FSA faces legal challenge over GM rice in imports

Friends of the Earth is seeking a judicial review of the Food Standards Agency’s efforts to protect consumers from an experimental strain of genetically modified rice that is contaminating imports from the USA. It claims the agency has misunderstood and failed to comply with EU laws.

Products containing rice contaminated by a genetically modified herbicide-tolerant strain during Bayer’s field trials in the US are thought to have been entering the EU since the start of the year. But the EU was only informed by US authorities on 18 August after they were notified by Bayer.

Under EU law, no GM rice strain has been approved as safe for human consumption. Accordingly, the European Commission issued a provisional emergency decision in August - which it confirmed in September - ordering member states not to allow US rice into the EU unless accompanied by a report testifying it is free of Bayer’s GM rice. Member states must also randomly test samples of rice already on the market to ensure they are free of the strain.

Testing by NGOs, suppliers and governments has revealed several products across Europe containing the strain known as LL601 and other GM rice strains, including another experimental strain from Bayer LL62 and one from China known as Xianyou BT63.

In the UK, FoE claims its tests have found GM material in products on sale in Morrisons and Somerfield. Some stores have withdrawn the products following publicity.

But FoE says the products are still available in other stores. It is concerned that, given rice’s two-year average shelf life, there could be large stockpiles in warehouses and distribution centres serving other retailers and the public sector.

It argues the FSA has not done enough to identify contaminated rice and should have issued a ‘food alert’ to local authorities. It points out that retailers look to local authorities for advice, who in turn apply to the FSA for guidance.

The FSA said it believes its actions have been "appropriate and proportionate" but it was unable to comment further at this stage.

Its handling of the situation is symptomatic of its approach to genetically modified organisms, says FoE campaigner Clare Oxborrow. "We want them to take a more precautionary approach to GM, as required by EU law," she says.

FoE first threatened the FSA with legal action in September after receiving a leaked memo allegedly sent from the agency to retailers. This told retailers to continue normal operations and not worry about testing or withdrawing products because there appeared to be no health threat, says Ms Oxborrow.

Shortly after FoE publicised this stance, the FSA issued a statement reminding retailers that the sale of unauthorised GM material is illegal and to remove any contaminated rice from sale. It also altered its interpretation of the advice on LL601 from the European FSA’s GMO panel about the same time.

The EFSA issued an interim statement on LL601 on 15 September saying it had insufficient evidence to carry out a full risk assessment, but the evidence that it did have suggested exposure to trace levels of LL601 was "not likely to pose an imminent safety threat".

The FSA’s initial press release on this opinion did not mention the EFSA’s concerns about the availability of information. But in a further statement on 5 October the FSA concedes "the EFSA recognised that there is some uncertainty".

FoE argues that regardless of the EFSA’s advice, the rice must be presumed to be unsafe because it has not been approved for human consumption under EU law. It also points out that the Commission put in place emergency measures despite the EFSA’s advice.

In November the Commission amended its original emergency decision to extend member states’ control measures to cover further rice products. It also requires them to carry out their own tests of US rice after wrangling by the US and EU authorities over testing methods. Rice certified as GM-free by US authorities failed detection tests used by EU governments.

FoE expressed disappointment that the controls would only cover imports from the US.