By Grant Jacobs • 05/11/2015 • 3

This article was written without being aware of two important context documents. I would strongly encourage readers to read this article first so that they are aware of the proper context for this discussion.

Last week the Minister for the Environment announced a proposal to change part of New Zealand’s legislation controlling the use of genetically modified organisms (GMOs) outside of the laboratory.

Most important is what is not being done, and that what is being proposed looks likely to entrench existing problems.

In particular, the proposal doesn’t step back and consider if the problems experienced using the legislation reflect the whole of the legislation, not specific parts of it.

I’d like to see more attention to what international reports recommend and to move from an emotive discussion about ‘GMOs’ to an examination of the properties of each organism in turn. It’s what really matters: GMO catch-phrases avoid looking at the actual things that might, or might not, cause concern.

Below I’ve broken this into four sections –

What is being done

What the proposal doesn’t do, but could (or should) have

Problems with the legislation

Is the suggested approach likely to just cause more problems?

The first two sections are short and have the story for most readers; the remainder is for the keen! Those familiar with my writing will know the Footnotes contain deeper points on topics briefly raised in the text.

What is being done

In 2014 a group (the Sustainability Council, who oppose GMOs) brought to the High Court a case challenging the Environment Protection Agency’s (EPA’s) approval to allow Scion to use a mutagenesis technique to create new tree varieties, for example a wilding-free pine.

This court case revealed two technical problems within the Hazardous Substances and New Organisms (HSNO) Act 1996.[1] The Act defines techniques that create GMOs very broadly, as those using any technique where genes have been modified using steps taking place in a test tube, culture dish, or elsewhere outside a living organism[2]. Some widely-used plant breeding techniques use steps like this. To counter this a second criteria is included in the Act, a list of list of gene modification techniques that are to be considered as not creating GMOs as of rights.[2] A question raised by the judge was if this list was an exhaustive list of only exactly those techniques, or if it was meant to be a list of examples of types or classes of techniques. The other issue was a grammatical error that forced the court to interpret possible meanings.

The EPA have suggested three amendments that,

‘Force’ the list of exempted techniques to be exhaustive, not a list of examples of kinds of techniques.

Make the wording so that techniques used before July 29 1998 that use laboratory-based gene modification steps are not considered as creating GMOs.

Extend the accepted mutations by mutagenesis techniques to include small changes in the DNA sequence. (The technique challenged in the court case does this; the court ruling could potentially impact the accepted older techniques that also do this.[3])

Minister for the Environment, Nick Smith has requested that the EPA undertake public consultation on these proposed amendments.[4]

I think is what is more important is what these suggested changes don’t do, especially that the proposals don’t appear to consider if the problems experienced during the court case reflect the overall nature of the legislation rather than particular details within it.

One thing that isn’t clear to me from the documents is how the scope of the investigation was set, how it was directed. I’m struck by how the proposals read as if they’ve been limited to the portions the judge might have highlighted (given the transcript of the court case), not the legislation as a whole.

Either way, I strongly believe a review of the whole legislation is needed, taking into account the advice from other reports such as the House of Commons Science and Technology Committee that I have previously reviewed.[5]

Polite, constructive comments on my thinking below are welcome.[6] I’d encourage reading the EPA proposal document, it’s well written and lays out the basics of the different ways of breeding plants well given the limited space available – a decent science communication effort, even if the proposal doesn’t tackle wider problems with the legislation.

What is not being done, but could (or should) have

In a nutshell: plans should start towards removing the GMO clauses from the HSNO Act.

The focus on gene modification (GM) in discussions and in legislation is a huge red herring.[7]

In an interview with Lisa Owen, when talking about the recent approval for the trial of a GM virus, Nick Smith remarked that,

We do not want to deny people access to life-saving treatments on the basis of knee-jerk political reactions, slogans like ‘GM free’. We want those decisions made by best scientific advice, …

I agree that many of the references to GMOs that are tossed about are slogans. Slogans by their nature are often hollow vessels meant to carry an emotive appeal.

