SUBMISSION OF OBJECTIONS BY THE AFRICAN CENTRE FOR BIOSAFETY (ACB), BIOWATCH, AND EKOGAIA

Additional Comments and Objections to Continued Trials of GM Potatoes

African Centre for Biosafety, supported by various organisations, groups, companies, and individuals, March 2006

• Objections to application for a permit for additional trials with insect resistant Bt Cry V Genetically Modified Potatoes (Solanum Tuberosum L. Variety ‘Spunta’ G2 and G3), as applied for by Dr G. Thompson, Director Plant Protection and Biotechnology , South African Agricultural Research Council, dated 24 May 2004. Download here.

G. Ashton, G. Baker, M. Mayet, E. Pschorn-Strauss, W. Stafford, June 2004

• Report2_Bt_Potato_G2G3.pdf Report 2003/2004 GMO Potato Project.

ARC-Roodeplaat, Vegetable and Ornamental Plant Institute and the Michigan State University (USA), made public in June 2004. Download here.

OVERVIEW

1. Rights of Access to information severely prejudiced

The extensive deficiencies in the information supplied by the Applicant in response to our request for access to information in terms of the Promotion of Access to Information Act, 2000 (“PAIA”) coupled with the conflicting time frames provided by the Regulations under the Genetically Modified Organisms Act 15 of 1997 (“GMO Act” and those provided by PAIA, have severely restricted our rights to access to information as contemplated by section 32 of the Constitution and PAIA. The issue of the public’s right to access to information concerning genetically modified organisms (GMOs) has been thoroughly canvassed in the court papers submitted by Biowatch South Africa, Case number 23005/2002. We associate ourselves with the relief sought by Biowatch. In the light that judgment is due to be delivered by Dunn JA in early August 2004, we are of the belief that the EC should, in the interests of justice and fairness, not consider the Applicant’s application until after such judgement has been delivered, taking particular account of our fundamental objections to the paucity of relevant information provided by the Applicant to us.

2. Scientific Objections

2.1 Overall Summary

The Agricultural Research Council have been conducting field research on the efficacy and safety of potatoes genetically modified to resist attack by the tuber moth (Phthorimaea operculella) since 1992 and plan to continue these studies at six locations in South Africa in 2005. Their research has shown that in the field, tuber moths do not damage tubers. The leaves of non-GM plants are moth-infested significantly more than GM plants, but this has no effect on tuber yield. They also show that the extent of viral infection is higher is certain GM lines. The point at which the genetic modification becomes effective is during storage. At one study site there were no natural populations of tuber moths, so 100,000s of moths were released at this site. These moths have also been shown to feed on other Solanaceae plants and could constitute a serious risk to wild and agricultural species. In two years the researchers have provided no data on gene flow or other aspects of ecological or feed safety. Genetically modified waste material has been dumped in the ground without autoclaving and without studying the effect of this transgenic material on surrounding soil biota and microbiota. Considering the fact that tuber moths mainly affect tubers during storage and that there are ecological and food safety risks associated with planting and consuming genetically modified crops, we recommend a halt to GM potato field studies and suggest that researchers concern themselves with improving storage conditions to prevent infection of tubers after harvesting.[…]

3. Legal Assessment

3.1 Contraventions of permit conditions

The Applicants have failed to comply with several permit conditions in that it failed to:

1. (a) dispose of transgenic potatoes from the previous field trials in a manner so as to prevent dissemination of transgenic material;
2. (b) fumigate the soil; and
3. (c) ensure 2 m around experiment with vegetative growth as it was required to do, in terms of conditions imposed by the EC, in respect of Permits 17/3(4/03/0680); Permit 17/3(4/03/0680); and Permit 17/3(4/03/0680), respectively.

In terms of section 21 of the GMO Act, any person who contravenes or fails to comply with any condition, restriction, prohibition, reservation or directive imposed or issued in terms of the shall be guilty of an offence. It therefore appears that the Applicant is liable for prosecution under the GMO Act. We therefore request that the EC bring the matter to the attention of the Minister of Agriculture in order for the law to takes its proper course.

3.2 Failure to comply with ECA and ECA Regulations

The Applicant has failed to comply with section 21(1) of the Environment Conservation Act (” ECA”) and the Regulations promulgated in Notice R 1182 and Notice R1183, Government Gazette of 5 September 1997 (“the ECA Regulations”). The Applicant is obliged to submit a Scoping Report in terms of the ECA Regulations, and comply with its provisions and requirements.

These include inter alia, employment of an independent consultant having no financial or other interest in the GM field trial; identification of environmental issues and information of all alternatives as well a credible public participation process. The Applicant has failed to comply with these provisions and is thus, obliged to withdraw its application, as contemplated by section 3(2) of the ECA Regulations. 3.3 EC has a constitutional and statutory duty to protect the environment The EC has a constitutional and statutory duty to protect the environment. It is our contention that the EC is obliged to refuse the approval sought by the Applicant because the EC has a duty to do so in terms of section 24 of the Constitution, in order to protect the environment. Indeed, it is our submission that the application must be refused because the statutory framework obliges the EC to inter alia adopt a risk averse approach in assessing environment hazards and to evaluate the social and environmental impacts of the proposed activities and to have regard to the cumulative potential impacts of such activities on the environment.

