Opting out of GMOs in the EU – what does it take?

September 3, 2015 by Pat Thomas

Photo: Bigstock

Social media is a-twitter with news that four EU countries – Scotland, Germany Latvia and Greece – have totally banned GMOs.

Many are treating the news as ‘job-done’ for European citizens’ longstanding aspiration to remain GM free. But it’s worth unpicking the stories a little bit, because behind the inevitable cheers – and jeers – are some real and important issues, and tough realities, which the media ballyhoo fails to address.

As many of our supporters know, the EU rules regarding GMO cultivation changed in January 2015. The new and highly contested changes to the legislation, made in April 2015, were spun by the EU, and so in the media, as an ‘opt out’ law – which gave countries that did not want to plant GMOs the right to say no to cultivation.

In fact, as we have argued, the legislation is very vague and was written largely to facilitate those countries, such as the UK, that wanted to opt in.

The pro-GMO (and anti-European) UK government, in particular, had a great deal of influence in shaping the legislation in a way that ensured it could press ahead with plans to plant GM crops in the UK as soon as was practicable, most likely by 2016/17.

This is problematic, however, because the whole of the UK is not pro-GM. The Welsh and Scottish devolved governments have longstanding GMO free policies. Northern Ireland also has devolved powers, and while a little more torn, is largely in favour of keeping GMOs out of the country.

Only England, which has no devolved powers and thus follows UK government policy, remains ‘pro-GM’. Yet even in England there are pockets of real citizen resistance in the remnants of counties, towns and municipalities that long ago declared themselves ‘GM-free’.

Many of these GM-free zones have no real standing in law, though they are symbolically important and powerful statements of public intent.

Opt out basics

In fact under the new proposals no country can totally ‘ban’ GMOs.

Countries and devolved powers such as Scotland, but also the German Federal States, have the option, on a case by case basis, of requesting not to be included in the ‘geographical scope’ of current and proposed new GMO approvals.

Essentially, when a biotech company applies for authorisation of a GM crop it must provide a geographical scoping statement which shows where it intends to plant the crop. There are, under the new legislation, three ways to ‘opt out’ from this.

Option 1

During the current so-called transition phase, from April 2  until October 3, 2015 a Member State can send a request to the biotech company, via the European Commission, to be excluded from the ‘geographical scope’ of either a currently approved crop, or one that is in the process of being approved. In this process the Commission acts as the middleman; the decision to allow the opt out rests with the biotech company. The Commission will make the requests publicly available online.

Option 2

After October 3 the process is much the same but with added time limits. When a Member State has been notified of the renewal or a new approval of a GMO crop it has 45 days to notify the biotech company, via the European Commission, that it wishes to opt out (some extensions to this timeline can apply). The Commission will make the request publicly available online.

The biotech company then has 30 days to respond. If it does not respond within this time it will be assumed that the opt out has been granted.

Option 3

If a Member State doesn’t use the first or second option there is a third. The Member State may move to adopt measures restricting or prohibiting the cultivation in all or part of its territory of a single or multiple GM crops that have been approved for cultivation. This action must be rooted in what are considered “compelling grounds”:

a) environmental policy objectives;

b) town and country planning;

c) land use;

d) socioeconomic impacts;

e) avoidance of GMO presence in other products without prejudice to Article 26a;

f) agricultural policy objectives;

g) public policy.

Those grounds may be invoked individually or in combination, with the exception of point ‘g’ which cannot be used individually. Member States have 75 days from the notification of the approval process to use this option and during this time they are prohibited from implementing any ban.

A Member State cannot opt out on ‘concern for health’ or ‘precautionary principle’ grounds, and if a GMO has already passed an environmental assessment and been determined to be ‘safe’ it can’t cite environmental grounds.

Even if a Member State is successful in opting out of cultivation, the law does not provide for restricting the free circulation of authorised GMOs, for instance as ingredients or even as seeds.

So who has opted out?

So far only Latvia and Greece have received approval to opt out of planting one GMO crop: Monsanto’s pest-resistant MON810 maize.

Earlier this month Germany, which has a long history of opposing GMOs, announced its intention to use the opt out.

According to a letter seen by international news agency Reuters, German Agriculture Minister Christian Schmidt has notified German state governments of his intention to tell the EU that Germany will make use of new “opt-out” rules to stop GMO crop cultivation. Schmidt has asked each of the German state authorities to say by September 11 whether their region should be included in the opt-out.

Just prior to the German announcement the newspapers were full of headlines about Scotland being the first EU country to ban all GMOs. Scotland, like Germany, has a longstanding anti-GMO policy.

Scotland makes a start

The stories came on the heels of comments made by Rural Affairs Minister Richard Lockhead in a larger discussion at an annual agricultural show.

The press release which announced the news suggested that the government intended to request a total ban on all GMOs – and this suggestion was repeated in most of the newspapers.

This is not possible. Member States, as previously stated, can only opt out on a case by case basis even during the transition phase.

Scotland’s case for opt out during this transition phase appears to be an extension of Scotland’s longstanding policy on GMOs, and is based around concern for the environment, lack of consumer demand and the need to apply the precautionary principle.