Here’s a thing. Focusing on ‘GMO’ is actually avoiding the issue.

The label ‘GMO’ is poor substitute for what is wanted: ensuring that new organisms do not have properties we don’t want.

The thing that determines if an organism might be problem or not are the properties of the organism, what they do, not how they were first breed.

A useful exercise is to try talking about an organism without saying how it was bred, focusing on it’s properties. Once you do this it’s straight-forward.

Try it: if you can’t focus on the properties, you’re not looking at the issue.

Other countries recognise this. Canada regulates just considering the properties of the organisms; according to the EPA they have no GM-specific regulation:[8]

70. In Canada, the chemical and radiation treatments covered by this proposal are neither regulated nor unregulated. This is because Canadian regulation, under the Canadian Food Inspection Agency and Health Canada, is triggered by novel traits rather than the treatments used to develop organisms. This differs from New Zealand’s treatments- based approach.

During the past nearly two years I have read legislation and reports relating to GM legislation in New Zealand, including the High Court case the prompted these proposals, the report of the House of Commons Science and Technology Committee, and more recently the GM portions of the proposed Forestry management standard.

Repeating myself, I’d like to see more attention to what these international reports recommend and to develop from an emotive discussion about GMOs to an examination of the properties of each organism in turn. It’s what really matters: GMO catch-phrases avoid looking at the actual things that might, or might not, cause concern.

Problems with the legislation

The legislation is framed in terms of what is essentially a slogan, built on the ‘concern’ that GM techniques somehow inherently pose a risk greater than previous techniques. There’s no demonstration of this.

Much of the remainder of my discussion is moot as the key point has already been made: the focus on ‘GM’ is a red herring. It’s the properties (traits) of the organisms that matter. Nevertheless, let’s dig deeper as it may help understand why the proposed changes may simply create further problems, or at least is deferring existing problems.

All breeding techniques can potentially create organisms whose properties might be troublesome, but it’s what’s made that determines those properties, not how they were originally bred.

A recommendation of the UK House of Commons Science and Technology Committee in their report on GMO legislation and public engagement was that legislation should be built around properties of organisms, not the techniques used to make the initial exemplars of a variety.

If an organisms meets the properties that might be of concern, they ought to be accepted.

The EPA’s document on a proposed national forestry management plan is one useful example. The GMO exceptions are imposed by legislation, not biological concerns. The rest of their exceptions are from properties of the plants, how they are grown and managed.

EPA reviews non-GM organisms too. One recent example is their consultation over introduction of the rust fungus Puccinia araujiae that is a parasite of the weedy creeper, the moth plant. (More details [PDF file].)

New species introduced for pest control are entirely to New Zealand: you have to consider all the properties they might have that could affect bringing them in. In the case of plants we already grow, GM variants of them share the properties of the variety they were bred from, with the exception of the few changes introduced; you can focus on the changes introduced. It both cases, it’s the properties that matter, not if they’re a ‘wild’ variety, bred with a ‘traditional’ technique or not.

Another example is the recent acceptance of a trial to test a cancer-targeting virus. (I have an upcoming piece about this.) The approval notes the properties (risks) of the virus and considers them. You don’t have to say anything about if it’s GM or not to do that: how they virus was first derived in itself doesn’t determine if it’s safe to use — it’s the properties of the virus that determine that.

Rather than being passed on testing if traits or properties of the organisms are acceptable, New Zealand’s GM legislation is built on a test-of-time concept, that something is considered OK after we’ve used it for ‘enough’ time and no problems have occurred. There is no definition of how long is ‘enough’ (nor why this approach is sound). Furthermore, the legislation is set on an arbitrary, fixed point in time.

If you must use ‘time’ as the measure of acceptance, at some point you have to accept the GM techniques too. Not just by the word of scientists, but also because this is an underlying aspect of how the current law has been set up: to deny this denies the basis the law is set on.