4. Socio-economic concerns

The socio-economic impact of GM potatoes has not been dealt with in the permit application at all, thereby leaving a major gap in assessing its viability for resource poor farmers that it is purported to benefit. Apart from the general consumer concerns about a lack of consensus on the health and environmental impacts, the lack of access to information and no legal requirements for mandatory labelling of GM crops and food, GM potatoes give rise to particular negative socioeconomic impacts for small scale farmers. It is not possible that resource poor farmers will benefit from a crop that:

• they can only afford if they purchased on credit (normally double the price);
• has 10 patents-holders that will be looking to reap financial benefits;
• will be released in a context of Intellectual Property Rights regime that favours the
• commercial seed industry;
• they cannot use to produce their own planting material; and
• which consumers in all likelihood will not buy.

5. Preliminary Issues

5.1 Rights of access to information restricted

On the 2 June 2004, Glenn Ashton applied to the DoA in terms of the PAIA for access to the following information:

• a) all data from previous field trials (including inspection reports from NDA inspectors),
• b) baseline studies and side by side comparisons of similar test lines,
• c) food and environmental safety testing (including long term studies),
• d) molecular characterisation of the line,
• e) toxicity studies,
• f) records of impacts on non-target organisms,
• g) expression and degradation rates of both the bt lines and the antibiotic marker (ARM) gene in the field,
• h) risk management outlines,
• i) monitoring outlines,
• j) emergency procedures,
• k) records of destruction of previous trials and tests, including the methods of destruction,
• l) records of oversight and proposed improvements on these,
• m) a list of contact people,
• n) location of the field trials to enable independent oversight,
• o) stability of 35 s promoter in this event,
• p) any other relevant data pertaining to this trial.

In the intervening period, Mariam Mayet approached Dr Graham Thompson from the ARC directly and requested access to data relating to the previous field trials conducted in South Africa. In response to the said request, Ms Mayet was furnished with certain information pertaining to two field trials conducted during 2001-2002 and 2003-2004. The inadequacies relating to this data is canvassed below in the scientific assessment. On the 24 June 2004, Mr Ashton was furnished with limited information in response to his PAIA application. The inadequacies inherent in the information furnished are addressed in the scientific assessment below. However, we deal here with a number of specific issues.

5.2 No Baseline Data

No baseline environmental data was provided in respect to the previous two field trials. In this regard, we note that in the absence of such data, the accuracy of the evaluation of ecological impacts is questionable. Indeed, we found no evidence of any baseline data pertaining to the proposed field trial for the period 2005. Any field trials conducted on the proposed locations will similarly be questionable.

5.3 List of contacts

We note that no information has been furnished to us regarding the independent consultant the Applicant is required to hire, in order to discharge its obligations under the ECA in respect to the compiling the requisite Scoping Report.

5.4 Field trial locations

We have taken special note of the failure of the Applicant to furnish to us with the exact location of the proposed field trials. The Applicant has cited this information as Confidential Business Information (CBI) and in this regard, the main reason given is that “activists will seek out and destroy the trial sites, inadvertently risking the spread of the material, or that spillage during transport may occur. This will be managed by keeping the exact locations confidential for the 2-year trial period …” “

The only CBI information in this application is the exact location of the trial sites. This is to protect the trials from activist interference, the developers from the cost of this action and the farm managers from intrusion and intimidation. Emerging and subsistence farmers will be invited to the trials to view the technology, ask questions and to be consulted on its potential value to them.“(our emphasis)

There is no history of any vandalism at test sites in South Africa having taken place to date, despite the exact locations of a number of field trials of GMOs being well known. Certainly, there have been incidents of protest action elsewhere in the world-on other continents. However, there is no justification for the Applicant and the DoA to without reasonable justification extrapolate what has happened on other continents, to a non-existent situation in South Africa , and in so doing, severely curtail the public’s rights to such information. We note with extreme disquiet, that the failure by the DoA to provide this information to us, must surely mean that it accepts the unsubstantiated and unjustified reasons furnished to it by the Applicant.

This effectively implies that those of us who raise biosafety concerns are nothing more than vandals! Not only do we find this disturbing, we also find it deeply disappointing that a democratically elected government such as ours, should display such a profound lack of understanding of our work and the right to information. The issue of inviting subsistence farmers is dealt with in the discussion on socioeconomic issues elsewhere in this report.

5.5 Constraints due to overlapping time frames

We draw the attention of the EC to the fact that the public participation mechanisms as set out in section 6 of the Regulations made under the GMO Act, concerning the very short time frame that the public is given to respond to public notifications, seen in the light of the time frames which the NDA has to respond to applications in terms of PAIA, has been extremely prejudicial to us. In regard to the current application, the public notice was published during the period 14 – 18th May in various newspapers. Members of the public were accordingly obliged to submit objections as required by the Regulations to the GMO Act, within 30 days from the date of publication of the notice, or in this case, by June 17. For various reasons pertaining to consultation between groups working in the public interest on this issue and evaluation of resources and capacity to respond to the said public notice, we were only able to submit our PAIA application on the 2 of June 2004.

However, even if we had submitted a PAIA application on the 19th May 2004, we would have been prejudiced in that the DoA would only have been obliged in terms of PAIA to furnish the information requested after the expiry of the comment period. It is purely fortuitous that the Applicant was amenable to the extension of time, simply because the meeting of the EC had been postponed. Even in the light of the extension being granted to us, we still only received the data in response to our PAIA application on the morning of the 24th June at 09h30.

Given that we had still to arrange for the copying and distribution of the information to relevant experts, work on the data supplied was only able to commence on the 25th June, giving us less than two working days to compile our objections. This is clearly not only insufficient, but extremely prejudicial.