A response to a request for co-existence

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In May 2008, I spoke at the inaugural Australian Genetically Modified Crops Summit on the subject of “GM Crops and Foods, including the legal framework and rights and obligations of growers, their neighbours, suppliers and consumers”. In my address, I gave an explanation of the regulatory framework for GM crops in Australia - I provided an analysis of the common law rights and remedies available for different groups in relation to various GM issues affecting farmers, transport and industry groups, insurers and consumers.

My talk concentrated on legal recourse since I was not there to be an advocate either for or against GM or non-GM products. In any case, I take the view that there are likely to be many different categories and levels of genetic modification and different applications of GM technologies, so it is possibly simplistic to consider every GM product as having the same potential impact on final food products. Nonetheless, for the purposes of writing the following article, I have considered the issue of segregation between non-GM and GM as entire classes. Perhaps, one day, scientists and/or policy makers will determine the need to distinguish between different categories of GMOs.

My article below arises from a question that followed my presentation. A representative of one of Australia’s major supermarket chains had approached me with the following question: Whether and how the laws operating in Australia could be changed to accommodate the desire by that supermarket chain to fulfil the expectations of many of its customers to allow them the choice to select a non-genetically-modified food alternative to a GM canola oil?

The supermarket representative was not necessarily expressing an opposition to GM biotechnology. The supermarket simply wanted to satisfy a very large number of its customers who would be seeking the non-GM product equivalent on their supermarket shelf. The lifting of the moratorium on cultivation of GM canola in Victoria and New South Wales had triggered additional concerns for the supermarket, for reasons that will be outlined in this article further below.

My aim in writing this article is to look at how laws would need to change in Australia if Australians indeed want co-existence and choice for buying non-GM foods. The real issue in the GM debate, at this stage, is not about the technology per se, but about how to implement a successful segregation of GM and non-GM food products in an Australian context throughout the whole length of the food supply chain from the field to the fork.

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The following article explores in detail two of the regulatory carve-outs in the GM Labelling Food Standard in the Australia New Zealand Food Standards Code: the “highly-refined foods” carve-out and the “unintentional presence” carve-out.

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Many anti-GM activists argue that there is an actual or potential health hazard in GM food consumption. While claims of higher allergenicity, or any other claim of adverse health, for GM foods have not been established by the majority opinion of scientific literature produced to date, nevertheless consumers who seek to avoid GM foods may wish to know when they are being offered a food with a genetically-modified element. At present, the law allows some loose carve-outs so that consumers are eating GM foods without a legal requirement for the product to be labelled as GM food.

Irrespective of the GM status, there are peanut-based foods in the market that are already toxic or lethal to some consumers and yet these are readily available to all.

The following article considers the analogies and differences between the legal treatment of allergenic foods and GM foods.

Recently, some testing by the Australian consumers’ CHOICE magazine revealed that many Australian food products had levels of plasticisers in the food to levels that could be considered unsafe. This article examines what standards and regulations exist in Australia and attempts to answer the question: Is it a lack of regulation or a lack of enforcement that is the problem?

There are various legal regimes in Australia through which a food company can legally protect its name or brand, such as trade marks, company names, business names and domain names. However, there may be instances where the law can force such a name to be changed. This article examines instances of a legal basis for mandatory name changes and issues to consider when devising a name for your company, business, brand or particular product.

More of the latest food law developments including:

• Update on the Health Claims Standard
• The introduction of mandatory unit pricing in parts of Australia
• More fruit representations court action by the ACCC
• NSW Name and Shame in action
• New Liquor Regulations in NSW