Australian “contamination” battle highlights divide over GMO-organic coexistence

The hotly contested issue over whether organic practices and genetically modified crops can coexist is again on the stand this week in Australia.

After a high-profile 11-day hearing in 2014, a judge found there was no common-law negligence or breach of reasonable duty of care by Baxter, the farmer using conventional techniques, in growing a lawful GM crop and deciding to swathe it—cut it, rake it into windrows to dry and then process it to recover the seed. That decision was appealed and the case is being heard this week.

Until the bitter court case, Australian farmers Steve Marsh and Michael Baxter had been cordial neighbors and friends since their school days–until Marsh decided to sue Baxter in 2010 over the so-called “contamination” of his organic crops by GM canola that Baxter had grown. Marsh, an organic farmer, cultivated oats and rye apart from raising sheep, had discovered that swathes of GM canola that Baxter had planted and harvested had blown over to his farm. The National Association for Sustainable Agriculture Australia (NASAA), an independent body that had certified his farm organic–based on standards established by the Australian organic community—rescinded Marsh’s certification for more than 70 percent of his farm. Attempting to protect his organic status and reclaim his losses, Marsh then proceeded to sue Baxter for not only loss of earnings (AU$ 85,000) but also sought to ban Baxter from planting GM canola in the future.

The ensuing legal battle, a story the GLP has covered extensively over the past three years gained international attention, becoming one of the defining legal cases in the debate on whether GM crops can co-exist with organic and conventional agriculture — a debate with potential implications not only in Australia but around the world.

With the next stage of the court fight now underway in the Western Australian Supreme Court, the story is back in media focus. (If you are interested in the background of the story at all, we recommend you watch both parts of the documentary “The Seeds of Wrath” which follows the gut wrenching story of two neighbors and once lifelong friends in a small town in Western Australia: here and here.)

The issues of whether GM products are harmful to livestock or humans or whether organic foods are healthier than conventional varieties were not being adjudicated in this week’s appellate case. “At the heart of this clash between two neighbours in Kojonup is the question of how different systems of agriculture may co-exist,” said Marsh’s lawyer.

After more than 3 years of wrangling and several hundred thousand dollars in legal fees spent by both parties, the Supreme Court of Western Australia ruled in 2014 in favor of Baxter, noting that he had not acted unlawfully in growing GM canola on his field. Absolving Baxter of any responsibility in the decertification Marsh’s organic farm, the judge instead indicated that the decertification had more to do with NASAA’s unclear standards and a zero-tolerance policy that was unrealistic. In accordance with Australian law, Marsh was also ordered to pay Baxter’s costs of more than AU$800,000 (he himself was represented pro bono) to contest the case.

Marsh appealed both the final judgement and the costs rulings, which are being heard as we speak. Additionally, The West Australian reported that in the high profile appeal against the judgement (but not the costs appeal), Marsh is being represented by former Western Australia governor Malcolm McCusker. As a farm owner himself, governor McCusker expressed in the report that he was worried less about the safety of GM crops and more about the potential economic impacts of introducing GM crops, giving an indication of how he might plan to approach the appeal.

Framing the issue

As the appeals for what could cost either farmer his livelihood are happening, it might be a prudent time to ask the question, how can organic and non-GMO farmers coexist with those who grow GMO crops?

With tensions running high, the case has galvanized anti-GMO groups who have in turn used this as an opportunity to frame this legal battle as GMO versus organic, when in reality it’s a question of co-existence as Marsh’s lawyer himself was quoted as saying in an ABC News report. “The answer,” he also said “is they can [co-exist] if prudence and care is taken.”

At the heart of both the Baxter-Marsh legal case and the bigger issue of co-existence is the idea of “contamination”.

The word “contamination”, brings with a negative connotation. It is illustrative however, to note that no government or regulatory body uses the word in the context of GM crops. It is also interesting to note one that of the important points emphasized in the ruling on the Baxter case is that there is no clear definition of the word either in NASAA or government standards. This can be found on page 56 of the ruling when NASAA and National Standards are compared is expected that there will manifest a broad degree of underlying consistency, and certainly not inconsistency, as between the NASAA standards and the National Standards. Clearly, the National Standards provide the genesis for the NASAA Standards. Here I would specifically note again that the term ‘contamination’ is not explicitly defined under either standard. Nor, I note, are the terms ‘genetic contamination’ or ‘GMO contamination’.

In fact throughout the 150-page ruling the judge makes it a point to refer to the word within quotes when referring to GM canola grown by Mr Baxter. Agricultural standards for organic certification issued by other government bodies do not mention it either. On the other hand, it has been used extensively by anti-GMO activists, organic trade bodies and certification agencies.

The concern often put forth in these cases is that the presence of GM crops is an opportunity for transfer of transgenic material (gene flow) to conventional crops that are grown nearby through the natural process of cross-pollination. This could occur either through pollen dispersal or seed dispersal both of which would lead to production of hybrids potentially containing the transgene. Several factors affect whether gene flow can occur including the nature of crop species, crop density, mechanism of pollen dispersal and prevailing wind conditions among others. There is also the potential for gene flow to occur as a result of other processes such as harvesting, transportation, storage and planting. These are all realistic concerns and experts have, as I point out later in the article, come up with practices that both organic and conventional farmers can use to minimize the potential for gene flow and allow for coexistence.

