Bridges Trade BioRes • Volume 5 • Number 10 • 27th May 2005

TRADE @ MOP-2: LABELLING OF BIOTECH COMMODITIES UP FOR DECISION


TRADE @ MOP-2: LABELLING OF BIOTECH COMMODITIES UP FOR DECISION

Documentation requirements for shipments of living modified organisms (LMOs) are likely to emerge as one of the main bones of contention at the second Meeting of the Parties (MOP-2) to the Cartagena Protocol on Biosafety convening from 30 May to 3 June in Montreal, Canada. The Biosafety Protocol has mandated Parties to finalise these requirements, which have significant trade implications, within two years of its entry into force (that is, by MOP-2). However, some observers have raised doubts that this deadline can be met in Montreal. Also up for debate are possible elements of a liability regime.

Documentation requirements in the spotlight

Discussions related to documentation requirements will focus on LMOs intended for direct use as food or feed or for processing (LMO-FFPs). Under Article 18.2(a) of the Protocol, countries agreed to label such shipments as "may contain" LMOs, but left detailed requirements, such as specification of their identity and any specific markings referring to the contained GMO, known as "unique identification", open for future negotiations. At MOP-1 in February 2004, Parties adopted "interim" measures (see Bridges Trade BioRes, 5 March 2004) and charged an expert group with looking into some of the more contentious issues, including the need to establish threshold levels of LMO content for cases of co-mingling of LMOs with non-LMOs below which labelling would not be required; the "may contain" language; and the use of unique identification.

The draft Decision on LMO-FFPs, proposed by the Open-Ended Technical Expert Group on Identification Requirements for LMO-FFPs, leaves options open for many of the difficult issues, such as whether to use existing documentation systems or a stand-alone document, or what coding system to implement. The draft Decision distinguishes between shipments that are known to contain LMOs and those that are not. With regard to the former, it would require the documentation to state that the shipment contains LMOs and to include a code referring to the genetic modification or "transformation event" and/or the unique identifier. If not known, shipments should be marked as "may contain" LMOs. The draft Decision skirts the issue of thresholds for unintentional or "technically unavoidable presence" of LMOs by leaving them to be adopted and applied at the national level on a case-by-case basis under the Parties’ domestic regulatory frameworks.

The EU has been pushing for stringent documentation requirements that would mirror its domestic regulations on biotech imports. Together with Switzerland, they would like to introduce "unique identification" into the requirements (i.e. a code identifying a transgenic plant line) and have raised the need to address labelling thresholds. In contrast, biotech exporters, including the US, Canada and Australia, have lobbied for minimising the documentation requirements as much as possible so as to avoid trade disruptions. While none of the biotech exporting countries has so far ratified the Protocol, Parties will need to take their concerns on board if they want to leave the door open for future ratification. Also, as pointed out by Australia, biotech exporting countries, even if they are not Parties to the Protocol, will nevertheless need to comply with the Protocol’s requirements if they want to maintain or gain market access to Parties that have implemented the Protocol at the national level.

Similar dynamics are also reflected in countries’ submissions on the transboundary movement of LMOs for contained use under Article 18.2(b) and for intentional introduction into the environment under Article 18.2(c). The MOP-2 Decision requested Parties to submit information on experiences gained with the existing requirements "with a view to the future consideration of a stand-alone document". The EU in its submission outlined its national system which includes unique identification codes. The US, echoed by the Global Industry Coalition, said that current best practices were adequate and warned that additional requirements would be needlessly burdensome. It also pointed to difficulties for importers and exporters arising from the "paucity of information" available in the Biosafety Clearing-House.

Shaping a liability and redress regime

Also on the agenda of MOP-2 are issues related to liability and redress which are of particular concern to many developing countries, notably in Africa. Prior to MOP-2, Parties are convening from 25-27 May for the First meeting of the Ad Hoc Open-ended Working Group on Liability and Redress under the Biosafety Protocol, which is mandated to complete its work by 2007. Among the issues to be discussed are the nature, valuation and threshold of damage, the causal link between the damage and activities, State liability, the choice of instrument and the settlement of claims.

The EU would like to see a broad liability regime that covers not only LMO shipments — as advocated by the US — but also transit, handling and use. Damage would primarily be vested in the person(s) "responsible for the carrying out of an action related to the transboundary movement" of an LMO. The US believes that responsibility should be decided on a case-by-case basis and could rest with the exporter, importer or third entity, and has proposed to focus on national liability regimes. The EU, on the other hand, would prefer the regime to initially take the form of a MOP decision, leaving the option of a legally binding regime open for a later stage.

In related news, the Chinese Parliament on 27 April ratified the Cartagena Protocol according to a 19 May statement from a Chinese state official. The ratification made the world’s largest GM cotton grower the 120th Party to the Protocol.

Additional Resources

Documents of MOP-2: http://www.biodiv.org/doc/meeting.aspx?mtg=MOP-02 (including the draft Decision on LMO-FFPs, UNEP/CBD/BS/COP-MOP/2/2)

Daily coverage by IISD Linkages: http://www.iisd.ca/biodiv/bs-copmop2/

ICTSD reporting.