Worth reading twice!

The case: A farmer had purchased seed corn of a conventional variety, which had been fully processed and marketed by the seed producer. The Lower Saxony State Office for Consumer Protection and Food Safety had partial samples taken from the producer analyzed. Two partial samples were negative, while the third sample showed less than 0.1% contamination with a genetically modified corn strain – namely MK 603. The farmer filed a lawsuit against the subsequent replanting order. He challenged the sampling as legally incorrect and claimed that contamination could not be detected because it was close to the detection limit.
The Bavarian Higher Administrative Court (VGH) rightly held the replanting order to be lawful – based on Section 26 (4) of the Genetic Engineering Act (GenTG). Among other things, it stated that, based on an area of ​​36 hectares and a roughly estimated 100 million grains, it was clear that a large number of maize crops could be genetically modified. The Higher Administrative Court then referred to the protected interests of the Genetic Engineering Act and stated that it had been clarified under EU law that the protected interests of genetic engineering law could justify the application of authorization reservations without any tolerance thresholds. In this respect, the competent authority had no discretion. The order was lawful to counter the dangers of a release of genetically modified maize into the environment. This means that the replanting order was issued solely to protect the environment. From the perspective of human health, i.e. consumer protection, it is noteworthy that the genetically modified maize line MK 603 was a product that, according to the European Commission Decision of March 3, 2005 (2005/448/EC, OJ EC No. L 158, p. 20), was marketable within the European Community. According to the decision, feed and food, as well as food additives, derived from the genetically modified maize variety MK 603 may be marketed within the Community in accordance with the description and specifications in the annex to this decision. The decision merely prohibits the cultivation or sowing of this maize variety. In this respect, environmental protection—which is certainly important—is clearly given greater importance than consumer protection. Consumers are permitted to consume the genetically modified maize line through the food chain without restriction via food, feed, and food additives, but transfer into the environment is not tolerable, even at levels close to the detection limit. Perhaps the Higher Administrative Court should have made it clearer that the reorganization order was not issued directly for the benefit of consumers.

This publication can also be found on the website of the law firm Dr. Kauch .