(Alternatively, if you insist it be by the time they are used, but hold up their being used, they’ll never experience the time in use used to establish their ‘test of time’, effecting a ban using circular logic.)

The older examples of released GMOs have been around for a long time now, decades. There are newer techniques that exploit that we now know the genomes of the organisms, so we can target the changes to be made, reducing or completely eliminating changes weren’t targeted. These techniques are being held up, despite that they address many of the concerns. Similarly, there are organisms that address some of the concerns of the initial GMOs that are being held up.

On the legal front it is worth considering other legal perspectives, such as Doug Calhoun has offered at Sciblogs following an article about the court case written last year.

Is the suggested approach likely to just cause more problems?

Pundit writes “Even the Greens thinks it’s a useful tidying up exercise… so long as it doesn’t reach forward to redefine new GMOs and make it easier for them to be introduced.”[9]

I’m not a lawyer, but to my reading the combination of the precedent of the High Court ruling and the proposed amendments ‘reach forward’ to to ensure that all new plant breeding techniques of any kind are to be held up for approval:

Organisms resulting from treatments developed after this date [29 July 1998] would continue to be regulated as GMOs.

The proposal wants to ensure the list of techniques that are exempt from consideration are only those listed and only those used before 29th July 1998.

My understanding is that the original ‘assumed’ reading of this legislation[10] was that those classes of techniques were exempt, not only those examples of those classes of techniques in use before 29th July 1998. (The EPA’s approval for Scion to use ZFN1/TALEN would be based on this understanding.)

The proposal now wants to extend (‘reach forward’) to include newer techniques of these kinds as to now also to be held up for approval.

If correct this is a major change and I am embarrassed that few are pointing this out.

Even setting this aside, the amendments are impractical as they will have to be repeatedly revised to accommodate new techniques that don’t easily fit the existing classifications.

My feeling is that, that the legislation is requiring consulting over the list of techniques to be exempted indicates that the overall approach is wrong.

The more technical issue of what type of mutations are formed from mutagenesis techniques illustrates this.

The EPA proposal notes,

The Regulations would no longer be limited only to treatments that cause chromosome rearrangements or changes in chromosome number. Other commonly used chemical treatments that cause point mutations, such as ethyl methane sulphonate, diethyl sulphonate, or sodium azide would be confirmed as being covered by the Regulations (provided the treatment was in use for mutagenesis on or before 29 July 1998)

The ZFN1/TALEN techniques challenged in the High Court case create the same class of point mutations that are referred to here. It reads as if the precedent set in the court ruling is being extended out widely over techniques the Act did not intend to capture.[1] It would seem appropriate that the legislation as a whole be examined, including if the court’s ruling is what is desired, not limiting examination to within the court’s immediate issues.

If you are to accept chemical means that create point mutants, you should logically also include the same being induced by enzymes, like the ZFN1/TALEN enzymes the court case addressed. The end products are essentially the same, in fact the end products are better defined in the case of the site-specific enzymes, whereas the treatments they accept randomly mutate anywhere with unknown outcomes. (Yet these have yielded perfectly good organisms to use. If a ‘scattergun’ method is considered sound, then a more limited, specific method ought to be too.)

There is much more that could be said,[10] including an aside about the sidebar on page 6,[12] but let’s draw this to a close.

These details are distraction, moot, and part of the red herring.

It is the traits of the organism that determine is if might be a problem, and it is not the particular breeding technique that determines the properties of the organism made, nor if the changes were similar to that found in nature or not.[12]

Both the legislation and the public discussion need to move on past ‘GM’ to the properties of each new organism.

Some hope might be had in the Minister’s forward-looking statement:

we are not ruling out making further changes beyond those of which we are consulting on currently relative to where the rest of the world is sitting.

