Court says GMO regulator didn’t follow proper procedure

By Lindi Botha | 24 October 2024 | 7:00 pm

The Supreme Court of Appeal (SCA) has put the brakes on the commercial release of Bayer’s drought-tolerant maize variety MON87460, citing that the Department of Agriculture and the Executive Council (EC) for Generically Modified Organisms (GMO) did not follow due diligence in their risk assessment when they approved the permit.

Bayer’s application to commercialise its drought-tolerant maize has been further delayed after the Supreme Court of Appeal cited that the Executive Council for Generically Modified Organisms did not follow proper procedure when approving the application. Photo: Lindi Botha

The court case has been ongoing since 2015 after the African Centre for Biodiversity (ACB) appealed against the EC’s approval of the maize variety MON87460 in 2014.

A permit is required for the release of GMO seed in South Africa. The EC, who is the governing authority, either grants or denies a permit based on science-based facts on whether the crop poses health or environmental risks. While the EC approved the permit in 2014, the ACB’s appeal has kept the variety off the market.

The ACB was twice overruled in court, but succeeded in the Supreme Court of Appeal earlier this week. MON87460 must now be sent back to the EC to be re-evaluated.

Important to note is that the SCA’s ruling is related to the process the EC followed in granting permit approval, and not the safety of GMOs.

At the core of the judgment is that the EC did not indicate whether Monsanto, who developed the seed before being sold to Bayer, should submit an environmental impact assessment (EIA) as part of the permit application process.

While an EIA is not mandatory, the EC must indicate if it considers whether one is necessary, and make a clear decision known.

The SCA, in its judgment, noted that “it was a relatively straightforward matter for the state to have presented evidence that a determination was made one way or the other, but it had failed to do so”.

Mariam Mayet, ACB’s director, stated that this proved that the EC merely rubber-stamped Monsanto’s application for authorisation, uncritically accepting evidence that the seed posed no threat to human health or the environment.

Responding to the judgment, Annelize Crosby, Agbiz’s head of legal intelligence, however told Farmer’s Weekly that the onus was on the company applying for the permit to submit scientific data, and that government departments did not conduct their own trials.

Mayet and the SCA maintained that the EC should have applied the “precautionary principle” during their determination of the approval of the permit. The precautionary principle requires that a cautionary approach be taken when it is not clear whether there will be environmental harm.

Crosby noted that when it came to environmental safety, the South African National Biodiversity Institute was responsible to monitor environmental impacts over the long term. “As such, nothing has flagged the need for GMO activities to be subject to an EIA.”

She added that there had been multiple assessments by other regulators of GMOs, none of which raised red flags.

Liza Bohlmann, external communications lead for Sub-Saharan Africa at Bayer Crop Science, clarified that none of the other GMO traits that were currently available in the market are implicated in this matter.

“We are confident that all our commercially available trait technology and seed can be used safely and effectively like it has been for over two decades in South Africa and around the world.”