The Sustainability Council has begun High Court action to appeal a ruling that allows genetically engineered plants to be grown in New Zealand without any regulatory approval.

A surprise decision by the Environmental Protection Authority (EPA) would permit a new technique for engineering genes to be used without having to undergo an economic and environmental assessment by the EPA. The technique is called Zinc Finger Nuclease, or ZFN-1.

The Sustainability Council believes the EPA has misinterpreted the law. If allowed to stand, the decision would set a bad precedent and poses significant risks for food exporters and the economy.

Consumer resistance to GM means high value markets such as Europe generally have zero tolerance for GM contamination, and New Zealand continues to benefit from being seen as a GM Free food producer.

ZFN-1 is sufficiently new that few countries have even ruled whether it is GM under their regulations. Were anyone to plant ZFN-1 crops in New Zealand, companies exporting into markets that recognise the new technique as GM could suffer serious economic damage. Exports could be rejected if there was physical contamination and brands could be hit simply because of a perception that products are no longer GM Free.

The Council sees the ZFN-1 case as part of a wider pattern of GM developers trying to invent around the law. Any proposal for the outdoor use of GMOs normally has to go through a public and independent assessment of the risks and benefits. That is where GM contamination issues can be identified and harm assessed.

ZFN-1 involves introducing synthesized materials that cut up and alter genes, and thus change the way that genes in a plant or animal work. But the state owned forest researcher, Scion, applied to the EPA for it to not be regulated – arguing it does not meet the legal definition of GM that the EPA must work to.

EPA staff advised that they consider ZFN-1 is covered by the Hazardous Substances and New Organisms Act (HSNO), and so is GM. But a three-person decision-making committee appointed by the EPA board decided that the new technique was not covered by the law, and so is not GM.

Another new technique being researched with the hope that it could skirt consumer awareness is called ‘cisgenics’. GM grass developers lobbied ministers for a law change to exempt it from EPA regulation, and have suggested that the overtly GM products would not be detectable.It would be a strategic blunder for New Zealand to be out in front allowing products of ZFN-1 to go uncontrolled into the food supply chain. New Zealand could lose its status as a GM Free food producer without even having assessed what is at stake, and individual food producers could face huge uncertainty about their future ability to meet GM Free requirements.

The Sustainability Council’s appeal against the EPA decision is expected to be heard late this year. Barristers Dr Matthew Palmer and Felix Geiringer are acting for the Council before the High Court in Wellington.

The EPA decision on the ZFN-1 technique is available here.

For further background on ZFN-1, see here.