not permit one to vote for a political program or an individual law which contradicts the fundamental contents of faith and morals”. In particular, the Note states that “those who are directly involved in lawmaking bodies have a grave and clear obligation to oppose any law that attacks human life”. For them, as for every Catholic, it is impossible to promote such laws or to vote for them.”
In the meanwhile, green peace organization working as the representative of environmental protectionism was growing up in the political circles and made an increasing impact on the decision making procedure, and both of the religious institute and environmental protection organization put forward some requirements towards governments hereby their impact on the society and public.
In a conclusion, EU has to balance the requests of religious organization and development of national gene technology for the module of integration of the religion and politics. The reason why EU takes strict law to regulate GM food is just only if the politics and interests exchange reach the most reasonable arrangement, the member governments are able to operate effectively.
III. Impacts of Ethical factors on GM Food Law in EU.
“The ethical value embodied by public policy are different indeed in the so-called democratic society.” said Amartya Sen. We can draw the more direct conclusion through the comparison between European countries and U.S. In comparison with U.S., EU has more social welfare policies accompanying with higher unemployment rate and inflation rate in recent years. The unemployment rate in America, Italy and France is 4.5%, 5.8%, 2.3% as well as lower than 1% in Federal Germany during 1965 to 1973, but now the rates increase to 10% to 12% in Italy and France and Federal Germany while the number in America still remains the same as 1965 to 1973.
The social ethical value in EU believes citizens ought to be granted due assistance because Europe is regarded as one of a traditional welfare society area, so the European countries are more likely to accept the increase of unemployment rate. On the contrary, American ethical value argues that it will be incapable to bear the double-digit unemployment rate which occurs in lots of countries in EU and the higher unemployment rate, inflation rate and financial deficit arouse the resentment of American public intensively rather than the public in EU.
Different ethical value makes different effects on the legislation and policies-making. As for America, the development of GM food aims to do help for either the increase of national financial interest or the decline of unemployment rate for workers, hence federal government strongly supports GM industry and adopts lower standard on regulating GM food. For example, the provisions of FDA believe the GM food manufactures could choose to manifest the transgenic character in the marks of food on a voluntary basis.
Recently, EU is exposed to a period of economic downturn, however, as a kind of valuable method, transgenic technology is seldom considered by European countries. That is to say, due to the ethical view of EU, it would rather suffer from the increasing rate of unemployment than loosen the limits on transgenic technology.
IV. Impacts of Economic interests on GM food Law in EU
In contrast with such countries as America which own the advanced transgenic technology, EU gains barely nothing in the GM trade, what’s more, it really do harm to the export of traditional agricultural food. Due to distinguish between manorial agricultural pattern and plantation system, EU agriculture stands in an inferior position comparing to U.S. for the economics of small scale. The situation turns even worse until the transgenic technology occur.
Over the last ten years, U.S. farmers have planted millions of acres of genetically modified varieties of corn and soybeans. In 2004, about 45% of the corn, 85% of soybeans, and 76% of cotton planted in the U.S. were genetically modified varieties. Since much of the corn and soybeans harvested each year are processed into products like corn oil and lecithin, a survey show that an estimated 75% of processed food sold in the United States contains ingredients derived from genetically modified crops. However, the research of gene biotechnology is far behind United States and the commercialization is slow. The first group of countries begun commercial farming of transgenic plants till 1998 and there is only 0.6% out of the whole commercial farming of GM plants area in the world indicates insignificant comparing with U.S which is up to approximate 60%.
Hence, EU adopts a series of regulations to limit the transgenic agricultural products to protect its economic interests. It means EU strengthens the regulating on the GM food while two very recent regulations are adopted by EU which are Regulation 1829/2003 of the European parliament and of the Council of 22 September 2003 on genetically modified food and feed and Regulation 1830/2003 of the European Parliament and of the Council of 22 September 2003 concerning the traceability and labeling of genetically modified organisms and the traceability of food and feed products produced from genetically modified organisms and amending Directive 2001/18/EC. The changing is more likely to subject to the economic interests of agricultural industry in EU. European countries tend to resist GM food because of the disadvantage in the international trade and pose a challenge to America to some extent.
The new traceability rules has just been established in the Regulation 1830/2003 of the European Parliament and of the Council of 22 September 2003 concerning the traceability and labeling of genetically modified organisms and the traceability of food and feed products produced from genetically modified organisms which requires businesses that grow, store, transport, or process GM products to track them throughout the commercial food chain, “from farm to table”. Under these rules, industry must ensure that systems are in place to identify to whom and from whom GM products are made available and to retain records for five years. All foods require documentation demonstrating whether they contained ingredients derived from GM crops, even if the presence of GM-derived materials can not be detected in the final product. According to the European Commission, the objectives for requiring traceability of GM products are to facilitate the withdrawal of a product in the event of an unforeseen risk to human health or the environment, nonetheless, the requirements emphasis the whole GM food ought to comply with the traceability rules no matter whether some of them has already been approved under the risk evaluation. The new rules increase the cost of producing transgenic plants so as to enlarge the transgenic agricultural products trade risk and lead to the decrease of volume of import, this can be seen to set technical barriers in the transgenic food trade.
