In December 2014, the Organic Industry Standards and Certification Council (OISCC) rejected a submission by the Western Australian Department of Agriculture and Food (DAFWA) to increase the allowable threshold for genetically modified (GM) material in certified organic food.

The decision means that a zero tolerance approach to contamination by GM organisms will continue to apply in relation to certification of organic products.

In this Alert, Senior Associate Ryan White explores the decision and its implications.

The existing standards

The National Standard for Organic and Bio-Dynamic Produce (National Standard) provides that where product is known to be contaminated by GM organisms or their by-products, the product must be excluded from sale as organic or bio-dynamic.  The National Standard also prohibits GM crops, livestock or agricultural products being grown or produced on the same farm as their organic counterparts.

Questions over existing organic certification practices were raised earlier in the year by the Supreme Court of Western Australia in Marsh v Baxter, where commentary was made by the Court regarding the rigid application (or misapplication) of a zero tolerance approach by one certifying body (the National Association for Sustainable Agriculture Australia (NASAA) to contamination by GM material.  Further details of that decision are included in our earlier Alert.

DAFWA’s submission

In its (rejected) submission, DAFWA sought amendments to the National Standard to:

  • Provide that products:
    • known to be contaminated by an unlicensed genetically modified organism or a by-product of such an organism; and
    • containing more than 0.9 percent of a licensed genetically modified organism or a by-product of such an organism, be excluded from sale as being organic or bio-dynamic; and
  • Permit the coexistence of different production systems on the same farm.

DAFWA’s submission contrasted the current zero tolerance approach in Australian organic products with the threshold of 0.9 percent GM content adopted in the European Union, suggesting that the more stringent Australia requirement may act as a disincentive to local organic producers.  The submission also suggested that Australian growers should be able to choose a variety of production systems on one farm to meet the needs of different customers, noting that existing requirements in the National Standard could ensure appropriate protection of the organic component of a mixed operation.

In Marsh v Baxter, the certification practices of the NASAA (a member of the OISCC) were heavily criticised by the Court.  The NASAA assessed that an airborne incursion of GM canola swathes posed an “unacceptable risk” of “contamination” and accordingly withdrew organic certification of Marsh’s property. The Court, while noting that no criticism was made of the NASAA standards (which mirror the National Standard), found that those standards were misapplied and that in Marsh’s case, a zero tolerance approach was incorrectly taken where there was no risk of contamination arising.

Implications

The OISCC’s decision means that the status quo is preserved and a zero tolerance approach will continue to apply to contamination of organic products by GM organisms.  Producers wishing to maintain their organic or biodynamic certification must continue to be mindful of the zero tolerance approach and ensure that appropriate safeguards are in place to prevent contamination by GM material in their production systems.  It remains to be seen if any change occurs in the way certifying bodies approach the question of what constitutes “contamination”.