GM Free Cymru


Remarks regarding a recent Report by the EU Commission

Feed Magazine, Legislation section, March 2007

Jochen Koester

Just in time before the statutory deadline set by EU Regulation (EC) No.1829/2003, the EU Commission published the final version of its Report on the implementation of the Regulation on genetically modified food and feed. This article attempts to provide a focused summary of the Report's findings that are relevant to the feed industry. The main emphasis is put on the topics of compliant and non-compliant GMO labelling, including an evaluation of premia charged, as well as other related issues.

The Report addresses the collective experiences so far regarding the implementation of the Regulation and also of its sister Regulation No. 1830/2003, the "consistent pair".


One of the most critical conclusions of the Report for the raw materials industry -- as for its downstream customers in the food and feed sectors -- has to do with the issue surrounding the understanding and the practical application of the terms "adventitious" and "technically unavoidable" in conjunction with the requirement to label products as containing or produced from GMOs.

While the European food industry has less of a problem in applying the Regulation's terminology on an everyday basis, the animal nutrition industry, on the other hand, appears to have adopted a different interpretation. As a reminder, Regulation No. 1829/2003, also widely dubbed "the GMO Labeling Regulation", in its Article 13, stipulates when "food" must carry a label referring to the presence of GM under certain circumstances. However, Article 12 (2) provides that these labelling requirements "shall not apply to food containing material, which contains, consists of or is produced from GMOs in a proportion no higher than 0.9 per cent of the food ingredients considered individually or food consisting of a single ingredient, "provided that this presence is adventitious or technically unavoidable". Rules equivalent to this are laid down for "feed " in Articles 24 and 25 .

Experience shows that while the first parameter, the 0.9 per cent threshold, by now has been fully recognized and understood by the commodities and raw compound feed industries, the second parameter - "adventitious" or "technically unavoidable" - is overlooked. In fact, when addressed to feed industry members, the reaction to the clarification ranges from surprise and irritation to outright disbelief . The cold reality is that the Regulations turn on the key words "adventitious" and "technically unavoidable", and not on the 0.9 per cent threshold alone.

In light of Regulation No 1829/2003, as discussed in the Report, and the significant volumes of soy meal, for instance, that are currently supplied to the European feed industry as "non-GMO at less than 0.9 per cent", it becomes clear that any premia paid for this quality level are wasted money. lf a feed compounder, for instance, orders soy meal "non-GMO 0.9 per cent hard IP" from his supplier of raw materials he obviously expects the ordered product to have a GMO content below the indicated threshold, for example, at 0.7 or 0.4 per cent. This demonstrates that the buyer is aware of the GMO content in the goods he has ordered -- and that any GMO content thus accepted by him cannot, by the same token, be adventitious.

Consequently, all those industry players operating to a threshold of 0.9 per cent for GMO content- expecting that this will allow them to legally avoid a labeling obligation of their products under Regulation No. 1829/2003 are actually in technical breach of the very Regulation with which they are trying to comply. The irony is that there are suppliers so bold that they even charge a premium for this futile attempt.

The merit of the Commission’s Report is that it clearly reemphasizes the two-tier character of the criteria that must be met before products are exempt from GMO labeling requirements: product must contain less than 0.9 per cent by test, and evidence must be provided that whatever GM material is present is adventitious (or technically unavoidable). Article 24 (3) of the Regulation states clearly that the adventitious presence of GMOs requires prior "appropriate steps to avoid the presence of such materials". Specifically ordering raw material "up to 0.9 per cent" thus hardly qualifies as adventitious.

The fact that the rampant industry practice described above has not led to a more significant number of complaints from the respective regulatory authorities in EU Member States is only because, one might presume, these government organizations, throughout the EU, are under-resourced. The Report refers to the preliminary result of a series of inspections by the Commission's DG SANCO evaluating the official control systems of Member States, candidly stating that the bandwidth of sampling reported by Member States "varied considerably" also from State to State and the clear impression was that enforcement was not intensive in most Member States.

