Your honey with a dash of GM pollen: EU Court rules

22 September 2011 by

Case C‑442/09 Bablok et al v. Freistaat Bayern, Monsanto intervening

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.

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Related posts:

2 comments


  1. alas says:

    Compensation is what “the good Mr Bablok” was looking for.

    However, Monsanto’s refusal of it led to this case, which has wide-reaching consequences far further from compensation.

    Indeed, it means that honey must be tested for GM presence, even if this GM presence is very low (a few % of DNA).

    Which amounts to, broadly, 2 possibilities:

    – either no GM crops are planted, in which case apiarists can be sure that their honey is not affected by GM pollen ;

    – either GM crops are planted, in which case honey will become very, very expensive, as GM tests will in effect become mandatory – most apiarists fear that not making these tests, and henceforth selling “GM-maded honey”, mandatory labelled as such, will not be a very good market move.

    One last thought : apart of honey-lovers, this might seem quite minor compared to the huge stakes of soybean, etc. But making honey preserves bee-life, which in turns save billions in maintaining biodiversity.

  2. Hapennyworth says:

    So, to get this straight… the good Mr Bablok is no longer able to sell his excellent honey because it has been infected by Monsanto’s evil lab-spores? Surely Monsanto should be compensating the poor man?

Comments are closed.

Welcome to the UKHRB


This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates


Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.

Subscribe

Categories


Tags


Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common law communications competition confidentiality consent conservation constitution contact order contact tracing contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Family Fatal Accidents Fertility FGM Finance foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage gay rights Gaza Gender genetics Germany Google Grenfell Gun Control Health HIV home office Housing HRLA human rights Human Rights Act human rights news Human Rights Watch Huntington's Disease immigration India Indonesia injunction Inquests insurance international law internet inuit Iran Iraq Ireland islam Israel Italy IVF ivory ban Japan joint enterprise judaism judicial review Judicial Review reform Julian Assange jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid legal aid cuts Leveson Inquiry lgbtq liability Libel Liberty Libya lisbon treaty Lithuania local authorities marriage Media and Censorship mental capacity Mental Capacity Act Mental Health military Ministry of Justice modern slavery morocco murder music Muslim nationality national security naturism neuroscience NHS Northern Ireland nuclear challenges Obituary parental rights parliamentary expenses scandal patents Pensions Personal Injury physician assisted death Piracy Plagiarism planning planning system Poland Police Politics Pope press prison Prisoners prisoner votes Prisons privacy Professional Discipline Property proportionality Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries quarantine Radicalisation rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials sexual offence Sikhism Smoking social media social workers South Africa Spain special advocates Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance Syria Tax technology Terrorism tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal jurisdiction unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe

Disclaimer


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: