This post first appeared on the UK Human Rights Blog and is reproduced here with permission and thanks.
The result of this decision by the CJEU is summed up in a pithy summary by EU Business entitled “EU court backs angry honeymaker in GM pollen row.” The underlying question arose when food law met honey law (yes, there is one) met GMO licensing law, It was all about whether adventitious contamination of honey and pollen deriving from GMO maize renders the honey a GMO product.
Paradoxically the beekeeper sought that outcome in what we would call statutory tort proceedings. He sued the State of Bavaria who owned various experimental GM maize plots, for damaging his honey via GM pollen. Monsanto, the real object of the case, said that it didn’t matter really that its GMO pollen was in the pollen, and it didn’t cause damage for which our apiarist could sue. As we shall see, the CJEU decided it did matter – a lot.
Not all of you will know that EU legislators have dedicated a whole Directive to honey; of Council Directive 2001/110/EC. In the lyrical yet precise prose of the Eurocrat: ‘Honey is the natural sweet substance produced by Apis mellifera bees from the nectar of plants or from secretions of living parts of plants or excretions of plant‑sucking insects on the living parts of plants, which the bees collect, transform by combining with specific substances of their own, deposit, dehydrate, store and leave in honeycombs to ripen and mature.’ : Annex I. Honey consists predominantly of sugars but also contains solid particles derived from honey collection, as Annex II tells us.
Enter stage left, maize MON 810, genetically modified to zap corn borer caterpillars, and grown for research purposes not far from Herr Bablok’s beehives. Honey when sold contains pollen, some introduced by the bees, and some from the centrifuging process applied to the honeycombs. And when Mr Bablok checked the pollen in his beehives and his honey, he found 4.1% of the total maize DNA was MON 810 maize DNA, and that very small amounts of MON 810 maize DNA was found in his honey.
His case was that this rendered his products unmarketable or fit for consumption, and hence they had been subject to a “material interference” giving rise to statutory liability under a domestic law concerning genetic technology.
The State of Bavaria, assisted by Monsanto, disagreed. Bablok won at first instance, but the court of appeal ordered this reference to the CJEU on three questions of law.
The first question posed related to the fact that the MON 810 maize pollen in question was on one view dead, i.e. it could not reproduce and transfer the genetic material which it contains. The Court decided that this meant it was not a genetically modified organism within the meaning of Article 2.5 of the GMO food Regulation (EC) No 1829/2003.
But that was not the end of the story, because this Regulation also applied to “food produced from or containing ingredients produced from” GMOs. And the Court decided that honey contained pollen, and this pollen was an ingredient produced from GMOs. It mattered not that the contamination by the substance in question was intentional or adventitious; the pollen was a standard ingredient of honey, even though you do not buy your honey for the pollen in it.
The third question was a bit of a last throw of the dice for Bavaria and Monsanto. Elsewhere in the GM Food Regulation there were tolerances (e.g. appliable to labelling), and it said that these tolerances should apply by analogy so that the honey could still be regarded as (really) GM free. The Court robustly disagreed.
Hence, on these findings, the honey is indeed unmarketable because of the GMO-contaminated pollen in it.
I picked up Bablok in a post of March 2011, Oilseed rape, bees, lettuces and mobile phone masts: the right to information, when we had simply the opinion of the Advocate-General whose view was endorsed by the Court. But, as I then pointed out, it has some resonances for an access to environmental information case, G.M. Freeze v. DEFRA concerning the accidental GMO contamination of a crop of oilseed rape seed. The crop then cross-pollinated with the neighbouring field of oilseed rape, contaminating the latter to 1 part per 10,000. As I put it, in refusing access to the grid reference of the contaminated crop, the Tribunal in effect reasoned thus:
“DEFRA have convinced us that there was no measurable risk of dilution of a conventional crop within the vicinity and hence no realistic likelihood of adverse consequences from the incident; similar considerations apply to the interests of bee-keepers, given the low level of contamination; ergo it is not “necessary” that anybody else knows about where the incident occurred.”
The effect of this present judgment is of course to make such low level contamination of a honey crop unmarketable – if, as the CJEU has decided, there are indeed no thresholds.
In the light of the Advocate-General’s opinion, I wondered whether the GN Freeze case had gone further, though looking at their blog it seems as if they now have a reasonably good idea where the offending farm is.