EU farmers liable for GM damage
This generally overlooked product liability legislation took effect in the EU December 2000. Once farmers and their advisers realise its implications few are likely to grow GM crops, particularly as insurance cover for GM related risks is difficult if not impossible to obtain: "The new rules extend the scope of the strict liability provisions to cover game and agricultural products. Strict liability has come right up to the farmer's door. This legislation must give serious concern, for example, to those involved in promotion and testing of Genetically Modified Organisms. If liability is to be absolute who is going to run the risk however small and remote it may be?.....In the meantime the advice to all concerned is to continue to maintain the highest standards and to make sure that the insurance policy covers this new risk." (Hills & Reeve, Solicitors, February 2001) "Potentially disastrous effects may come from undetected harmful substances in Genetically Modified Foods." (Dr Andrew Chesson, vice chairman of European Commission scientific committee on animal nutrition and member of the European Commission's working group on genetically modified organisms, Daily Mail, UK, 13 Sept 1999. Prior to making this remark Dr Chesson chaired the audit committee which ruled there was no evidence to support Dr Pusztai's claims on the toxicity of GM potatoes. However, for more on Dr Chesson's subsequent views on the inadequacy of GM safety testing see:
Legal Update February 2001 Hills & Reeve, Solicitors Agricultural Product Liability In October 1997 the EuropeanCommission announced proposals to extend the European Union's existing rules on product liability to primary agricultural products in the wake of BSE and other food scares. As a result, new legislation took effect in December 2000 in the form of the Consumer Protection Act 1987 (Product Liability) Modification Order 2000. We have already commented on the proposals in earlier briefings, but for convenience will repeat some of the background here. In order to understand the significance of these regulations some explanation is needed of what product liability is and what the existing EU regime covers. Product liability Product liability is a term which covers the legal liability of the manufacturers of products for defects in those products which cause injury to users of the product or damage to property. So, for example, in a famous case in English legal history, the manufacturer of the contents of a bottle of ginger beer was ordered to pay damages to a woman who found the remains of a decomposed snail at the bottom of the bottle and suffered severe gastro-enteritis as a result. Until the mid 1980s the success or failure of a claim like this depended on proving fault on the part of the manufacturer and this is still the case where any claim involves primary agricultural produce. This was often very difficult or expensive to prove and could deprive the consumer of a remedy except in the most obvious of cases. The EU product liability regime In 1985 the EC (as it was then) introduced its directive 85/374. This directive gave E U consumers rights to sue for damages caused by defective products without having to prove fault. This right was extended not only against the manufacturers of products but also to any person who had (I) imported the product into the EU, (2) put his trade mark on the product or (3) supplied the product to the consumer. This directive was incorporated into English law by the Consumer Protection Act 1987. That Act retained the strict liability or no fault provisions of the original directive as well as the number of parties who could face a claim. Under the Consumer Protection Act (and the directive) there was no right given to consumers in respect of any injury caused by primary agricultural products until the changes brought about last December. The New Rules The new rules extend the scope of the strict liability provisions to cover game and agricultural products. Strict liability has come right up to the farmer's door. Farmers and indeed fishermen will be liable for any damage caused by their product to the health or property of consumers. In the case of eggs carrying salmonella the purchaser will be able to take action against the shop or restaurant supplying the eggs and also the farmer. There will, in many cases, be difficult questions of proof for consumers wishing to take action. The scientific debate about the causes of CJD is far from concluded and a consumer would have to prove not only the fault with beef but also the direct link to the particular food which caused the problem. Nevertheless despite the difficulties which in many cases would face injured parties in putting the blame on a particular grower, these regulations represent a serious issue for farmers. One of the consequences will be to instil an ultra-cautious approach to the new and untested products and this may hold back developments. This legislation must give serious concern, for example, to those involved in promotion and testing of Genetically Modified Organisms. If liability is to be absolute who is going to run the risk however small and remote it may be? Sadly this is not even the end of the process as issues remain outstanding from the 1999 Green paper and further legisla- tion is expected. In the meantime the advice to all concerned is to continue to maintain the highest standards and to make sure that the insurance policy covers this new risk. If you would like more details please contact Wifliam Barr or Matthew Arrowsmith-Rrown on 01603660155. www.mills-reeve.com Tel: 0870 600 001 I BIRMINGHAM Midland House, 132 Hagley Road, Edgbaston, Birmingham B16 9NN Telephone 0121 454 4000 Fax 0121 456 363 I DX 707290 Edgbaston 3. CAMBRIDGE Francis House, I 12 Hills Road, Cambridge CB2 I PH Telephone 01223 364422 Fax 01 223 355848 DX 122891 Cambridge 4. LONDON Bankside House, 107-1 12 Leadenhall Street, London EC3A 4AF Telephone 0207 648 9220 Fax 0207 648 9221 DX 508 London City. NORWICH Francis House, 3-7 Redweil Street, Norwich NR2 4TJ Telephone 01603 660155 Fax 01603 633027 DX5210 Norwich. A list of Partners may be inspected at any of the above addresses. Mills & Reeve is regulated by the Law Society in the conduct of investment business. The articles featured in this publication have been selected and prepared with a view to disseminating key information. Space dictates any article may not deal with individual concerns but the author would be pleased to respond to specific queries. No liability can be accepted in relation to particular cases. Before taking action, you should seek specific legal advice. c Copyright reserved 2001. Extracts may be copied with our prior permission and provided that their source is acknowledged -------------------------------- For useful info on the dangers of GM foods, visit: http://www.btinternet.com/~clairejr:
