95 Percent Organic

The Rich

Prince Charles and Camilla visited an organic farm near San Francisco over the weekend, and reader of this blog David Tribe made a few comments about organics on ABC Television Landline over the weekend.

I rather like this extract from the Landline commentary:

PRUE ADAMS: In Australia, there is no doubt organics is catching on among consumers and farmers. Still, it accounts for less than 1 percent of our agricultural output. Proponents point to little government support as one reason for its relatively slow growth.

BERNWARD GEIER: I must say – allow me to be critical for a moment although I’m a guest in your country – compared to other governments, Australia not only can do much more, it has to do much more, otherwise you will be left behind, because other governments have much more understood how important it is to support organic farmers, up to getting votes for doing the right thing because that’s what consumers want.

PRUE ADAMS: The organic sector is still rather a small niche in Australia and that’s where Dr David Tribe says it should stay.

DAVID TRIBE: I think in many areas, in many localities, it’s a great way of producing good quality food for rich people.

Prince Charles is rich enough to not only eat it, but also grow it.

Organic Tolerance

Interestingly under standards set by the National Association for Sustainable Agriculture Australia (NASAA), organic products are allowed 5 percent non-organic material and there are allowances throughout the standards for the use of non-organic inputs where it can be established that organic alternatives are not available.

GM Tolerance

But the organic growers want zero tolerance for genetically modified crops:

“Contamination of organic grain production is a very real possibility in Australia with this latest announcement. While the loss of premiums due to GM contamination might be arguable with conventional grains, it is a major reality with organic grains where premiums can be up to 100 precent above conventional prices.

BFA & ACO believe as a minimum that State Governments should:

1. Indemnify growers against loss of premium, cost of testing, liability for contamination costs down the supply chain

2. Introduce legislation to make seed companies strictly liable for any future sale or planting of contaminated seed

3. Seek to recover the cost of the contamination identified in Australia this year from the Seed Company(s) concerned

4. Reject any calls for pro GM industry groups to legalise contamination of up to 0.9 percent.”

In summary, organic can be only 95 percent pure, but a 0.9 percent contamination with GM is unacceptable?

Strict Liability

The Network of Concerned Farmers and organic growers have advocated the introduction of a ‘strict liability’ regime for GM crops. Mark Barber has just authored a significant report for Acil Tasman titled Managing genetically modified crops in Australia.

Barber makes the following comments concerning ‘strict liability’:

The Australian Government has chosen not to implement a strict liability regime for possible damage caused by GM organisms, and nor have the United States, New Zealand, Canadian or United Kingdom Governments.

Even so, the courts may be asked to consider the application of the principle of strict liability by a plaintiff. Strict liability is a tortious common law principle which imposes liability at law to a third party for the actions of another party, without proof of fault in their own actions. In other words, strict liability is liability regardless of fault, rather than without fault. The doctrine relates predominantly to matters of public and/or social policy importance. Its intention is to provide a safety net for compensation of activities, particularly those considered hazardous and inherently dangerous.

However, a former Chief Justice of the High Court of Australia, after
discussing a range of case law, concluded that the doctrine has “no place in Australian law”.

The Australian courts resistance to strict liability is also partly explained by the difficulty the courts may face in defining what an extra-hazardous activity is.

Defining GM crops as extra-hazardous would mean that the courts are over turning the OGTR [Office of Gene Technology Regulator] approval process.

In the US ‘there is no strict liability for harm caused by an abnormally dangerous activity if the harm would not have resulted but for the abnormally sensitive character of the plaintiff’s activity (Kershen 2002): it is reasonable to assume that this concept would be also be considered by the courts in Australia.

It may be difficult for the organics industry to claim damages under ‘strict liability’ on the basis that GM crops are ‘hazardous and inherently dangerous’ as it would be difficult to establish that these farmers’ tolerance of GM crops was not abnormally sensitive, given that other areas of their activities allow quite generous tolerances of the use of non-organic inputs in comparison.

Is GM Different?

According to Mark Barber:

The Australian Trade Practices Act, 1974 has little concern with the actions of farmers growing GM crops per se or with AP [adventitious presence*] tolerances, other than ensuring that farmers (or any other parties) deal with each other in a truthful and honest manner. The Act does become relevant when a specified claim (whether non-GM, GM-free or organic) by sellers is found to be misleading or deceptive, just as in any other commercial situation.

Marketing claims by sellers have to be able to be substantiated by an assurance or identity preservation system. This is why, for example, NASAA emphasises that organic production relates to a set of production standards, not product standards:
‘Organic products shall not be labelled as GMO free in the context of this Standard. Any reference to genetic engineering on product labels shall be limited to the production and processing methods themselves having not used GMOs.’

In any event, a claim that a product is GM-free, non-GM or organic would only be made when there is a clear economic incentive. However, as noted earlier, most analysis conducted on the impact of GM crops in Australia has concluded that there are few price premiums available in conventional markets for non-GM crops proven to be free of co-mingling with GM product.”

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* Inadvertent mixing of one grain with another is often referred to as ‘adventitious presence’.