Paris, May 7 - Back in February 2020, France’s supreme court for administrative justice, the Conseil d’Etat, ruled that organisms obtained via in vitro mutagenesis techniques should be subject to GMO regulation. The French Government was therefore asked to introduce firmer regulations for GMOs and to evaluate potential risks related to crops with herbicide resistance. The case was addressed to the Conseil D’Etat after the Government refused to comply with a request from a group of trade associations to put a moratorium on such plants in France.
As a follow-up on the ruling, on May 6, France has notified the EU Commission and the member states about the draft national Decree (20.0268) “amending the list of techniques for obtaining genetically modified organisms traditionally used without any noted drawbacks with regard to public health or the environment”. Once adopted and published, the Decree will prohibit marketing and cultivation of plant varieties resulting from random in vitro mutagenesis on the territory of France as such varieties lack evaluation and authorization under the French GMO regulatory framework.
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The ruling, as well as the Decree, come as a win for anti-GMO NGOs, who strongly oppose New Plant Breeding Techniques (NPBTs), claiming they are “new GMOs”. They also accuse the agri-food industry of trying to bring GMOs to Europe through the “backdoor”. France is the EU’s largest agricultural producer and bans cultivation of the GMO crops, now including herbicide-tolerant sunflowers and rapeseed, which, if not assessed in accordance with Directive 2001/18, will have to be withdrawn from the official plant catalogue within nine months. There is also a possibility that, as a result of the Conseil D’Etat ruling, some varieties will be banned from cultivation. In 2017, according to the data by ANSES, the herbicide-tolerant varieties occupy 20 to 30 per cent of the cultivation area in sunflower and 2 to 5 per cent in rapeseed.[1]
When the first genetically modified plants were developed, GMO legislation was drafted in Europe on the basis of the precautionary principle, aimed at ensuring that the new plants were safe for humans and the environment. One of the key provisions of the respective Directives was the definition of a genetically modified organism as "An organism in which the genetic material has been altered in a way that does not occur naturally by mating and/or natural recombination" (Article 2 of Directive 90/220/EEC). The way by which the genetic material is altered to result in a GMO is specified in an Annex to the Directives via three lists of techniques. With this approach, the European Union, therefore, chose to regulate the use of certain genetic modification techniques. In contrast to new plants that are obtained by means of conventional or mutation breeding, GMOs are only allowed on the market after a safety analysis by EFSA and after a vote in the committee of the EU member representatives. From this regulatory perspective, it is a particular technique that determines whether a crop should be strictly regulated and not the crop characteristics introduced by means of the technique. Therefore, very similar plants – for example, plants with the same herbicide tolerance obtained using a different method – can either be put directly to the market or are examined in a much stricter procedure and usually blocked. However, it makes far more sense to focus the risk analysis on the plant and its characteristics and not on the breeding technique.
In the current French ruling, this principle has been turned upside down. The herbicide-tolerant plants, either GMO or mutants, are under debate because they might increase the usage of certain unwanted herbicides (e.g. glyphosate) and, if not properly managed, lead to the occurrence of resistant weeds. If any, this should be the reason to impose a moratorium specifically on the herbicide-resistant crops and not all mutants derived from in vitro mutagenesis. Since July 2018, when the Court of Justice of the European Union (CJEU) ruled that organisms resulting from new mutagenesis techniques (NPBTs) fall within the scope of the EU GMO legislation, this is a second decision considerably restricting the breeder’s toolbox. This trend will severely lower the EU’s capacity to benefit from innovation in the food and agricultural sector.
[1] Statistics by ANSES, French Agency for Food, Environmental and Occupational Health & Safety, 2017. https://www.anses.fr/en/content/use-herbicide-tolerant-varieties-france, 2020.
About the author:
Dr. Jan de Riek
Research Group Leader at ILVO Plant, Belgium
Dr. Jan de Riek is a Research Group Leader at ILVO Plant, the Institute for Agricultural and Fisheries Research, Belgium. He is the chairman and the brainpower behind the CIOPORA Working Group Biotechnology and the CIOPORA Co-Vice President. At ILVO Plant, Jan is preoccupied with molecular genetics and breeding research in ornamental and agricultural crops. He acquired his doctorate degree in plant biotechnology at the University of Ghent.