V. Impacts of Legal Tradition on GM food Law in EU
Most members of EU are civil law countries and the regulations on GM food represent the characters of civil law system over such aspects as legislation, legal reasoning and legal development.
The law-makers in civil law countries always pre-establish a “Universal Principle” according to the concept of natural reason to provide against any unexpected situation. This principle is more likely to apply to the GM food regulation. For instance, the important legislation on transgenic organisms or products, Directive 90/220/EEC of 23 April 1990 on the deliberate release into the environment of genetically modified organisms, Article 1 defines that the Directive aims to protect the human health and environment according to the Precautionary Principle；Article 4 provides that “Member States shall ensure that all appropriate measures are taken to avoid adverse effects on human health and the environment which might arise from the deliberate release or placing on the market of GMOs”. Actually this legal principle aims at maintain the public interests of make human beings keep healthy and enjoy the favorable environment, so we can see that GM food producer、consumer and the commonalty are supposed to be regarded as important parts involving in this principle. However, the consumers and commonalty usually are neglected by the related laws and practices on transgenic products. For example, EC Regulation on GM Food and Feed (EC 1829/2003), which replaced the existing approval procedures for GM foods under the Novel Foods Regulation (EC) No 258/97, provides a harmonized procedure for the scientific assessment and authorization of GMOs and GM food and feed. And the assessment procedure is centralized, with the European Food Safety Authority (EFSA) taking responsibility for undertaking this process. And EFSA has an obligation to seek the views of relevant competent authority in each Member State on the risk assessment of any proposed product approval for seeds or plant propagating material. However, the representative of member states and some environmental or religious organizations involving in these procedures could not be instead of the views of potential consumers.
On the other hand, a conclusion which be drawn is stem from deduction of rule of statute law by judge. That is why statute law tries its best to prevent the legal leak from the situation about no rule applicable. The legislation about GM food in European countries always could be considered across-the-board in pursuit of enhancing the practicability, which relies on the characteristics of statute law and also the discreetness of transgenic technology in EU. Take Council Regulation (EC) No 1138/98 of 1998 for example, it provides for the foods produced by transgenic bean and corn should be distinguished by using special label to protect public interests, no matter whether they are “substantial similarity” with traditional food. And it also provides for some GM food contain the transgenic elements which could not be detected thereby hard to be supervised whether the content of label is accurate, are not necessary to attach special label. Nevertheless, Regulation (EC) 1829/2003 and (EC) 1830/2003 provide for stricter provisions on transgenic food labeling: Labeling applies to foods, which contain or consist of GMOs or are produced from or contain ingredients produced from GMOs and are delivered to the final consumer or mass caterers in the EU. Labeling is not required where the presence of an authorized GMO is less than 0.9% of the food or feed ingredients considered individually or of food consisting of a single ingredient, provided that the presence is adventitious or technically unavoidable. For an unauthorized GMO which has received a favorable safety assessment from an EC scientific committee the threshold is 0.5%. This latter threshold is for a transitional period of 3 years from the date of application of the Regulation.
As can be seen above, the new ordinances provides clear provisions on the situation whether to apply to special label or not on GM food to make it easier to control. However, the research about transgenic technology develops so quickly that we could not even give an appropriate definition of technology standard embodied by statute law. So it is rarely possible for legislators not involving into litigations to make pre-ordinances to protect private allegations in the age of knowledge-based economy. Though skilled experts are invited to establish acts related GMOs in EU, unexpected leaks still exist because they are incapable of dealing with problems endlessly accompanying by development of scientific technology. Nevertheless, the participators in the lawsuits about GM food would realize the issues in the rules more easily and that is why the private allegations should be pay more attention in the legislation procedure. Hence, common law responses more timely and efficient while facing the developing technology and economy. There is a scholar explained: Lots of developed industrial countries shall come down promptly unless the private lawsuit right is released by common law system, thereby allowed to participated into procedure about re-establish of law widely in the age of knowledge-based economy.
VI Concluding Remarks
In a conclusion ,the EU set force strict regulation on GM food on the basis of several factors such as religion, ethics, legal tradition and economic interests, etc. Every factor shall be regarded as an important role to impact the regulation on GM food. And because all of these influential elements may change during the development of society, The EU may modify its policies and regulations against GM food accompanying with the advancement of GM technology or the change of viewpoint of ethical values, etc.
China, as one of the countries which have the largest area of transgenic crops across the world also plays an important role. Meanwhile,
