Leg. Dev.: Compulsory Labeling of Food Produced From Genetically Modified Soya Beans and Maize

4 Colum. J. Eur. L. 179 (1998)

Nyaguthii Chege.

On September 19, 1997, the European Commission adopted Regulation 1813/ 97 of September 19, 1997, concerning the compulsory indication on the labeling of certain foodstuffs produced from genetically modified organisms of particulars other than those provided for in Directive 79/112/EEC.t The Regulation requires the labeling of genetically modified soya beans and maize marketed in the European Community. The Commission intended the Regulation to fill the gap left by the Novel Food Regulation, which came into effect on May 15, 1997. The Novel Food Regulation governs the marketing and labeling of novel foods, including genetically modified foods or food products. However, because the Novel Food Regulation will not be implemented retroactively, it does not control the marketing of genetically modified soya beans and maize regulated under Directive 90/220/EEC of April 23, 1990.

Adopted with unanimous agreement from the Standing Committee for Foodstuffs, the new Regulation was passed “to prevent distortions of competition” (Preamble, para. 9). In the absence of Community-wide regulation, some Member States had adopted their own measures regulating the labeling of foods and food products containing genetically modified maize and soya bean, and the differences in these national measures risked inhibiting the free flow of goods in the internal market. Thus, the Regulation requires the same labeling requirements to apply to foods produced from genetically modified organisms marketed both before and after the Novel Food Regulation became effective.

Effective November 1, 1997, the Regulation requires specific labels on foods and food ingredients produced from genetically modified soya beans (Glycine max L.) and genetically modified maize (Zea mays L.). It does not apply to food additives, food flavorings, or extraction solvents used in the production of foodstuffs (Article 1). The label must inform the consumer of: (1) any characteristic or food property which renders the food or food ingredient no longer equivalent to an existing food or food ingredient; (2) the presence of material which is not present in an existing foodstuff equivalent and which may have health implications; (3) the presence of material not present in an existing foodstuff equivalent which gives rise to ethical concerns; and (4) the presence of a genetically modified organism listed in the nonexhaustive list in Annex 1A of Directive 90/220/EEC (Article 2). The Commission intends to adopt detailed, uniform Community-wide rules for these products (Article 3), which will clarify exactly what the labels should say and which symbols, if any, they should bear. In a press release dated October 31, 1997, the Commission announced that, despite requests from some members of the Standing Committee for Foodstuffs, the effective date of the Regulation would not be postponed until February 1998. The Commission clarified that as of the effective date, “products based on genetically-modified maize and soya beans must meet the labeling requirements laid down in the Regulation on Novel Foods.

Consumer groups were actively involved in the campaign to pass Community- wide regulation on the marketing of genetically modified maize and soya bean. In September 1996, an alliance of the European Parliament Greens and EuroCommerce, an organization representing retail, wholesale, and international trade interests, launched a campaign to boycott products made from genetically modified soya beans. The alliance claimed that soya beans imported from the United States are “an ingredient in 30,000 different foods and in 60% of all processed products sold in supermarkets” represented by EuroCommerce and that consumers were “suspicious” and “worried” because they were ill-informed.’ The joint initiative was designed “to provide [consumers] with this information so that they have the choice.”

Public concern grew after the Commission’s decision on December 18, 1996, to permit Community-wide marketing of Swiss-developed genetically modified maize. The Commission’s opinion that the maize presented no risks was immediately challenged by environmental protection and consumer rights groups. The European Parliament overwhelmingly (407 to 2) condemned the Commission’s unilateral decision and called on the Commission to suspend its decision pending further investigations.

Pressure to develop a labeling scheme also came from Member States which felt “the absence of clear rules” regarding the packaging, labeling, and end use of genetically modified soya posed risks. Then Member States urged the Commission to “take appropriate measures” to safeguard the Community.” Some Member States took further steps on their own. On February 14, 1997, Austria prohibited the use of genetically modified maize. A week earlier, Luxembourg had provisionally banned the use and sale of the maize, while on March 7, Italy provisionally prohibited the cultivation of maize.

Yet according to a report in the Financial limes, while the Regulation “[may be] a victory for consumer groups [it] could cause friction with trading partners and European Union importers.” The United States, for example, exports 25% of its soya bean crop to the European Union, and it would strongly oppose the segregation of its modified food products, probably challenging the labels as trade barriers. Interested parties have launched campaigns to dissuade public fears. The Soya Bean Information Centre, a body created by the American Soya Bean Association, the Grain and Seed Trade Association, and “Roundup Ready” bean developer Monsanto, advocates that the genetically modified soya bean variety is “just as safe” as the traditional variety. Furthermore, because food monitoring bodies in the U.S. and U.K., including the U.S. Environmental Protection Agency and Food and Drug Administration, have declared food products prepared from genetically modified soya safe, European retailers are reluctant to adopt additional labels, declaring that the additional labeling requirements, which would apply to about 60% of the products on the shelves, are impractical. Since 98% of the U.S. soya crop is of the traditional variety, European Community importers and retailers are reluctant to label thousands of products on the slim possibility that they may contain genetically modifed soya.