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  ANNEX I-4 
 
COMMENTS BY THE EUROPEAN COMMUNITIES ON THE REPLIES BY THE 
SCIENTIFIC EXPERTS TO THE QUESTIONS POSED BY THE PANEL 
28 JANUARY 2005 
 
 
TABLE OF CONTENTS 
 
TABLE OF ABBREVIATIONS.................................................................................................... I-199  
I.
 INTRODUCTION ............................................................................................................. I-201  
II. THE ADVICE AVAILABLE AND THE VARYING APPROACHES OF THE 
EXPERTS TO THEIR TASK........................................................................................... I-202  
A. THE INCOMPLETENESS OF THE RESPONSES .......................................................................... I-202  
B. THE DIFFERENT APPROAC HES OF THE EXPERTS ................................................................... I-203  
C. THE INDEPENDENCE OF THE EXPERTS .................................................................................. I-204  
D. THE ASSESSMENT OF THE REAS ONABLENESS OF TIME TAKEN ............................................. I-204  
III. GENERAL AND METHODOLOGICAL ISSUES ........................................................ I-204  
A. COMPLEXITY ........................................................................................................................ I-204  
B. CASE BY CASE ASSESSMENT ................................................................................................ I-204  
C. SYSTEMIC ISSUES (INTERACTIONS AND CUMULATIVE EFFECTS ) ......................................... I-205  
D. FAMILIARITY ........................................................................................................................ I-205  
E. EVOLVING SCIENCE .............................................................................................................. I-205  
F. SCIENTIFIC EVIDENCE OF RISKS OR ABSENCE OF RISKS ....................................................... I-206  
G. CONTROVERSY ..................................................................................................................... I-206  
H. ABSENCE OF AGREED SCIENTIFIC CRITERIA ......................................................................... I-206  
I. JUDGING WHEN THE SCIENTIFIC INFORMATION IS SUFFICIENT ............................................ I-206  
J. INTERPRETATION OF SCIENTIFIC INFORMATION .................................................................. I-207  
K. AVAILABILITY OF RISK MITIGATI ON AND RISK MANAGEMENT TOOLS ................................ I-207  
L. POST MARKET MONITORING AND GENERAL SURVEILLANCE ............................................... I-208  
M. SURVEILLANCE AND FOOD SAFETY ...................................................................................... I-208  
N. REMOVING UNCERTAINTIES WITH  LARGE SCALE CULTIVATION .......................................... I-208  
O. DETECTION METHODS .......................................................................................................... I-209  
P. NEW DEVELOPMENTS OF RISK ASSESSMENT  CONCEPTS FOR GENETICALLY MODIFIED 
PRODUCTS ............................................................................................................................ I-2 09 
1. The "substantial equivalence concept"............................................................................ I-210  
2. Codex principles for the risk assessment of GM foods................................................... I-210  
3. The environmental safety assessment of GMOs.............................................................. I-211  WT/DS291/R/Add.7 
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4.
 The plant health assess ment of GMOs............................................................................. I-213  
5. Starting points for assessing effects of GMOs on food safety, mediated through 
the environment ................................................................................................................ . I-213  
6. The animal health a ssessment of GMOs.......................................................................... I-214  
Q. OTHER GENERAL ISSUES – DEALT WITH IN THE COMMENTS ON THE QUESTIONS ................ I-214  
IV. THE PANEL'S GENERAL QUESTIONS (N°S 1 TO 9 AND 110 TO 114)................. I-214  
V. THE PANEL'S QUESTIONS ON ISSUE 1 ("DELAY") (NOS 10 TO 58).................. I-266  
VI. THE PANEL'S QUESTIONS ON ISSUE 2 ("SAFEGUARD MEASURES") 
(NOS 59 TO 95)................................................................................................................. . I-340  
A. INTRODUCTORY REMARKS ................................................................................................... I-340  
B. QUESTIONS 59 THROUGH 65 ................................................................................................ I-341  
C. TOPAS 19/2  (NOTIFICATION C/UK/95/M5/1)  (FRANCE AND GREECE ) (QUESTIONS 66, 
67 AND  68) ........................................................................................................................... I-346  
D. MAIZE BT-176  (NOTIFICATION C/F/11-03)  (AUSTRIA , GERMANY , LUXEMBOURG ) 
(QUESTIONS  69 TO 77) ......................................................................................................... I-348  
1. Introductory remarks........................................................................................................ I-3 48 
2. Anti-biotic resistance ......................................................................................................... I-348  
3. Non-target or ganisms ........................................................................................................ I-3 49 
4. Resistance management..................................................................................................... I-351  
E. MAIZE MON 810 (NOTIFICATION C/F/95/12-02)  (AUSTRIA , ITALY ) (QUESTIONS 78 TO 
80) ............................................................................................................................ ............ I-352  
F. MAIZE T25  (NOTIFICATION C/F/95/12-07)  (AUSTRIA , ITALY ) (QUESTIONS 84 TO 89)........ I-358  
G. MAIZE MON 809 (NOTIFICATION C/F/95/12-01/B)  (ITALY ) (QUESTIONS 90 TO 92)............ I-360  
H. MAIZE BT-11 (REFERENCE C/GB/96/M4/1)  (ITALY ) (QUESTIONS 93 TO 95) ...................... I-362  
VII. THE PANEL'S QUESTIONS ON ISSUE 3 ("LIKENESS") (NOS 96 TO 109).......... I-363  
VIII.  THE PANEL'S ADDITIONAL QUESTIONS................................................................ I-381  
 
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  TABLE OF ABBREVIATIONS 
 
ACRE  UK Government's Advisory Co mmittee on Releases to the Environment 
ACT  Australian Capital Territory 
AIA procedure Advance Informed Agreement procedure ASEAN Association of South East Asian Nations  
BINAS Biosafety Information Network and Advisory Service  Bt Bacillus thuringiensis  
CA  Competent authority 
CTFBT Codex Alimentarius Commission established an Ad Hoc 
Intergovernmental Task Force on Foods derived from Biotechnology  
Directive 2001/18 Directive 2001/18/EC of the European Parliament and of the Council of 
12 March 2001 on the deliberate release into the environment of 
genetically modified organisms and repealing Council Directive 
90/220/EEC 
Directive 90/220 Council Directive 90/220/EEC of 23 April 1990 on the deliberate release 
of genetically modified organisms 
DNA Deoxyribonucleic Acid ECJ European Court of Justice  
EFSA European Food Safety Authority  
EPA United States Environmental Protection Agency  FAO Food and Agriculture Organization of the United Nations FDA Food and Drug Administration  FSE  Crops and Farm Scale Evaluations 
GATT 1994 General Agreement on Tariffs and Trade 1994  
GEF  Global Environment Facility GILSP Good industrial large-scale practice GM foods Food products containing,  consisting or produced from GMOs 
GM products Genetically modified products GMHT  Genetically Modified Herbicide Tolerant 
GMOs  Genetically modified organisms  
HT Herbicide Tolerant IANB UN Inter-Agency Network for Safety in Biotechnology  ICPM  Interim Commission on Phytosanitary Measures  IOE The International Office of Epizootics 
IPPC International Plant Protection Convention 
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LMO-FFPs Living modified organism intended for direct use as food or feed, or for 
processing 
LMOs Living modified organisms 
NAS United States National Academy of Science  
OECD Organisation for Economic  Cooperation and Development 
OSR Oilseed rape Regulation 258/97 Regulation (EC) N° 258/97 of the European Parliament and of the Council 
of 27 January 1997 concerning novel foods and novel food ingredients  
SCP Scientific Committee on Plants 
SPS Agreement Agreement on the Application of Sanitary and Phytosanitary Measures  
TBT Agreement Agreement on Technical Barriers to Trade  
UNEP United Nations Environmental Programme  UNIDO The United Nations Industr ial Development Organisation 
WHO World Health Organisation 
ORF Open Reading Frame (Protein Coding Sequence of the DNA) 
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  I. INTRODUCTION  
1. In this submission the European Communities responds to the invitation by the Panel to 
comment on the advice provided by the Panel's experts,  in the form of comments on their replies, and, 
where appropriate, in the form of further scientific  and technical evidence in relation to the Panel's 
questions. 
2. The European Communities has taken very seriously its task of providing science based 
comments, to contribute to the Panel's understanding of the expert replies. In this regard the European 
Communities has sought to rely on the most up-to-d ate science available. For the purpose of ensuring 
scientific and technical accuracy of its comment s, the European Communities has also relied upon 
independent scientific advice from interna tionally renowned scientists, as appropriate. 
3. By way of introduction, the European Commun ities is pleased to note that the replies 
provided by the Panel's experts very largely conf irm the Communities' view that the scientific and 
technical issues involved in considering whether to authorise the release into the environment and the 
marketing of GM products are very complex and of ten controversial. The independent experts have 
confirmed that the science has developed considerably  over the last ten years and is still evolving at a 
fast pace. And most significantly they have confirmed that each case is to be taken on its own merits, and indeed that each case was taken on its own merits . This in turn confirms the approach taken by 
the European Communities and the Member States and is inconsistent with any claim as to a 
'moratorium'.   
4. The European Communities does not however agr ee with all the advice and every answer (or 
specific parts thereof) provided by the experts, and will comment in detail below. These comments follow the order of the Panel's questions and are divided into sections corresponding to the main 
issues as identified by the Panel (Sections IV to VIII below).  
5. At this stage, the European Communities will provide comments only in relation to a number 
of replies, as, on these, it considers appropriate to su bmit them in advance of the meeting with experts. 
This approach is intended to contribute to the Pane l's understanding of the experts' replies, having 
regard also to the time resources available to comment within the rather tight deadlines.  
6. One of the consequences of the lack of time is  that this submission is not as concise and well 
prepared as the European Communities would have  wished. Some repetition has been unavoidable 
and although this submission is l ong, it is not complete.  The European Communities reserves its right 
to revisit its replies in due course, as well as other replies and questions, and provide further 
comments and scientific or technical evidence, as prov ided for in paragraphs 13 and 14 of the Panel's 
additional working procedures for consultations  with scientific and/or technical experts . The absence 
of any response or comment in respect of an answer  to any question should not necessarily be taken as 
acceptance on the part of the Communities of the adequacy or accuracy of the response to the 
question. 
7. Before commenting on the replies to the qu estions, however, the European Communities 
comments on the varying approaches taken by the va rious experts in undertaking their task and on 
some general and methodological issues (Sections II and III). As will be explained below, this has a 
bearing on the interpretation of the advice, on the wei ght to be given to the various expert opinions, 
and consequently on the Panel's ability to make findings of fact on that basis. 
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  8. In this submission, the European Communities does not discuss the questions of definitions 
on which international organisations have recently pr ovided advice. As requested by the Panel in its 
letter of 22 December 2004, these issues will be the s ubject of comment in a separate submission that 
the European Communities will present to the Panel on 4 February.  
9. The European Communities welcomes the oppor tunity to discuss these scientific and 
technical issues further with the Panel and the experts on 17 and 18 February. On this occasion it 
reserves its right to provide the Panel with further scientific and technical evidence in response to the 
many aspects of the questions that remain unans wered. The European Communities may bring some 
additional scientific and technical experts to that meeting as part of its delegation.  
10. The European Communities is providing only one exhibit to this submission, Exhibit EC-156, 
containing the unpublished scientific li terature referred to herein. Ot her documents that are publicly 
available are not exhibited. 
II. THE ADVICE AVAILABLE AND THE VARYING APPROA CHES OF THE 
EXPERTS TO THEIR TASK 
11. The European Communities wishes, through the Panel, to thank the Panel's experts for their 
valuable contributions, which was extremely difficult in the light of the amount of information to 
process, the number of issues to address, as well as the number of scientific and technical disciplines 
to cover. The Communities is especially conscious of  the fact that responses were provided within the 
very short timeframe provided for in DSU proceedings.  
A. T
HE INCOMPLETENESS OF THE RESPONSES  
12. It is therefore not surprising that the Panel's experts could not cover all necessary disciplines 
and aspects of the Panel's questions, and provided in  several instances answers only on certain aspects 
(or occasionally no answer at all), in accordance with  what they had already made clear in their 
correspondences from last November. They provided re plies, sometimes with detailed and extensive 
elements on some specific aspects, which, all togeth er, left a large number of elements of the Panel's 
questions unanswered.  
13. There are at least 18 questions which are either not answered at all (e.g. 2, 26, 114), or for 
which necessary elements of the replies are explicitly  omitted by the experts. There are many more, as 
identified below in the detailed comments of the European Communities, where necessary elements 
of the replies are implicitly omitted by the experts, in accordance with their own scientific or technical 
expertise, and/or their initial commitment identif ied in their correspondence of last November. 
14. The European Communities has endeavoured to collect the necessary scientific and technical 
evidence to provide the Panel with complementary elem ents of replies to the many aspects that remain 
unanswered. It has not, however, had the necessary time to submit all this information at this stage, 
and will seek to provide further evid ence at the meeting with the Panel and the experts, if appropriate. 
15. The European Communities also re grets, in light of the complexity of the advice sought by 
the Panel, and more generally of this case, that  often only one opinion (and sometimes a partial one) 
has been made available to the Panel on many qu estions, or parts thereof. For many questions a 
number of scientific disciplines and issues are invo lved, and these do not allow for much overlap 
between the limited number of selected experts. It  is doubtful whether the Panel can make definitive 
findings of fact on the basis of advice which is , on its own terms, so limited and incomplete.  WT/DS291/R/Add.7 
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  B. T
HE DIFFERENT APPROAC HES OF THE EXPERTS  
16. The Communities notes that the Panel's experts have taken very different approaches, and 
frequently disagree among themselves, as indicated below.  This confirms that th ere is legitimate room 
for disagreement on many of the issues. Such disag reement contributes to uncertainty and is bound to 
be taken into account by the Panel as it carries out its tasks. 
17. After consultation and peer review with several  independent scientists which all concur with 
the same opinion, the European Co mmunities has come to the firm view that, among the four experts 
which were allocated the whole set of questions , only three (Dr. Andow, Snow and Squire) have 
adopted a balanced and fully reasoned approach , including an indication of their processes of 
thinking. These experts have provided for transpar ency on their conclusions and well-structured 
replies. They have critically evaluated the ava ilable information, questioned claims, and presented 
their own rigorous and logic scientific thinking, based on their own expertise, and each within the 
limited framework of their resp ective scientific disciplines.  
18. Dr. Andow has been very thorough and plainly has carried out extensive work in preparing 
his detailed replies, which are often accurate a nd relevant. He may however on some aspects, as 
explained below, have overstepped his scientific expert mandate. Dr . Snow and Squire have covered 
fewer issues, and often in less de pth than Dr. Andow, but they have nevertheless also given quite a 
number of accurate, sensible and fair replies. 
19. In contrast, the responses of Dr. Nutti are much less scientific, and largely superficial in 
character.  For the most part, no detailed explanati on has been given into the basis for her thinking. 
Often Dr. Nutti has taken the information provided at face value without personal critical scientific assessment regarding its data basis and validity. As a consequence, her replies, which miss references 
of the most appropriate work, including as re gards Codex references,  seem unbalanced and 
incomplete as they often reach an identical conclu sion (usually a systematic pattern of disagreement 
with any request for more information from Memb er States). The European Communities is bound to 
conclude that her replies are frequently inconsiste nt and often lack proper scientific argumentation. 
20. One aspect of her replies is also the low leve l of information requirements for food safety 
assessments. Dr. Nutti advocates these in general terms, without proper consideration of the context of 
the complete information available for each product at that time, and in particular the possible 
unintended effects that can not be excluded in th e face of difficulties, such as missing data, missing 
assessment or biased analysis, related to the mol ecular characterization of the specific GM product 
being considered. As a consequence, her a pproach addresses only minor parts of possible 
toxicological, nutritional or other potential food or f eed safety problems, and is therefore of limited 
relevance. Coupled with Dr. Nutti's stated abse nce of expertise on environmental impacts the 
European Communities has concluded that the views of  this expert should be subject to careful and 
critical scrutiny.  
21. The European Communities judges that the responses by Dr. Andow, Dr. Snow and 
Dr. Squire provide a more scientific and valuable so urce of expertise, addressing the issues that justify 
comment and attention, and that the Panel should most  valuably use and take into account to make its 
findings. 
22. As regards the two other experts, who have addressed a limited number of questions, they 
have provided a reasonable insight into their own scientific thinking. The European Communities is 
struck by the number of disagreements identified in their respective replies, even in relation to the 
small number of issues they have addressed. It is  noteworthy that they have very different and WT/DS291/R/Add.7 
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Page I-204 
  opposite requirement in terms of the informa tion necessary to properly assess the molecular 
characterization of the products in dispute: Dr . Healy seemingly has a much lower threshold of 
requirement than Dr. Snape. Furthermore, acco rding to the assessment of scientists which are 
specialized in and working on detection methods, Dr. Healy is often inaccurate and has almost a 
systematic pattern of advice against the European  Communities in her few replies addressing this 
issue of detection methods. 
C. T
HE INDEPENDENCE OF THE EXPERTS  
23. The European Communities would like here to note that both Dr. Nutti and Dr. Healy are 
employed by Government agencies working for regula tory authorities, including one of a third Party 
in these disputes on the side of the complainants . By contrast, the other scientific experts are 
independent. Dr. Nutti and to a lesser extend Dr. Healy (for instance on Q25), are also the only two 
experts who have touched upon issues in a more gene ral way,  going beyond their mandate or their 
own field of scientific expertise. 
D. THE ASSESSMENT OF THE REAS ONABLENESS OF TIME TAKEN  
24. Dr. Andow is providing advice outside his field of expertise when he opines on the length of 
time that would be appropriately taken to formulate an  opinion or a request for further information.  It 
is obvious from his own advice that he has demonstrat ed his ability to process in a very short time and 
in detail, a very large amount of relevant inform ation.  However, it cannot be assumed that such 
efficiency can be a benchmark for the facts involved in this dispute, which involved complex 
regulatory frameworks and interaction between multipl e authorities within different jurisdictions, or 
where a single relevant regulatory authority or legislator had to understand complex scientific 
information on all issues at stake, call for its ow n scientific independent advice, including through 
multiple external advisory bodies, process its or their opinions, interact with an applicant, and finally 
formulate a request for further scientific information.  
III. GENERAL AND METHODOLOGICAL ISSUES 
25. There are a number of general and methodologi cal issues that the European Communities 
finds more convenient to deal with separately  before embarking on a detailed commentary on the 
responses submitted by the Panel's experts to each of  the Panel's questions.  These are dealt with in 
this Section.  Some can be dealt with briefly, but one, relating to the evolution of risk assessment 
techniques (sub-section P below), needs to be discussed in some detail. 
A. COMPLEXITY  
26. It is clear from the experts' replies that the science behind any assessment of the products in 
dispute is complex, and how many different scientific  fields of expertise must be involved to address 
the issues to give a complete picture. In partic ular, the potential impacts of the products in dispute 
may apparently only be uncovered and assessed by th e scientific analysis of complex networks of 
food, agro-environmental or ecological webs, involving direct and indirect interactions between many 
living organisms and systems. This has obviously raised significant methodological challenges for the scientific community, with all that implies for governmental policy and decision-making.  
B. C
ASE BY CASE ASSESSMENT  
27. There is overwhelming evidence from the experts' scientific advice that each of the products 
in dispute raises scientific and technical issues that are specific to the particular construct and genetic 
modification that has been engineered in each of th em, and to their intentional or unintentional use.   WT/DS291/R/Add.7 
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  28. The generic trait (or traits) such as herbicide resistance, or disease resistance, introduced by 
genetic modification in the GM products in disput e may relate to a common "basic" set of generic 
issues (which may even be sometimes similar to so me issues raised by non genetically engineered 
products). But it is also very clear from the experts replies that each product's specific characteristics 
(e.g.: glufosinate or glyphosate resistance, Bt toxin expression, or a combination of them) raises for each individual situation and product a range of new and extremely specific scientific questions. This 
applies for each species at stake ( e.g.: sugar beet, o ilseed rape, maize, potato, etc…), and has to take 
into account the genetic construction, the combin ation and the expression of these characters in each 
product's genetic makeup, as well as how and in wh ich specific environment the product is going to 
be intentionally or unintentionally used.  
29. These case-specific considerations, which cannot  be automatically derived from a common 
set of basic and generic questions, are due in part to the fact that most of the specific characters 
introduced in the GM products at stake (e.g.: AR MG, glufosinate or glyphosate resistance, systemic 
endogenous Bt toxin expression, etc…) do not exist, ca nnot be obtained or have not yet been found, in 
non genetically modified plants. The advice before th e Panel illustrates the need to take into account 
the international consensus that a case by case and thorough approach is justified for each and every 
genetically modified product. Each individual pr oduct has to be considered rigorously and assessed on 
the basis of its own individual merits, taking into  account the relevant set of specific information 
pursuant to that very product, and its intentional or unintentional specific recipient environment.  
C. S
YSTEMIC ISSUES (INTERACTIONS AND CUMULATIVE EFFECTS ) 
30. The advice before the Panel also confirms th at a case by case assessment may need to be 
supplemented by the assessment of "systemic" impacts.  Such impacts are specifi c to the combined use 
of GM products in dispute, i.e. issues which are originating from potential impacts on "systems" (e.g. 
agricultural or agro environmental, for instance) , namely potential changes induced in different 
"systems" by the use, in combination or in tempor al sequence, of several different GM products, and 
which can not be identified by a case by case approach.  
31. Having regard to the experts' advice, these sy stemic questions often open up large areas of 
scientific uncertainty. This is becau se the scientific or technical know ledge is often not  complete, due 
to the novel character of the GM products in disp ute, or the fact that the empirical and limited 
experience gained in one type of system (for in stance in one of the three complainants' systems) 
cannot be transposed to a corresponding system elsewhere. 
D. FAMILIARITY  
32. The scientific advice provided to the Panel clearly  shows, in particular in the light of the 
amount of scientific issues that were or are still unr esolved or unclear, that some issues have not yet 
been studied at all, that the products in dispute ha ve regularly given rise to many new questions in the 
last ten years, and that they remain at the forefr ont of scientific knowledge, bot h in terms of risks and 
benefits. The Communities considers that the lack of familiarity with the issues raised must be taken 
into account by the Panel in understanding the way new problems and corresponding requests for 
further information have arisen over time, in the face of developing scientific understanding.  
E. EVOLVING SCIENCE  
33. It is also  striking that the experts confir m how little was known on so many of the relevant 
issues only 10 to 15 years ago, and how much the scientific understanding of many of these issues has developed since then, including in international fora  such as the Codex. Developments identified by WT/DS291/R/Add.7 
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  the experts include the identification of previous ly unsuspected areas of risks and impacts, or 
identification of flaws in the way risk assessments may have been conducted in the past, both issues 
which are still moving very fast forward today.  
34. One of the explanations for the evolution of th e scientific understanding of the relevant issues 
before the Panel is that the sience, by being co nfronted with the necessity to address such new 
complex impacts and networks of interactions, for wh ich no or little data was available, had to make 
necessary shortcuts and to take a reductionist appr oach. It thereby initiated the process of assessing 
the relevance and likelihood of some potential impact s that were first identified, but as a consequence 
of the shortcuts and the necessary reductionism of the scientific process, it largely overlooked many 
issues which are now on the table in most countries confronted with the GM products in dispute, 
including the three complainants. This has a majo r consequence, which is that a scientific risk 
assessment opinion is only to be considered relevant at a certain point in time, within the context of 
the specific impacts it had looked at, and within th e context of the scientific considerations and 
methodologies that were available to it.  
F. S
CIENTIFIC EVIDENCE OF RISKS OR ABSENCE OF RISKS  
35. As noted by Dr. Andow and Dr. Squire, an ab sence of scientific evidence does not constitute 
evidence of an absence of impacts or  risks. This is in particular important in the case of these novel 
products, when a relevant new scientific issue,  raised in the context of these GM products' 
assessments, has even not yet been studied, or not studied with proper scientific methodologies. Even 
though science cannot be asked to prove an absence of  risk or a negative result, the novel character of 
the products in dispute and the issues they raise jus tifies the requests for new scientific information, in 
a context where scientific understandi ng is constantly evolving and new issues of potential impacts of 
GM products are continuously arising. 
G. CONTROVERSY  
36. In the limited areas of expertise in which there is overlap between the Panel's experts, or 
where independent scientific opinion has been s ought by the European Communities on these expert 
replies, it is noteworthy that there is extensive di sagreement between the experts or with independent 
scientists. This indicates a clear lack of consensus in the scientific circles on the issues at stake in 
these proceedings. This lack of consensus is partly  explained by the questions addressed below. The 
European Communities considers that the Panel cannot make definitive findings of fact in the face of 
such conflict of views or uncertainty, beyond indicating the existence of such differences or 
uncertainty.  
H. ABSENCE OF AGREED SCIENTIFIC CRITERIA  
37. As stated by Dr. Squire in his general notes on ecological and environmental standards, one of 
the problems in addressing issues of science in these proceedings, is the absence of agreed criteria on 
many issues (in scientific and regulatory circles), in cluding in respect of the information necessary to 
perform a risk assessment and, also, the manner in  which to interpret the relevant data. The novel 
character of many of the issues at stake, which of ten emerged only within the past decade, is largely 
responsible for the absence of agreed criteria. This  contributes to further scientific uncertainty, in 
particular as regards the impacts on the envir onment and the agro-ecosystem at large.  
I. JUDGING WHEN THE SCIENTIFIC INFORMATION IS SUFFICIENT  
38. It is apparent from the scientific advice now before the Panel, that there is no unique, 
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  assessment end point). From the experts opinion it  appears that there is a general trend, as the 
scientific data accumulate, that indicates a move towards the formulation of a clearer scientific opinion. However, to decide when the available data is sufficient to conclude that an element of the 
risk assessment is adequate or not still involves th e judgement of experts (ideally this should be 
expertise which is independent of the regulatory au thorities and the legislator, as recommended by the 
Codex guidance on risk analysis). More importan tly, experts may disagree on whether there is a 
sufficiency of information (as they do in th e present case very frequently) without necessarily 
disagreeing on the science. There may be a legitimate difference of view not on what is the state of 
scientific knowledge, but how it is to be  applied to a particular set of facts. It is clear that, expert 
judgement and subjectivity are important elements of  a science based risk assessment. In this regard, 
it appears rather clearly from Dr. Healy's considera tions that she often believes that the information 
available for a specific dossier may have been su fficient to reach a positive conclusion; yet she may 
still agree remaining uncertainties exist and have be en identified. In her approach these are of low 
significance – she may be less cautious (or precautionary ) than another expert -, while other experts, 
on the same data, may have an equally valid judge ment and reach a different conclusion as to the 
consequences to be drawn from such uncertainties. They may, for example, conclude that further 
information is necessary to try eliminate uncertainties to a greater extent.  
J. I
NTERPRETATION OF SCIENTIFIC INFORMATION  
39. Another source of the experts divergent c onclusions derives from differences in data 
interpretation – disagreements on the science. Diffe rences of individual experts' arguments and 
approaches leading to their scientific advice, which is sometimes conflicting despite being faced with 
the same sets of scientific facts and data, illustrates the subjective character of the Panel's experts' and 
other scientists' opinions in this field. This indicat es that the scientific data at stake requires a 
substantial amount of scientific interpretation. It also confirms that the novel character of these GM 
products and the new issues they raise may require a different approach, and that any interpretation 
cannot be based on agreed criteria and methodologi es or on a non-existent scientific consensus. 
K. AVAILABILITY OF RISK MITIGATI ON AND RISK MANAGEMENT TOOLS  
40. There are two general points stemming from the e xperts' advice that merit attention in relation 
to risk assessment and risk management in the c ontext of availability of mitigation and monitoring 
tools. First, as for the science, it appears clearly  from the experts advice that the availability and 
appropriateness of mitigation measures has evolved over time (particularly since 1998) in parallel 
with the evolution of scientific understanding of th e issues. Even if mitigation measures may be 
available today for many of the potential impacts at stake, they are not available for all of them, and 
they were not available only a few years back. Furthermore, even when  they have been available for 
some time, it has often been necessary to revise them as evolving science identified them as being 
inappropriate.  
41. Second, it is apparent that the introduction of any GM product into the environment may 
cause an irreversible effect under certain conditions , in particular if a particular product, or a 
particular genetic modification, has the ability to maintain or spread itself into the environment. 
Therefore, if uncertainties remain for a particular  product that may have these characteristics, any 
available mitigation measure may be considered on polic y grounds to be inadequa te. This is especially 
the case if the effects are irreversible.  WT/DS291/R/Add.7 
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L. P
OST MARKET MONITORING AND GENERAL SURVEILLANCE  
42. Even if there is a degree of consensus among th e Panel's experts as regards the necessity for 
post market monitoring of potential adverse impacts,  they sometimes refer only to the monitoring of 
risks identified in the process of risk assessment.  
43. A number of the experts indicate that there mi ght be no need for monitoring if a particular 
risk has not been identified. The European Communi ties disagrees with this view. It considers that it 
may be necessary, in the face of the lack of fa miliarity with the new GM products at stake, to 
implement monitoring plans as a general post marketing surveillance tool to identify unexpected  
effects. This is consistent with international instruments. As scie ntific understanding of the issues has 
evolved, the discovery of new potential impacts that  had not been thought of, or identified in earlier 
risk assessments, is an ample demonstration of th e validity of such approach. Dr. Andow, Dr. Snow 
and Dr. Squire agree that some ecological or agro -environmental hazards predicted in the late 1990's 
are only beginning to emerge now. This is the case  for the molecular basis of the transformation, 
horizontal gene flow, Bt and herbicide resi stance management, and non target species.  
44. Furthermore, if a risk is found to  be of limited or no impact in an expert opinion, it is still 
appropriate to consider the availa bility of general surveillance and sp ecific monitoring plan to check 
the validity of that expert opinion, and to ensure that practices do not lead to more harmful outcomes 
than anticipated. This may be th e case, for example, when monitori ng the impact of the occurrence, 
maintenance or spread of occasional escapes from non cultivated crops with high weediness potential, 
such as oilseed rape. In this respect, the Europ ean Communities would like to draw the attention of 
the Panel to the latest international expert advi ce provided to the FAO in this field, which has 
recommended that any responsible deployment of genetically modified crops needs to comprise the 
whole technology development process, from pre-re lease risk assessment to post release monitoring.1  
M. SURVEILLANCE AND FOOD SAFETY  
45. As regards food safety, even if some GM pr oducts have been found to be safe and approved 
on a large scale, for instance by the three compla inants, the lack of general surveillance and 
consequently of any exposure data and assessment, means that there is no data whatsoever available 
on the consumption of these products – who has eat en what and when. Consequently, one can accept 
with a high degree of confidence that there is no  acute toxicological risk posed by the relevant 
products, as this would probably not have gone undetected – even if one cannot rule out completely 
acute anaphylactic exceptional episodes. However, in the absence of exposure data in respect of 
chronic conditions that are common, such as allergy and cancer, there simply is no way of ascertaining whether the introduction of GM products  has had any other effect on human health. 
N. R
EMOVING UNCERTAINTIES WITH  LARGE SCALE CULTIVATION  
46. Some of the opinions put forward by the e xperts address the need to collect further 
information, through large scale cultivation, in  order to remove some remaining scientific 
uncertainties. They touch in particular on large scale impacts on biodiversity and the agro-ecosystems, 
in the light of the recently available info rmation on these issues. The European Communities 
considers that it may be appropriate to request furt her information on the relevant issues prior to the 
grant of the relevant authorization to cultivate th e product. Another regulatory regime, dealing with 
consents for deliberate releases of genetically modified organisms for purposes other than placing on 
                                                      
1 FAO expert consultation on monitoring the environmental effects of GM crops. Available at: 
<http://www.fao.org/newsroom/en/n ews/2005/89259/index.html>.  WT/DS291/R/Add.7 
 WT/DS292/R/Add.7 
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  the market,
2 has already enabled several such studies to be  conducted (see in particular the Farm Scale 
Evaluation studies). Other such studies are currently under way. 
O. DETECTION METHODS  
47. On the availability of detection methods, and th eir relationship with risk assessment and risk 
management, some of the Panel's experts seem to indicate that they are not related to the risk assessment process, and hence, with the risk manage ment process, and that they are only available for 
the purpose of identifying individual products.  
48. The European Communities would like to make clear its view that detection methods, 
including event-specific and quantitative methods, ar e necessary for the purpose of risk management, 
even in the absence of an identified risk in the process of risk assessment. First, and independently of 
any other identification purposes, they are necessar y to ensure compliance and control of compliance 
with the legislative framework that provides for th e risk assessment (only products satisfying specific 
legislative criteria for assessment and consents, pos itive opinion of advisory bodies, and/or specific 
thresholds of presence, may be found to be presen t). This requires the help of these quantitative, 
event-specific, detection methods.  
49. Second, they may be necessary to enable the withdrawal of a specific product from the 
market. This could be in case of the emergence or o ccurrence of a previously unanticipated risk, or in 
case of new uncertainties as regards some significant ri sks that still need to be assessed, or in case of 
illegal placing on the market of a product. The two latter conditions occurred in the United States 
when the Starlink product had to be withdrawn from the food and feed chains a few years ago, even 
when found only in minute traces. 
P. N
EW DEVELOPMENTS OF RISK ASSESSMENT CONCEPTS FOR GENETICALLY MODIFIED 
PRODUCTS  
50. The development of risk assessment concepts in the last 10 to 15 years reflected the progress 
in the understanding of unintended effects of GM pr oducts, and of biotechnological methods in plant 
breeding. Experiences drawn from a growing body of risk assessment processes, for different GM 
products, often indicate similar underlying problems . Early regulations (e.g. Directive 90/220/EEC) 
for genetically modified organisms did not differen tiate between systemic e nvironmental and product 
specific risks assessments, whereas most modern regulations differentiate between a general 
environmental assessment and specific assessments for specific products, such as GM plants for 
pharmaceuticals, foods and/or feeds, seeds, chemical s or even fibre products. Consequently, specific 
risk assessment procedures were or are currently  being developed for these products. These new 
specifications resulted in a diversification for th e risk assessments. However, experience drawn from 
the accumulated evidence identified several underl ying problems, most notably the need for a 
molecular (genotypic) and phenotypic character isation and assessment of potential unintended 
molecular effects was identified as the b asis for the assessment in all fields.3  
                                                      
2 "Part B" or Directives 90/220/EEC and 2001/18/EC. 
3 Andow, D.A., Hilbeck, A., 2004: Science-based risk  assessment for non-target effects of transgenic 
crops. – BioScience 54(7): 637-649.  FAO/WHO, Safety assessment of foods derived from genetically modified animals, including fish, a joint FAO/WHO expert consultation on food derived from biotechnology, Rome, 
Italy, 17-21 November 2003. Available at 
<http://www.who.int/foodsafety/biotech/meetings/en/gmanimal_reportnov03_en.pdf>. WT/DS291/R/Add.7 
WT/DS292/R/Add.7 WT/DS293/R/Add.7 
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1. The "substantial equivalence concept" 
51. The concept that a comparison of a final produc t with one having an acceptable standard of 
safety would provide an important element of safety assessments of GMOs was a commonly used basis for the development of both food safety and environmental risk assessment.
4  This concept was 
elaborated by FAO, WHO and OECD in the early 1990s and referred to as 's ubstantial equivalence' 
for the assessment of GM foods. But already in 2000 an FAO/WHO consultation acknowledged that 
this concept  of substantial equivalence had attracted cr iticism from the perception that it was the end-
point of a safety assessment rather than being the starting point.5 The consultation concluded that 
consideration of compositional changes is not the so le basis for a valid determination of safety and 
that safety can only be determined when the results  of all necessary aspects under comparison, and not 
merely comparisons of key constituents, are integr ated. Recently, the concept has further evolved to 
the Comparative Safety Assessment for GMO foods.6 By 2003/2004, most international frameworks 
and guidance covering living modified organisms beca me effective, notably on environmental safety 
(Cartagena Protocol on Biosafety), on food safety (Codex) and on plant health safety of genetically 
modified products; with all systems being based on the concept of a case by case approach. Most 
recently, the need for a very comprehensive molecu lar characterisation of each transformation event, 
including the analysis of integrated constructs a nd the flanking region, as well as the need to address 
potential unintended effects, wa s appreciated for food safety and environmental assessments.7 These 
ideas were also reinforced by several general reco mmendations of expert advice, such as for instance 
a United States EPA FIFRA recent expert panel.8 
2. Codex principles for the risk assessment of GM foods  
52. The Codex Alimentarius Commission  adopted the Principles for the Risk Analysis of Foods 
Derived from Modern Biotechnology, and the dr aft Guidelines for the Conduct of Food Safety 
Assessment of Foods Derived from Recomb inant-DNA Plants and Microorganisms in 2003.9  T h e  
Principles for the Risk Analysis – sets out important  principles, such as those related to whole food 
                                                      
4 WHO, 1991. Strategies for Assessing the Safety of Foods Produced by Biotechnology, Report of A 
Joint FAO/WHO Consultation. World Health  Organisation, Geneva. Available at 
<http://www.who.int/foodsafety/pub lications/biotech/1990/en/>. 
5 FAO/WHO, 2000. Safety Aspects of Genetically M odified Foods of Plant Origin. Report of a Joint 
FAO/WHO Expert Consultation on Foods Derived from Biotechnology, Geneva, Switzerland, 29 May - 2 June 
2000. Food and Agriculture Organisation of the United Nations, Rome. ftp://ftp.fao.org/es/esn/food/gmreport.pdf; Millstone, E. , Brunner, E., Mayer, S., 1999. Beyond 'substantial 
equivalence'. Nature 401, 525-526; Schenkelaars, P. , 2002. Rethinking substantial equivalence. Nature 
Biotechnology 20, 2, 119. 
6 Kok, E.J., Kuiper, H.A., 2003. Comparative sa fety assessment for biotech crops. Trends in 
Biotechnology 21, 439-444. 
7 FAO/WHO, Safety assessment of foods derived from genetically modified animals, including fish, a 
joint FAO/WHO expert consultation on food derived from biotechnology, Rome, Italy, 17 - 21 November 2003. 
Available at <http://www.who.int/foodsafety/biotech/meetings/en/gmanimal_reportnov03_en.pdf>. 
8 SAP Report No. 2004-05. MINUTES of Federal Ins ecticide, Fungicide, and Rodenticide Act (FIFRA) 
Scientific Advisory Panel (SAP) Meeting, June 8-10, 2004 , Arlington, Virginia. A Set of Scientific Issues Being 
Considered by the Environmental Protection Agency Regarding: Product Characterization, Human Health Risk, Ecological Risk, And Insect Resistance Management For Bacillus thuringiensis (Bt) Cotton Products. 84 pages. 
9 Principles for the Risk Analysis of Foods Derived from Modern Biotechnology; CAC/GL 44-2003; 
Guideline for the Conduct of Food Safety Assessment of Foods Derived from Recombinant-DNA Plants; CAC/GL 45-2003; Guideline for the Conduct of Food Safety Assessment of Foods Produced using 
Recombinant-)DNA Micr oorganisms; CAC/GL 46-2003. Codex Alimentarius Commission, 2003.  These were 
provided to the Panel by the European Communities as part of Exhibit EC-44 to the first written submission. Available at <ftp://ftp.fao.org/codex/standard/en/CodexTextsBiotechFoods.pdf>.  WT/DS291/R/Add.7 
 WT/DS292/R/Add.7 
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  assessment, uncertainties, sustainability of data provi ded to the risk assessment, and review of current 
risk assessment processes.  
53. Common agreed principles for the safety assess ment dictate a case-by-case pre-market 
assessment on the basis of a Comparative Safety Assessment (CSA). The CSA is basically a two-
tiered approach. The initial step is comprised of  a thorough comparison (not limited to a simple 
comparison of major key nutrients or phenotypes) w ith the closely related conventional food organism 
counterpart (there is however continuous debate as to what may constitute a suitable control 
counterpart), to identify any differences that may have safety implications for the consumer. This 
comparison includes both thorough phenotypic characteristics as well as a thorough compositional 
analysis (primary and secondary metabolites known to be bio-active). The second step comprises the toxicological and nutritional evaluation of the identified differences between the food derived from 
the GMO and its comparator. Hazard identification and characterization are typically the first steps in any risk assessment, and an extensive molecular ch aracterisation of the inserted genetic material 
construct is required as a prerequisite to enable a sound hazard identification and characterization.  
54. The safety of newly introduced gene produc ts must be assessed on a case-by-case basis. 
Following the phase of hazard identification, charact erization and food intake -assessment (including, 
where necessary, target animal and/or whole feed  studies), an integrated toxicological evaluation 
(potentially covering both acute a nd chronic exposures) will combine all the information with relation 
to the food safety of the GMO-derived food.  
55. As is discussed elsewhere (see discussion in  our comments on Q111), genetic modification 
may induce dramatic unintended changes in th e composition of foods, which may have gone 
undetected if only key nutriments comparison had been performed.
10 For the identification of 
potentially occurring unintended effects, metabolic  profiling methods have been proposed, and 
different possibilities for profiling me thods have been characterized.11 In addition to investigating 
health risks directly associated with food prod uction, the Codex risk assessment has and is still 
broadening to include indirect effects, and now  also encompasses effects of new products on the 
environment that may have an indirect impact on human health.12 
 
3. The environmental safety assessment of GMOs 
 56. A case by case assessment considering each GM organism derived from a single 
transformation event, or from each combination of them, as well as considering the different receiving environments (intentionally or unintentionally), is broadly recognised as the best basic framework for 
assessing environmental risks of GMOs. Internationally , in particular within the OECD, a concept of 
familiarity was developed also in the framework of  environmental safety of transgenic plants. The 
concept may facilitate risk assessments, because  achieving familiarity means having enough and 
thorough information, in order to then be able to make a sound and experienced judgement on safety 
or risk.
13 Unfortunately, as has been shown eloquently  by the experts' replies, there is still 
                                                      
10 See, for instance, Metabolic Profiling Allows Comprehensive Phenotyping of Genetically or 
Environmentally Modified Plant System s, Ute Roessner, Alexander Luedema nn, Doreen Brust, Oliver Fiehn, 
Thomas Linke, Lothar Willmitzer, and Alisdair R. Fe rnie; The Plant Cell, Vol. 13, 11–29, January 2001. 
11 Kuiper, H.A., Kok, E.J. , Engel, K.H. (2003) Exploitation of molecular profiling techniques for GM 
food safety assessment. Current Opinion in Biotechnology 14, 238-243. 
12 Haslberger, A.G., 2003. Codex guidelines for GM foods include the analysis of unintended effects. 
Nature Biotechnology 21, 7, 739-741. 
13 NAS (National Academy of Sciences) (2002) Envi ronmental Effects of Transgenic Plants:the Scope 
and Adequacy of Regulation. Washington, DC: National Academy Press 
http://books.nap.edu/books/0309082633/html/index.html. Co nner, A.J., Glare, T.R. and Nap.J.P. 2003. The WT/DS291/R/Add.7 
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Page I-212 
  considerable lack of familiarity with many ecolo gical systems and interactions occurring both in 
cultivated and natural environments.  
57. Familiarity could then also be used to indi cate appropriate management practices, including 
the evaluation whether standard agricultural practices are adequate or other management practices are 
needed to manage the risk.
14 Familiarity depends also on having  existing knowledge on the range of 
environments in Europe, their agro-ecosystems, and the relevant ecological webs, in order to 
determine the interaction of introduced organisms with these environments and to conduct the risk 
assessments. In addition, risk ass essments will need to consider th at agricultural practices in one 
specific geographical regions, may differ from that in  another region. Furtherm ore, as discussed above 
and in the relevant experts' replies, there are al so broader systemic agro-environmental risk issues 
which need to be assessed on top of each individu al case by case assessment for a specific organism, 
in a given environment.  For example, to assess impacts of GM crops and associated management practices on soil ecosystems it is now considered more appropriate to measure changes in soil 
ecological functions (e.g. soil nutrient cycling) ra ther than monitor an individual indicator species.
15 
58. Currently, the Cartagena Protocol on Biosafety (CPB) to the Convention on Biological 
Diversity is the only internationa l regulatory instrument which addresses specifically the potential 
adverse effects of GMOs on "the conservation and th e sustainable use of biological diversity", taking 
also into account effects on human health.16 This instrument calls fo r scientifically sound risk 
assessments, and the establishment of appropriate risk management measures to prevent adverse 
effects of living modified organisms (LMOs) on the conservation and the sustainable use of biological 
diversity, taking also into account risks to human h ealth. In doing so, it provides in its Annex III for a 
general set of risk assessment principles, met hodology, steps and points to consider. However, it 
should be noted that the development of detailed gui dance on risk assessment and risk management of 
LMOs will only happen in the future, as it is curren tly on the agenda of the next meetings of the 
parties to the CPB.  
59. Annex III of the CPB focuses especially on id entification of any novel genotypic and 
phenotypic characteristics that may have adverse eff ects on biological diversity in the likely potential 
receiving environment. The information on the recei ving environment includes data on the location, 
geographical, climatic and ecological characteristic s, including relevant information on biological 
diversity and centres of origin of species containe d within the likely potential receiving environment 
(region or country). As the focus of the CPB is bi odiversity, its consideration of human health safety 
is limited, concentrating on situa tions in which the LMO itself may end up in the food supply, such as 
might happen via trade of crop seeds, or as regards indirect human health effects that may arise from direct impact of the GM crop and/or its management system on local biodiversity. 
60. Recent work for the implementation of the CP B recommends, as regards the assessment of 
non target environmental risks, the analysis of eff ects of GMOs on important indicator species in the 
environment, before an assessment of effects on the biodiversity. This is mainly because a better 
access is available to species assessment and there are serious methodological limitations for an 
                                                                                                                                                                    
 
release of genetically modified crops into the Environment. The Plant Journal  33, 19–46. Poppy & Sutherland 
2004; Physiol Ent 29: 257-268. 
14 OECD 1993 SAFETY EVALUATION OF FOODS DERIVED BY MODERN 
BIOTECHNOLOGY, CONCEPTS A ND PRINCIPLES. Available at 
<http://www.oecd.org/datao ecd/57/3/1946129.pdf>. 
15 Birch et al., 2004 In: Environmental Risk Assessment of Genetically Modified Organisms vol 1. a 
case study of Bt maize in Kenya. Eds Hilbeck and Andow. CABI Publishing. pp 117-1850. 
16 See the discussion in the first written submission  of the European Communities, paras 87 to 112.  WT/DS291/R/Add.7 
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  analysis of effects to biodiversity and the diversity of species in general.
17 Specifically, a non target 
individual species risk assessment, for assessing the non target effects of GM crops, was considered to 
be more useful than the conventionally used eco -toxicology or non-indigenous-species model: this 
new ecological risk assessment model requires info rmation about the intended receiving environment 
and aims to focus on the analysis of possible effects of a GMO on local species which are assessed as having  a specific and regionally-important  ecologi cal function in this system or have special 
conservation or heritage value to the country. 
61. However, toxicity tests are obviously consider ably more difficult to conduct with endangered 
species. Where, for instance, nativ e insects may have particular cultural value, studies to understand 
their distribution and ecology in agricultural habitats, and methods for conducting laboratory 
bioassays with them, may help with GM plant risk assessment.
18 However, not all species are 
amenable to such bioassays, b ecause they are often protected.  
4. The plant health assessment of GMOs 
62. Recently, within the framework of  the International Plant Protection Convention, (hereinafter 
"IPPC") guidance on the plant health risk assessment  of LMOs has been developed in harmony and 
mutual supportiveness with the principles of the CP B. This guidance (ISPM11), provides a useful and 
detailed guidance to address essentially plant pest risk s (risks to plant health) that may arise from the 
GM product itself. It is noteworthy, however, that the framework of the IPPC, although addressing plant health in general, has focused its technical e xpertise and work on crop plant health, rather that 
on health of any wild plant health to be found in the ecosystem, nor on the ecological food webs 
involving non cropped wild plants to be found in na tural ecosystems in the same region as the GM 
crop.  
5. Starting points for assessing effects of GM Os on food safety, mediated through the 
environment 
63. Both the Codex principles for food safety and the risk assessment provided for by the CPB, 
provide opportunities to more explicitly consider in teractions between food safety, feed safety and 
environmental safety. For instance, the broadening of  the Codex risk assessment to include indirect 
effects, provides for assessing effects on the environment that may have an indirect impact on human health.
19  
64. Indirect effects on human health or the envi ronment may be described as effects occurring 
through a causal chain of events, through mechanisms  such as interactions with other organisms, 
transfer of genetic material, or changes in use or management associated with the GM crop in the 
region or country of use.20 Indirect effects are likely to be de layed and possibly involve sub-chronic, 
long term effects. Given examples include im pacts which can arise from changed agricultural 
practices associated with the management of a geneti cally modified (GM) crop rather than directly 
from the genetically modified crop itself. The a bove mentioned explanatory guide suggests that 
                                                      
17 Andow & Hilbeck (2004). Science-ba sed risk assessment for non-target  effects of transgenic crops.  
BioScience 54: 637-649. Birch et al., 2004 In: Environmental Risk Assessment of Genetically Modified 
Organisms vol 1. a case study of Bt maize in Kenya. Eds Hilbeck and Andow. CABI Publishing. pp 117-1850. 
18 O'Callaghan, Glare, Burgess and Malone (2005). E ffects of plants genetically modified for insect 
resistance on nontarget organisms. Annu. Rev. Entomol. 50: 271-292. 
19 Haslberger, A.G., 2003. Codex guidelines for GM foods include the analysis of unintended effects. 
Nature Biotechnology 21, 7, 739-741. 
20 CPB, explanatory guide. Available at <http://www.biodiv.org/doc/books/2003/B-01669.pdf> (last 
visited on 31 January 2005). WT/DS291/R/Add.7 
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Page I-214 
  questions related to human health e ffects cover the human health aspect s that are linked to the state of 
use and conservation of biological diversity, or the envi ronment in general. Such a direct link exists if 
the health effect is consequent  to an exposure to the risk in situ , for instance, if a farmer were to 
develop an allergenic reaction to pollen from genetically  modified plants; but it also exists indirectly 
if the health effect resulted fro m effects or changes on biological diversity (indirect or secondary 
effect). Direct effects on human health (e.g. cau sed by consumption of GM food, or exposure to 
pharmaceuticals for humans or animals) would, however , be mainly covered by human health focused 
instruments (Codex, WHO, OIE). 
6. The animal health assessment of GMOs 
65. It is finally critical to note that, as regards animal health impacts of GM plant or other GM 
products (impacts on animals used for food, br eeding animals, or even on all relevant non 
domesticated organisms from the animal kingdom), or  as regards target or non target animal feed 
safety, there is not yet much specific risk assess ment guidance developed by  international expert 
consultation or organisations. It is important to consider that the lack of identification of human health 
risks in the risk assessment of a GM plant used as food, does not ne cessarily correlate with an absence 
of risks on target or non target animals in the fr amework of feed safety, in particular for non 
mammals. This relates to, among others, differe nces in animal physiology and metabolism, 
parts/products of crop plants that are consumed, pr ocessing, and exposure (intake) levels. As has been 
indicated by the OIE in its recent submission, the OI E's international standard s are not linked directly 
with modern biotechnology. Consequently, indirect environmental or human health effect that may 
arise from direct impacts on animal health or GM plant induced imbalance in the animal interactions 
with the ecosystem is still a largely an unexplored area.  
Q. O
THER GENERAL ISSUES – DEALT WITH IN THE COMMENTS ON THE QUESTIONS  
66. There are a number of other general issues that  arise from the advice provided to the Panel 
that the European Communities discu sses in commenting on the questi ons to which they relate, as 
identified below in brackets afte r each issue. These include:  
– Unintended effects, and general molecula r aspects of genetic modification, and 
transgenics (Q111); 
 
– Molecular characterization requirements (Q9); 
 
– Correlation between molecular characterization and toxicological assessment, 
according to substantial equivalence and comparative assessments (Q9 and Q111); 
 
– Allergenicity assessment (Q111); 
 
– Horizontal gene transfer (Q1 and Q2); 
 
– Cross breeding and assessment of stacking of genetic modification (Q111);  
IV. THE PANEL'S GENERAL QUESTIONS (N°S 1 TO 9 AND 110 TO 114) 
Question 1 
 
On the basis of the information before the Pane l, is there any scientific evidence to support the 
hypothesis that antibiotic resistance marker genes (A RMG) pass from a biotech food or feed product 
to bacteria or other micro-organisms present in the human or animal gut?  WT/DS291/R/Add.7 
 WT/DS292/R/Add.7 
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  (a) If scientific evidence indicates that such an event could occur, what risks, if any, 
would arise from that event?  What is the comparative relevance or magnitude of this 
risk in relation to the likelihood of such a transfer from other sources of antibiotic 
resistance not involving the use of recombinant DNA technology? 
(b) If such risks have been identified, what is the likelihood of adverse effects to human 
or animal health, in light of the processing of raw biotech products into human food or animal feedstuffs?   
(c) Are these consequences relevant  to the specific types of ARMG currently used in the 
products at issue in this dispute?  Please explain. 
(d) If such risks have been identified, what risk management options are available to 
mitigate those risks and what is their efficacy?   
General comments 
 67. The Panel's first general questi on sought advice on the issue of whether, how, and what are 
the consequences if antibiotic resistance marker genes (ARMG) could pass from GM food or feed 
product to bacteria or other micro-organisms present in the human or animal gut. However, it sought 
also in its next question equally important advice as to whether other routes than food or feed, and 
persistence into the environment and in soil of plant DNA, may also lead to the development of 
antibiotic resistance. 
68. Unfortunately only one of the Panel's expert s, Dr. Nutti, has addressed the issue of ARMG, 
and then has limited her comments to question 1 with  the exception of sub-questions c) and d). Also, 
Dr. Nutti does not respond to question 2, stating that it is a question relating to environmental safety on which she does not have expertise.  
69. Dr. Nutti's response is however characterised by  a lack of detailed arguments and failure to 
cite and discuss the most relevant and updated sci entific evidence, and also presents an erroneous 
conclusion. It therefore is seriously misleading to those unfamiliar with the true state of scientific 
knowledge and understandi ng. Dr. Nutti is definitively not correct in her statement that  
To date, there are no reports that marker  genes in plant DNA transfer to these 
(microbial and mammalian) cells. 
70. She is equally seriously misleading by not citi ng the most recent and relevant Codex guidance 
as regards ARMG. 
71. The only other contribution that Dr. Nutti ma kes is to seek to minimise with sweeping 
statements the adverse consequences that would be ca used by a transfer of antibiotic resistance. This 
is again very superficial, and she does not answer all parts of the Panel's question 1. 
72. Because of the inadequacy, incorrectness and in completeness of the advice provided to the 
Panel on related Questions 1 and 2, the European  Communities provides its own analysis below on 
each question. The European Comm unities has prepared this info rmation with the assistance of WT/DS291/R/Add.7 
WT/DS292/R/Add.7 WT/DS293/R/Add.7 
Page I-216 
  scientists, experts in the field of antibiotic resistance and ARMG, and presents it as objectively as possible so as to complete the information available to the Panel.
21 
73. On the basis of this analysis, it can be concluded that: 
 – The demonstration has been made that antibiotic resistance genes from GM plants 
can be captured and expressed by bacteria, including pathogenic bacteria. 
  – Based only on the few studies that exist, th e occurrence in nature of such an event is 
considered as low but not zero.  
                                                     
 
21 The following are the complete references relating to the discussion in this section: 
Bertolla F, Kay E, Simonet P. Potential dissemination of antibiotic resistance genes from transgenic 
plants to microorganisms. Infect Control Hosp Epidemiol. 2000, 21:390-3. 
Coelho J, Woodford N, Turton J, Livermore DM. Multiresistant Acinetobacter in the UK: how big a 
threat? J Hosp Inf ect. 2004, 58:167-9. 
de Vries J, Heine M, Harms K, Wackernagel W. Spread of recombinant DNA by roots and pollen of 
transgenic potato plants, identified by highly specific biomonitoring using natural transformation of an Acinetobacter sp. Appl Environ Microbiol. 2003,69:4455-62.  
de Vries J, Herzfeld T, Wackernagel W. Transfer of plastid DNA from tob acco to the so il bacterium 
Acinetobacter sp. by natural transformation. Mol Microbiol. 2004;53:323-34.  
de Vries J, Wackernagel W. Integration of foreign DNA during natural transformation of Acinetobacter 
sp. by homology-facilitated illegitimate recombinati on. Proc Natl Acad Sci U S A. 2002, 99:2094-9.  
Droge M, Puhler A, Selbitschka W. Horizontal gene transfer as  a biosafety issue: a natural 
phenomenon of public concern. J Biotechnol. 1998, 64:75-90. 
Duggan PS, Chambers PA, Heritage J, Forbes JM. Survival of free DNA encoding antibiotic resistance 
from transgenic maize and the transformation activity of DNA in ovine saliva, ovine rumen fluid and silage 
effluent. FEMS Microbiol Lett. 2000, 191:71-7.  
Duggan PS, Chambers PA, Heritage J, Michael Forbes J. Fate of genetically modified maize DNA in 
the oral cavity and rumen of sheep. Br J Nutr. 2003, 89:159-66.  
Gebhard F, Smalla K. Monitoring field releases of genetically modified sugar beets for persistence of 
transgenic plant DNA and horizontal gene transfer. FEMS Microbiol Ecol 1999, 28;261-72.  
Gebhard F, Smalla K. Transformation of Acinetobacter sp. strain BD413 by transgenic sugar beet 
DNA. Appl Environ Microbiol. 1998, 64:1550-4.  
Gordon KA, Jones RN; SENTRY Participant Group s (Europe, Latin America, North America). 
Susceptibility patterns of orally admi nistered antimicrobials among urinar y tract infection pathogens from 
hospitalized patients in North America: comparison repor t to Europe and Latin America. Results from the 
SENTRY Antimicrobial Surveillance Program (2000). Diagn Microbiol Infect Dis. 2003, 45:295-301.  
Jain R, Danziger LH. Multidrug-resistant Acinetobacter  infections: an emerging challenge to clinicians. 
Ann Pharmacother. 2004,38:1449-59. 
Kay E, Vogel TM, Bertolla F, Nalin R, Simonet P. In  situ transfer of antibiotic resistance genes from 
transgenic (transplastomic) tobacco plants to b acteria. Appl Environ Micr obiol. 2002, 68:3345-51.  
Mercer DK, Scott KP, Bruce-Johnson WA, Glover LA, Flint HJ. Fate of free DNA and transformation 
of the oral bacterium Streptococcus gordonii DL1 by plasmid DNA in human saliva. Appl Environ Microbiol. 
1999, 65:6-10.  
Mercer DK, Scott KP, Melville CM, Glover LA, Flin t HJ. Transformation of an oral bacterium via 
chromosomal integration of free DNA in  the presence of human saliva. FEMS Microbiol Lett. 2001,200:163-7.  
Nielsen KM, Bones AM, Smalla K, van Elsas JD. Horizontal gene transfer from transgenic plants to 
terrestrial bacteria--a rare event? FEMS Microbiol Rev. 1998, 22:79-103. 
Nielsen KM, van Elsas JD, Smalla K. Transformation of Acinetobacter sp. strain 
BD413(pFG4DeltanptII) with transgenic plant DNA in soil microcosms and effects of kanamycin on selection 
of transformants. Appl Environ Microbiol. 2000, 66:1237-42.  
Opinion of the Scientific Panel on Genetically Modi fied Organisms on the use of antibiotic resistance 
genes as marker genes in genetically modified plants. The EFSA Journal 2004:48;1-18 
Paget E, Simonet P. On the track of natural tr ansformation in soil. FEMS Microbiol Ecol 1994, 
15:109-18.  WT/DS291/R/Add.7 
 WT/DS292/R/Add.7 
 WT/DS293/R/Add.7 
 Page I-217 
  
   – The risk for human health should be an alysed case by case. The kanamycin resistance 
gene presents the lowest level of risk, th e ampicillin and streptomycin/spectinomycin 
resistance genes present a higher degree of risk (although still limited). In particular, 
the fact that the resistance genes are already naturally present limits the risk. 
 
Detailed comments  
74. Dr. Nutti refers the Panel to an old FAO/WH O expert consultation from 2000 to state that 
DNA transfer from food derived from plants to microbial or mammal cells, under normal 
circumstances of dietary exposure, would re quire all the following events to occur: 
 – the relevant gene(s) would have to  be released, probably as a linear fragment; 
 – the gene(s) would have to survive nucleas es in the plant and in the gastrointestinal 
tract;  
 – the gene(s) would have to compete for uptake with dietary DNA; 
 – the recipient bacteria or mammalian cells would have to be competent for 
transformation  
 – and the gene(s) would have to survive their restriction enzymes; and  – the gene(s) would have to be inserted in  the host DNA by rare repair or recombinant 
events.  
 
75. This citation may be correct, but Dr. Nutti omits to cite the most relevant and recent Codex 
guidance as regards ARMG. The Codex guidelines for the conduct of food safety assessment of foods derived from recombinant-DNA plants
22, provide detailed guidance on the use of antibiotic resistance 
marker genes in its paragraphs 55 to 58: 
55. Alternative transformation technologies that do not result in antibiotic 
resistance marker genes in foods should be used in the future development of 
recombinant-DNA plants, where such technol ogies are available and demonstrated to 
be safe. 
56. Gene transfer from plants and their food products to gut microorganisms or 
human cells is considered a rare possi bility because of the many complex and 
unlikely events that would n eed to occur consecutively. Nevertheless, the possibility 
of such events cannot be completely discounted. 
57. In assessing safety of foods containing antibiotic resistance marker genes, the 
following factors should be considered:  
A) the clinical and veterinary use and importance of the antibiotic in question; 
(Certain antibiotics are the only drug availabl e to treat some clinical conditions (e.g. 
vancomycin for use in treating certain st aphylococcal infections). Marker genes 
encoding resistance to such antibiotics s hould not be used in recombinant-DNA 
plants.) 
B) whether the presence in food of the enzyme or protein encoded by the 
antibiotic resistance marker gene would comp romise the therapeutic efficacy of the 
orally administered antibiotic; and (This asse ssment should provide an estimate of the 
amount of orally ingested antibiotic that could be degraded by the presence of the 
                                                      
22 CAC/GL 45-2003. WT/DS291/R/Add.7 
WT/DS292/R/Add.7 WT/DS293/R/Add.7 
Page I-218 
  
enzyme in food, taking into account fact ors such as dosage of the antibiotic, amount 
of enzyme likely to remain in food following exposure to digestive conditions, including neutral or alkaline stomach cond itions and the need fo r enzyme cofactors 
(e.g. ATP) for enzymatic activity and estim ated concentration of such factors in 
food.) 
C) safety of the gene product, as woul d be the case for any other expressed gene 
product.  
58. If evaluation of the data and information suggests that the presence of the 
antibiotic resistance marker gene or gene product presents risks to human health, the 
marker gene or gene produc t should not be present in the food. Antibiotic resistance 
genes used in food production that encode  resistance to clini cally used antibiotics 
should not be present in foods  [emphasis added, footnote omitted]. 
76. The Codex Guidelines clearly addresses the ri sk management options that should be 
considered, and, as will be discussed below, many of the ARMG present in the products at stake in 
these disputes encode resistance to antibiotics that ar e clinically used, even if in a limited number of 
pathologies, and therefore require a more careful scrutiny than advocated by Dr. Nutti. 
77. Similarly, the Codex guidelines for the conduc t of food safety assessment of foods produced 
using recombinant-DNA Micro-organisms (CAC /GL 46-2003), provide detailed guidance on 
antibiotic and gene transfer in its paragraphs 51 to 54: 
51. In general, traditional strains of microorganisms developed for food 
processing uses have not been assessed  for antibiotic resistance. Many 
microorganisms used in food production possess intrinsic resistance to specific antibiotics. Such properties need not excl ude such strains from consideration as 
recipients in constructing recombinant- DNA microorganisms. However, strains in 
which antibiotic resistance is encoded by transmissible genetic elements should not 
be used where such strains or these genetic  elements are present in the final food. 
Any indication of the presence of plasmids , transposons, and integrons containing 
such resistance genes should be specifically addressed.  
52. Alternative technologies, demonstrated to be safe, that do not rely on 
antibiotic resistance marker genes in viab le microorganisms present in foods should 
be used for selection purposes in recombinant-DNA microorganisms. In general, use 
of antibiotic resistance markers for constr ucting intermediate strains should pose no 
significant hazards that would exclude th e use of the ultimate strains in food 
production, provided that the antibiotic resi stance marker genes have been removed 
from the final construct. 
53. Transfer of plasmids and genes between the resident intestinal microflora and 
ingested recombinant-DNA microorgani sms may occur. The possibility and 
consequences of gene transfer from recombinant-DNA microorganisms and food products produced by recombinant-DNA mi croorganisms to gut microorganisms or 
human cells should also be considered. Transferred DNA would be unlikely to be 
maintained in the absence of selective pressu re. Nevertheless, the possibility of such 
events cannot be completely discounted. 
54. In order to minimize the possibility of gene transfer, the following steps 
should be considered:  WT/DS291/R/Add.7 
 WT/DS292/R/Add.7 
 WT/DS293/R/Add.7 
 Page I-219 
  
  – chromosomal integration of the inserted genetic material may be preferable to 
localization on a plasmid; 
– where the recombinant-DNA microorganism will remain viable in the 
gastrointestinal tract, genes should be avoided in the genetic construct that 
could provide a selective advantage to recipient organisms to which the genetic material is uninten tionally transferred; and 
– sequences that mediate integration in to other genomes shoul d be avoided in 
constructing the introduced genetic material.
 
78. As indicated earlier, Dr. Nutti's statement that: 
To date, there are no reports that marker  genes in plant DNA transfer to these 
(microbial and mammalian) cells. 
is patently not correct, as several scientis ts have demonstrated such gene transfer in natura23 or under 
simulated environmental conditions.24 Extracts from work cited follows: 
 
Uptake of DNA from GM plants and transformation of micro-organisms may occur along the complete chain of events, extending from the field to food processing and storage, to the digestive tract and finally  again to the environment. The highest 
probability of transformation events to  occur can be expected when the 
"concentrations" of the "reactants", i.e. transformable DNA and competent bacteria 
are high. Highest microbial counts in a food of plant origin are found in food 
fermentation processes such as they occur in  the production of Sauerkraut, fermented 
olives, tomatoes, cucumbers, egg-plants,
25 beer, sourdough, and many Asian foods 
based on soy, beans, peanuts, cereals or coconut. Fermentation processes are finally 
also important in post harvest treatment of  coffee and cacao. The numbers of bacteria 
involved in these processes may exceed 109 cells per gram, and the species involved 
comprise bacteria from virtually all genera included in the group of lactic acid bacteria, bacilli (in Asian food), acetic acid bacteria, enterobacteria. Representative 
forms of many of these organisms of these groups have been shown to be 
transformable with DNA (Lorenz and Wackernagel, 1994)
26. 
Examples of the insertion of GM plant DNA into bacterial chromosomes under 
simulated environmental c onditions have all involved highly homologous regions 
between an antibiotic resistance marker ge ne and an identical gene present in the 
recipient bacterial chromosome, known as marker rescue experiments.27 The key 
                                                      
23 Simonet et al, 2004. 
24 G. van den Eede, H. Aarts, H.-J. Buhk, G. Corthier, H.J. Flint, W. Hammes, B. Jacobsen, T. 
Midtvedt, J. van der Vossen, A. von Wright, W. Wackernagel, A. Wilcks. Food and Chemical Toxicology 42 
(2004), 1127-1156. 
25 Buckenhüskes, H.J., Hammes, W.P., 1990. Starterkulturen bei der Verarbeitung von Obst und 
Gemüse. Bioengineering 2, 34–42. Buckenhüskes, H.J., 1 993. Selection criteria for lactic acid bacteria to be 
used as starter cultures for various food comm odities. FEMS Microbiology Reviews 12, 253–272. 
26 Lorenz, M.G., Wackernagel, W., 1994. Bacterial gene transfer by natural genetic transformation in 
the environment. Microbiological Reviews 58, 563–602. 
27 Gebhard, F., Smalla, K., 1998. Transformation of Acinetobacter sp. strain BD413 by transgenic 
sugar beet DNA. Applied and Environmental Microbiology 64, 1550–1554. Nielsen, K.M., van Elsas, J.D., 
Smalla, K., 2000. Transformation of Acinetobacter sp. st rain BD413 (pFG4 nptII) with transgenic plant DNA in WT/DS291/R/Add.7 
WT/DS292/R/Add.7 WT/DS293/R/Add.7 
Page I-220 
  
question must be whether such events can  lead to the capture of adjacent genes 
flanking the region of homology. Currently we can state that this possibility does exist where the homologous region is present in a circular molecule, or where 
multiple regions of homology are present. B ased on most recent findings in different 
bacterial species
28 a "homology facilitated illegitimate recombination" can increase 
the frequency of a basically illegitimate in corporation of genes when heterologous 
DNA of up to 2.9 kb is flanked by a s hort sequence homologous to the integration 
site. These findings show that the incorpora tion of a foreign gene and its expression is 
basically possible, although such an event has not yet been shown to take place in 
environments in which the DNA is released from the plant genome as it occurs e.g. in the intestinal tract. 
79. There is now wide international agreement th at horizontal transfer of genes, especially 
ARMG, from GM plants or products thereof to micro-or ganisms, especially in the gut, is unlikely, but 
not impossible. Therefore a case by case risk ass essment is necessary. Work under the EU 5
th 
framework project GMOBILITY has shown in in vitro  models that transformation and integration of 
plasmids is obviously possible in any part of the g astrointestinal tract, and that stability of DNA from 
GM plants is sufficient to enable small amounts of DNA fragments to survive the passage to distal 
parts of the gastrointestinal tract.29 However, no transfer could be detected in in vivo  digestive tract  
models, reflecting also small lik elihood. Two papers recently pub lished in Nature Biotechnology 
indicate that current methods for monitoring horizonta l gene transfer from transgenic crops to micro-
organisms are very problematic and too insensitive to  detect horizontal gene transfer. As such, even 
though efforts so far have largely failed to observe  horizontal gene transfer in the field or have 
deemed frequencies too low or too rare to pose risks,  this may not be true and the reality may clearly 
be different. The analysis by scientists from th e New Zealand and Norwegian Institutes of Gene 
Ecology criticizes contemporary horiz ontal gene transfer risk assessment of transgenic crops.30 
80. Equally, the Codex guidelines cited above indicat es that gene transfer from plants and their 
food products to gut micro-organi sms or human cells is considered a rare possibility, but that 
nevertheless, the possibility of such events cannot be completely discounted. 
 
                                                                                                                                                                     
soil microcosms and effects of kanamycin on selection of transformants. Applied and Environmental 
Microbiology 66, 1237–1242. de Vries, J., Wackernagel, W., 1998. Detection of nptII (kanamycin resistance) genes in genomes of transgenic plants by marker-rescue transformation. Molecular and General Genetics 257, 
606–613. 
28 de Vries, J., Wackernagel, W., 2002. Integration of foreign DNA during natural transformation of 
Acinetobacter sp. by homology-facilita ted illegitimate recombination. Pro ceedings of the National Academy of 
Sciences of the United States of America 99, 2094–2099.  Prudhomme, M., Libante, V., Claverys, J.P., 2002. 
Homologous recombination at the border: insertion-deleti ons and the trapping of foreign DNA in Streptococcus 
pneumoniae. Proceedings of the National Academy of Scien ces of the United States of America 99, 2100–2105. 
Meier, P., Wackernagel, W., 2003. Monitoring the spread of recombinant DNA from field plots with transgenic sugar beet plants by PCR and natural transformation of Pseudomonas stutzeri. Transgenic Research (in press) 
29 GMOBILITY. G. van den Eede, H. Aarts, H.-J. Buhk, G. Corthier, H.J. Flint, W. Hammes, B. 
Jacobsen, T. Midtvedt, J. van der Vossen, A. von Wright, W. Wackernagel, A. Wilcks. Food and Chemical Toxicology 42 (2004), 1127-1156. 
30 Heinemann JA and Traavik T. 2004 "Problems in mon itoring horizontal gene transfer in field trials 
of transgenic plants" Nature Biotechnology 22, 1105-1109.  Nielsen, K.M. and Townsend,J.P., 2004, Monitoring and modeling horizontal gene transfer. Nat.Biotechnol., 2004, 22, 9, 1110-1114.  WT/DS291/R/Add.7 
 WT/DS292/R/Add.7 
 WT/DS293/R/Add.7 
 Page I-221 
  
  81. More recently, the latest FAO/WHO expert consultation on foods derived from GM animals
31 
agreed that the DNA construct used should be car efully considered within an assessment, since 
horizontal transfer or recombination may occur. Ad ditionally, bacterial vector-derived materials may 
include additional sequence fragments  unrelated to the target gene.32 There was also the recognition of 
potential for horizontal transfer of the gene c onstruct as food-ingested foreign DNA may not be 
completely degraded in the gastro intestinal tract of mice and pigs.33 For the food safety assessment, it 
is therefore prudent to assume that DNA fragments may survive the human gast rointestinal tract and 
be absorbed by either the gut microflora or somatic cells lining the intestinal tract. 
82. Several commercially available GMOs are fitted with antibiotic resistance genes which have 
been used as marker genes in th e construction of genetically modifi ed plants. Concerns have arisen 
which are of two types:  
 – The antibiotics administered orally in a patient could be inactivated by antibiotic 
resistance proteins present in food derived from a GM plants. 
 
 – The resistance genes could escape to be integrated in pathogen bacteria and 
expressed. 
 83. The first concern does not seem to be medically important on the basis that: resistance genes 
are generally not expressed in plants and that inactiv ating enzymes are for the most part inactivated in 
the gut. Anyway, these inactivating enzymes are al so produced by resistant bacteria present as 
colonisers of gut, oral cavity and other mucosal su rfaces and there is no clinical evidence for any 
impact in terms of therapy failure. 
84. Only the second concern is the object of the general question 1. The European Communities 
will discuss below, first the detaile d mechanisms and likelihood of such gene transfer, and thereafter 
the risks that this would pose for human (or an imal) health, as well as risk management issues. 
85. The transfer of cloned ARMG from genetically modified plants to pathogenic bacteria 
requires numerous steps (WHO/FAO, 2000, see Dr. Nutti's reply) for the process to occur under natural conditions. These may be summarized as being: 
• A. DNA from GMOs has to be released from plan ts and to persist in an intact and active 
form in soils or in the gut of humans or animals fed with GM plants. 
• B. DNA from GMOs present in soils or in th e oral cavity of humans or animals has to 
penetrate into bacteria, the foreign gene has to  be integrated and should be able to achieve 
production of resistance proteins. 
• C. The foreign DNA integrated into the genome of soil bacteria or non pathogenic 
bacteria has to be transferred to pathogenic bacteria. 
 
                                                     
 
31 FAO/WHO, Safety assessment of foods derived from genetically modified animals, including fish, a 
joint FAO/WHO expert consultation on food derived from biotechnology, Rome, Italy, 17 - 21 November 2003. 
Available at <http://www.who.int/foodsafety/biotech/meetings/en/gmanimal_reportnov03_en.pdf>. 
32 Environmental Effects of Transgenic Plants. The Scope and Adequacy of Regulation. National 
Research Council, 2002. National Academy Press, Washington, 320 pp. 
33 Chowdhury EH, Shimada N, Murata H, Mikami O,  Sultana P, Miyazaki S, Yoshioka M, Yamanaka 
N, Hirai N & Nakajima Y (2003): Detection of Cry1Ab protein in gastrointestinal contents but not visceral 
organs of genetically modified Bt11-fed calves, VETERINARY AND HUMAN TOXICOLOGY 45, pp. 71-75. 
Schubbert et al., 1997; Schubbert et al., 1998. WT/DS291/R/Add.7 
WT/DS292/R/Add.7 WT/DS293/R/Add.7 
Page I-222 
  
A. The DNA from GMOs has to be released from  plants and to persist in an intact and 
active form in soils or in the gut of humans or animals fed with GM plants 
 86. What do we know? We know that there is DNA in the soil which resu lts from the lysis of 
cells. For the most part this DNA is degraded. Howeve r, a detectable quantity can still be found after a 
long period of time. Intact DNA of GM plant was detected by a highly sensitive molecular technique 
(PCR) more than two years after the harvesting of the crops
34. The longest persistence of DNA in field 
soil was observed with soil from a potato field in  1997 sampled in the following year in April and 
then stored moist at 4 degrees C in the dark for 4 years prior to extract preparation and 
transformation35. The quality of the DNA has been testified by  its capacity to penetrate into bacteria 
and to be integrated into their genome experimentally. 
87. In the oral cavity of humans, again the DN A was rapidly degraded but a few intact DNA 
persisted which was demonstrated to be active36. Similarly, Duggan et al.37 found that in sheep saliva 
and rumen fluid active DNA still persisted but was ra pidly degraded in the gastro-intestinal tract. 
Also, intact transgenes from silage  are unlikely to survive significan tly in the rumen whereas DNA in 
maize grains persists for a significant time and may, therefore, provide a source of transforming DNA in the rumen
38. 
88. In conclusion therefore, there is convincing ev idence that DNA sufficiently intact to penetrate 
into bacteria can persist at low levels in the soil , in the oral cavity of humans and animals but that 
DNA is nearly completely destroyed in the lower intestinal tract. 
B. The DNA from GMOs present in soils or in the oral cavity of humans or animals has to 
penetrate into bacteria, the foreign gene has to be integrated and should be able to 
achieve production of resistance proteins 
 
89. The way of penetration of extra-cellular DNA into  bacteria is called "natural transformation". 
Only a limited number of bacteria have been iden tified (nearly 40 species) which have the cellular 
machinery to be transformed. These species include a few pathogenic or non pathogenic (commensal) 
bacterial species which are usual hosts of the oral cavity of humans and animals ( Streptococcus , 
                                                      
34 Paget E, Simonet P. On the track of natural tr ansformation in soil. FEMS Microbiol Ecol 1994, 
15:109-18. Gebhard F, Smalla K. Monitoring field releases of genetically modified sugar beets for persistence of transgenic plant DNA and horizontal gene transfer. FEMS Microbiol Ecol 1999, 28;261-72. Gebhard F, 
Smalla K. Transformation of Acinetobacter sp. strain BD413 by transgenic sugar beet DNA. Appl Environ 
Microbiol. 1998, 64:1550-4. Kay E, Vogel TM, Bertolla F,  Nalin R, Simonet P. In situ transfer of antibiotic 
resistance genes from transgenic (tra nsplastomic) tobacco plants to bacteria. Appl Environ Microbiol. 2002, 
68:3345-51. 
35 de Vries J, Heine M, Harms K, Wackernagel W. Spread of recombinant DNA by roots and pollen of 
transgenic potato plants,identified by highly specific biomonitoring using natural transformation of an 
Acinetobacter sp. Appl Environ Microbiol. 2003,69:4455-62. 
36 Mercer DK, Scott KP, Bruce-Johnson WA, Gl over LA, Flint HJ. Fate of free DNA and 
transformation of the oral bacterium Streptococcus gordonii DL1 by plasmid DNA in human saliva. Appl 
Environ Microbiol. 1999, 65:6-10. Mercer DK, Scott KP , Melville CM, Glover LA, Flint HJ. Transformation of 
an oral bacterium via chro mosomal integration of free DNA in the pr esence of human saliva. FEMS Microbiol 
Lett. 2001,200:163-7. 
37 Duggan PS, Chambers PA, Heritage J, Forbes  JM. Survival of free DNA encoding antibiotic 
resistance from transgenic maize and the transformation activity of DNA in ovine saliva, ovine rumen fluid and 
silage effluent. FEMS Microbiol Lett. 2000, 191:71-7. 
38 Duggan PS, Chambers PA, Heritage J, Michael Forb es J. Fate of genetically modified maize DNA in 
the oral cavity and rumen of sheep. Br J Nutr. 2003, 89:159-66.  WT/DS291/R/Add.7 
 WT/DS292/R/Add.7 
 WT/DS293/R/Add.7 
 Page I-223 
  
  Neissseria , Haemophilus, and Moraxella )
39; the others are present in the environment. In addition, the 
ability to be transformed depends on favourable envi ronmental circumstances which are not the same 
according to the bacteria. Also, th e incoming DNA should not be degrad ed by the bacteria and it is 
considered that integration in the chromosome by a process called recombination requires that the 
foreign DNA has similarity within a cert ain length with the host chromosomal DNA40. The required 
length of similarity depends on the bacterial species. 
90. Despite these difficulties, aut hors succeeded in transforming Acinetobacter calcoaceticus  (an 
environmental bacteria) in vitro and in soil with  plant DNA bearing an antibiotic resistance gene 
(kanamycin or streptomycin/spectinomycin resistance)41. The frequencies of transformation were 
relatively low but variable depending on the cond itions. The three important observations are:  
• 1/  there was integration of the DNA (reco mbination) even in regions of the host 
chromosome with few similarity with th e foreign DNA; only the presence of few and 
short "hotspots" of similarity were sufficient  
• 2/  the integrated DNA segments often enco mpassed plant genes which were adjacent to 
the antibiotic resistance gene and 
• 3/  the bacteria expressed the plant gene. 
 91. However, most experiments were carried out in vitro  and a major factor limiting 
transformation of genes from transgenic plants is th e acquisition of a state for the bacteria where it is 
naturally transformable. The soil conditions are probably not optimal and the frequency of 
transformation is very low under natural conditions
42. However, it should be mentioned that evidence 
that plant genes (from natural, "non modified" plants ) were transferred during evolution from plants to 
bacteria was demonstrated by nucleotide and protein sequences43. 
92. Therefore, it may be concluded that: 
• 1/  integration of resistance genes from a plan t DNA into the genome of a soil bacteria by 
natural transformation is possible at a lo w frequency but more easily than initially 
thought, and  
                                                      
39 Reviewed in Bertolla F, Kay E, Simonet P. Potential dissemination of antibiotic resistance genes 
from transgenic plants to microorganisms. Infect Control Hosp Epidemiol. 2000, 21:390-3. 
40 Ibidem. 
41 Gebhard F, Smalla K. Transformation of Acinetobacter sp. strain BD413 by transgenic sugar beet 
DNA. Appl Environ Microbiol. 1998, 64:1550-4. Nielsen KM, Bones AM, Smalla K, van Elsas JD. Horizontal gene transfer from transgenic plants to terrestrial bact eria--a rare event? FEMS Microbiol Rev. 1998, 22:79-103. 
Nielsen KM, van Elsas JD, Smalla K. Transformation of Acinetobacter sp. strain BD413(pFG4DeltanptII) with 
transgenic plant DNA in soil microcosms and effects of kanamycin on selection of transformants. Appl Environ Microbiol. 2000, 66:1237-42. de Vries J,  Herzfeld T, Wackernagel W. Transf er of plastid DNA from tobacco to 
the soil bacterium Acinetobacter sp. by natural transformation. Mol Microbiol. 2004;53:323-34. de Vries J, 
Wackernagel W. Integration of foreign DNA during natural transformation of Acinetobacter sp. by homology-
facilitated illegitimate recombination. Proc  Natl Acad Sci U S A. 2002, 99:2094-9 
42 Nielsen KM, van Elsas JD, Smalla K. Transformation of Acinetobacter sp. strain 
BD413(pFG4DeltanptII) with transgenic plant DNA in soil microcosms and effects of kanamycin on selection 
of transformants. Appl Environ Microbiol. 2000, 66:1237-42. 
43 Nielsen KM, Bones AM, Smalla K, van Elsas JD. Horizontal gene transfer from transgenic plants to 
terrestrial bacteria--a rare event? FEMS Microbiol Rev. 1998, 22:79-103. Droge M, Puhler A, Selbitschka W. 
Horizontal gene transfer as a biosafety issue: a natural phenomenon of public concern. J Biotechnol. 1998, 
64:75-90. WT/DS291/R/Add.7 
WT/DS292/R/Add.7 WT/DS293/R/Add.7 
Page I-224 
  
• 2/  the presence of resistance genes facilitate s as "anchors" the integration into the 
bacteria of adjacent gene plants ; these genes are expressed and can be disseminated via 
the bacteria in the environment. The effi ciency of the gene transfer under natural 
conditions appears to be weak. However, th is statement is based on a small number of 
experimental studies found in the literature.  
 
C. The foreign DNA integrated into the genome  of soil bacteria or non pathogenic bacteria 
has to be transferred to pathogenic bacteria 
 
93. There are numerous evidences which show th at DNA is easily exchanged through various 
ways between bacteria, includi ng pathogens and non pathogens. 
94. There may also be further considerations necess ary to perform a thorough risk assessment of 
three ARMG, such as the presence, integrated into  the plant DNA and genetically linked with the 
ARMG, of remaining important bacterial plasmi d sequences and functions (origin of autonomous 
replication, horizontal mobility f unctions) of the vector initially u sed to transform the plant. These 
sequences may further confer autonomous replication of the ARMG if transferred to bacteria, or 
worst, wide host range transfer plasmid functions would enable the rapid spread of the ARMG to 
bacteria from other species or genera. 
95. The general conclusion on the transfer of clone d ARMG from genetically modified plants to 
pathogenic bacteria is therefore that since each re quired step has been demonstrated as possible, a 
plausible scenario in which the cloned ARMG is tr ansferred from genetically modified plants to 
pathogen bacteria can be built. This conclusion is supported by circumstantial evidence that indicates 
travelling of genes from plants to bacteria duri ng evolution and confirms the likelihood of the 
scenario. However, in terms of risk analysis, the ri sk has not been properly quantified and is probably 
very low. 
96. The next sub question is then, if ARMG from plan ts happen to be transferred to the bacteria, 
which risk for human health? Which risks for animal  health? This relates to the antibiotics concerned 
by the ARMG from GM plants. 
97. Since the risk will depend on the clinical a nd veterinary importance of antibiotics toward 
which resistance is conferred, a case-by-case analysis of antibiotics should be carried out. The major antibiotic resistance markers comm only used in GM plants are: 
Kanamycin resistance gene: nptII gene  
 
98. This gene is widely used as a marker. It c onfers resistance to kanamycin and neomycin by 
inactivation of the antibiotics. The use of kanamycin is  marginal in therapy and resistance is of very 
weak clinical importance. However, amikacin is an  important antibiotic for therapy in humans which 
is derived from kanamycin. Mutations in the nptII gene can extend the activity of the produced 
inactivating enzyme to amikacin. However, two mutations are required a nd have only be obtained 
under laboratory conditions and never detected so far in clinical is olates although there are clinical 
isolates which harbour the nptII gene. 
Streptomycin resistance gene: aadA gene 
 99. The confers resistance to streptomycin and sp ectinomycin by inactivation of the antibiotics. 
The use of these antibiotics is margin al in therapy and resistance is of weak clinical importance. The 
only indications are multidrug resistant tuberculosis for streptomycin and uret ritis due to gonococus  WT/DS291/R/Add.7 
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  (gonorrhoea) for spectinomycin which are narrow but im portant indications. Streptomycin is used as a 
pesticide in agriculture, mos tly in the USA and in Japan. 
Ampicillin resistance gene: bla
(TEM)  gene 
 100. The gene confers resistance to ampicillin a nd related antibiotics by inactivation of the 
antibiotics due to an enzyme called penicilinase. Ampi cillin is an important antibiotic for humans and 
animals. However, resistance to ampicillin is already widespread in pathogenic Gram-negative 
bacteria responsible for urinary tract and intra-abdo minal (peritonitis) infections and this antibiotic is 
mostly used in respiratory tract infections mostly  due to Gram-positive bacteria which do not produce 
beta-lactamases. 30%-50% of E. coli , the most common bacteria responsible for urinary tract 
infections, isolated from urines in Europe, the USA and Latin America produce penicillinases
44. Most 
of the penicillinase-producing isolates contain a bla (TEM) gene. 
101. These ARMG have also to be carefully considered as regards the relevant veterinary uses of 
the antibiotic concerned to treat animal diseas es, in particular any epizootics or zoonosis. 
102. Are all the antibiotics concerned by the resistance genes from GM plants of equal 
importance? As explained above, it appears that risk is different according to the usage of antibiotic. It 
is also different according to the previous spread of  the resistance genes in nature. It appears that the 
nptII gene is already widely distributed among soil a nd enteric bacteria and that it confers resistance 
to non important antibiotics. The aadA gene is similar in importance;  however, it is used in a very 
limited but important indications in therapy. The bla gene confers resistance to clinically important 
antibiotics but is already spread in nature. 
103. Furthermore, there are other ARMG present in the GM products in dispute that may have 
different risk assessments, in the light of othe r important therapeutic uses of the corresponding 
antibiotics. This is for instance the case for the nptIII  gene, conferring resistance to amikacin, as 
explained in our comments in relation to Q 98. 
104. A scientific panel of the European Food Safety Authority45 has evaluated the potential risks 
associated with specific antibiotic resistance genes and has recommended  to classify the antibiotics in 
three risk groups, from the lowest to the highest: group 1 which contains antibiotic resistance genes 
already widely distributed among soil and enteric bact eria and confer resistance to antibiotics which 
have no or only minor therapeutic relevance, gr oup 2 which contains antibiotic resistance genes 
already widely distributed in nature and confer r esistance to antibiotics which are used for therapy in 
defined areas of medicine and group 3 which co ntains antibiotic resistance genes which confer 
resistance to antibiotics highly relevant for human therapy, irrespective of considerations about the 
realistic value of the threat. The group 1 contained the nphII gene, the group 2, the bla and the aadA 
genes and the group 3 other genes not discussed he re. The panel recommended that the use of 
antibiotic resistance gene of group 2 should be rest ricted to field trial purposes whereas the panel 
found that there was no rationale for restricting the use of group 1 antibiotic resistance genes. 
                                                      
44 Gordon KA, Jones RN; SENTRY Participant Gr oups (Europe, Latin America, North America). 
Susceptibility patterns of orally admi nistered antimicrobials among urinar y tract infection pathogens from 
hospitalized patients in North America: comparison repor t to Europe and Latin America. Results from the 
SENTRY Antimicrobial Surveillance Program (2000) . Diagn Microbiol Infect Dis. 2003, 45:295-301. 
45 Opinion of the Scientific Panel on Genetically Modified Organisms on the use of antibiotic 
resistance genes as marker ge,es in genetically modified plants. The EFSA Journal 2004:48;1-18. Available at 
<http://www.efsa.eu.int> WT/DS291/R/Add.7 
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Page I-226 
  105. The notion that there were so far no reports in bacterial isolates from humans or animals that 
marker genes have transferred from GM plants to b acteria is not based on sufficient evidence: since 
the marker genes are the same as those already spread in nature, it is difficult to trace them. 
106. This scientific evidence is the basis of the conc lusions that have been outlined above by the 
European Communities.  
Risk management considerations 
 
107. Although the risk to human health from the tran sfer of antibiotic resi stance to pathogenic 
bacteria is considered low, it is nonetheless si gnificant, as the Codex Alimentarius has recommended 
that the presence of ARMG be avoided. The hazard from the gene transfer of ARMG clearly exists, 
and it is hard, if not currently impossible, to qua ntify precisely the corresponding risks by the current 
risk analysis methods. Accordi ngly, ARMG should be avoided. 
108. This recommendation also takes into account the fact that these genes, which are required for 
the construction of the genetic modification, are no  longer useful in the commercially available GM 
plants, and that techniques exist to remove the ARMG  genes from the GM plants at the terminal steps 
of the construction. 
109. This risk management conclusion is also justifie d by the fact that there is general policy in 
Europe, and to some extend more globally, to reduce the incidence of bacterial antibiotic resistance in 
pathogen bacteria. This is reflected in particular in  the efforts that are made to monitor and control 
antibiotic consumption in humans and animals (c ampaigns to reduce consumption, controlled 
prescription in hospitals, ban of antibiotics u sed as growth promoters in animals) and 
recommendations for the approval of pro-biotics wh ich should be devoid of "dangerous" resistance 
genes. These efforts should not be underm ined by the use of ARMGs in GMOs. 
Question2 
 
On the basis of the information before the Pane l, is there any scientific evidence to support the 
hypothesis that antibiotic resistance develops through ways other than the uptake of food or feed by 
humans or animals, that is, due to the potential p ersistence of plant-derived DNA in the environment 
during crop cultivation and harvesting, and in soil residues?    
(i) If scientific evidence indicates that su ch an event could occur, what risks, if 
any, would arise from that event?  What is the comparative relevance or magnitude of this risk in relation to the likelihood of such a transfer from other sources of antibiotic resistance no t involving the use of recombinant 
DNA technology? 
(ii) Are these consequences relevant to the specific types of ARMG currently used 
in the products at issue in this dispute? 
(iii) If such risks have been identified, what risk management options are 
available to mitigate those risks and what is their efficacy? 
General comments 
 
110. The Panel's second general question sought equa lly important advice as to whether other 
routes than food or feed, and persistence into the en vironment and in soil of plant DNA, may also lead 
to the development of antibiotic resistance.  WT/DS291/R/Add.7 
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  111. Unfortunately no expert has responded to this  important general question, Dr. Nutti stating 
that it is a question relating to environmental safety on which she does not have expertise. As it is a 
question intimately related to Question 1, the European Communities will endeavour to provide as 
objectively as possible scientific evidence to address the issue raised by the Panel. 
112. From the scientific evidence presented below, it can be concluded that: 
• antibiotic resistance may develop through ways other than uptake of food/feed by humans 
and animals and transfer to gut microorganisms; 
• the demonstration has been obtained that resistance genes from GM plants can be 
captured and expressed by bacteria from the e nvironment, probably at a low frequency;  
• the risk for human or animal health (infection in immuno-compromised patients directly 
by the environment bacteria) may be low, but the hazard is significant. 
• the same case-by-case analysis as in the co mments on question 1 should be applied, as 
different ARMG, different genetic constructi ons, and different environments may bear 
significant differences in  the associated risks. 
 
Detailed comments  
113. There is clear evidence that antib iotic resistance develops not only through the uptake of food 
but also through the circulation of bacteria in  the environment and between humans and animals 
directly (by contact) or indirectly (by inert vectors). An example is the case of nosocomial infections (infections acquired in the hospital) which are most ly related to the acquisition by the patients of 
multiply resistant bacteria from other hospitali sed patients or from insufficiently sterilized 
instruments. Another example is the acquisition of resistant bacteria through the consumption of water 
contaminated by bacteria from the environment, or  from soil contamination of wounds for farmer or 
other workers exposed to soil. As regards to the qu estion 2, this last example is the most relevant. 
114. It must be remembered that we know only a minority of the bacterial and microbial flora in 
the soil. Probably up to more than 95 to 99%  of the species are still unk nown. Consequently, the 
consequences of a the presence of AR MG DNA in the soil, and its possi ble transfer to bacteria, cannot 
be fully assessed at this stage. 
115. In soil bacteria, there are already a significant num ber of antibiotic resistant strains, including 
among pathogenic bacteria. On one ha nd, this would make that adding some more resistance genes, 
and probably in low frequency, has no heavy impact . But on the other hand, all efforts aiming at 
reducing the proportion of resistance genes in popula tions of bacteria, and in particular in unknown 
bacterial ecosystems, should be highly encouraged. Moreover, if it occurred that a pathogenic strain 
had become resistant as a result of the cultivation of  GM plants, and that these bacteria caused fatal 
diseases, there would be no way to assess the origin of  this event. There is no tracing of the resistance 
genes introduced in GMOs. From that point of view, adding ARMG genes in any part of the 
environment is certainly not acceptable. 
116. On top of that, the genetic linkage in the GM  plant of ARMG with other genetic elements 
might enhance the maintenance or amplification of ARMG DNA derived from GM plants in the 
environment. Indeed, these genetic elements linked to the ARMG, whether vol untarily present or not, 
such as bacterial plasmid origin of replication, bacterial plasmid origin of transfer and mobility 
functions, including wide host range transfer, or plant genes that would confer a positive selective 
advantage to that plant under specific conditions (e .g. an herbicide resistance gene in the presence of 
the herbicide) might confer selective advantages to  the maintenance of the ARMG in the different 
cells and organisms where it might be integrated. WT/DS291/R/Add.7 
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  117. Furthermore, largely unexplored physico-chemical  properties of the soil, such as its pH, may 
be very diverse and would have a very important impact on stability and transformability of naked 
DNA in the soil. In certain environmental and physico-chemical conditions, intact DNA has been 
showed to be able to persist for very long period of time in nature. 
118. As mentioned in Question 1 above, we know that Acinetobacter calcoaceticus , an 
environmental bacteria, has been successfully tr ansformed with plant DNA bearing an antibiotic 
resistance gene (kanamycin or streptomycin/spectinomycin resistance)
46. The frequencies of 
transformation were relatively low. It should be noted that Acinetobacter  is an important source of 
infections (particularly in fragilized and imm uno-compromised patients) originating from the 
environment in hospitals and is considered as an emerging pathogen47. However, in hospitals, this 
bacteria is already resistant to a large panel of  antibiotics and an additional resistance coming from 
plants would not significantly change the dramat ic problem posed by multiple resistance of this 
bacteria.  
119. This single example may however be the tip of the iceberg, that has gone uncovered because 
it was looked for, while other examples may also prov e to occur and be more problematic in terms of 
therapeutic impact, but have not been discovered ye t because they were not properly searched for. In 
addition the risk for spread of resi stance in nature should be significant only if an antibiotic selective 
pressure was exerted by the use of antibiotics: th e use of a selector antibiotic would amplify the 
number of bacteria with the resistance gene by eliminating the susceptible bacteria. This, nevertheless, 
does not exclude maintenance and movement of the AR GM in nature in the absence of the selection, 
or its amplification due to the selection of another genetic element linked to the ARMG. 
120. Also, there is no absolute barrier between b acteria which could prevent gene transfer. 
Therefore, resistance could be transferred from plant to environmental bacteria and then to pathogenic 
bacteria in multi-step events. Again the probability of occurrence of this event should be very low, 
unless there is an advantage to maintain or transfer the ARMG. 
121. Another important point is that, as already mentioned, the DNA segments integrated in 
Acinetobacter  often encompasses plant genes which were ad jacent to the ARMG gene, and that the 
bacteria expressed the plant gene48. The presence of ARMG genes facilitates as "anchors" the 
integration into the bacteria of adjacent plan t genes; these genes can be expressed and can be 
disseminated via the bacteria in the environment. Again, in case of use of the selector antibiotic in 
agriculture, the presence of ARMG and any geneti cally linked gene might lead to a significant 
amplification of the number of bacteria and significant spread of the corresponding genes. 
                                                      
46 Gebhard F, Smalla K. Transformation of Acinetobacter sp. strain BD413 by transgenic sugar beet 
DNA. Appl Environ Microbiol. 1998, 64:1550-4.  Nielsen KM, Bones AM, Smalla K, van Elsas JD. Horizontal gene transfer from transgenic plants to terrestrial bact eria--a rare event? FEMS Microbiol Rev. 1998, 22:79-103. 
Nielsen KM, van Elsas JD, Smalla K. Transformation of Acinetobacter sp. strain BD413(pFG4DeltanptII) with 
transgenic plant DNA in soil microcosms and effects of kanamycin on selection of transformants. Appl Environ 
Microbiol. 2000, 66:1237-42. de Vries J,  Herzfeld T, Wackernagel W. Transf er of plastid DNA from tobacco to 
the soil bacterium Acinetobacter sp. by natural transformation . Mol Microbiol. 2004;53:323-34. de Vries J, Wackernagel W. Integration of foreign DNA during natural transformation of Acinetobacter sp. by homology-
facilitated illegitimate recombination. Proc  Natl Acad Sci U S A. 2002, 99:2094-9. 
47 Coelho J, Woodford N, Turton J, Livermore DM. Multiresistant Acinetobacter in the UK: how big a 
threat? J Hosp Infect. 2004, 58:167-9. Jain R, Danzig er LH. Multidrug-resistant Acinetobacter infections: an 
emerging challenge to clinicians. Ann Pharmacother. 2004,38:1449-59. 
48 de Vries J, Herzfeld T, Wackernagel W. Transfer  of plastid DNA from tob acco to the soil bacterium 
Acinetobacter sp. by natural transformation . Mol Microbiol. 2004;53:323-34.  WT/DS291/R/Add.7 
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  122. Here again, the risk management options propo sed by the Codex as it relates to food safety, 
may be applied more generally, namely that the pr esence of ARMG should by all means be avoided, 
and should not be present in GM plants when the ge nes may potentially confer resistance to clinically 
and veterinary important antibiotics. 
Question 3 
 
On the basis of the information before the Pane l, is there any scientific evidence to support the 
hypothesis that wide-spread cultivation of Bt crops such as biotech maize of the Bt variety adversely 
affects non-target organisms which may be exposed to  such crops under typical agricultural practice?  
(See, inter alia, EC-149, EC-150, EC-151, EC-152)  If so, how does this risk compare with risks to 
non-target organisms arising from non-biotech applications  for Bt toxins (i.e., the use of Bt toxin as 
an insecticide in conventional and organic farming)?  What risk management options are available to mitigate any resulting risks and what is their efficacy? 
 
General comments 
 
123. The European Communities notes that the two of  the Panel's experts who address this issue 
(Drs. Squire and Andow) agree that the e ffects of GMOs expressing the Bt toxin may have effects on 
non-target organisms, which they believe is not yet confirmed, as small scale releases show little 
immediate toxic or catastrophic effects. Howeve r the absence of observed catastrophic effects does 
not mean in the view of the experts no effects on non target organisms, and Dr. Andow advocates therefore that any risk management options shoul d be based on worst case scenarios. Dr. Squire 
explains that the long term field scale monitoring will be necessary to determine whether there is such 
a significant effect. Such tests will be specific to the crop and the environment in which it is to be 
grown. 
124. The European Communities has little detailed comm ent to add to this advice at the present 
stage, but would like to point to a recent body of sci entific evidence of non target effects of Bt crops, 
in particular on soil organisms and nematodes, as well as a number of selected references relevant to 
non target organisms sensitivities to Bt toxins.  
Detailed comments 
125. As regards unintended effects of Bt maize on non target organisms, a very recent paper
49 
shows some effects of the maize expressing the Bt toxin on soil nematodes, which are site and season 
specific effects, supporting the arguments for a) cas e by case studies b) long term monitoring (3 years 
minimum), c) region specific studies, d) and the incl usion of relevant comparisons (other crops and 
soil management treatments).  
126. The effects detected on nematodes was also found by other authors50, although no one yet 
understands why the effect happens (less nematode s under Bt maize in some soils/regions/tillage 
                                                      
49 See Exhibit EC-164: B. S. Griffiths, S. Caul, J. Thompson, A. N. E. Birch, C. Scrimgeour, M. N. 
Andersen, J. Cortet, Antoine Messéan, Christophe Sausse, Bernard Lacroix, P. H. Krogh. A comparison of soil 
microbial community structure, protozoa and nematodes in field plots of conventional and genetically modified maize expressing the Bacillus thuringiensis CryIAb t oxin. Manuscript accepted in Plant and Soil Journal. 
50 B. Manachini, S., Landi, M. C. Fiore, M. Fe sta and S. Arpaia, IOBC wprs Bulletin, 2004, 27, 103. 
Manachini B., Lozzia G.C., 2002 - First investigations in to the effects of Bt corn crop on Nematofauna. - Boll. 
Zool. Agr. Bachic. Ser. II, 34(1): 85-96. Manachini B., 2003 - Effects of transgenic corn on Lydella thompsoni 
Herting (Diptera:Tachinidae) parasitoid of Ostrinia nubi lalis Hb. (Lepidoptera Crambidae).- Boll. Zool. agr. 
Bachic. Ser II, 35(2): 111-125. WT/DS291/R/Add.7 
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Page I-230 
  regime combinations). It may be related to root exudation, plant composition,  altered moisture below 
Bt maize plants, altered trophic in teractions of a food source for ne matodes, or any other effect 
directly or indirectly related to the expression of  the Bt toxin. It strikingly shows evidence of 
continued scientific uncertainties and regional diffe rences on soil ecology as regards non target effects 
of Bt maize. Some would say that the results are small and transitory, and could therefore be 
dismissed, but this is not an appropriate risk asse ssment end point if the effects accumulate over time 
due to repeated maize monoculture in the same fiel d, due to the ability to grow some GM crops with 
no tillage and repeatedly over several seasons. In such  circumstances, the risk to soil organisms and 
soil ecosystem could then increase over time. 
127. The European Communities would further like to  submit scientific evidence on differences in 
insect species/sensitivity to Bt toxins for a) pests,  and b) non-pests (conservation or heritage species, 
like butterflies), which are both relevant for this question and Question 4.  
128. The current state of Bt environmental risk ass essment in Europe shows that there were and 
still are considerable grounds for concern about the toxin Bt, especially non-target effects, which have 
only been addressed in recent years and which s till continue to produce large amount of data. 
129. This additional scientific evidence on differen tial sensitivities to Bt toxins, available from 
peer-reviewed publications, show that between pest species and conservation or heritage species there 
is a wide range of sensitivities to Bt toxins expressed  in GM crops. Hence it is possible to argue that:  
 – Scientific uncertainties about the non-target species effects  of Bt toxins, on regional 
non-target insect sensitivities, still do exist (e .g. butterflies of regional cultural value 
that could be exposed to Bt toxins via the GM crop in any one region of Europe). (Bt toxin sensitivities for lepidopteran, non-pest species
 which could have regional- or 
country-specific conservation or heritage valu e. i.e. non-target herbivores (butterflies) 
that could be affected by Bt crops and show species differences in sensitivity to Bt 
toxins)51 
  – Even for target pest lepidopteran species , considerable differences in species 
sensitivities exist, which can impact on Insect Resistance Management (IRM) 
strategies for any particular EC country or region (Bt toxin sensitivities for lepidopteran (caterpillar) pest
 species which are potential 'target' species for Bt crops, 
showing Bt toxin sensitivity differences between species)52. i.e. A 'high dose + refuge 
strategy' for species X in one region  may not be effective as  a 'high dose + refuge strategy' for species Y in another region,  because species Y is less sensitive to Bt 
toxin than species X. This effect  has already been demonstrated
53 for Bt cotton grown 
in USA vs Australia, where the Bt cott on event produced in USA was reasonably 
effective in USA under the 'a high dose + ref uge strategy' but failed to be sufficiently 
                                                      
51 Wraight, Zangerl, Carroll &  Berembaum (2001). Proc. Natl. Acad. Sci. USA 97: 7770-7773. 
Zangerl, McKenna, Wraight, Carroll, Ficarello, et al., (2001). Proc. Natl. Acad. Sci. USA 98: 113-118. Sears, 
Hellmich, Stanley-Horn, Oberhauser, Pl easants, et al., (2001). Proc. Natl. Acad. Sci. USA 98: 119317-42. Jesse 
& Obrycki (2000)  Oecologia 125: 241-248. Jesse & Obrycki (2002). J. Kansas Entomol. Soc. 75: 55-58. Jesse & Obrycki (2003) Agric. Environ. 97: 225-233. Hellmich, siegfried, Sears, stanley-Horn, Daniels, et al., (2001). 
Proc. Natl. Acad. Sci. USA 98: 11925-30. 
52 Fitt et al., 2004 Report for International  Cott on Advisory Committee, pp 1-64.  Felke, Lorenz & 
Langenbruch (2002). J. Appl. Entomol. 126: 320-325.  Wolt, Peterson, Bystrak & Meade (2003). Environ. 
Entomol. 32(2) 237- 246. Dutton, Romeis &  Bigler (2003). BioControl 27: 441-447. Bernal, Griset &  Gillogly 
(2002). J. Entomol. Sci. 37: 27-40. 
53 Fitt et al., 2004 Report for International Cotton Advisory Committee, pp 1-64  WT/DS291/R/Add.7 
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  effective against important Australian cott on pest species in the IRM because they 
were less sensitive to the Bt toxin. 
 
130. Australia has now moved to a new Bt cotton event expressing two different Bt toxins to 
achieve a better 'high dose' strategy for Australian species which were less sensitive to first generation 
Bt cotton (especially at the end of the growing season).  
131. This scientific evidence further points to regional differences and lack of sufficient 
information for both target (pests) and non ta rget (biodiversity and conservation species). 
Question 4 
 
On the basis of the information before the Pane l, is there any scientific evidence to support the 
hypothesis that the wide-spread cultivation of Bt maize or other, non-biotech applications of Bt toxins, 
leads to the emergence of Bt-resistant target or ganisms under field conditions?  If so, what risk 
management options exist to mitigate any resulting risks and what is their efficacy?  
General comments 
 
132. The European Communities notes that the two of  the Panel's experts who address this issue 
(Drs. Squire and Andow) both agree that the development of Bt resistance in target insects is inevitable. They both agree that th ere are different risk mitigation techniques, and that there is still a 
large amount of uncertainties as regards the pace and impact of resistance development. According to 
Dr. Andow, the "high dose refuge" strategy is the most effective.  
Detailed comments 
 
133. The European Communities has nothing to add to  this advice at the present stage, but would 
like to point to the further evidence it had submitted  in relation to the previous question, namely as 
regards differences of Bt toxin sensitivity in differe nt target organisms, that may warrant regional 
differences in risk management and integrated resistance management strategies (confer the differences that occur between the United States and Australia, that necessitates differences in 
mitigation approaches). 
134. From an evolutionary and ecological point of view, it is clear, as pointed out by the experts, 
that adding the same genes in the genome of numerous crops, cultivated on vast neighbouring areas 
will, sooner or later, lead to the appearance of resistant organisms. How long it will take, is not 
known. A parallel may be drawn with dangerous uses th at have developed in the past with antibiotics. 
The overstated confidence in our ability to find  new molecules when the existing ones become 
inefficient has prevented a sustainable use of many  chemicals. For example, antibiotics were a great 
discovery, among the greatest in medical sciences. If they had been properly used and managed, they 
would probably still be perfectly efficient. As soon as 1945, Flemming warned that unconscious use 
and abuse of these molecules would lead to the lo ss of their efficiency. This example holds for 
pesticides, and it is to be remembered that the exogenous Bt toxin is, in certain instances, the only 
technique currently available to some agricu ltural practices, such as organic farming.  
Question 5 
 
On the basis of the information before the Pane l, is there any scientific evidence to support the 
hypothesis that Bt maize varieties are any more to xic to humans or animals than conventional maize 
under field conditions? If so, what risk management options exist to mitigate any resulting risks and 
what is their efficiency? WT/DS291/R/Add.7 
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Page I-232 
  
 
General comments 
 
135. In answering this question, Dr. Squire appropr iately examines the evidence of harm (or of 
absence of harm) of growing Bt crops in Europe, an d opines that the evidence of Bt maize to humans 
or animals is inconclusive at present, while acknowledging that the only sound indication that the 
current state of knowledge provides, is that there is no evidence of acute toxicity to mammals and 
most animals other than pests. 
136. On the contrary, Dr. Nutti offers a characteris tically short, negative,  unsubstantiated answer, 
stating only that: 
Based on the information before the Panel,  there is no evidence to support the 
hypothesis that Bt maize varieties are more toxic to humans or animals than conventional maize under field conditions. 
137. Dr. Nutti's response is scientifically inadequate  in terms of coverage and lack of any 
supporting evidence. There are numerous possible ways  that Bt maize could be toxic (i.e. have an 
adverse effect on the receiving organism following acute or chronic exposure) when Bt maize is 
grown under European field conditions.  
138. Because of the inadequacy, and incompleteness of the advice provided by Dr. Nutti to the 
Panel, the European Communities provides below its own analysis. The European Communities has 
prepared this information with the assistance of scientists, experts in the field of non target direct and 
indirect impacts, toxicity to organisms, and ecological assessment, and presents it as objectively as 
possible so as to complete the information availa ble to the Panel. In so doing, the European 
Communities will interpret the term "animals" as incl uding the wide range of non target organisms 
belonging to the animal kingdom (i.e., in a ddition to humans and domesticated mammals) which 
could be adversely affected by Bt maize, as would many international scientists researching non target 
effects of GMOs consider this term. 
Detailed comments 
 
139. It is not scientifically reasonable to simply translate and extrapolate the limited risk 
assessment results on the toxicity of Bt maize to human and non-target organisms from USA, 
Australia or some other non-European countries, because the  
 – regional growing environments,  
 – scales of farm fields,  
 – crop management practices,   – local/regional target and non-target speci es considered most important in the agro-
ecosystem,  
 – interactions between cultivated crops, and  
 – surrounding biodiversity,  
 could each be different from published non-European  studies and could differ substantially between 
regions and countries within the EC. Case-by-case risk  assessment (including interactions between the 
GM crop and its local environment) is widely accepted as a valid approach for assessing possible environmental and health impact s of GM crops and foodstuffs. 
  WT/DS291/R/Add.7 
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  140. Studies illustrating non-target effects and scientific uncertainties over non-target effects from 
the longer term exposure of Bt crops to appropriate ly selected non-target organisms, above and below 
ground, include the following: 
141. Effects (either directly to the non-target organism, or indirectly to non-target organisms via 
simple or complex trophic interactions in the food web)  of the Bt toxin itself, or of the Bt crop as a 
whole, on non-target insects which provide impor tant 'ecological services' in agro-ecosystems.
54 
142. In several of the above non-target studies on  Bt crops, the possibility is raised from a 
scientific viewpoint that sub-lethal effects detected  in small scale or short term studies (e.g. lab or 
contained glasshouse) could possibly be exacerbated by longer term exposure (i.e. over a growing 
season encompassing multiple generations of non-targ et insect species) and by toxic interactions 
between expressed Bt toxins and other components of  the non-target target organisms normal diet. For 
an herbivore, this intake of other toxic compounds which the Bt toxin could interact with neutrally, 
additively, synergistically or antagonistically, would include defensive plant chemicals produced 
constitutively or induced by plant herbivore damage.55 These complex toxicological and behavioural 
interactions mean that simple risk assessment test s on non-target organisms without using the growing 
GM crop in a realistic and appropria te environment are not conclusive to indicate a meaningful degree 
of risk (or not). 
143. Several examples (cited in the studies referenced  previously) of unintended or unanticipated 
effects arising from transformation of transgenic crops, show that plant metabolites involved in 
ecological interactions with non-target organisms can be changed during production of Bt crops, and 
have the potential to influence the toxicity of Bt toxins by unpredictable toxicological interactions as 
part of the complex diet consumed by herbivores. 
144. From many ecological and eco-toxicological studies56 it is clear that plant toxins and other 
plant defensive chemicals can in general have mark edly different effects on the receiving organism, 
depending on the quantity of both toxin dose and exposure time (termed the 'hormesis' effect). Thus, 
quantitative changes (increases or decreases) in expressed Bt toxins and/or in plant metabolites 
affected by the transformation process have the potential to influence the overall 'toxicity' or 
environmental impact of the Bt plant for the he rbivore and other non-target organisms at higher 
trophic levels in a local agro-ecosystem (mean ing the Bt crop and the non-cultivated vegetation 
associated with the local cropping system of the Bt crop). 
145. Scientific uncertainty is increased due to the ongoing scientific debate over the most 
appropriate testing methods and scales (spatially and temporally) useful to determine realistic 
ecological effects of Bt crops.57 According to Levidow's review58, a precautionary approach identifies 
                                                      
54 References: Hilbeck et al.,  1998, Environ. Entomol. 27: 480-487. Hilbeck et al.,  1999, Ent. Expt. 
Appl. Et Appl 91: 305-316. Saxena, Flores and Stotsky 1999; Nature 402: 480. Lovei 2001; Proc. 54th conf NZ plant prot Soc 54: 93-100. Bernal et al 2002; Ent Expl et Appl 102: 21-28. Groot & Dicke 2002; Plant Journal 
31(4): 387-406. Oberhauser & Rivers, 2003; Agbionet 5: 1-7. Zwahlen et al., 2003; Mol Ecol 12: 765-775. 
Knols and Dicke 2003; Nature Biotech 21(9): 973-974. Fitt 2003; Proc. 3rd World Cotton Research Conf, Cape 
Town, pp 371-381. Conner et al 2003; Plant Journal 33: 19-46. Poppy & Sutherland 2004; Physiol Ent 29: 257-
268. Wilson et al 2004; Technical report for EcoNexus. Andow and Hilbeck 2004; BioScience 54: 637-649. Lovei and Arpaia 2005; Ent Expt et Appl. In press. Andow and Zwahlen 2005 Ecology Letters In press. 
55 Birch et al 2001; Ann Appl Biol 140: 143-149. Haslberger 2003 Nature Biotechnology 21 (7) 
739-741. 
56 See for a review and summary, Calabrese and Baldwin 2003 Nature 421:691-692. 
57 Levidow 2003 J Invert Path 83: 113-117. Dutton et al., 2003; BioControl 48: 611-636. Andow and 
Hilbeck 2004; BioScience 54: 637-649. Poppy & Sutherland 2004; Physiol Ent 29: 257-268. WT/DS291/R/Add.7 
WT/DS292/R/Add.7 WT/DS293/R/Add.7 
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  new unknowns, and scientific questions, generat es different criteria for evidence, and make 
judgements on environmental risk assessment more tran sparent. In his review, this is illustrated by the 
questions raised by the use of "surrogate" Bt toxin (i.e. a toxin artificially isolated from an 
heterologous expression systems which is different from the Bt maize considered), in order to test the 
toxicity of the isolated Bt toxins on non target or ganisms. In reality, the non target herbivore will 
consume the Bt toxin produced by the homologous Bt-expressing plant, which may therefore be different in molecular structure, size, posttranslational modifications, and biological activity to the artificially produced "surrogate" Bt toxin
59.  
146. Bt toxin exposure routes for non target orga nisms, like insect pollinators, predators and 
parasitoids, are frequently multi-trophic60, not simply bi-trophic that is, they arise from indirect 
complex and network interactions. Simplified bi-t rophic testing systems, based on eco-toxicological 
models (as featured in many non target methods us ing a purified Bt toxin in artificial diets for non 
target insects) are now not considered by many e xperts to be ecologically realistic for assessing multi-
trophic interactions of Bt crops over several insect  generations and spanni ng at least three trophic 
levels (see eg following references 61). 
147. The views summarised in these cited publications  focus on the need for multi-trophic testing, 
using real Bt crops in realistic testing conditions, t ested with regionally appropriate non-target species, 
likely to be exposed to Bt toxin or metabo lites. These views arise from accumulating scientific 
knowledge over the period from the mid 1990s until today. Scientific uncertainties on effects of Bt 
crops on non-target species or ecological functio ns were (and still are) identified and are being 
addressed by many international scientists. 
148. Other scientific uncertainties arise from incomplete knowledge of the transgene locus 
structure and expression, of different sized Bt toxins, which can interact in uncertain ways in different 
environments. GM crops should be tested under  regionally representative environments and 
appropriate crop management practices,62 and without precise molecular ch aracterisation data, it is not 
possible to be certain about correct doses and exposure routes for non-target organisms in the local agro-ecosystem. 
149. Often the measured 'effect' (positive, negative, or neutral) of the GM crop on selected non-
target species or ecological functions (e.g. predation,  parasitism, pollination) is compared with one or 
more other treatments in the experi ment (e.g. an isogenic line with/w ithout chosen pesticides, or local 
varieties +/- application of chosen pesticides, or  a local crop variety grown under Integrated Pest 
Management or under organic production, etc). This  wide range of comparators, as 'baselines', to 
determine any change caused by growing the GM crop,  from 'norm' equating to the selected baseline, 
means it is very difficult or impossible to generali se or extrapolate between studies, even within one 
country and for one GM crop event. This enforces the scientific arguments for regionally specific, 
case-by-case studies of GM crop impacts performed over several (preferably 3 or more) growing 
seasons in the same region. 
                                                                                                                                                                    
 
58 Levidow 2003 J Invert Path 83: 113-117 
59 Levidow 2003 J Invert Path 83: 113-117. Freese and Schubert 2004 Biotechnology and Genetic 
Engineering 21: 299-324. 
60 Groot & Dicke 2002; Plant Journal 31(4): 387-406. 
61 Birch et al. 1998, 199. Hilbeck et al.,  1998, Environ. Entomol. 27: 480-487. Hilbeck et al.,  1999, 
Ent. Expt. Appl. Et Appl 91: 305-316. Groot & Dicke 2002; Plant Journal 31(4): 387-406.Oberhauser & Rivers, 
2003; Agbionet 5: 1-7.Capalbo et al., 2003; J Invert Path 83: 104-106. Andow and Hilbeck 2004; BioScience 54: 637-649. Birch et al., 2004 In: Environmental risk assessment of Genetically Modified Organisms Vol 1: a 
case study of Bt maize in Kenya. Ch4,. Eds Hilbeck and Andow, CABI, UK, pp117-187 
62 Andow and Hilbeck 2004; BioS cience 54: 637-649. Freese and Sc hubert 2004 Biotechnology and 
Genetic Engineering 21: 299-324. Wilson et al 2004; Technical report for EcoNexus.  WT/DS291/R/Add.7 
 WT/DS292/R/Add.7 
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  150. Question 5 presupposes suitable access to scien tific knowledge applicable under 'field 
conditions'. Scale of testing has a major impact
63 on environmental impact assessment (e.g. toxicity of 
Bt crops to non-target organisms). Scale-dependent effects of Bt crops  can thus only be determined by 
studying their impacts over a wide range of spatial (labs, glasshouses, fields, landscapes) and temporal 
(hours, days, seasons) scales, under the localised e nvironmental conditions (regions within countries) 
and using crop management systems regionally appropr iate to were the Bt crop event is proposed to 
be grown. Generation of data to see the 'bigger scientific picture' generally takes several years of 
detailed research in several countries (see for in stance the EU ECOGEN project as an example of 
suitable testing scales over multiple regions, coun tries and seasons, with Bt maize management 
practices compared, e.g. conventional versus mini mum tillage). This project will only produce final 
reports in 2005/6 after 3-4 years of GM crop field trials in Denmark and France.  
151. The European Communities would also like to address the comparison of Bt maize toxicity 
with conventional maize under field conditions. As must  now be self evident to the Panel, biology is a 
complex and empirical science. As such, it allows  to predict situations when they have been 
repeatedly tested (in order to make the necessary statistics). "Natural", sexual, crosses give results 
which we cannot predict, but we have evidence that , statistically, they produce harmless genotypes. 
They are not harmless because they are natural, but because they are familiar.  
152. On the contrary, a GM crop, where a new Bt gene  is introduced into its genome, leads to lots 
of unpredictable interactions. One of the impor tant discoveries of genomics is that complex 
organisms, such as a human beings, can be produced  by a number of genes which is not more than 
that of a plant such as maize. One of the conclu sions from this understanding is that natural gene 
interactions are numerous and important, that they form complex webs of ge ne regulations, and that 
these interactions statistically reach genome-wide equilibrium in "conventional" organisms. No one 
can scientifically claim to be able to predict all consequences of the presence and functioning of a new 
gene (and even less for several) in a genome which has never been exposed or contained this gene. 
The potential hazard here is not a consequence of the action of modification the plant genome, but of the fact that it generates high levels of unpredicta bility. The risk here may not come from the genetic 
modification itself, but from the extreme unpredictab ility of the direct and indirect effects of the 
introduction of a new gene(s) and ge ne product(s) into the plant genom e and its gene expression. This 
cannot be compared to conventional maize, wher e such new combinations  have ever occurred. 
153. In the face of this unpredictability, one po ssible way forward is the implementation of 
thorough risk management and monitoring programs. However, this leads also  to very significant 
methodological problems, as it is first necessary to collect extensive "baseline" data, before a monitoring plan can be meaningfully implemented for such complex effects. Without appropriate 
control data (namely the state of the ecosystem and the environment prior to the introduction of the Bt 
maize), which is very difficult, expensive, tedi ous and time consuming to collect, monitoring plans 
and general surveillance may not be able to detect and identify significant unintended effects, or long 
term, sub-chronic toxicity on non target animals. 
Question 6 
 
On the basis of the information before the Panel,  is there any scientific evidence to suggest that 
herbicide tolerant crops (whether biotech or devel oped through mutagenesis) are more persistent in 
the agricultural environment or more persistent in the non-agri cultural environment than their 
conventional counterparts?  If so, do herbicide tolera nt crops qualify as a potential "pest" as the term 
is used in International Standard for Phytosanitary Measures (ISPM) 11?   
                                                     
 
63 Joao 2002 Environmental Impact Assessment Review 22: 289-310 WT/DS291/R/Add.7 
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(i) What is the potential for the establishment and spread of herbicide tolerant 
plants arising from handling, spillage during transport of the plant/plant 
parts, or any other means outside of cu ltivation in the absence of application 
of the herbicide? How is any potentia l for establishment and spread affected 
by environmental conditions, the presen ces of wild or conventional relatives 
of the herbicide tolerant plants in an area, or other factors? 
(ii) What is the potential for the establishment and spread of herbicide tolerant 
plants in the presence of herbicide applic ation (in fields, urban, domestic or 
other environments)?  How is any poten tial affected by the existence of feral 
related plant species; infertile wild relatives; seed survival in relevant 
pedoclimatic conditions; the reproduction biology of the species; or other 
factors? 
(iii) Is this potential different for biotech crops tolerant to two wide-spectrum 
herbicides? Please explain.  
(iv) If significant risks of establishment an d spread have been identified, what 
risk management options exist to mitigate any resulting risks and what is their efficacy? 
(v) What types of post-market monitoring and data collection activities could be 
envisaged on the basis of the monitoring and review principles described in 
ISPM 11? 
General comments 
 
154. Drs. Snow and Squire have provided long and useful answers to the question and all sub-
questions, with a significant amount of detailed evid ence to substantiate their respective opinions. Dr. 
Andow has also provided a useful, substantiated answer, although he only addresses the theoretical 
framework of the main question, and the last sub- question on post market monitoring. Together, even 
if they do not always agree among themselves, all three experts have provided convincing evidence in 
the field of the potential difficulties that are linked with herbicide tolerant (HT) crops. Their replies 
provide in particular useful evidence as regards the issues arising from the combined use of the HT 
crop and the corresponding herbicides, or from the comb ination of several HT traits, and in particular 
in the context of glyphosate and/or glufosinate HT , for which HT crops can only be currently obtained 
by way of genetic modification.  
155. Some of the points made by the experts that  the European Communities would like to note 
are: all three experts indicate that the available ev idence demonstrates persistence of HT crops in the 
presence of herbicides, and Dr. Snow points also to the available evidence of the emerging problems 
with HT weeds. She also points to  the difficulties to eliminate the current problems of spread of some 
glyphosate or multiple resistant HT crops in Cana da. Dr. Squire identifies the existence of risk 
management options, but stresses the main difficulties arising with oilseed rape in Europe. He also 
indicates that monitoring schemes do not yet exist, a lthough research is in progress, and that he is not 
certain whether it would be feasible to monitor ev ents with low frequency occurrences. Dr. Andow 
indicates also that any ecological effects would be scale dependent.  
156. By way of contrast, Dr. Nutti has again provid ed a short and unsubstantiated answer, which 
contradicts the three other experts, and addresses only the "pest" qualification. She only states, after 
recalling the pest definition in ISPM 11:  WT/DS291/R/Add.7 
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  In my opinion, herbicide tolerant crops can  not be qualified as "pest", according to 
this definition.  
157. Dr. Nutti has probably misunderstood the question as asking her to provide a judgement on 
the overall risk of GM HT crops on plant or plan t products, while other experts have answered the 
question as to whether they could potentially qualify  as a pest. Dr. Squire states that:  
Oilseed rape and beet are both crops and pests, as are many other crop plants (pests as 
defined in ISPM-11, page 6). 
158. Dr. Snow also states that, while each type of herbicide-tolerant crop should be considered 
individually and that it is not possible to gene ralize across all herbicide-tolerant crops,:  
A crop with herbicide tolerance can qualify as a potential "pest" under the ISPM 11 
definition if 1) it transmits herbicide resistan ce to weedy volunteer plants or the crop's 
sexually-compatible wild relatives, and 2)  this leads to worse weed problems. 
Volunteer oilseed rape and its sexually-compatible relative, Brassica rapa, are 
considered to be weeds because they compete with food crops and require 
management.  
159. Although Dr. Snow does not address in this statement the potential weediness and pest 
problems of volunteers in crop rotation, the Europ ean Communities agrees with these experts that GM 
HT crops do qualify as pests as defined in ISPM11. 
160. The European Communities notes Dr. Andow's remark that: 
Thus I conclude that GM HT crops can qualify as a potential "pest" as the term is 
used in the International Plant Conven tion's (IPPC) International Standard for 
Phytosanitary Measures (ISPM) 11 (EC-130). Ho wever, not all of the risks associated 
with GM HT crops can be considered phytosanitary risks. 
161. Dr. Andow is correct in noting that not all of the risks associated with GM HT crops can be 
considered phytosanitary risks. Some are environmenta l or other risks rather than phytosanitary risks. 
162. Considering the complexity of the question and sub-questions of the Panel, the importance of 
the issues raised for the Eur opean Communities, and the disagre ement between the experts, the 
European Communities provides below its own anal ysis. The European Co mmunities has prepared 
this information with the assistance of scientists, e xperts in the field of agricultural management and 
agro-ecological impacts of HT crops. The Europ ean Communities may address some sub-elements of 
the replies separately, where necessary. 
Detailed comments 
 
163. As a first general comment, the European Comm unities would like to clarify the following: as 
indicated by the experts, a plant with an herbicide resistance will easily become a pest if the herbicide 
is widely used. The consequence is that the same HT should not be introduced in different species that 
may be used in the same agricultural system, if no potential adverse consequences are to be expected. 
This is obvious, and is a systemic risk rather th an a case-by-case problem. This is the issue that 
recently came to light when HT wheat was considered  for approval in Canada and the United States, 
while several other crops had already been cultivat ed with the same GM HT character, including WT/DS291/R/Add.7 
WT/DS292/R/Add.7 WT/DS293/R/Add.7 
Page I-238 
  oilseed rape. Furthermore, herbicides are not only u sed to remove weeds or volunteers in the fields 
but also on road verges, railways, gardens, industrial plants, etc. 
164. Some species, like rapeseed, are already very a ggressive outside and inside cultivated fields. 
As discussed by the experts, introducing resistan ce to important herbicides in certain species may 
certainly lead to significant spread and impacts. A problematic (worst) strategy would then be to introduce HT to several of the same relevant herbic ides in one plant species with weediness potential. 
Cross hybridization would rapidly lead to the existence of multi-resistant plants which would then become major pests. As discussed by Dr. Snow, the fast appearance of such plants has already been 
demonstrated in Canada, and proves extremely difficult to manage. 
165. Concerning sugar beets, their easy hybridization with wild relatives give birth to very 
invasive weeds in Europe. Introducing resistances to herbicides in cultivated beets would also lead to 
significant agro-environmental impacts, as it would also  rapidly lead to HT weeds, probably within a 
couple of years. 
166. A weed is an unwanted plant in the field that  competes successfully with the crop plant for 
resources and thereby interferes with our goal of maximizing yields. A weed becomes more noxious the better it can escape measures of control by the farm er. There are various strategies, by which such 
noxious plants can do that. One is to mimic the crop plant and thereby being indistinguishable for the 
farmer from the crop during the time period it could be controlled (typically early season). Thus, many crop plants have close relatives that beca me tough weeds/competitors of them. Examples are: 
rice/weedy rice, maize/teosinte, oilseed rape a nd several oilseed rape-relatives, sugar beet/beta 
maritima etc. 
167. The major means for control in in dustrialized, large-scale farming is by using chemicals, i.e. 
herbicides. Therefore, another very effective stra tegy for competitive weeds is to develop resistance 
against herbicides. The more intens ive the control measure the larger  the selection pressure to develop 
resistance and the quicker it develops. Weeds ha ve and still do exhibit an astounding capacity of 
developing resistances against almost all compounds ever used against them and this happens in a 
way highly correlated to the amount and types of he rbicides used against them (One of the most 
authoritative sources of information on the current status of resistant weeds worldwide is the "International Survey of Herbicide Resistant Weeds" that can be found at http://www.weedscience.org
). 
168. However, until recently, the plants had to deve lop these resistance mechanisms at least by 
themselves. Since the introduction of HT crop plan ts, we actually put HT-resistance genes actively 
out into the agro-ecosystem and make them availabl e to any crop relative. All it takes ever since for 
related weeds, notably often bad competitors already,  is to take these offered HT genes up, they do 
not even have to develop them anymore. This s hortcuts the resistance development process of related 
and unrelated weeds significantly. In addition, we  increase the selection pressure tremendously by 
exclusively spraying the complementary herbicide. 
169. As already indicated, HT crops are only more pe rsistent in environments where the specific 
herbicide or a closely related chemical with sim ilar physiological activity is used. There is no 
indication that they are more fit or competitive in other environments.64 Indeed the continuous 
production of enzymes to degrade or inactivate the herbicides could reduce resources available to the 
crop/plant. Studies of isogenic lines with and wi thout GM HT suggest no difference in crop 
                                                      
64 Crawley et al. 2001.  WT/DS291/R/Add.7 
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  performance and thus no differences in ecological fitness.
65 But then of course the maintenance in the 
agro-ecosystem and the seed bank of the HT charac ter leaves it available for any situation in the 
future where the selection pressure will again be applied. 
170. The persistence of the crop is case specific and depends largely on the crop species and 
variety. In Europe the oilseed rape grown is predom inantly winter type (which requires vernalisation) 
and persists much more in milder European conditi ons. There is no winter kill and high persistance of 
seed banks in soil. This is a different crop from North American spring oilseed rape which does not 
survive winters except in seed ba nks and is not so invasive. 
171. It also depends on the regions in Europe wher e crops are grown. For example maize survives 
very poorly in regions with colder winters. But in warm maritime regions maize seeds and volunteer 
seedlings will persist and survive during winter  and so could occur in subsequent crops or their field 
margins. 
172. If so, do herbicide tolerant crops qualify as a potential "pest" as the term is used in 
International Standard for Phytosanitary Measures (ISPM) 11 ? 
173. With HT crops there is two different risks: a) the HT crop becomes itself a weed in situations 
where the respective broad spectrum herbicide is used , b) the HT gene is conferred to related weed 
species exacerbating their weediness by the acquired new resistance. 
174. All crops can be weeds (pests) when they grow as volunteers in subsequent crops and 
compete with them. Different crop species vary in their competitiveness and ease of control. Often 
they are controlled by the herbicide programmes us ed to control weeds. However specific treatments 
may be required to remove some of them.  HT crops (especially oilseed rape) have become problematic when they have occurred adventitiously  in other crops without farmers realising it and 
having tried to use the specific herbicide to control them without success. This means that they have 
suffered losses of yield or quality when they norm ally would not. In some cases different GMHT 
oilseed rape types have hybridised resulting in volunt eers with multiple herbicide tolerance and can be 
more difficult to manage
66. 
175. Adventitious presence is particularly a potential problem in Europe where GM oilseed rape 
seeds shed at harvest may persist in soil for sever al years and emerge in subsequent non-GM rape 
fields. These GM plants will then cross pollinate with conventional rape to the extent that thresholds 
for presence of GM seeds in conventional crops may be exceeded67. 
176. Glyphosate is widely used in agriculture today in combination with sterile seed bed 
techniques (i.e. cultivation of gr ound to encourage weed germin ation and then spraying with 
glyphosate to remove the weeds)  as a means of reducing weed pressure on farms. In addition 
glyphosate and glufosinate are used  as dessicants of crops with th e added advantage that they kill 
weeds maturing in the crops just before harvest and reducing weed seed return to soil. Growing 
glufosinate and glyphosate tolerant crops would rest rict farmer's ability to conduct these practices and 
                                                      
65 SIMPSON, E & SWEET J B (2002). Consequence analysis of herbicide tolerant oilseed rape. Report 
for DEFRA,  Project RG 0217., 55pp. 
66 ORSON J (2002): Gene stacking in oilseed rape: lessons from the North American Experience. 
Report for English Nature 2002: 17pp. 
67 SWEET, J. B., SIMPSON E. LAW., J, LUTMAN, P.J., BERRY, K., PAYNE, R., CHAMPION, G., 
MAY, M. WALKER, K., WIGHTMAN, P., & LAINSBURY, M. (2004). Botanical and Rotational Implications 
of Genetically Modified Herbicide Tolerance in winter oilseed rape and sugar beet (BRIGHT Project). HGCA 
Project Report No 353, 265 pp. ( www.hgca.com) WT/DS291/R/Add.7 
WT/DS292/R/Add.7 WT/DS293/R/Add.7 
Page I-240 
  they would have to find other methods for mana ging weeds on their farms, which may entail extra 
costs or use of herbicides with a worse environmental profile. 
177. However, Sweet et al (2004) also concluded that HT volunteers of rape and beet could be 
potentially controlled in non-related crops in rota tion with appropriate management, assuming farmers 
were fully aware of their presence and the potential problems, and were prepared to accept the additional management load and possible economic consequences. This may however prove to not 
always be the case. 
(a) First sub-question  
(a) What is the potential for the establishm ent and spread of herbicide tolerant plants 
arising from handling, spillage during transpor t of the plant/plant parts, or any other 
means outside of cultivation in the absence of application of the herbicide? How is any potential for establishment and spread affected by environmental conditions, the presences of wild or conventional relatives of the herbicide tolerant plants in an area, 
or other factors? 
 
178. The European Communities believe that this question warrants an assessment highly specific 
to the case at hand. Dr. Squire states that: 
In the absence of the specific he rbicide to which the plants are tolerant plants having 
HT and non-HT traits should act similarly. 
179. But he further points out that: 
Species would differ (…) and spread depends on local conditions in ways that are not 
clear.  
which justifies a thorough in-depth analysis of each considered crop. 
 
