CROPS that have been grown and eaten in France for years may soon become illegal. Farmers will no longer be able to plant them and shops won’t be able to sell them.
At least, that is what is supposed to happen later this year. But because it will be virtually impossible to know which varieties are forbidden, it is far from clear how things will pan out.
“I think it’s going to have a real impact on agriculture and plant breeding in France,” says plant biologist Johnathan Napier at Rothamsted Research, UK. It will affect others, too, as France is the largest seed exporter in the world.
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This extraordinary state of affairs stems from a 7 February decision by France’s top court, the Council of State. It ruled that plants created by mutagenesis – the process of inducing genetic mutations – should be subject to the same European Union laws that cover genetically modified organisms (GMOs).
Although these gene tweaks might sound similar, they have conventionally been seen as quite different. Organisms constantly mutate because of mistakes that happen when DNA replicates as new cells are made or when it is damaged. Genetic varieties also develop when species interbreed, producing hybrid offspring.
By selecting mutant and hybrid plants with desirable properties, early farmers transformed wild species into the domesticated varieties that we eat today. Modern bananas are a long way removed from their wild relatives genetically, for instance.
From the 1950s, breeders began to intervene more. They exposed seeds to radiation or toxic chemicals to induce mutations by chance, hoping to get lucky with desirable traits. This process, called random mutagenesis, has been used to create thousands of plant varieties grown today, including many wheat and rice strains.
In the 1980s, breeders went a step further. They started creating plants with properties such as herbicide resistance by adding new genes. Because these genes often came from different organisms such as bacteria, these GM crops were seen as being different from those produced by mutagenesis.
“Early farmers grew mutants, transforming plants into the varieties we eat today”
Public concern about the safety of such GMOs led to many countries introducing laws to regulate them. In 2001, an EU directive defined GMOs as those “in which the genetic material has been altered in a way that does not occur naturally”.
Under this directive, genetically modified plants have to undergo stricter testing than other new plant varieties before they are approved, and most products made from them must be labelled.
Meanwhile, plant breeders were developing techniques that blur the line between random mutagenesis and adding new genes. For instance, if you know which gene needs to be altered, you can mutate plant tissues growing in a dish, sequence thousands of cells to find those with the right mutation and use them to grow plants. It is laborious, but quicker than waiting for thousands of plants to grow.
Using new breeding techniques, companies began to create crops with the same traits as GM ones, such as herbicide resistance, but which weren’t subject to GM regulations. By area, about a third of the sunflowers grown in France are herbicide resistant, for instance.
In 2015, eight anti-GM organisations in France, including the Peasant Confederation – farmers who favour traditional methods – called for the government to ban these herbicide-resistant crops. When it refused, they appealed to the French Council of State, claiming that these crops should count as GM under EU law.
The case was referred to the European Court of Justice, which in 2018 ruled that all organisms obtained by mutagenesis should indeed be regulated as GMOs under the 2001 directive. The court said the directive clearly excluded the methods of random mutagenesis used since the 1950s, but that member states were still “free to subject such organisms” to the directive’s regulations.
This had no immediate consequences, because it is up to member states to apply the ruling. But in February, the Council of State ordered the French government to withdraw approval for certain varieties.
“The French government is legally bound to implement the decision of the Council of State,” says Guy Kastler, a founding member of the Peasant Confederation.
Which varieties will be withdrawn is still far from clear. The French ministry of agriculture didn’t respond to 91av. In fact, it isn’t answering anyone’s questions.
“We have raised a lot of questions with the government,” says Emmanuel Lesprit from the , which represents seed companies and plant breeders. “We have no answers.”
A variety of opinions
Kastler says the decision applies to “random mutagenesis in vitro”, that is, mutating cells rather than working “in vivo” on whole plants, and the only examples he knows of are herbicide-resistant crops.
Petra Jorasch of Euroseeds in Brussels, a non-profit organisation representing people who grow and sell seeds in Europe, disagrees. She doesn’t think the ruling applies only to in vitro mutagenesis, and might not even be limited to varieties introduced after 2001. In any case, she says, there is no clear dividing line between in vivo and in vitro mutagenesis.
Martin Wasmer at the Centre for Ethics and Law in the Life Sciences in Hannover, Germany, says even the in vitro definition encompasses at least several hundred varieties, and would apply to ornamental plants as well as those grown for food.
In theory it would not only be illegal for farmers to grow withdrawn varieties, it would also be illegal for products made from them to be sold in France, even if they are grown elsewhere in the EU or outside the EU. It isn’t clear if France can or will attempt to enforce this.
Implementing the ruling means identifying which varieties were created by the methods in question. The trouble with this, says Jorasch, is the national and EU-wide catalogues of approved non-GM plant varieties don’t record how those varieties were created.
French authorities would have to track down the breeders of each variety and ask them, she says. And the breeders might not even know, because they often use plants created by other groups as a starting point.
What’s more, even if these varieties could be identified, there is no way for retailers in France to know if food they import from other countries derives from the varieties in question. And if shops in France stop selling some of these products, they will be breaching EU rules. “It would violate the treaties of the EU on the free movements of goods,” says Wasmer.
The matter has been referred to France’s High Council for Biotechnology, an independent body which has to advise the French government by August. The government then has until November to implement the decision.
There is also confusion over what happens if plant varieties first approved in France are removed from its national catalogue. Non-GM plants approved in one member state are automatically added to the EU’s common catalogue. If France withdraws varieties it approved, it isn’t clear if other member states can keep growing them.
One way to resolve this issue would be to change the 2001 GMO directive, which many researchers have already recommended should happen. In November 2019, for instance, saying that there is usually no way to tell from the DNA sequence of an organism whether it has been created by natural mutations, mutagenesis or gene editing.
They want the regulatory regime to focus on the effect of any genetic modifications rather than on the method used to make those modifications.
But Wasmer thinks it will take at least five years to change the directive if it does happen. In the meantime, he expects anti-GM organisations in other EU countries to bring similar cases to the courts, meaning more countries could soon face the same conundrum as France.
The UK probably won’t be one of them – Brexit means it is likely to diverge from EU legislation. “There’s an opportunity for the UK to do something different,” says Napier. “But the country will have to tread carefully because of the issues around trade.”
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