Yet there are exceptions to this. Just two are mentioned here: The Austrian Agency for Health and Food Safety (ACES) regularly runs detailed spot checks on feed industry operators. The German state agencies responsible for food and feed safety are also known to run detailed checks. In both cases the operator's files and documents can be -- and often are -- audited to check for the adventitious nature of any GMO content, especially if it is found to exist below 0.9 per cent.

In its final Conclusion the Commission emphasizes that "the Food and Veterinary Office of DG SANCO (FVO) will pursue its missions in Member States with the objective of evaluating on the spot the official control systems implementing the legislation on GM food and feed."

Precautionary GMO labelling

The report also addresses other outmoded practices that continue to be used by many feed industry companies. The Report states:

** "Practices consisting in systematic labelling with a statement of the type "may contain GMO" have been reported. These practices are not compatible with Regulation (EC) No 1829/2003 and Regulation (EC) No 1830/2003 which prescribe explicit wording to be used for food and feed containing GM. The required wording does not allow ambiguous statements like "may contain GMOs"'.

** "ln addition, practices consisting in systematic labelling of feed products as genetically modified irrespective of the information provided regarding the origin of the products have been reported in several Member States. On the basis of Regulation (EC) No 1830/2003, operators have to be systematically informed of the GM nature of the feed materials that they buy. Regulation (EC) No 1830/2003 also provides that operators must take appropriate steps to avoid the presence of GM feed if they want to avoid their products to be labelled as GM in case of adventitious or technical presence of GMO products. However, the commission does not consider that this provision implies that operators are entitled to label products as GM without appropriate justification."

In short the intent of Regulation No. 1829/2003 is for labeling to be more precise, and the reported practices fail to provide that precision.

GM-free labelling

The Report states clearly that although the original Regulation does not address the topic of GMO-free labelling, the Regulation also does not preclude the use of such labelling, if accurate and non-misleading. The Report also clarifies the implementation of GM Free labelling schemes.

Two important points are made in this clarification:

First, the Commission unmistakably states that "GM Free" claims can only be made in the case of products that contain raw material that could at least conceivably contain GMOs. Thus the possibility would exist to label soy meal as GM Free, but not barley, because barley is not available anywhere in the market in GM forms.

Second, for cases of products that "can be genetically modified or not", the Report states that "GM free labelling can not be excluded a priori." The Report adds that some Member States have even developed national rules regarding this type of labelling.

lngredients using GMO microorganisms

Also of relevance to the animal nutrition industry is what the Report addresses about the status of feedstuffs produced by fermentation using GMOs that are not present in the final product. In one of its conclusions the Commission states that "feed produced using genetically modified micro-organisms as processing aids is not falling under the scope
of the Regulation. However, an extended range of these products are already subject to an equivalent authorisation procedure under Community law and thus to equivalent requirements in terms of food and feed safety."


In conclusion, the Commission's Report clarifies three key points important to the application of Regulation (EC) No 1829/2003 in the feed industry.

Most importantly, it again clarifies what is required to avoid labelling of products as GM. Although some industry members have operated in the past in a manner that is not compliant with the Regulation, the Report implies that the Commission will be applying pressure to Member States to step up surveillance efforts. ln light of this, it behoves the industry to review corporate policies and practices in this area and make sure they are in compliance with the Regulation.

Stepped up surveillance of I
labelling practices is also relevant to the second point of interest raised in the report, namely that the industry's practices of labelling products as containing GM material need to be more precise; "may contain" labelling is not consistent with the requirements of the Regulation, and similarly, general labelling of all product as containing GM material (whether they actually contain GM material or not) is not compliant with the Regulation.

The third and final point of interest is the Report's clarification of the status of GM-free labelling, making it clear that such labelling is a real option for the industry, which opens a broader vision regarding the marketing of GM-free feed products.