While some headlines suggested that Scotland would be able to approach the European Commission directly with its opt out request, it is more likely that Scotland must make the approach through the pro-GMO British government, which will then have to pass the request onto the Commission in a timely fashion.

At time of writing Scotland, like Germany, had not yet submitted the paperwork necessary to begin the process of opting out under option 1.

In addition, all four countries have only used option 1. After the transitional period opting out will be more complex and arguments against the planting of GMO crops will need to be more ambitious and well argued. It will not be enough to say that a country doesn’t want GMOs or wants to, as Scotland has stated to the media, “protect it clean and green” reputation.

The bottom line is that each country that is pursuing an opt out is taking a step into the dark – the process is not straightforward and we still have no real idea of what will stand in law and what will not, and what reaction, if any, the biotech companies will have as the process unfolds.

A GMO free UK?

In the UK Scotland is the first country to throw down the gauntlet to the EU. This is no small thing, but the government now needs to follow through. It is very likely that Wales will also be making its appeal to opt out very soon. It is also very likely that both appeals will succeed for the limited number of crops currently involved.

But there is a caveat. So far, being GMO free in the UK has been relatively easy because there have been no GM crops approved at EU level that are really suitable for UK growers.

But that picture could change with the introduction of crop varieties that are suitable for UK soil and as it does the process may become more challenging.

It is entirely possible that the biotech industry will capitulate to most, if not all, of the early requests to opt out during the transitional phase – because in truth they won’t be suitable for most EU countries and therefore are meaningless in terms of a marketplace.

For Scotland to refuse GMO maize, for example, is a reasonable request – maize is not a major crop in Scotland. But what happens if a GMO potato is approved? How much more agitated might the debate be then?

This is one reason why so many campaigners believe that the most effective way to keep GMOs out of the EU is to stop them being approved in the first place – something that requires a complete overhaul of the approval process.

It’s not nearly as crowd-pleasing as banner headlines and endlessly congratulatory tweets about in-your-face-big-biotech ‘total bans’, but in the end it is more real and more effective

The debate is on

The Scottish decision will trigger a very lively debate in the UK, and put important pressure on Westminster to justify its pro-GMO stance. Already it has provoked the self-proclaimed ‘pro-science’ brigade to new level of anxiety.

Lobby group Sense About Science, for example, issued an open letter to Richard Lockhead defending genetic modification and criticising the Scottish government for acting against science. The letter suggested that Scotland’s decision to go GMO free would endanger research and development into agricultural biotech.

In fact, opting out does not restrict research and development. Indeed, a country could opt out of planting GMOs, but continue to develop them for other countries to eat – an ethical dilemma of greater or lesser significance depending on which side of the GMO fence you occupy.

Not a rejection of science

Such letters are a given from groups like this and easily countered by letters from scientists holding a different view. A bigger surprise was this week’s editorial in the generally conservative journal Nature headlined, Rejection of GM crops is not a failure for science.

In it the author, a specialist in science policy, notes that there is no evidence that the rejection of GMOs is an indication that European culture is technophobic, that scientific risk assessment is not the be-all and end-all of regulation, that GM crop approvals should be based on the “careful weighing of many factors” and that “In Europe, especially in countries that value the provenance of food, much of the general public doesn’t want GM foods.”

He goes on to criticise the myth of “substantial equivalence” – the notion that GMO foods are the same as conventionally grown foods:

“Genetic modification is a blockbuster technology with a broad ability to mix and match genes; its use or misuse has profound implications for global ecology and the food supply. It is in no sense ‘substantially equivalent’ to plant breeding.”

Not there yet

Counties wishing to opt out of GMO cultivation are indeed weighing many factors and the process is neither simple nor straightforward.

We should be celebrating that the process of challenging GMO cultivation on UK and EU soil has begun. But there is some danger in presenting it as a fait accompli, as has been the case so far. Doing so risks making the public believe that there is no more to do, that government has done the ‘right thing’ and that they no longer need to pay attention to a subject which many find difficult and challenging.

A drop-off in public engagement and support for a GMO free UK now would be disastrous. More than ever we need citizens to support their governments, to be vocal about their desire to see the UK remain GMO free and use their considerable persuasion to create a GM-free tipping point in this country and beyond.


  • UPDATE November 6, 2015: By the October 3 closing date 17 EU countries (Austria, Bulgaria, Croatia, Cyprus, Denmark, France, Germany, Greece, Hungary, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Poland and Slovenia) and four regional administrations (Scotland, Wales and Northern Ireland in the UK, and Wallonia in Belgium) had laid down a gauntlet and applied to the Commission to opt out of the cultivation of several GM maize varieties. all of these have now been approved  You can view the documents on the European Commission’s website.  It is important to remember, as our article makes clear, that even the granting of an opt out is just the first step in a long process. With every new GMO approval Member States will have to go through this process again and again. In addition the EU also has significant way to go to deal adequately with the import of GMOs which is governed by a different piece of legislation. In spite of what you may read elsewhere, we have not ‘won’ the GMO battle in the EU. It has only just begun.