What is unhelpful however, is that by using terms such as ‘contamination’ organic activists have framed the issue as an ideological opposition to GM crops — a battle of GMO versus organic if you will — rather than taking a measured approach based on the available scientific evidence to engage in a discussion on co-existence. Despite the availability of an abundance of scientific evidence on the safety of GMOs for consumption, unfounded claims to the contrary made on advocacy sites such as these –“Contamination of fields by GM seed and pollen doesn’t just place organic farms and farmers at risk, causing incalculable monetary damage, but also the entire food supply, and possibly the entire ecosystem – poisoning our ground water, soil, livestock, and more,” serve to emphasize the fact that the word “contamination” is being used more in a political context rather than in its literal sense.

Why zero-tolerance is unrealistic

If we are to expect different methods of farming to co-exist, is it realistic to have or implement a zero-tolerance policy? What is a reasonable standard for co-existence? Adventitious presence as it occurred in the Marsh-Baxter case is easy enough to detect. These were canola swathes that were quite easily visible when found among oats and rye farms. But what about neighboring farms that plant the same crop? Or the same farm planting both conventional and GM crops? Or those that share equipment? Even keeping aside the abundance of evidence that GM crops are safe (a fact that was pointed out in the Australian verdict as well), it is impossible to prevent a small amount of adventitious presence from occurring. And as Australian agricultural researcher Michael Jones points out in The Conversation, it’s how nature works

Nothing in agriculture is ever 100 percent pure – winds blow, floods occur, insects can fly across fences.

Zero tolerance to GM material (or other materials) is impossible to achieve, and as such the organic standards create an unrealistic situation that was bound to lead to the sort of dispute that occurred between Marsh and Baxter.

This thought was also echoed by a spokesperson for the Pastoralists and Graziers Association of Western Australia who was interviewed in the ‘Australian Story’ documentary — “With zero tolerance that the organic industry in Australia has, there was a collision course going to happen somewhere, sometime,” he said.

These tolerance limits–what constitutes “contamination”–are actually arbitrary in nature, either overseen by the organic community itself or set by governments based on the guidance of the organic community. While NASAA in Australia has a zero tolerance policy in effect, the limits for GMO presence in non-GMO and organic foods vary widely between countries. The EU for example has a 0.9 percent limit on the incidental and unavoidable presence of GMOs in food or feed products beyond which they cannot be labelled as GMO free. Japan has set a tolerance limit of 5%. The United States Department of Agriculture takes a different approach with no specific threshold for presence of GE material in products marked as organic. It has chosen instead to make organic certification ‘process based’ and dealing with violations on a case by case basis, working with the organic producer to identify the source of GMOs in their production. According to USDA policy, [PDF]

As long as an organic operation has not used excluded methods and takes reasonable steps to avoid contact with the products of excluded methods as detailed in their approved organic system plan, the unintentional presence of the products of excluded methods should not affect the status of the organic operation or its organic products.

The vastly different thresholds between countries underscore the fact that its scientific basis is limited. Indeed, this is what Florian Weighardt, a former researcher involved in the implementation of European Union GMO legislation wrote in a letter to the Editor of the journal Nature Biotechnology, pointing out that the EU threshold set was not only unscientific but impractical to implement.

The first question facing a scientist attempting to develop [a laboratory test] to implement the GMO regulations is: what does “0.9 percent of the food ingredients” mean in terms of genes? Or, put another way, how to translate the gross generic definition of “ingredient” into something making sense at the molecular level?

Defining the relative GMO content in a product on the basis of the weight/weight ratio of raw materials (ingredients) should imply the assumption that a conserved direct proportionality is found between the weight of the ingredient and the total number of genes or genomes contained in it. Unfortunately, such proportionality doesn’t exist in reality […]

[…]these [scientific] problems create an unclear environment in which the regulations are unenforceable using the molecular analytical tools available. Every analytical result could potentially be invalidated by means of scientific data demonstrating that the [control samples] used are not representative for the samples under analysis.

European legislations must move quickly to amend the current regulation so that rules provide an exact and scientifically acceptable definition of GMO content that can be adopted in testing. It is not a question of moving the regulatory goal posts; the current legislation doesn’t even tell us where to put the goal posts


The current global climate as it pertains to allowance thresholds is not based on sound evidence. Adhering to sharp standards, such as in Australia, serves to deepen the rift between farmers. Because neither organic, conventional or GMO farming is going to completely disappear, it is important to establish reasonable standards of co-existence to prevent ‘collision courses’ like the one between Steve Marsh and Michael Baxter.

There are many practices [PDF] that have been recommended to organic, conventional and GMO farmers that allow cordial coexistence. The Joint Research Centre of the European Commission set up the European Coexistence Bureau (ECoB) for this very purpose, producing extensive documentation based on research on the best practices that can be followed for maize (the only GM crop allowed in the EU). Farmers can choose when and where to plant organic and GMO crops based on the size of the farm, the crop species being planted on neighboring farms, method of pollination and pollen spread characteristics.

They could also establish buffer zones between different types of crops and plant crop species that are unlikely to hybridize. Thoroughly cleaning all equipment and spaces used for harvest, storage and transport of crop material and maintaining good records are also among the recommended practices to prevent contamination and trace the source should one be identified. These methods along with a sensible tolerance policy backed by scientific evidence should allow different farming systems to coexist in harmony.

Arvind Suresh is a science communicator and a former laboratory biologist. Follow him @suresh_arvind.

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