180. As indicated above, the potential for establishmen t and spread is the same as for conventional 
crops and will only increase in the presence of th e herbicide. The potential for establishment will 
depend on the crop species and the environment. The crops with the greatest potential are crops like 
oilseed rape which can readily colonised disturbe d ground, e.g. building sites, road verges etc. 
181. One should consider that some crops have a high potential for dispersal and long term 
establishment, especially crops like oilseed rape, whic h can be influenced by a range of environmental 
and agronomic factors. GM oilseed rape will behave  in the same way. In addition crops like oilseed 
rape and beet have wild relatives with which they can hybridise.
68 Thus the presence of these related 
species will result in hybrid formation and introgres sion of genes into these wild species. The wild 
                                                      
68 BARTSCH, D, CUGUEN, J, BIANCARDI, E, and SWEET, J (2003) Environmental implications of 
gene flow from sugar beet to wild beet – current status and future research needs.  Environ. Biosafety Res. 2,  
123-127 . Anne-Marie Chèvre, Henrie tte Ammitzbøll, Broder Breckling, Antj e Dietz Pfeilstetter, Frédérique 
Eber, Agnès Fargue, César Gomez-Campo, Eric Jenczewski, Rikke Jørgensen, Claire Lavigne, Matthias S. 
Meier, Hans C.M. den Nijs, Kathrin Pascher, Ginette Séguin-Swartz, Jeremy Sweet, C. Neal Stewart Jr. & Suzanne Warwick (2004). A review on interspecific gene fl ow from  oilseed rape to wild relatives.  In: Hans 
C.M. den Nijs, Detlef Bartsch & Jeremy  Sweet (Editors 2004) Introgression from genetically modified plants 
into wild relatives and its  consequences.  Proceedings of an ESF AIGM conference, Amst erdam, 21-24 January, 
2003, 235-252.  WT/DS291/R/Add.7 
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  population can then act as a potential reservoir over space and time for transgenes
69 or can become a 
weed in HT crops.70  
182. Crop specific cases are discussed below: 
Case of rapeseed 
 
183. A retrospective study has been carried sin ce 1996 in Selommes (Loir et Cher, France). The 
aim was to determine the origin of feral popul ations in road and field borders around a silo71 and the 
impact of border management practices on their persistence.72  In summary, this study demonstrates 
that seeds do disperse a lot. A field of rapeseed produces about 75000 seeds per square meter. About 
10% are lost during harvest and transportation. It  has been shown that these seeds establish all around 
the fields and roads where they are transported and that the plants could live and reproduce outside of 
the fields. It was demonstrated that some plants  found outside the fields corresponded to genotypes 
which had not been cultivated for more than 10 years. 
184. Several hypothesis concerning the origins of th ese plants were raised: spillage during sowing 
or harvest of adjacent fields, losses during transport,73 "auto recruitment". A great diversity of 
situations and practices was observed,74 depending on farming systems and landscape patterns. A 
complementary study determining the fitness of these populations was also carried out (Deville et al, 
2002; 2003). Although these populations seems to have  a lower fitness than those issued from the 
fields (Deville, 2003b), they produce see ds and persist in the environment. 
185. Indeed, Pessel et al (2001) showed evidence that seeds could persist 8 years in road verges 
near cultivated area. Single-low rape seed plants (low erucic/high glucosinolates) were still observed 
eight years after corresponding varieties had been withdrawn from the market. Lutman et al .75 
observed persistence of buried seeds of rape over time. They concluded in 2003 that " Appreciable 
                                                      
69 EASTHAM, K & SWEET, J B (2001) Genetically Modified Organisms: the significance of gene 
flow through pollen transfer. European Environment Agency, Environmental Issue Report 28, 75 pp. 
70 Norris,  Carol, Jeremy Sweet, John Parker & J ohn Law (2004) Implications for hybridization and 
introgression between oilseed rape (Brassica napus) and w ild turnip (B. rapa) from an agricultural perspective. 
In: Hans C.M. den Nijs, Detlef Bartsch & Jeremy Sweet (E ditors 2004) Introgression from genetically modified 
plants into wild relatives and its consequences.  Pro ceedings of an ESF AIGM conference, Amsterdam, 21-24 
January, 2003,107-124 
71 Pessel, F. D., J. Lecomte, V. Emeriau, M. Krou ti, A. Messean, and P. H. Gouyon. (2001). Persistence 
of oilseed rape (Brassica napus L.) out side of cultivated fields. Theoretical and Applied Genetics 102:841-846. 
72 Deville A. Garnier A., Lecomte J., Adamczyk K. Huet S., Merrien A., Messéan A., 2003a. Origin 
and dynamics of feral oilseed rape populations. Proceedings of the First European Conference on the Co-
existence of Genetically Modified Crops with Conventional and Organic Crops, Borupsgaard, 13-14 November 
2003, pp 100-102.  The Fate of Feral Plants;  Jane LECOMTE In Commission du Génie Biomoléculaire, 2003. Impact sur l'environnement des cultures de colza génétiquement modifié tolérant à un herbicide. Actes du 
séminaire du 28 novembre 2003, 80p.; English version in press. 
73 Pessel, F. D., J. Lecomte, V. Emeriau, M. Krou ti, A. Messean, and P. H. Gouyon. (2001). Persistence 
of oilseed rape (Brassica napus L.) outside of cultivated fields. Theoretical and Applied Genetics 102:841-846.  
Crawley M.J., Brown S.L., 1995. Seed limitation and the dynamics of feral oilseed rape on the M25 motorway. 
Proc. of the Royal Society of London, B 259:49-54. 
74 Deville A. Monod H., Lecomte J., 2003b. Are rapeseed feral populatio ns adapted to their 
environment? Proceedings of the First European Confer ence on the Co-existence of Genetically Modified Crops 
with Conventional and Organic Crops, Borupsgaard, 13-14 November 2003, p 208. 
75 Lutman P. J. W.,Freeman S. E. Pekrun C., 2003. The long-term persistence of seeds of oilseed rape 
(Brassica napus) in arable fields The Journal of Agricultural Science, 141:231-240 WT/DS291/R/Add.7 
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numbers of rape seeds will persist up to 4 years, in normal cropping conditions and in the absence of 
cultivation, one experiment has con firmed persistence for over 11 years".  
186. These results are consistent with those obtained in the BRIGHT study
76. Gene flow between 
feral populations and fields was demonstrated by Devaux et al  (2003).77 Therefore, rapeseed and 
consequently HT oilseed rape plants has a potentia l to spread and persist over time in non-cultivated 
areas. Crop management practices in cultivated fields  as well as road verges management have a great 
influence on survival and development of such feral populations (see below). 
Case of weed beets 
 
187. In Europe, four forms of the species Beta vulgaris  exist: 
 – Wild or ruderal beet ( B. vulgaris  ssp. maritima ) 
 – Sea beet ( B. vulgaris  ssp. maritime and ssp.  adanensis in the eastern Mediterranean 
area) 
 – Cultivated beet ( B. vulgaris  ssp vulgaris ) 
 – Weed beet ( B. vulgaris  ssp. maritima ). 
 
188. These forms of beet are interfertile, as shown by  the gene flow detected between wild and 
cultivated beets78 and by the transfer of useful genes of ssp maritima  to new varieties of sugar beet.79  
189. Forms of Beta vulgaris  L. were first recognised as weeds in the 1950's,80 but this problem was 
not really taken seriously in many European countries and the USA until the 1970's, when a large number of studies were initiated.
81 The presence of weed beet in suga r beet crops results in decreases 
in sugar yield (approximately 10% sugar yield loss per weed beet plant per m²) 82 and difficulties with 
harvest and sugar extraction. These problems resu lt from differences in the reproductive cycle, as 
sugar beet is biennial and weed beets are annuals . The management of weed beet infestations has 
varied greatly and resulted in a large range of weed  beet densities. No traditional chemical treatment 
                                                      
76 SWEET, J. B., SIMPSON E. LAW., J, LUTMAN, P.J., BERRY, K., PAYNE, R., CHAMPION, G., 
MAY, M. WALKER, K., WIGHTMAN, P., & LAINSBURY, M. (2004). Botanical and Rotational Implications 
of Genetically Modified Herbicide Tolerance in winter oilseed rape and sugar beet (BRIGHT Project). HGCA Project Report No 353, 265 pp. Available at <www.hgca.com>. 
77 Devaux C., Klein E. K., Lavigne C. 2003. A first step for modelling pollen dispersal at landscape 
level: determining the shape of dispersal functions at long -distance. The case of oilsee d rape. Proceedings of the 
First European Conference on the Co-existence of Genetically Modified Crops with Conventional and Organic 
Crops, Borupsgaard, 13-14 November 2003, pp 172-174. 
78 Santoni S. and Bervillé A., 1992: Evidence for gene  exchanges between sugar beet (Beta vulgaris L.) 
and wild beets: consequences for transgenic sugar beets. Plant Molecular Biology 20: 578-580. Boudry P., 
Mörchen M., Saumitou-Laprade P., Vernet Ph., Van Dijk H., 1993. The origin and evolution of weed beets: 
consequences for the breeding and releas e of herbicide-resistant transgenic sugar beets. Theoretical and Applied 
Genetics, 87: 471-478. Bartsch D. and Schmidt M., 1997. Influence of sugar beet breeding on populations of 
Beta vulgaris ssp. maritima in Italy. Journal of Vegetation Science, 8: 81-84. Arnaud J.F., Viard F., Delescluse 
M., Cuguen J., 2003. Evidence for gene flow via seed dispersal from crop to wild relatives in Beta vulgaris 
(Chenopodiaceae): consequences for the release of gene tically modified crops sp ecies with weedy lineages. 
Proc. Roy. Soc., London, B270, 1565-1571. 
79 Debock T.S.M., 1986. The genus Beta: domesticati on, taxonomy and interspecific hybridization for 
plant breeding. Acta Horticulturae 182: 335-343 
80 Longden P.C., 1980. Weed beet. Agricultural progress 55:  17-25. 
81 Hornsey K.G. and Arnold M.H., 1979. The origins of weed beet. Annals of Applied Biology 92: 
279-285 
82 Longden P.C., 1989. Effects of increasing weed-b eet density on sugar-beet yield and quality. Annals 
of Applied Biology 114: 527-532.  WT/DS291/R/Add.7 
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  can eliminate weed beets as they be long to the same species as sugar b eet and are resistant to the same 
herbicides. In France, 4.5% of the sugar beet cropp ing area (20,000 ha) is infested with weed beet to 
such an extent that sugar beet crop production has had to cease because yields are too low. Weed beet 
has been reported in crops other than sugar beet since 1974.
83 Weed beet plants have never been 
considered troublesome as a weed in cereal crops be cause they are not very competitive and are easily 
controlled by herbicides.84 They have also been identi fied as a common weed in pea ( Pisum sativum 
L.) and potato ( Solanum tuberosum  L.) crops.85 
190. The origin of weed beet was dete rmined in 1993 from genetic studies86: accidental 
hybridisation seems to have o ccurred in the seed production area between a plant with cytoplasmic 
male sterility and a wild pollen donor from the maritima  subspecies. Whereas most cultivated forms 
of beet are biennial, wild beets are mostly annual (dominant B allele). Hybrids between the two forms 
contaminating seed lots are sown at the same time as the seeds of the cultivated variety and grow in 
the row. It becomes possible to detect them when they begin to bolt and to flower. Weed beets may 
also originate in two other ways87: 1) Possible bolting of cultivated sugar beet due to low temperatures 
in the spring, vernalising the most sensitive plants so that they bolt and flower instead of producing 
reserves of sucrose; 2) Potential re-growth of th e roots and neck, which remain on the ground after 
harvest. The plants resulting from such re-growth ar e in their second year of development and they 
bolt and produce flowers and seeds in the crop afte r sugar beet if they are not managed. These 
flowering beets then produce seeds, thereby mainta ining the seed bank in the soil. Weed beet seeds 
have been demonstrated to survive in soil for considerable periods of time and it is therefore 
imperative for growers to prevent seed set. 
Case of maize 
 
191. Grains dispersed during harvesting, which could theoretically germinate, flower and pollinate 
the next maize crop, do not generally survive for more  than a year. Maize is susceptible to cold and 
frost, and climatic conditions in Europe minimise its chances of long-term survival. Indeed, in south-
west France, where maize is frequently grown in  continuous cropping systems and where winter 
temperatures are mild, the maximum number of vol unteers observed is 100 plants per ha. This number 
might be higher in southern countries like Spain where surveys are being carried out. This level of 
infestation would be sufficient to cause 0.9% cont amination, but the volunteers are easy to pick out 
and to kill because they are located outsi de of the sowing lines in the field. 
(b) Second sub-question  
(b) What is the potential for the establishment and spread of herbicide tolerant plants in 
the presence of herbicide application (in fields, urban, domestic or other 
environments)?  How is any potential affected  by the existence of feral related plant 
                                                      
83 Gunn J.S., 1979. Weed beet in other crops of th e arable rotation. British Sugar Beet Review, 7-10. 
84 Gestat de Garambé, 2000. Gestion des conséquences agronomiques et environnementales de la 
culture de betteraves tolérantes à un  herbicide non sélectif. XIème Colloque International sur la Biologie des 
Mauvaises Herbes. Dijon, Septembre 2000. 
85 Gunn J.S., 1982. Population dynamics of w eed beet. In: Proceedings 1982 British Crop Protection 
Conference-Weeds, Brighton, UK, 61-66. 
86 Boudry P., Mörchen M., Saumitou-Laprade P., Vernet Ph., Van Dijk H., 1993. The origin and 
evolution of weed beets: consequences for the breeding and release of herbic ide-resistant transgenic sugar beets. 
Theoretical and Applied Genetics, 87: 471-478. 
87 Longden P.C., 1993: Weed beet resurgence in 1993: the bolters return. British Sugar Beet Review 
vol 61, no 3. WT/DS291/R/Add.7 
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species; infertile wild relati ves; seed survival in relevant  pedoclimatic conditions; the 
reproduction biology of the species; or other factors? 
 
192. From the above, it is clear that these plants which can establish survive and reproduce without 
any advantage would become invasive if an advantage was given to them. 
193. The European Communities therefor e agrees with Dr. Squire that: 
applying the herbicide would favour the HT pl ants, lead to greater  seed set on HT 
plants and their increase in the seed bank. 
194. The European Communities equally agrees with Dr. Snow when she states that: 
In the absence of exposure to the herbicide in  question, herbicide-tolerant plants will 
not have any selective advantage over their non-transgenic counterparts. But when the herbicide is used repeatedly, it will select  very quickly for plants that are resistant 
to the herbicide. The scientific literature in  weed science is full of examples of rapid 
evolution and spread of herbicide resistant weeds. 
195. It is important to note that spread of tran sgenes can occur not only via pollen, but by seeds 
and vegetative parts, and human activity most importantly. A model based approach
88 was used in a 
study dealing with the co-existence of GM and non-GM rapeseed crops in European Agriculture.89 
The aim of the Genesys-model90 is to evaluate the effect of cropping system and rapeseed varieties on 
gene escape from rapeseed crops to rapeseed volunteer s in neighbour plots and in subsequent crops.  
196. Results of this study pointed out to the impor tance of border and set-aside management on the 
harvest purity,91 as well as field spatial distribution (see be low). Indeed, when borders and set-aside 
                                                      
88 The input variables of the model were (1) the regional field pattern comprising waysides, field edges 
and fields; (2) the crop succession of each field; (3) the ag ricultural practices used to manage each crop (stubble 
breaking, tillage, sowing date and density, herbicides, harvest conditions) and (4) rapeseed variety 
characteristics (genotype, self-pollination rates, diff erences between GM and non-GM varieties in pollen 
emission and yield). The main output variables are, for each year, adult rapeseed plants, newly produced seeds 
and seed bank. For each of these variables, the density of  individuals and their genoty pic proportions are given. 
The model describes the annual life-cy cle of volunteer or cropped rapeseed  plants, which is simulated for each 
plot and year. It comprises seed banks, seedlings, adult plants, flowers, pollen dispersal, newly produced seeds 
and seed dispersal. These stages depend on crop type and management. Pollen and seed exchanges between 
plots depend on plot areas, forms and distances as well as on flowering dates. The model is presently being evaluated. The first results show that it correctly ranks  cropping systems according to their rapeseed volunteer 
infestation. However, pollen and seed dispersal is fre quently underestimated and it was kept in mind when 
analysing the results. 
89 Bock, A.-K., Lheureux K,. Libeau-Dulos M. Nils agard H., Rodriguez-Cer ezo E., 2002. "Scenarios 
for co-existence of genetically modified, conventional and organic crops in European agriculture", Technical 
Report Series of the Joint Research Center of  the European Commission, EUR 20394 EN., 133p. 
90 Colbach N., Clermont-Dauphin C., Meynard J.M., 2001a. GeneSys: A model of the influence of 
cropping system on gene escape from herbicide tolerant rapeseed crops to rape volunteers. I. Temporal evolution of a population of rapeseed volunteers in a field. Agric. Ecosyst. Environ., 83, 235-253. Colbach N., 
Clermont-Dauphin C., Meynard J.M., 2001b. GeneSys-Rape, a model of the influence of cropping system on 
gene escape from herbicide tolerant rapeseed crops to rape volunteers. II. Genetic exchanges among volunteer and cropped populations in a small region. Agric. Ecosyst. Environ., 83, 255-270. 
91 Angevin F., Colbach N., Meynard, J. M., 2003. Coexistence of Rapeseed Varieties in Time and 
Space: Using GeneSys Model to Adapt Cropping Systems. 11th  International Rapeseed Congress, Copenhagen, 
6-10 July 2003, pp 732-734. Colbach N., Angevin F., Meynard J. M., Messéan A., 2004 Using the GeneSys  WT/DS291/R/Add.7 
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  with feral populations (whether glyphosate tolera nt or not) were treated by spraying glyphosate 
instead of mowing or cutting, rates of contamina tion in rapeseed harvests would be almost 15 times 
higher than the basic situation (current practices) giving evidence of the potential influence of feral 
populations on development of HT plants in non GM fields. 
197. There is  potential for the establishment and spread of GM HT crops, particularly for 
glyphosate (Roundup) or sulphonyl urea (eg Imidazo linone IMI) tolerant crops as these herbicides are 
widely used in agricultural syst ems for controlling weeds outside of the crop growing season, before 
crops have emerged and when they are used as crop  dessicants. (See the reply of Dr. Snow on this). 
Also glyphosate is widely used on railway lines, ro ad verges, parks, nurseries and gardens so that 
there is a potential for greater survival of feral HT plants and related HT wild species. However this is 
not so much of a problem with glufosinate (Liberty) as it is currently not widely used in agriculture 
except as a crop dessicant. 
198. Resistance to the herbicides glufosinate and glypho sate is also an issue th at has been raised in 
the procedures in dispute. Glyphosate is already one of the most widely used herbicides in the world 
and so how significantly the additional usage on HT crops would speed up the evolution of tolerant 
weeds is difficult to predict. Some resistance ha s already been found and some have argue that 
increased usage on HT crops will accelerate the evolu tion of resistance. This would initially be an 
agricultural problem but could be become an environm ental issue if it results in an increased usage of 
herbicides with much worse enviromental profiles.  (See also the reply of Dr. Snow). Farmers may 
have a range of alternative herbicides they can u se to control HT volunteers or ferals, provided they 
know they are likely to be present. 
199. It is noteworthy to consider the reply of Dr . Andow in his paragraph 06.15, as it touches upon 
an issue which has been discussed at le ngth in the procedures in dispute.  
200. His response does indeed point to an ambiguity in so far as HT crop plants may only partly be 
assessed for environmental impact, because the impact  arises also through the application of the 
herbicide, which is often assessed separately. Howeve r, both components are to a large extent an in-
separable package in the GM HT technology, and,  as systemic issues may arise from the combination 
of both, some have argued that both should be assess ed as a package. By separ ating them, some view 
that a component of the environmental impact may be excluded, and this may be at the heart of the confusion and, sometimes, unspecificity, of some  requests for further risk assessment information. 
These requests were expressed by some that believe d that assessing the environmental impact of HT 
crops without the effects of the corresponding herbic ide may essentially be an incomplete, if not a 
moot exercise that might miss important aspects of the risk assessment. 
201. It is also important to consider that one of the main agronomic advantages of HT systems is 
that you can use HT systems to c ontrol volunteers of the same species  and closely related weeds in 
HT crops (e.g. weed beet in beet and wild turnip and radish in oilseed rape ). If these species become 
HT themselves through gene flow then they revert to being problematic weeds in HT crops with a 
high potential to spread in the presence of the herb icide and to act as a reservoir of transgenes for 
other crops.  
202. In beet seed crops there is currently an issue of  crops being pollinated by  wild or weedy beet. 
This results in annual beet seed that produces no ha rvestable root but which can grow as a weed in 
crops competing with them and shedding seeds to cr eate further weed beet problems (see above). If 
                                                                                                                                                                     
model quantifying the effect of cropping systems on gene escape from GM rape varieties to evaluate and design 
cropping systems. OCL, 11: 11-20. WT/DS291/R/Add.7 
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Page I-246 
  GM HT seed crops are pollinated by  wild/weed beet then the annual beet contaminants would be HT 
and thus not controllable using the specific herbicide. This would then nullify a major benefit of HT 
beet is that the herbicide can be used to control weed beet.
92 
Infertile wild relatives 
 
203. Infertile wild relatives are often difficult to c ontrol with existing herbicides which is why the 
HT systems may be attractive. However it will be impor tant to manage the use of the herbicide so that 
resistant populations do not develop du e to over use and selection pressure. 
Seed survival in relevant pedoclimatic conditions 
 
204. Seed survival is already high in many species (e .g. Brassica spp) and so provides a reservoir 
seed bank population to carry over contaminant GM into subsequent crops. Seed survival also 
depends on the regions in Europe where crops are grown. For example maize survives very poorly in 
regions with colder winters. But in warm and some maritime regions maize seeds and volunteer 
seedlings will persist and survive during winter and so  could occur in subsequent crops or their field 
margins (see above). 
The reproduction biology of the species 
 
205. Outcrossing species (e.g. oilseed rape) are likely to disseminate genes more widely through 
cross pollination. Crops and weeds producing large quantities of small robust seeds (e.g. brassicae) 
also have better dispersal characteris tics. (See comments above on cross fertility)93. However, the 
reproduction biology of crops may not always be well enough known. For instance, pollen dispersal 
of some major crop species is now known to be at  a relatively constant density above a field over 
several hundreds of meters. This part of the atmos phere moves a lot and this results in very long 
distance dispersal of pollen. It took scientists a l ong time to realize this, because most of the pollen 
fall near the plant which produced them. But those pollen grain that do not can travel very far from their source. It was easy to find the pollen grains which did not migrate far, but it has been far more 
difficult to show the existence of the pollen at much further distances. This is done now. 
Or other factors 
 206. Multiple physical and biological factors influence gene flow – (see reviews).
94 These may be 
biological factors: seed dormancy, seed longevity , seed vectors, pollen size, pollen viability, pollen 
vectors etc…, as well as physical factors: scale of GM crop, size of recipient crops, distance between donor and recipient crops, wind speed and direction, insect activity, air temperature, humidity, soil moisture and temperature , … 
207. One expert addressed these issues in detail, and her line of argument is stringent and 
supported by science. But as of now, only the near est steps of out-crossing to the next and most 
                                                     
 
92 EASTHAM, K & SWEET, J B (2001) Genetically Modified Organisms: the significance of gene 
flow through pollen transfer. European Environment Agency, Environmental Issue Report 28, 75 pp. 
93 SWEET, J.B. (2003) Pollen dispersal and cross po llination. Proceedings of  the First European 
Conference on the Co-existence of Genetically Modified crops with Conventional and Organic crops, Denmark. 
Danish Institute for Agricultural Sciences, 21-32. 
94 EASTHAM, K & SWEET, J B (2001) Genetically Modified Organisms: the significance of gene 
flow through pollen transfer. European Environment Agency, Environmental Issue Report 28, 75 pp. SWEET, 
J.B. (2003) Pollen dispersal and cros s pollination. Proceedings of the First European Conference on the Co-
existence of Genetically Modified crops with Conventional and Organic crops, Denmark. Danish Institute for Agricultural Sciences, 21-32.  WT/DS291/R/Add.7 
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  compatible relatives (for example, Brassica  rapa  for oilseed rape) have been considered and 
researched in the context of GM plants. However,  multiple transgene out-crossing events via several 
relatives of crop plants have not been studied in any great detail to our knowledge and none of the 
experts addressed this gap of knowledge.  
208. All of the relevant scientific issues were th eoretically known and discussed before and up to 
1998
95, and such problems were all anticipated at th at time by many experts but it had not happened 
yet at that time, since HT plants had only been  recently released. However, similar processes were 
known from other cases before and that is why expe rts were anticipating them. However, the first 
peer-reviewed publication did not appear until early 2000s but it does in retrospect confirm those who 
did warn of these developments and re-enforce t hose who called for precaution. Today, Canadian 
farmers do have to carefully select the herbicides they can use and with no resistance management plan in place, this situation will worsen from year to  year. For Europe and oilseed rape, the gene flow 
issue and its possible consequences for ecosystems (s pread of transgenes, reservoir function, multiple 
pathways of spread) and agricultural practice (resist ance issues, stacking, weediness, coexistence) are 
still being fully and rigorously thoug ht through in all the consequen ces. The situation in Europe for 
oilseed rape is sufficiently complex, so that ther e remains uncertainties which are likely not to allow 
experts to get a full grasp of all the con sequences in the limited time available. 
(c) Third sub-question  
(c) Is this potential different for biotech crops  tolerant to two wide-spectrum herbicides? 
Please explain ? 
 