(Although some would pause reading the double negative “we are not ruling out” — it reads as a politician’s uncommitted statement.)

Let me close by repeating something I wrote earlier again: I’d like to see more attention to what these international reports recommend and to develop from an emotive discussion about GMOs to an examination of the properties of each organism in turn. It’s what really matters: GMO catch-phrases avoid looking at the actual things that might, or might not, cause concern.

Related articles on Code for life:

GMOs and legislation: useful suggestions for New Zealand in British report

The House of Commons Science and Technology Committee on GMO legislation

Food and genetic modification: better informed policy and legislation wanted

Gene editing and GMOs in NZ, part one

Gene editing and GMOs in NZ, part two – is the law out of date?

Gene editing and GMOs in NZ, part three

GMOs and the plants we eat: neither are “natural”

Kumara are transgenic

Footnotes

(Edited: minor update to shift important paragraph nearer to the top.)

In a related, but distinct, issue Nick Smith referred to local councils who are looking to regulate GMOs within their region of the country, e.g. the NBR reported, e.g. as reported by NBR:

He says plans by some councils to go GM-free are “unrealistic” and “unworkable”; “all the evidence shows that decisions around biotechnology need to be made on a New Zealand-wide basis.”

1. This court case is, in my opinion, further confused by one expert witness’ definition of a precautionary principle, something I may return to in another piece. This is not mentioned in the EPA proposal’s description of the court case. My own reading of the court transcript at the time was that this reference to a precautionary principle taken together alongside and with the grammatical issue and the nature of the list that was a keys to the unexpected ruling — that a technique that is in the same class of techniques that the legislation rules as the accepted as of rights should be ruled as not accepted. Worth noting in this context, in the proposal the EPA notes that,

What constitutes a precautionary approach is not further defined, but it is important to note that a precautionary approach does not necessarily mean a “no-risk” regime.

Other studies of GM legislation have expressed concern that there is no ‘the’ precautionary principle, i.e. that there is no one widely accepted definition but a rather collection of differing definitions. This report also expressed concern over how precautionary principles might be abused. (The High Court case might be an unintended example of this?)

2. The formal term is in vitro, literally ‘in glass’.

There’s a logical disconnect in this definition. The definition is not based on the kind of organism made, but the specific setting some some of the steps in the breeding process occurred. Note also that the list regulations deliberately (i.e. intentionally) introduce a double standard.

I’m writing ‘as of rights’ in the general sense, not any special legal meaning.

I also have some reservations of the interpretation of the court case here. My recollection of reading the transcript at the time was that the judge elected that she said ‘must’ read the list as an exhaustive list in order to make a ruling, not that she stated that is the only way any such a list ‘must’ be expressed in legislation is as an exhaustive list. (But then I could be recollecting incorrectly and I lack time to verify this as this point in time. Either way, it seems important to distinguish these two, however.)

3. This perhaps illustrates how the date 29th July 1998 is being used to set a double standard. The ZFN1/TALEN techniques are ‘blocked’ because they are newer, not because of what the techniques do. They make the same kind of genetic changes (point mutations) as the older mutagenesis do. What is different is that they work in a more refined way: rather than make changes randomly all over the genes, they only change selected targets in the genes.

4. Submissions must be made by 5pm, Friday 11 December 2015. If I do prepare a submission I hope I can present it on-line on Code for life, allowing people to suggest improvements, etc.

5. Related to this is the science communication aspects of this. The UK House of Commons Science and Technology reviewed GM legislation. Among their recommendations were to stop talking about ‘GM’ and that legislation ought to be focused on the properties of the organisms.

6. I’ve written this independently of others’ commentary, including those in the Science Media Centre ‘expert commentary’. (Most of what I wrote was written over the weekend before these appeared.)

