Call for ban on import of US GM corn

by Chakravarthi Raghavan

Geneva, 7 Nov 2000 - Delegates and negotiators on the Cartagena protocol on biosafety (which is to meet in Montpellier, France, in December) have been asked to take measures to prevent imports of genetically engineered corn from the US, and seek compensation and redress for the costs of testing and segregating corn imports for the Starlink variety of corn that has not been approved for human consumption, but has become admixed with other corn from the US.

This call has come from Kristin Dawkins, Vice President of International Programs at the Institute for Agriculture and Trade Policy (IATP) and Steve Suppan, Ph.D., Director of Research at the IATP in the wake of reports that the unapproved variety of Genetically engineered corn has become admixed with other varieties and the US is trying to escape responsibility by approving the previously unapproved variety of this corn.

The IATP letter points out that a variety of genetically engineered corn, not approved for human consumption in the US, has been approved on October 26 for export. This corn is marketed with the trade name “StarLink,” a product of the Aventis CropScience company. Governments of other countries, negotiating the Cartagena biosafety protocol and its followup have been urged to take immediate steps to prevent imports; seek compensation and redress for the costs of testing and segregating their corn imports for this unapproved variety; comment to the U.S. government on the recent approval of this corn for export alone; and comment on the pending application of Aventis for US government approval of StarLink corn for human consumption generally.

StarLink corn, a Living Modified Organism (LMO), was not approved for human consumption by the US Environmental Protection Agency (EPA) due to concerns over the corn’s potential for causing allergenic reactions. The corn contains the Bacillus thuringiensis subspecies ‘tolworthi Cry9C protein’ and the DNA necessary to produce this protein. There is evidence that Cry9C is heat stable and resistant to degradation in gastric juice, the two most important indicators of allergenicity.

But because the US commodities system is not prepared to keep bulk grains separated, the StarLink protein has been found through independent DNA testing in a variety of consumer products in the US and in Japan, where recent legislation sets a zero tolerance for the import of unapproved agricultural products. The detection of StarLink in corn taco shells, first announced September 18^th by Genetic Engineering Food Alert, a non-governmental organization coalition to which IATP belongs, was subsequently confirmed by testing done by food processing companies and the EPA.

Once the contamination was discovered, the US Department of Agriculture (USDA) moved to get rid of the unwanted product on October 26^th by officially approving StarLink for export - placing the burden on importing countries to object to StarLink imports and to test their current supplies, the IATP letter points out.

In so doing, the USDA also attempted to shift the liability to exporters, notifying them as follows: “Exporters are reminded that they have responsibility to take all appropriate measures to ensure that this product is used only for approved purposes.”

Now, Aventis is trying to get the EPA to approve StarLink for humans. On October 25^th, after the multimillion dollar legal and financial consequences of the contamination of the US food system by StarLink became apparent and with the support of the food processing, retail and biotechnology industry, Aventis filed an application with the EPA seeking an exemption for StarLink’s Cry9C DNA and the Cry9C protein to allow its use in human foods as well as animal feed. The EPA has announced that it will make a decision on the application by mid-December, and USDA Secretary Dan Glickman has stated that he hopes the EPA will act as expeditiously as possible to use “sound science” to declare StarLink to be safe.

No doubt, Aventis and the US government hope these actions will protect them from liability claims while also protecting the US’s extensive corn markets overseas, IATP comments.

However, under customary international law, states do have a duty to ensure their actions do not cause harm in other states. This common law principle was extended to international environmental pollution in the 1941 “Trail Smelter” arbitration and is further elaborated in the 1972 Stockholm Declaration and the 1992 Rio Declaration, as well as several rulings of the International Court of Justice (ICJ). In 1996, the ICJ issued an advisory opinion regarding the legality of nuclear weapons noting that ‘the environment is not an abstraction but represents the living space, the quality of life and the very health of human beings, including generations unborn. The existence of the general obligation of States to ensure that activities within their jurisdiction and control respect the environment of other States or areas beyond national control is now a part of the corpus of international law relating to the environment.’

This would seem to indicate that the US government is liable for what could be characterized as reckless and negligent failure to ensure the segregation of corn it has not approved for human consumption from corn that is destined for human use. In the absence of an effective segregation system, the approval for animal feed could be considered reckless and negligent.

“Negligence is bad enough,” says IATP. “How about intentional harm? Could not the decision to export StarLink be construed as wilful and intentional disregard for public health and international law?”

It would be interesting to learn what the International Court of Justice (ICJ) might think about the United States’ StarLink-related acts of both omission and commission.

The ICJ could become involved in two ways. First, inter-governmental bodies authorized by the United Nations Charter can ask the ICJ to render an advisory opinion on relevant legal matters.

For example, the World Health Organization or the United Nations’ food safety body, known as the Codex Alimentarius Commission, could ask the ICJ for an advisory opinion on the legality of exporting a potential allergen banned in the country of origin. But human health is not the only consideration. All corn cross-pollinates freely. Any StarLink grain that may be planted rather than eaten could result in genetic drift, affecting related varieties of plants and adjacent ecosystems - a matter of particular concern to those regions that are centres of diversity for maize.

The Conference of the Parties to the Convention on Biological Diversity could test whether it qualifies as an “authorized” body under the UN system, and ask for an ICJ advisory opinion on the legal issues.

Secondly, the Convention on Biological Diversity (CBD) stipulates that disputes that cannot be settled otherwise may be submitted to the ICJ. A dispute could easily arise, if parties choose not to import co-mingled US corn or seek compensation and redress from the US if they already have inadvertently done so.  Although the US is not party to the CBD, it is a signatory, which establishes an obligation on the US to not undermine the objectives of the CBD. In such a case, the ICJ could be asked to settle the matter judiciously.

Domestically, the presence of StarLink in the US food system raises several liability issues to which neither the government nor the biotechnology industry have provided answers for the public.

On September 29^th, the USDA announced a buyback program of StarLink from US farmers. The USDA is to be reimbursed by Aventis, though terms of reimbursement have not been made public. However, the buy-back does not address costs incurred by elevators, distributors, food processors and retailers, nor the costs of loss of farmers’ markets and reputation due to the contamination, to say nothing of liability claims resulting from contamination of non-StarLink farms due to cross-pollination, or lawsuits arising from allergenic reactions to StarLink.  The refusal by Aventis, apparently not contested by the USDA, to reveal where StarLink has been planted will impede any investigation of cross-pollination affects. Aventis has said that the EPA required 660 foot (about 210 meters) barrier between LMO and non-LMO crops may not have been sufficient to prevent cross-pollination and that they “are contacting [StarLink farm] neighbours.”

With the detection of StarLink in corn exports to Japan, the global ramifications of the StarLink affair have multiplied so quickly that the US Department of State revealed on October 25^th that it is preparing a “public relations campaign” to counter criticism of the US government’s regulation of LMOs and their export. The assurances of the State Department and USDA about the scientific and political integrity of the US regulatory system of LMOs will present “sound science” as the final judge of all US decision-making on LMOs.  However, no LMO application has yet been denied.

And since the US government has not addressed liability issues in the StarLink affair and has opposed liability discussion at Protocol negotiations, the US “public relations campaign” is not very reassuring.

[c] 2000, SUNS - All rights reserved. May not be reproduced, reprinted or posted to any system or service without specific permission from SUNS. This limitation includes incorporation into a database, distribution via Usenet News, bulletin board systems, mailing lists, print media or broadcast. For information about reproduction or multi-user subscriptions please contact: suns@igc.org