209. The European Communities notes that Dr. Squire  implicitly calls for a case-by-case analysis:  
this will be highly specific to the agronomy of a farm or region 
210. This question indeed depends mainly on the herbic ides and the type of crop, e.g. in the case of 
oilseed rape (high potential to disperse and surviv e) with tolerance to herbicides widely used in 
cultivation, e.g. Imidazolinone (related to sulph onyl urea) and glyphosate (Roundup): then these have 
greater potential to become weedy and survive treatme nts in a range of farmi ng situations. Herbicides 
from different groups to these would be needed to control them. However if the tolerance is to 
glufosinate and atrazine, which are only used in particular cropping circumstances, then weediness 
potential is generally less but could be a problem  in certain farming systems dependant on these 
herbicides. 
211. Only one of the experts, Dr. Snow, has pointed out the problem of stacking of different HT 
resistance genes in invasive crops, making it an  increasingly uncontrollable weed within shortest 
period of time. At this time, triple resistant oilseed rape plants are confirmed in Canada.
96 These 
plants become increasingly difficult to control, and most certainly farmers have again to resort to 
'herbicides which may have a negative environmental impact. 
                                                      
95 Rissler J  & Mellon M (1996): The ecological risks of engineered crops. Cambridge, MA: MIT Press. 
96 Friesen LF, Nelson AG & Van Acker RC (2003): Evidence of contamination of pedigreed canola 
(Brassica napus) seedlots in Western Canada with ge netically engineered herbicide resistance traits: - 
AGRONOMY JOURNAL 95(5): 1342-1347. Beckie HJ, Seguin-Swartz G, Nair H, Warwick SI, Johnson E 
(2004): Multiple herbicide-resistant canola can be co ntrolled by alternative herbicides. - WEED SCIENCE 
52(1): 152-157. WT/DS291/R/Add.7 
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Page I-248 
  212. Generally speaking, the same type of poten tial impacts should be addressed; however, the 
magnitude of those impacts may sometimes differ si gnificantly, as pointed out by Dr. Andow in his 
paragraphs 7.08 to 7.12 in his reply to the next question. 
(d) Fourth sub-question  
(d) If significant risks of establishment and spread have been identified, what risk 
management options exist to mitigate any resulting risks and what is their efficacy? 
213. The European Communities notes Dr. Squire's comment on risk management differences 
between GM crops and non-GM crops, dependi ng upon the agricultural system, that: 
… need to be more stringently applied if cropping was to ensure the proportion of 
GM in non-GM remained below a threshold 
214. The European Communities notes also Dr. Snow's comment:  
it is expected that transgenes that confer herbicide tolerance will not be associated 
with negative effects on the weedy plants that inherit them. This means that the 
transgenes could persist indefinitely in weed populations, even in the absence of 
exposure to herbicides. 
215. Risk management options are obviously critical in this area, and the European Communities 
concur with the approach of the experts, and agre es that the listed measures could help reducing the 
risk of maintaining and spreading the HT genes, while noting however that they would have several 
shortcomings ecologically and agronomically. Know ing agricultural practice, compliance would be 
low and hardly to enforce. Not least of all, it w ould put quite a burden on the farmers, and potentially 
also increase the exposure of farmers to less innocuous  chemicals, with all the related human health 
consequences, and it would not eliminate the risk after all. 
216. The risk at stake relates mainly to farmi ng and economics. Management may also include 
seed purity, segregation (temporal and spatial), labe lling, separation of crops and products, careful 
recording of farm operations and management, crop hygiene, crop rotational management, careful 
planning of weed and volunteer control, mon itoring of presence of HT volunteers and weeds etc.
97 
217. Properly adopted measures can be effective at  minimising the building up of HT volunteers 
and weeds on farms. However they are liable to require changes to farming systems and have economic consequences. The measures for maintaining low levels of HT oilseed rape on farms will be 
the most difficult to implement and will require very  stringent measures to maintain volunteers at low 
levels and restrict gene flow. Temporal separa tion of non-GM rape from GM rape will be several 
years (8-10) and spatial separation and sanitary measures will be needed.
98 
218. The European Communities will elaborat e below on risk management options: 
                                                      
97 TOLSTRUP, K.,  ANDERSEN, S.V., BOELT,  B., BUUS,M., GYLLI NG,M., HOLM,P.B., 
KJELLSON,G., PEDERSEN,S., OSTERGARD,H. &  MIKK ELSEN, S.A. (2003).  Report of the Danish 
Working Group on the Co-existence of Genetically Modified Crops with conventional and organic crops. Danish Institute of Agricultural Sciences Report Plant Production No. 94 November 2003 275pp. Boelt B 
(2003) Proceedings of the First Euro pean Conference on the Co -existence of GM crop s with conventional and 
organic crops, Denmark, November 2003. Danish Institute for Agricultural Sciences, 228 pp. 
98 SWEET, J. B., SIMPSON E. LAW., J, LUTMAN, P.J., BERRY, K., PAYNE, R., CHAMPION, G., 
MAY, M. WALKER, K., WIGHTMAN, P., & LAINSBURY, M. (2004). Botanical and Rotational Implications 
of Genetically Modified Herbicide Tolerance in winter oilseed rape and sugar beet ( BRIGHT Project). HGCA Project Report No 353, 265 pp. ( www.hgca.com)  WT/DS291/R/Add.7 
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  Case of sugar beets 
99 
 
219. Weed beets are already a real problem in sugar beet fields as they belong to the same species 
as the cultivated form and are not sensitive to herb icides used in sugar beet crops. The technical 
institute in France estimated that one bolter in a suga r beet field leads to 18 bolters in the next sugar 
beet crop. In most European countries, situations have been observed in which sugar beet cultivation 
has been abandoned due to the yield losses inflicted by  unmanaged weed beet infestations. Even in the 
first sugar beet crop of a field, specific practices are required to control bolters. Various aspects of the cropping system influence the evolution of weed beet populations:  
 – Bolter-specific practices, such as hand pu lling in sugar beet crops, local herbicide 
application, cutting etc.; 
  – Weed management in the other crops of the rotation affect the weed beet seed bank 
between two successive sugar beet crops . For example, the seed bank decreases if 
groundskeepers and weed beet are eliminat ed by herbicides before crop production. 
  – The number of years between two sugar beet crops in the crop rotation also affects 
the weed beet population as weed beets pr oduce their seeds mostly in sugar beet 
crops and the weed beet seed bank decreases in the other parts of the crop rotation. 
 
 – The choice of the appropriate sugar beet variety limits the appearance of weed beets, 
according to the number of hybrid seeds in  the seed lot and the resistance of the 
plants to vernalisation. 
 
Case of oilseed rape 
 220. From the available scientific evidence, it can  be concluded that species like rapeseed has a 
potential for spreading and establishment as an HT crops. Risk management options would aim at 
achieving two main objectives: (i) the development or  extension of practices aiming at reducing, in 
time and space, the persistence of undesirable plan ts (HT volunteers and hybrids with wild relatives) 
and (ii) the avoidance of selection pressure on these undesirable plants. 
221. The establishment of GM HT oil seed rape can be reduced by:  
 – favouring the immediate emergence of seeds remaining on the soil after harvesting, in 
order to withdraw them from the seed bank: no tillage until the first rain then repeated 
minimum soil tillage avoiding seed dormancy; 
 
 – increasing the control of rapeseed volunteers within the subsequent  crops in order to 
reduce the seed bank; 
  – not growing other crops resistant to the same herbicide within the rotation making it 
easier to control tolerant volunteers in the subsequent crops; 
 
 – organizing the spatial location of crops through adequate isolation distances and/or 
through regional specialization; 
                                                     
 
99 Sester M., 2004: Modélisation de l'effet des systèm es de culture sur les flux de gènes entre culture 
transgénique et adventice apparentée. Cas de la betterave sucrière (Beta vulgaris L.). Mémoire de thèse de 
l'Université de Bourgogne. 153pp. WT/DS291/R/Add.7 
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   – and dedicating to tolerant crops the use of  broad spectrum herbicides with their active 
matter used alone (glyphosate or glufosinat e) and associating another active matter to 
these for their non-selective uses (pre-harvest applications, fallow land management).  
 
222. As stated earlier, these measures as well as othe r measures such as feral plant control within 
edges, set-aside management or cropping systems ch anges, have been assessed, through simulations 
with the G
ENESYS®-rape modelling system.100 Table 1 below illustrates the results for one specific 
situation. From this example, it turns out that th ree major factors must be taken into account when 
aiming at reducing the establishment of HT rapeseed  plants: seed purity (effect of farm-saved seeds), 
management of fallow lands and road verges, a nd spatial distribution of rapeseed fields over 
landscape. Changing existing agricultural practices related to these factors will prove difficult to 
achieve as they would suppose a more integrated  management of cultivated and non-cultivated areas 
(e.g. coordination between farmers and public road au thorities) and could lead to additional costs or 
time requirements which are difficult to estimate as they will depend on each local farm structure and 
cropping systems. 
                                                      
100 Angevin F., Colbach N., Meynard, J. M., 2003. Coexistence of Rapeseed Varieties in Time and 
Space: Using GeneSys Model to Adapt Cropping Systems. 11th  International Rapeseed Congress, Copenhagen, 
6-10 July 2003, pp 732-734.Bock, A.-K., Lheureux K,. Libeau-Dulos M. Nilsagard H., Rodriguez-Cerezo E., 
2002. "Scenarios for co-existence of  genetically modified, conventiona l and organic crops in European 
agriculture", Technical Report Series of the Joint Research Center of the European Commission, EUR 20394 EN., 133p.  WT/DS291/R/Add.7 
 WT/DS292/R/Add.7 
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  Table 1. Effect of changes in cropping system on the level of impurities in hybrid seed production 
Farm 1: 0% GM on farm - 50% GM outside 
Typical rotation: rape/wheat/wheat/fallow/wheat/barley 
 
G
ENESYS®-rape simulation Relative impact on GM 
HT impurities  
Basic system (Table 1) 1 
Harvest loss in rape crops: 10% vs 5% 1.15 Farm seeds vs. certified seeds 4.025 Tillage before rape: pl ough vs. chisel 0.725 
 before other crops: plough vs.  chisel 1.975 Rape sowing: early non-GM + late GM vs. simultaneous 3 
  late non-GM + early GM vs. simultaneous 0.275 
Border cutting: mid-April vs. uncut 0.625 Border herbicides: glyphosate vs. none 14.9 Set-aside: spring sown vs. unsown 0.025 Rotation: spring barley added 0.425 
Crop location: fields with past rape >200m vs.0 m 0.015 
Farm field location: clustered vs. dispersed 0.025 
  223. According to some agronomists, it is always possible to control rapeseed volunteers and weed 
beets in cereal crops with "older" herbicides such  as 2,4D (auxines), diquat, paraquat that are 
registered in European lists and some aminotriazol ( not registered for this use yet). Profiles of these 
active ingredients are quite different from those of the new registered ones and it would be necessary 
to take into account differences in their envi ronmental and human and animal health impact. 
224. The European Communities note that Dr. Snow indicates: 
Management options become more challengi ng and more complicated when the pest 
population has genes for several types of herb icide resistance. In some cases, it may 
be necessary to revert to the use of herbicides that have greater toxicity and longer 
persistence in the environment (e.g., 2,4-D). 
(e) Fifth sub-question  
(e) What types of post-market monitoring and data collection activities could be 
envisaged on the basis of the monitori ng and review principles described in 
ISPM 11? 
 
225. In ISPM 11, monitoring is primarily to identify novel or changed pest situ ations or to discover 
failures of pest management measures. Thus, accord ing to ISPM11, post marketing monitoring could 
include monitoring populations of HT feral crop pl ants and weeds on farms to look for development 
of herbicide resistant populations. ISPM11 giv es little emphasis on monitoring for environmental 
impacts, such as destruction of non-targets and be neficial organisms. However these are issues which 
have now become much more impor tant in Integrated Crop Management systems as widely advocated 
throughout agriculture and one could argue that ISPM  11 is lagging behind in this respect (see in 
particular the recent FAO expert consultation on m onitoring the environmental effects of GM crops 
referred above in the European Communities' comments).  WT/DS291/R/Add.7 
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  226. The European Communities notes Dr. Squire's co mments in that respect, on the difficulty of 
developing and implementing appropria te monitoring strategies, and the lack of details of ISPM 11: 
ISPM 11 does not give great detail on monitoring. The type of monitoring in this 
instance would differ depending on purpose: for example, monitoring the effect of a 
HT cropping on biodiversity or ecosystem f unctioning would require a different set of 
measurements from monitoring the presence or abundance of a HT trait. What is clear from existing data and work in progress is th at monitoring of this type is far from 
simple and needs much time and effort, especially if the aim to measure low 
frequencies (e.g. 1%, 0.1%) or small effects (e.g. 1.5-fold effects on populations or 
ecological processes). Recently introduced populations are highly aggregated or 
clumped and this increases the number of samples and area over which samples have to be taken. At present, there are no reliable and accepted monitoring schemes for the presence or impact of biotech-derived plants: research is in progress to develop such 
schemes [  ], but it is not even certain that  it would be feasible or practicable to 
monitor low frequency occurrences or ecologi cal effects routinely in the field. 
227. The European Communities would equally note Dr. Snow's comments in that respect: 
In cases where the persistence and prolifer ation of herbicide-resistant weeds could 
pose problems, post-market monitoring could be used to develop an early warning system for alleviating the problem. Weed scientists are already acutely aware of 
emerging problems with herbicide-resistant weeds that develop in response to heavy 
herbicide use. Many farmers are also familiar with these problems. Stewardship 
programs can be developed for risk management, for example by encouraging farmers to report cases of herbicide failure to the proper authorities. Studies of reported cases could be carried out to test for resistance due to transgenes, and to 
determine whether the stewardship programs are working as planned. 
However, by the time the spread of herbicid e resistance is detected in free-living pest 
populations, such as weeds or volunteer plan ts, it may be too late to prevent these 
plants from proliferating further. By this time, continuous efforts may be needed to 
keep their populations as low as possible.  After a transgene for glyphosate has spread 
widely in oilseed rape, as occurred in Cana da, there is no easy way to eliminate the 
problem. 
228. What is obviously needed most urgently, is a coherent resistance management strategy for 
weeds and their proper monitoring, similar to the efforts that went into developing strategies to 
mitigate insect resistance against Bt toxins. The European Communitie s agree with the experts, this 
task is far from being simple and cheap and quick . However with Bt plants, we have not yet seen 
significant resistance developing in insects; as w ith HT crops and glyphosate, we do see resistance 
developing in weeds. Once glufosinate resistant plants are grown on a similar scale as glyphosate-
resistant crops, we can reasonably expect to observe  developments also with them which might be of 
the same type. 
229. As pointed out by Dr. Snow, the issue is to de tect as early as possible th e spread of herbicide 
tolerance in weeds and volunteers/feral populations . If one knows it exists, mitigation measures can 
be applied in order to minimize the appearance of such populations (see Snow and Squire above). 
That would certainly be the case for GM HT grow ers (although it has been observed that farmers not 
always comply with good agricultural practices r ecommended by companies or technical institutes).  WT/DS291/R/Add.7 
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  230. However, due to pollen dispersal, such populations can also be present in non-GM farmer 
fields. Several studies have been carried out in various countries to assess the long distance pollen 
flow.
101 Over one kilometer distance, outcrossing rate s are generally below 0.1 % but not equal to 
zero. As the number of seed losses at harvest is high (1,000 up to 6,000 seeds/m²), the presence of 
GM seeds in non-GM fields is not a rare event (around 1 GM seed per m² at long distance, thus 10,000 seeds/ha). In the absence of use of the specific herbicide, th is will however represent a very 
small proportion of the volunteers (less than the outcrossing rate as seedbank already contains seeds). 
231. Any application of the specific herbicide woul d led to inconvenience but not necessarily to a 
selection pressure:  
 – application of herbicide on volunteers (GM HT/non-GM HT) will leave GM HT 
volunteers alive but not always lead to seed production (e.g. pre-sowing spray of 
glyphosate before winter wheat sowing); 
 
 – the most sensitive compartments are fa llow lands (if no use of mowing) and road 
verges and other non cultivated areas that could act as a reservoir. 
 232. This would mean that all farmers (both GM  and non-GM) should comply with mitigation 
measures if we intend to mitigate the spread of herb icide resistance. This is technically feasible but 
not easy to implement under the current legal framewo rk. This would also lead to extra costs for non-
GM farmers. 
233. The functioning of these field volunteer plant populations is now relatively well-known. A 
high volume of seeds (1000 to 6000 seeds per m
2 i.e. approximately 100 times the sowing dose) 
remains in the soil of the crop plot after harvesting.  Once buried in the soil, these seeds remain viable, 
possibly for several years (between 5 and 10 years on  average) and can re-grow in the rotation crops. 
Volunteer plants then represent a potential new source of pollen and seed emission. The number of 
volunteer plants per unit of surface area depends partic ularly on the moisture content of the soil and 
farming practices during the period between crops. The size and fertility of these volunteer plants decreases with the vigour of the farmed crops with which they are in competition.
102 Their frequency 
in subsequent oilseed rape crops appears to  decline with the length of the rotation. 
Question 7 
 
On the basis of the information before the Pane l, is there any scientific evidence to support the 
hypothesis that repeated use of a given biotech h erbicide tolerant crop has adverse effects on flora 
and fauna, including soil micro- and macro-fauna?  If so, how does this compare with any similar risks of adverse effects from the repeated use of a non-biotech herbicide tolerant crop (i.e, one 
developed through mutagenesis)?    
                                                     
 
101 e.g. Rieger et al., 2002. SQUIRE, G.S., BROOKS, D.R., BOHAN, D.A., CHAMPION, G.T. et al. 
(2003)  On the rationale and interpretation of the Fa rm Scale Evaluation of genetically modified herbicide-
tolerant crops.  Philosophical Transactions of the Royal Society B,  358, 1779-1800. 
102 Fargue, A.; Meynard, J. M.; Colbach, N.; Va llee, P.; Grandeau, G.; Renard, M. , 2004. 
Contamination of rapeseed harvest by volunteers of other varieties: a study of intergenotypic competition. 
European Journal of Agronomy 21 (2): 193-207. WT/DS291/R/Add.7 
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General comments 
 
234. The European Communities notes that the Pane l's question does not touch upon the use of 
different crops in rotation with the same herbicide tolerance, such as glyphosate or glufosinate, that 
are only used with GM HT plants, and its potential adverse effects. 
235. The European Communities notes that two of th e Panel's experts have addressed this issue 
(Drs. Andow  and Squire). Dr. Squire's reply indi cates that effects may be possible, and calls for a 
case-by-case assessment, but that further research  is needed and ongoing, and that effects on 
biodiversity also relates to the effects of intensiv e agriculture. Dr. Andow agrees that there may be an 
effect in certain cases, and refers to the Farm Scal e Evaluation study, but identifies as well that there 
are gaps in knowledge, as no study has been pe rformed on soil micro-oganisms. Dr. Andow also 
indicates that GM HT crops are more likely to spread than conventional crops. 
236. Dr. Squire has indicated in his reply, wi th respect to the Farm Scale Evaluation: 
The direction of effect differed depending on the severity of the conventional 
management. In maize, where conventional management uses persistent, highly toxic 
herbicides, GMHT increased the flora and fauna; in spring oilseed rape and beet, 
where current practice was less effective against arable plants, it had the opposite effect, reducing the flora and fauna. The cr ucial point about the FSE – and one that 
has been missed or misrepresented by many international commentators – is that the 
effects on the arable flora or weeds (though small by international standards) were 
important in the context of the UK's arable scene in the early 21st century. 
237. The European Communities agrees th at such effects have to be looked at for each GM crop, 
in each receiving environment.  
Detailed comments 
 238. The repeated use of a given GM HT crop may have indirect effects through changes of 
farming practices. All agricultural practices constitute a significant and complex ecological disturbance, even if limited to a single and simple action. Indeed, whatever the nature and objective of 
the action, a large number of ecological processes are affected, and numerous discontinuities may 
occur within the ag ro-ecosystem, in both time and space.  
239. Any change in technical practice (e.g. the introduction of GM crops, new conventional 
varieties, new chemical inputs, changes in the croppi ng system or in soil tillage) may therefore lead to 
changes in ecosystems, of various degrees of significance, through ecological processes and interactions with other agricultural practices. Such  changes may have widespread environmental or 
socio-economical consequences. Th ese changes affect not only the cultivated areas, but also the 
ecosystem as a whole and the natural environment at  large. Furthermore, as successive operations 
within the field are interdependent, any change in one operation may necessitate modifications of 
various extents to the other operations or to the cropping system. The introduction of a new variety 
with a high level of resistance to a major disease may lead to decreases in chemical applications, or 
may even render chemical application entirely u nnecessary. It may also make shorter rotations 
feasible. When assessing ecological impact, it is not su fficient to focus only on the direct effect of 
innovation; it is also necessary to take into account indirect and systemic effects. 
240. As to HT crops, the risk of spread and est ablishment in agro-ecosystems is linked with 
changes in the practices associated with herbicide-tolerant transgenic  crops and the use of the related 
herbicides. HT crops not only lead to a change of  herbicide (with consequences on flora and fauna as  WT/DS291/R/Add.7 
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  demonstrated in the FSE UK study) but also make  easier other practices, such as minimum soil tillage 
or no tillage at all or lead to changes in croppi ng systems as observed in Argentina (substitution of 
grasses by soybean). Such indirect effects have environmental implications that could bear more 
impacts (positive and/or negative) than the direct effect of HT crops. 
241. As this is likely to occur equally in European farming systems, an ex-ante evaluation of such 
indirect effects is a pre-requisite to set up appropriate risk mitigation measures as well as post-marketing monitoring programmes. 
242. The ecologically adverse effects of HT tolerant  crops may also arise significantly through the 
repeated large-scale use of the corresponding broad-sp ectrum herbicide, in particular those that can 
only be currently used on a large scale with GM HT  crops. Other adverse effects could arise through 
unintended and unexpected changes in the GM plants metabolism through the process of genetic 
engineering, due to the expression of the transgene.  That such effects can occur are known and have 
been documented in the peer-re viewed scientific literature.
103 Such effects can arise through the 
insertion of the transgene and depend on the posit ion of the transgene in the plant genome, the 
neighbouring gene sequences, ectopic effects, gene silencing etc. 
243. This is recognized by Dr. Andow, who states that: 
Most of the GM HT crops tolerate glufosinate and glyphosate, while most of the non-
GM HT crops tolerate imidazolinone and sulf onylurea herbicides. It is possible that 
there are important differences in these herbic ides that result in different risks to flora 
and fauna. I am unaware of studies that a ddress this possibility. In addition, the 
options for managing resistant weeds ar e likely to differ among the different 
herbicides. 
244. However, the European Communities disagrees with  the statement of Dr. Squire in the last 
paragraph of its response, that "a general knowle dge of the macro- and micro-fauna in the soil 
suggests they will be much less sensitive to GM HT cropping than  will the above-ground flora and 
fauna". The European Communities believes that the level of knowledge in the scientific community 
does not exist to date to support that thinking. In f act, it might be the very lack of data and general 
neglect of soil ecosystems that might create the no tion that soil systems are less sensitive. In the cases, 
where soil scientists look into it, they often find th e very opposite. Soil systems react quite sensitively 
to chemical inputs, but because agricultural soils ar e already highly disturbe d and often quite poor in 
biodiversity, and only productive with significant ex ternal inputs of agrochemicals, changes are not 
easily detectable, certainly not for lay people.  
245. This is where this particular conclusion of th is expert leads to a normative judgement rather 
than scientific ones. He acknowledges the widespr ead use of other agrochemicals and that in 
comparison to these, 'the herbicides glyfosate and glufosinate ammonium being much less directly 
toxic to soil fauna than other agrochemicals and the GM HT plants themselves'. While, it might be 
true that the two named herbicides are less toxic than say Atrazine, it is a normative judgement to 
imply that this would justify the more intensive use of a less toxic one. This may sound like a choice 
between two adverse situations, fo r which it is not clear whether one is better than the other. 
However, no long-term data (> 3 years) and systema tically recorded field experience is available to 
                                                      
103 Saxena D & Stotzky G (2001): Bt corn has a higher lignin content than non-Bt corn. - AMERICAN 
JOURNAL OF BOTANY 88(9): 1704-1706. Birch ANE, Geoghegan IE, Griffiths DW & McNicol JW (2002): 
The effect of genetic transformations for pest resistance on foliar solanidine-based glycoalkaloids of potato 
(Solanum tuberosum). - ANNALS OF APPLIED BIOLOGY 140(2): 143-149 WT/DS291/R/Add.7 
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Page I-256 
  date on development of soil microflora and –f auna under large-scale use of GM HT crops and 
repeated applications of glufosinate or glyphosate.  
246. Some data however, do emerge from the use of  glyphosate resistant soybeans in the US and 
some of these findings do rather point in the direction of a change in soil microbial activity towards 
favouring fungi over bacteria. For example Kremer et al. (2000)
104 found that in soils repeatedly 
treated with glyphosate and grown to glyphosate resist ant soybeans, soybeans significantly fell victim 
to a Fusarium fungus causing 'damping off'. It would in fact be rather surprising if such intensive use 
of one chemical would NOT cause a change in the microbial communities. The experience from 
Canada and the US also clearly show that the u se of the respective herbicides complementary to GM 
HT crops do increase significantly with the production of the respective HT crops105.  
247. Finally, as regards the statement of Dr. Andow in his paragraph 7.05 that  
It may be possible that there are significant sources of genetic diversity in oilseed 
rape and beets in Europe.  
248. The European Communities would like to provide  some scientific evidence to clarify this 
issue, at least for the latter species mentioned.106 Although the origin of the different species is not 
entirely clear, B. napus  must be derived from cross between B. rapa  and B. oleracea . Since the latter 
was originally confined to the Med iterranean region, it is believed that  B. napus  must have originated 
southern Europe from where it was intr oduced to into Asia in the early 18th century107. B. rapa is 
believed to be the oldest species and to have had the widest distribution. It could be found at least 200 
years ago over an area extending from the west of  Europe to the east of China and Korea and from 
Norway to the north of the Sahara and India.108 Burkhill109 proposed that B. rapa originated 
somewhere in Europe as a biennial form and that  the annual form evolve d later. Central Asia, 
Afghanistan or India may have bee another centre of origin.110 
Question 8 
 
What are the different detection methods currently av ailable for testing for the presence of material 
from genetically modified plants?     (a) Have commercially available detecti on methods changed since the mid- 1990's?  
Were methods available in the mid-90's event specific? 
 
 (b) Please outline the steps necessary to validate a detection method, including the 
determination of what types of refe rence materials needed and differences in 
validation steps for qualitative and qu antitative detection methods.   
 
                                                     
 
104 Kremer RL, Donald PA & Keaster AJ (2000): Herb icide impact on Fusarium spp. and soybean cyst 
nematode in glyphosate-tolerant soybean. American Society of Agronomy publication [online] Available from: 
http://www.biotech -info.net/fungi_buildup_a bstract.html [Accessed 19 January 2005] 
105 C. Benbrook, 2004. 
106 Kimber D. S., McGregor D. I., 1995. The species  and their origin, cultivation and world production. 
In "Brassica oilseeds. Production and Utilization", Kimber  D. S., McGregor D. I. Eds, CAB International 
Publishing, pp 1-7. 
107 Downey & Röbbelen, 1989. 
108 Hedge, 1976. 
109 Burkhill, 1930 cited in Prakash, 1980. 
110 Sinskaia, 1928; Vavilov, 1949.  WT/DS291/R/Add.7 
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   (c) What are the differences in the intende d uses of qualitative and quantitative detection 
methods?  What are the differences betw een event specific and non-event specific 
detection methods?  How does the availability  of different types of detection methods 
relate to risk assessment and risk management processes? 
 
