The Supreme Court of the Philippines ruled against conducting field trials of genetically modified eggplant or BT Talong (talong is the Tagalog word for eggplant) as a precautionary measure to protect human health and environment and promote people’s constitutional right to a healthful and balanced ecology.

The BT Talong Project

The BT Talong is a type of eggplant bio-engineered to develop resistance to lepidopteran larvae, through the incorporation of crystal toxin genes from the soil bacterium Bacillus thuringiensis (BT), which triggers the production of the protein Cry1Ac, and is toxic to the target pests. Thus, it is resistant to pests, which will significantly reduce pesticide use of farmers resulting in higher yield and income.

The National Committee on Biosafety of the Philippines, a government agency regulating the use of genetically modified organisms (GMOs) in the Philippines, issued a Certificate of Completion of Contained Experiment to the proponents of the BT Talong Project after supervising a controlled experiment from 2007 to 2009, stating that all the biosafety measures had been complied with during the conduct of the experiment.

Field testing of BT Talong commenced after obtaining the necessary permits from the government. However, environmental groups and other individuals complained about the conduct of field trials, alleging that there is no peer-reviewed study on BT Talong’s safety for human consumption and environment. The environmental groups filed a petition for Writ of Kalikasan on April 26, 2012, before the Supreme Court. (Kalikasan is the Tagalog word for nature.) As outlined in Section 16, Article II of the Philippine Constitution, the Writ of Kalikasan is a legal remedy under Philippine law that provides protection of one’s Constitutional right to a healthy environment considering that the “state shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature.” The groups presented in court adverse effects on rats of other GMOs like BT corn and BT cotton. They also said that GMOs can be directly toxic to non-target species and can exacerbate populations of other secondary pests. Hence, they asked to halt all field trials and to uproot all planted BT Talong.

In May 2012, the Supreme Court issued a Writ of Kalikasan against the proponents of the Project, namely, International Service for the Acquisition of Agri-Biotech Applications, Inc. (ISAAA), the Environmental Management Bureau (EMB), the Bureau of Plant Industry (BPI), the Fertilizer and Pesticide Authority (FPA), UPLB Foundation Inc. (UPLBFI) and UP Mindanao Foundation, Inc. (UPMFI) and referred the case to the Court of Appeals for resolution.

The proponents all argued that the issuance of the writ is improper because all environmental laws were complied with. They argued further that allegations regarding the safety of BT Talong are irrelevant as the eggplant will not be consumed by humans or animals and the unused materials will be disposed according to biosafety permit requirements. The precautionary principle is inapplicable since the field testing is only part of a continuing study which ensures that the field trials have no significant impact to the environment. Therefore, there is no resulting environmental damage that will prejudice the life and health of the inhabitants. The precautionary principle states that if a technology has a suspected risk of causing harm to the public or to the environment, the absence of scientific consensus that the technology is not harmful shall not be used as a reason to postpone appropriate measures to prevent environmental harm.

The Court of Appeals decided in favour of the environmentalists and stopped all on-going field trials. The Court of Appeals applied the precautionary principle as the overall safety guarantee of the BT Talong is unknown.

Supreme Court Decision Based on “Precautionary Principle”

The proponents then argued for a reversal of the appellate ruling before the Supreme Court.

The Supreme Court upheld the decision of the Court of Appeals, declaring that there is no scientific consensus on the GMOs’ safety and the precautionary principle should apply, taking into account the relevant provisions of Principle 15 of the Rio Declaration of Environment and Development of 1992 for environmental protection and the Cartagena Protocol on Biosafety, indicating that the lack of scientific certainty due to insufficient relevant scientific knowledge regarding the potential adverse effects of a GMO on the environment and on human health shall not prevent concerned government agencies from taking appropriate decisions to prevent such adverse effects in order to safeguard public welfare.

Additionally, the Supreme Court also invalidated the Department of Agriculture’s Administrative Order No. 8, Series of 2002, which evaluates and monitors plants and plant products derived from the use of modern biotechnology, and temporarily suspended any application for GMO field trials until a new administrative order is promulgated.

Negative Effects May Outweigh the Benefits

It is a common sentiment to protect the environment from the harsh effects of modern technology. Thus, the decision has foremost in mind the safety of the public from potential harm caused by GMOs. However, the decision has drastically changed the landscape of GMO testing in the country. Hence, the scientific and intellectual property communities have expressed concerns about the serious repercussions of the decision, not only on the biotechnological research and development aspect but also on the patent landscape of biotechnology in the country as the number of patent applications may decrease following the ruling. It will therefore not be surprising if the drawbacks outweigh the benefits in the long run.

This article was first published in Asia IP on April 29, 2016. For more information, please visit http://www.asiaiplaw.com/ .