7. In jest (I have a silly sense of humour this article is hiding): There’s no such thing as a red tuna, but I’ve come to think of this issue as being like someone with a huge red tuna so close to their face that they can’t see the whole fish, only a small part of the side of it’s body. Unlike the blind men and the elephant, they can see the kind of animal it is, that it’s a fish but alright, but they’re looking so closely at it they can’t see that it’s not the fish they ought to be looking at.

It’s usually red herrings, of course. The largest herring are about 45 cm long. Tuna can be much, much larger: over 600kg and over 4 metres long.

(To be fair, there are smaller species of tuna, but even these are (just!) bigger than the largest herring. Nitpickers note I wrote can be large!)

8. I believe Brazil may work along similar lines, but I lack time to formally verify this.

9. In it’s coverage of this topic, Pundit has reported that the virus recently approved for a trial was a GM version of the smallpox virus. It is not. It is a variant of the vaccinia virus. ‘Natural’ infection of vaccinia offers some protection against smallpox, which might be the source of their confusion. I may add further explanation on this to an up-coming post about the cancer-treatment virus that I am current writing.

10. This is contrary to what Jack Heinemann has offered as his opinion. (Also, while I’m writing and for clarity only as it’s not disclosed in the ‘expert’ commentary: Jack Heinemann had a role as expert witness obtained (hired?) by the group opposing the EPA’s approval of Scion using ZFN1/TALEN approaches at the High Court. The EPA expert cited in the SMC expert commentary declares her interests.)

11. There are also non-science issues that I haven’t dealt with here. As just one example, if people’s concerns are with large companies, they could try supporting the smaller companies (or, for that matter, the charities who have developed GMOs).

12. The sidebar on page 6 includes,

In short, the proposal is to clarify that organisms bred using conventional treatments are not considered genetically modified under the law. The organisms that are bred using these methods, for example many varieties of tomatoes, are indistinguisable from organisms that can arise from natural processes.

This is odd (to be polite), as it reads as a play on the naturalistic fallacy. The ZFN-1 technology examined in the court case creates organisms that “are indistinguisable from organisms that can arise from natural processes.” The EPA had several groups advising how ZFN-1 might be classified. One that ruled “We recommend that organisms arising from the use of ZFN-1 and TALEs biotechnology be regarded as genetically modified organisms” made this point in their advice (paragraph 2.5, page 5):

We expect the genetic changes introduced by ZFN-1 and TALENs to be indistinguishable from naturally occurring mutations. No foreign DNA is incorporated into the genome of the host cell, and it is impossible to differentiate between naturally occurring mutations and those induced by ZFN-1 or TALENs.

That they create organisms that “are indistinguisable from organisms that can arise from natural processes” is not one of the reasons these techniques might be considered to be creating GMOs.

General sources

(Sources for specific points are linked within the body text.)

NBR: Nick Smith keeps door open to more genetically modified organisms

Pundit: GM showdown: Minister & Councils face-off over who decides

Parliament and Scoop: EPA to consult on GMO regulations (Also published on Scoop.)

TV3 News: Minister open to more GMOs. A transcript of the interview on The Nation is available at the NBR (My reading is from this transcript, not the live interview. Although the 3 News article claims to have a comment thread, this appears not to open; I have not read these.)

Parliament: EPA decision on GMO welcomed

AgroNews: New Zealand EPA consults on wording of ‘organisms not genetically modified’ regulations

EPA: Consultation on wording of ‘organisms not genetically modified’ regulations in the Hazardous Substances and New Organisms Act (Note link consultation PDF document.)

Science Media Centre: Redefining genetic modification – Expert reaction

NZ Herald: Scientists back GMO law review (I disagree that the title and lede presents scientists’ views, however; the body of the article is fine.)

As of Saturday 31st October there are no statements on this from either Greenpeace NZ or the Green Party on their Facebook page or their websites. Ditto for GE Free NZ. (To be fair, these announcements came at the end of the week and the rugby focus of this week has pushed other stories into the background.) I have not looked to see if statements have been released since – readers are welcome to direct me to these in the comments below.