General comments 
 
249. The European Communities regrets that only one expert has provided a reply to that 
important question. The European Communities no tes that Dr. Nutti has provided some general, 
mainly descriptive, elements of reply, although in an swering some parts of the question, she has stated 
that she is "not an expert in this area", and has limited herself to provide "the information that she 
could find" (she provides a list of references and of  the information she found), "but that she did not 
express her personal opinion". 
250. The European Communities will comment in detail below on the information she has 
provided, which is descriptive and factual, but woul d like to point already now that it does not agree 
with all her statements, such as the following one, wh ich obviously contains an internal contradiction, 
that:  
The protein based methods, while not even t-specific, can identify uniquely most 
commercial events. 
251. The European Communities will therefore end eavour to provide further scientific and 
technical evidence to the Panel, in order for it to understand the reply of the expert and the state of 
play on detection methods as fully and objectiv ely as possible. The Eu ropean Communities has 
prepared this information with the assistance of scien tists, experts in the fiel d of the development and 
validation of detection methods. 
252. The European Communities would also like to refe r back to its initial comment in the section 
on general and methodological issues, on the relatio nship between detection methods of GM products, 
and risk management. 
Detailed comments 
 
253. Detection methods can be classified on the b asis of the target, e.g. seeds, protein or DNA 
molecules. They can also be classi fied on the basis of their specificity  relative to the genetic material 
they detect, e.g. screening, trait/construct and even t specific methods. Finally, they can be classified 
on the basis of their ability to quantify or not  the GM material. A comprehensive overview of 
detection methodologies and their applicability range and limitations is given in Miraglia et al. (2004). 
254. Detection methods can be classified on the basis of the kind of material they can detect: the 
GMP itself may be detected by application of a wide range of methods, while processing will reduce 
the range of methods suitable for detection of GM P derived material.  The by far most commonly 
applied currently available detection methods target e ither the modified genetic information itself, i.e. 
a DNA sequence, or a product of the modified ge netic information, i.e. the transcript (an RNA 
sequence) or more often a translation of the transcript (a protein or an amino acid sequence). It is also possible to apply e.g. herbicide sprays to test for herbicide tolerant traits, but this is not widely 
applied.  
255. Both DNA and some proteins are persistent to certain types of processing, and therefore both 
DNA and proteins may be detectable in processed material. Protein methods target particular WT/DS291/R/Add.7 
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Page I-258 
  structures or epitopes of the proteins by application of immunological techniques; Western blots, ELISA (Enzyme linked immunosorbent assays), or latera l flow-strips.  DNA methods target particular 
sequence motifs, usually by application of PCR (p olymerase chain reaction) amplification of the 
specific DNA sequence followed by de tection and/or identification of the amplification product(s).  If 
DNA of high quality is available and from a low or u nprocessed pure plant material, it is also possible 
to detect GMP derived material by digestion of the DNA with restriction enzymes followed by Southern bloting and hybridisation with a labelle d probe corresponding to a particular sequence of 
interest. 
256. With PCR detection/identification and quantifica tion can be done simultaneously in real-time. 
Methods to detect GMP derived material may be  classified into categories depending on their 
specificity. 
257. Screening methods can detect material that is likely to be derived from GMP, but that may 
also be derived from a non-GM naturally occurring source such as soil bacter ia or the Cauliflower 
mosaic virus (CaMV).  These methods typically targ et commonly used regulatory sequences (e.g. the 
CaMV 35S promoter [P -35S] or terminator [T-35S], or the Agrobacterium tumefaciens  nopaline 
synthase terminator [T-nos]), marker genes (e.g . neophosphinotrin transferase [nptII] or kanamycin 
[cam]), or parts of commonly applied cloning v ectors (e.g. pUC18/pUC19 derived sequences).   
258. Gene or trait specific methods can detect material from GMP or naturally occurring non-GM 
organisms containing a gene encoding the protein of  interest.  These methods typically target genes 
inserted in multiple GMPs (e.g. CryIA(b), EPSPS, Pat or Bar genes).  Notably, the inserted genes may 
have been subject to modifications, so that th e specific DNA sequence may be synthetic, in which 
case the detection method may be more specific (see also next category).  Particular proteins or epitopes may also fall into this category.   
259. Construct specific methods can detect material  that is derived only from synthetic genetic 
constructs, e.g. a virus derived promoter in combin ation with a gene from one type of bacterium and a 
terminator from another type of bacterium.   
260. Event specific methods can detect  material that is derived fro m a single transformation event, 
e.g. the unique sequence motif created when an in serted genetic construct is fused to a recipient 
chromosome in the plant that is subject to genetic modification. 
261. Notably, a regulatory sequence, gene or a genetic  construct, naturally occurring or synthetic, 
can be inserted into a GMP in one or several comp lete or partial/truncated copies in the modified 
haploid genome. These sequences may therefore be cons idered unreliable with respect to their fitness 
for quantification purposes.  Furthermore, these types of sequences can be introduced into more than 
one recipient plant, i.e. they may be found in more than one transformation event now or in the future.  
These sequences may therefore also be considered  unreliable with respect to their fitness for 
identification purposes.  In contrast, event specific target sequences are unique to a single transformed 
plant (the elite event) and its descending lines, and it is always present in only a single copy in the 
modified haploid genome. These sequences may therefor e be considered reliable with respect to their 
fitness for quantification and identification purposes.   
First sub-question 
 
 (a) Have commercially available detecti on methods changed since the mid- 1990's?  
Were methods available in the mid-90's event specific? 
  WT/DS291/R/Add.7 
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  262. The answer to the first Panel Sub-question is  yes, available commercial and non commercial 
detection methods have significantly changed since the mid 1990. DNA based methods available 
before then were not event specific; quantita tive DNA based methods mainly applied competitive 
PCR compared to extensive use of real-time PCR, since the turn of the millennium. Finally, lateral 
flow-strip tests for detection of transgenic proteins were not available. 
263. In the mid 1990, there were practically no me thods commercially available for detection of 
GM plants, although restriction analysis combined  with Southern bloting and DNA hybridisation was 
an option for molecular characterisation and detectio n, provided that a DNA probe was available (e.g. 
screening targets or gene/trait specific targets coul d be used since these were easily available).  
264. The PCR technique was well established, but no suitable primers or probes were publicly 
available for the purpose of detecting GMP derived material, apart from those typically developed for 
amplification of sequences inserted into commerc ial cloning vectors.  The first PCR methods 
developed specifically for the purpose of detecting GMP derived material were published late in the 
1990's. The first method for real-time quantificati on of GMP derived material was published in 1999 
and the first event specific PCR methods were publis hed in 2000 and 2001 ( see e.g. Holst-Jensen et 
al., 2003). In general, availability of detection me thods has been restricted by lack of available 
sequence data and reference materi al required for method development and validation. There has also 
been significant developments, since the end of the 1990's of DNA isolation methods from various 
plant and food samples, in order to overcome techni cal barriers due to the presence of inhibitors of the 
PCR reaction, or to overcome the poor quality of the isolated DNA. 
Second sub-question 
 
 (b) Please outline the steps necessary to validate a detection method, including the 
determination of what types of reference mat erials needed and differences in validation steps 
for qualitative and quantitative detection methods.? 
 
265. The European Communities agree with the explan ation of Dr Nutti as regards the importance 
given to appropriate certified reference materials.  For further information, it refers to documents 
available on the website of the Community Reference Laboratory
111. 
266. Method validation is a very complex process, but simply outlined it consists of the following 
steps:  
 1. Method development and optimisation, in cluding the determination of the method 
performance in relation to the scope of the method. 
  2. Method transferability studies (pre-validation trial in small scale).   
 
 3. Collaborative trial validation according to  international harmonised standard and 
protocol. 
 267. First, it is necessary to define the term "met hod", because the term is used inconsistently. 
Relative to validation in the context of detection of GMP derived material, a method usually consists 
of a DNA extraction step and two PCR steps, one targeting a reference sequence (usually a single 
copy housekeeping species specific sequence) and the other targeting a GMP derived sequence. 
Sometimes the instructions associated with only one of these steps is referred to as a method. In the 
                                                     
 
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  following, a method will refer to the combination of instructions for all three steps. In the case of 
protein based methods there are usually only two step s involved, i.e. the extraction of protein and the 
detection/identification of the GMP derived protein.  Protein based methods are usually applied semi-
quantitatively, i.e. a qualitative test is performed  with a sensitivity corresponding to a desired 
threshold. Because the vast majority of validated  methods for detection of GMP derived material 
target DNA sequences, the following description of method validation is gene rally referring to how 
DNA based methods are validated (see also Miraglia et al., 2004). 
268. Method development and optimisation . Method validation is a process starting with the 
method development on the basis of a particular scope  and a particular reference material. The scope 
includes definition of the specificity (detection or identification), the sensitivity (lower limit of 
detection/quantification) and the application (m atrix limitations, qualitative and/or quantitative). 
269. After method development and optimisation, th e performance characteristics of the method 
are described and evaluated. If the performance ch aracteristics are deemed fit for purpose then it is 
strongly recommended to perform a small scale pre- validation trial including at least one or two 
laboratories familiar with the technology applied but not with the particular method.  The purpose of 
this is to assess the method transf erability prior to a full scale collabor ative trial, in order to identify 
gaps in the protocol, sources of possible errors and to avoid wasting resources on sub-optimal methods. 
270. Method transferability studies. The objective of the second step  is to assess whether it is 
likely that the method will meet the desired perform ance values in a full collaborative trial.  This 
phase includes preparative steps like selection of par ticipants, production of reference materials and 
test samples, reagent quality testing, as well as evaluation and reporting of the resulting data. 
271. Planning and preparing for the validation trial also includes deciding what kind of test and 
reference material is going to be used, and productio n of the test and reference material of appropriate 
quality in sufficient quantity.  Test materials are the samples to be treated as unknown in the 
validation study.  Reference materials are the sample s to be treated as known re ferences or calibrants 
in the validation study. Quality here refers to i nherent characteristics of the material such as 
homogeneity, presence of the analyte of interest (e.g . DNA or protein) in a condition that allows for 
its detection and eventually for its quantificati on, and correctly assigned quantity of GMP derived 
material. 
272. Most validation studies have used seeds or kernels as the basis for production of test and/or 
reference material, mixed on a weight: weight b asis, and ground and blende d to homogeneity.  
However, the grinding and blending process may affect  the analyte of interest, e.g. by considerable 
degradation. Furthermore, a weight: weight based reference material may have an assigned GMP concentration considerably different from that determined analytically (e.g. a DNA: DNA based 
concentration). It is therefore important to ensu re correspondence between the reference material and 
the test material, depending on the scope of the method.   
273. If the method shall determine the weight: weight  based concentration, then both the reference 
material and the test material should be made on the basis of weight units.  If the method shall 
determine the analyte: analyte based concentration,  then both the reference material and the test 
material should be made on the basis of analyte units.  To further complicate, it is important that test 
material and reference material are produced inde pendently.  A problem with weight: weight based 
quantiation is that the same quantity can be obtained with the use of both homozygous and 
heterozygous seeds/kernels.  Thus, if homozygous ma terial is used to produce the reference material, 
and heterozygous material is used to produce the test material, a 50% measurement error will be 
introduced if the plant concerned is diploid and a DNA based detection method is applied.  This  WT/DS291/R/Add.7 
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  potential error is also relevant in the context of application of the method si nce it is not possible for 
the analyst to assess for a sample received the homo- vs. hete rozygous status of its GMP derived 
material.   
274. Therefore the most recent validation studies have focused only on  the PCR steps, and 
prepared reference materials and test materials from purified DNA, in which the assigned concentration of GMP derived material is determ ined on the basis of target sequence copies.  
However, this also means that the DNA extraction st ep is somewhat detached from the method.  This 
approach is referred to as the modular approach, and is  currently subject to considerable debate.  It is 
based on the assumption that DNA extraction is linked with the matrix, e.g. a flour produced from 
ground seeds/kernels, and that if a particular in struction for DNA extraction from e.g. a soya bean 
flour has been subject to successful validation then it  may be applicable to other soya bean flour from 
substantially equivalent soya beans.  
275. Presently, there are consequently two favoured options: either to 1) produce matrix based 
reference and test materials with assigned concen trations based on weight concentrations (which 
means there is a considerable source of error in th e application of the method), or 2) produce analyte 
based reference and test materials with assigned c oncentrations based on analyte ratios (which means 
that if there is an analytical bias introduced by analyte extraction it is ignored erroneously). 
276. Collaborative trial validation . This includes preparative step s like selection of participants, 
production of reference materials and test samples,  reagent quality testing, as well as evaluation and 
reporting of the resulting data.  The detailed listing of  parameters etc. in Dr. Nutti's reply is indeed 
correct, but one of the major problems with GMO detection methods is to reach consensus on the values that must be achieved for each of the parame ters for the methods to be considered fit for 
purpose.  While the European Network of GMO La boratories reached an agreement which was first 
published on the website of the Community Refe rence Laboratory in the summer of 2003, other 
bodies like the European Committee for Normalisati on (CEN), TC 275/WG 11 and the International 
Standardization Organization (ISO), TC 34/WG 7,  are still discussing on method acceptance criteria.  
Indeed the ISO WG recently proposed to est ablish a separate work item on defining method 
acceptance criteria in relation to the achieved specifi c values of the parameters in collaborative trial 
validation studies (ISO, 2004). 
277. Prior to launching a validation trial all reag ents must be quality checked, to avoid that 
impurities in e.g. bathces of PCR primers or probes co mpromise the result.  Furthermore, it is critical 
to identify qualified and willing pa rticipants.  A full scale collaborativ e trail must according to the 
internationally harmonised protocol for method validation (Horwitz, 1995) include at least 8 
succesfull participants, and therefore it is common to include between 12 and 15 laboratories in a 
collaborative trail (buffering for non-replying particip ating laboratories and outliers).  Inexperienced 
laboratories sometimes confuse method validation with proficiency testing and volunteer to 
participate in validation studies.  To ensure that  the method and not the laboratories are trialed, 
selection of participant laboratories is in itself an important task.  The typical labour effort contributed to a method validation study by a participating labo ratory, including reporting of data etc. is 2-5 
person workdays per method. This may affect availability of volunteer laboratories.   
278. On the basis of the defined scope of the met hod, the validation study is set up with test 
materials and reference materials covering a range of quantities of analytes.  It is most common to 
consider the concentration of GMP derived material , and to prepare the materials to cover values in 
the range of 0% to 5% GMP derived material.  However, the limit of detection and quantitation in 
PCR analyses is usually linked with the number of am plifiable copies of the target sequence.  Recent 
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  material.  In this case the values may e.g. c over the range between 40 and 5000 copies for GMP 
specific DNA sequences and between 1000 and 10 0000 copies for the reference DNA sequences in 
each single PCR.  Thus, the validation study may result in expression of method performance both in 
relative values (concentration, expressed in percen t), and in absolute values (number of target 
sequence copies). 
279. The planning, preparation and conduct of a valid ation study also includes defining how e.g. 
PCR plates are to be set up to determine the so called plate effect, the number of replicates and 
independent runs (plates) to determine the so ca lled run effects and assess the repeatability standard 
deviation RSD
r.  Data processing also includes treatment of outliers. 
280. If a validation study shall also include assessment  of the method specificity, this will require 
setting up negative target control samples.  This is  usually considered only in the context of method 
development.  Method robustness is  another parameter that is usua lly not subject to testing in 
collaborative trial validation.  This would require t esting the effect of intended modifications, e.g. 
altered reagent concentrations or altered temper ature profiles in PCRs. This too is normally 
considered during method validation only. 
Third sub-question 
 
 (c) What are the differences in the intended uses of qualitative and quantitative detection 
methods?  What are the differences between event specific and non-event specific detection 
methods?  How does the availability of different types of detection methods relate to risk 
assessment and risk management processes? 
 
281. Qualitative methods are used to assess whether GM material is present or not, and to identify 
the GMO from which the GM the material is derive d, including assessment of its status as authorised 
or not. A qualitative detection method is typically inte nded for quick determination of the status of a 
material, i.e. does it contain or not a particular item (above the lowest limit of detection of the item)?  
Such a method would typically be used to assess whet her e.g. unauthorised items are present in the 
material, or to assess whether further use of quant itative detection methods are required (e.g. in 
relation to authorised material and particular thresholds).   
282. A quantitative detection method is typically inte nded for determination of the actual quantity 
of an item, e.g. in relation to a particular contract ual or legal threshold. The unit of measurement plays 
a key role in defining quantitative methods and the resulting values of applying the methods. For 
example will a batch consisting of 100 GM maize kern els contain 100% GM if kernels or weight units 
are used, while it will contain between 40% and 100%  GM if haploid genome equivalents [DNA copy 
numbers] are used, depending on the homo- vs. hetero zygous status of each individual kernel, and 
whether the maternal and/or pate rnal gametes were GM or not.  
283. Event specific methods can be u sed to establish with absolute certainty that a material is 
derived from a particular transf ormation event, and to quantify very reliably the haploid genome 
(DNA) based quantity of the derived material.  Othe r methods like trait or construct specific methods 
may sometimes be used to establish with acceptabl e certainty that a material is derived from a 
particular transformation event, and to quantify with acceptable re liability the haploid genome based 
quantity of the derived material.  
284. While event specific methods target a DNA se quence motif created as a unique consequence 
of a particular transformation event, all other me thods (screening, gene/trait and construct specific) 
target DNA sequence motifs that may be present in  more than one transformation event existing or  WT/DS291/R/Add.7 
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  potentially created in the future.  This is due to th e nature of the transformation process itself (see e.g. 
Holst-Jensen et al., 2003).  
285. Furthermore, in a haploid GM genome, each event specific sequence motif is present in only 
one copy, while any other sequence involved in the genetic modification may be present in more than 
one copy, and the number of copies may vary from one  GMO to another. Consequently, event specific 
methods are ideal for identification and quantification purposes.  
286. Two objections may be raised: that event specifi c motifs will also appear  in stacked events, 
and that DNA based quantification may yield result s significantly different from e.g. weight or seed 
number based calculations.  Consequently, if stack ed events are considered unique and should be 
distinguished from their parental counterparts, then there is presently no truly useful quantification 
method.  And if weight or seed number based calcula tions shall prevail, then it is necessary to either 
test on single unprocessed seeds, or alternatively for processed material to know in advance the actual 
degree of homo- and heterozygous material, and th e actual frequency of GM male and female germ 
cells that gave rise to the original material.  
287. However, the reliability of event specific met hods both with respect to identification and 
quantification purposes is superior to any other altern ative.  In relation to risk assessment and risk 
management, highly specific and quantitative methods can be very useful tools if a material is to be 
identified e.g. to be removed successively, in case of  occurrence of unforeseen risks. To be able to 
develop an event specific detection method it is n ecessary to have access to the DNA sequence of the 
junction region between the insertion locus and the inserted DNA.  This will include detailed 
characterisation of the inserted DNA, not just the origin al construct that was intended to be inserted.   
288. This is important since it is well known th at significant rearrangements of DNA in or 
associated with genetic constructs take place during tr ansformation.  And, equally important, this also 
implies that the insertion locus itself will be charact erised.  This in effect will allow for a better 
evaluation of the potential effects of the genetic m odification, such as whether there is a risk of 
unintended genetic effects, and whether the copy numbe r and location of insert is likely to be stable.  
Such data may also provide additional and valuab le information about the different levels of 
predictability associated with different transformatio n technologies.  Such information may later be 
used to give recommendations concerning the effectiveness and precision of alternative 
transformation technologies 
289. However, sometimes, the gene product may be of particular relevance.  Development of 
detection methods is often closely linked with mo lecular characterisation, and consequently may 
provide important background information to risk assessors. 
Question 9 
 
In what ways does molecular characterization info rm the risk assessment for any particular biotech 
product?  Can a risk assessment be carried out in the absence of a comprehensive molecular 
characterization of each transformation event? 
 
General comments  
 290. The European Communities notes that all expe rts agree upon the fact that a molecular 
characterisation is useful and necessary in a safety evaluation.  As rightly pointed out by all experts, this has been established in a number of internati onal consensus documents and notably in the Codex 
Guideline CAC/GL 45-2003. WT/DS291/R/Add.7 
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Page I-264 
  291. Dr. Andow emphasises that "a risk assessment  cannot be carried out in the absence of a 
comprehensive molecular characterization of each transformation event." He considers it necessary 
for the prediction and verification of transgenic  expression as well as genetic stability.  Dr. Healy 
concludes that currently the molecular characterisa tion is an important element of safety assessment, 
providing verification that the intended genetic modification has occurred and information about 
unintended effects."  Dr. Nutti confirms the "fundame ntal importance" of molecular characterisation 
for the food safety assessment of a GM product.  Fr om his perspective as an environmental expert, on 
the other hand, Dr. Squire considers that it is "not always" necessary when considering spread or 
persistence of GMOs or their effect on the ecosystem.  He concludes, nevertheless that it is 
"reasonable" for an assessing body to request full characterisation.   
292. Generally opinions tend to differ, however, as to th e level of molecular characterisation that is 
needed for a safety assessment.  There is now some guidance in international consensus documents as 
to what is reasonable and necessary to include on mo lecular characterisation, but the issue has been 
controversial throughout and remain s in part controversia l.  Among scientists, on the other hand, there 
is considerable agreement on the kind of informati on required to sustain formulated conclusions. This 
fact is reflected in the experts' replies.  
Detailed comments 
 
293. The experts' general conclusion that a molecula r characterisation is necessary is in line with 
Codex guideline CAC/GL 45-2003 whic h states in its paragraph 30.  
In order to provide clear understanding of  the impact on composition and safety of 
foods derived from recombinant-DNA pl ants, a comprehensive molecular and 
biochemical characterization of the gene tic modification should be carried out. 
294. Molecular data provide insight into whether th e intended modification has been achieved and 
is stably inherited, and also whether uninte nded effects may have occurred, for example by 
rearrangements of the inserted DNA
112. 
295. This is part of the internationally acknowl edged comparative approach of safety assessment 
of GMOs (also known as "substantial equivalence").  In this appr oach, the differences between a 
GMO and a conventional counterpart with a history of safe use are established.  Based upon these differences, it can be decided upon wh ich safety tests are further needed
113.  Molecular 
characterization will aid to clarify which changes have  taken place in the GMO at a molecular level as 
caused by the genetic modification.  Molecular char acterization is therefore an essential part of the 
safety assessment of a GMO for environmenta l release, food and feed applications. 
296. Dr. Squire's statement may cast a doubt on this generally agreed fact as he considers that 
molecular characterisation mzy "not always" be  need for the purpose of assessing spread and 
persistence.  First of all it should be pointed ou t that this statement is made from the specific 
perspective of an ecological/environmental expert.  Indeed it may even have been made from the 
specific perspective of what is needed for the purposes of research rather than for the purposes of a 
safety assessment.  Second, even if that were to be  the case the European Communities is not quite in 
agreement with Dr. Squire on this point.  To mon itor spread and persistence of a new GM event, 
detection methodologies based on phenotypic trait(s), protein(s) and/or DNA are necessary. A 
                                                      
112 See, for example, Kuiper, H.A ., Kleter, G.A. (2003) The scientif ic basis for risk assessment and 
regulation of genetically modified foods. Trends in Food Science and Technology 14: 277-293. 
113 See also paragraph 13, of the Codex guideline CAC/GL 45-2003.  WT/DS291/R/Add.7 
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  complete molecular characterisation forms the basis for all further monitoring tests. Especially in 
environments where different GM events may grow and occur next to each other. 
297. Equally Dr. Squire's states that: 
for some aspects of comparing GM and non-GM plants, detailed knowledge of the 
molecular construct is not necessary. For instance, if comparing the ecological effects of GMHT or Bt plants, the studies could be done equally well without detailed molecular knowledge of the construct.  
298. This statement is misleading.  A GM plant coul d not be compared to a non-GM plant, if no 
molecular data at all were available about the inser ted genes. Before the long-term ecological impact 
of e.g. a Bt plant can be assessed, detailed data are required on the exact structural composition of this 
Bt-transgene construct, e.g. the type of promotor (constitutive or not?), type of terminator, the type, 
length and exact part(s) of the Bt-gene(s) inserted,  the copy number of inserted transgene construct 
and the number of insertion loci, and the stability of the inserted transgene cons truct copies. All these 
characteristics will influence the expression of the Bt  gene(s) and thus the effect on ecology. E.g. one 
Bt-plant can have other ecological effects than another Bt-plant, depending on which Bt-gene(s) 
is(are) inserted, the construction of the T-DNA insert, the locus of integration, number of integrations 
and number of transgene copies per integration, an d other genetic factors determining the expression 
of the gene(s).   
299. There are differing views as to the level of de tail for molecular characterisation needed.  
There is some guidance at the level of internati onal consensus documents. Thus, the Codex Guideline 
CAC/GL 45-2003 recommends that  
a comprehensive molecular and biochemical characterization of the genetic 
modification should be carried out and in formation on the DNA insertions into the 
plant genome should include: A) the characterization and description of the inserted 
genetic materials; B) the number of insertion sites; C) the organisation of the inserted 
genetic material at each insertion site in cluding copy number and sequence data of the 
inserted material and of the surrounding regi on, sufficient to identify any substances 
expressed as a consequence of the inserted material, or, where more appropriate, other information such as analysis of transcripts or expression products to identify any new substances that may be present in  the food; and  D) identification of any 
open reading frames within the inserted DNA  or created by the insertions with 
contiguous plant genomic DNA including those that could result in fusion proteins.
114 
300. Furthermore, the latest F AO/WHO expert consultation on GM animals which updated the 
entire field in this area concluded that 
An extensive molecular characterization of the inserted genetic material construct will 
generally be required, both before and after the insertional event. The molecular 
characterization should furthermore comprise an analysis of the copy number and a 
sequence analysis of the flanking regions of th e place of insertion in order to identify 
any unintended effects  [emphasis added]115  
                                                      
114 Codex Guideline CAC/GL 45-2003, para. 31. 
115 FAO/WHA, 2003 in Transgene Locus Structure and Expression of Bt Maize, Environ. Risk. Chap 
04 13/5/04. WT/DS291/R/Add.7 
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Page I-266 
  301. In the scientific literature, this need h as been confirmed.  Thus, Andow et al. , recommend that  
DNA sequencing is necessary to characterize th e fine structure of the transgene locus 
and its flanking genomic region.  With sequence information, it is possible to identify 
rearrangements that may produce unexpected protein products, to design probes 
necessary to establish the presence or ab sence of unexpected RNA or protein 
products, to evaluate the risk of combin ations or other rearrangements, and to 
evaluate the possibility that plan t gene expression is disturbed. None of the other 
methods for characterizing transgene locus structure can enable assessment of all of 
these potential risk.  [emphasis added]
116 
V. THE PANEL'S QUESTIONS ON ISSUE 1 ("DELAY") (NOS 10 TO 58)  
Bayer oilseed rape (Falcon GS40/90)  
C/DE/96/05  (EC chronology 62) 
Question 10 
 
Given the information before the Panel, including the notification by AgrEvo (EC-62/At.1-30) and the 
EC SCP's opinion (EC-62/At.74), was the informati on to assess the long-term effect of the newly 
expressed protein on the biogeochemical cycle and the food chain requested by the Italian CA 
(EC-62/At.95) necessary to ensure that conclu sions of the safety assessment were valid? 
 
General comments  
302. Two Panel's experts have answered this qu estion, Dr. Nutti and Dr. Andow.  Although 
Dr. Nutti focused on safety assessment in the food ch ain and Dr. Andow analysed the environmental 
aspect, their assessment of the scien tific evidence submitted by the applicant differs substantially.  
Dr. Nutti considers it "sound scientific evidence".
117  Dr. Andow points in several instances to the 
limited scientific value, or to  the absence of, scientific studies.118 The European Communities finds 
that Dr. Nutti's response, by not reviewing the eviden ce actually in front of the SCP and by not citing 
and discussing any relevant scientific evidence, prese nts a conclusion which is not only erroneous but 
also unmotivated.  Dr. Andow, on the contrary, cr itically evaluates the available information and 
presents his own conclusions.  Nonetheless, the Eu ropean Communities does not fully share all of 
Dr. Andow's reasoning and conclusions. 
Detailed comments 
 
303. In its only paragraph on this question, Dr. Nutti  agrees with the conclusion of the SCP that 
"the protein was safe for human consumption in the food chain and was based on sound scientific 
evidence, which was presented by the applicant". 
304. The 'sound scientific evidence' to which Dr. Nu tti refers consists only on checking protein 
homologies with existing allergens and a study of  the isolated purified transgene product in a 
simulated gastric fluid.119 Based on this, Bt proteins are degrad ed within minutes. However, today we 
                                                      
116 Andow, D.A., Somers, D.A. Amugune,N., Aragao, F., Ghosh,K., Gudu,S., Magiri.E., Moar W.J., 
Osir (2004). Environ. Risk., Chapt 4 in CAB Intern ational 2004.  Environmental Risk Assessment of 
Genetically Modified Organisms: Vol. 1. A Case Study of Bt Maize in Kenya (eds A. Hilbeck and D. Andow). 
117 Answers by Dr. Nutti of 7 January 2005, p. 12. 
118 Responses to Questions Submitted by Dr. Andow of 6 January 2005, para. 10.03, 10.04, 10.09. 
119 See, SCP Opinion, (EC-62/Att.74).  WT/DS291/R/Add.7 
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  know that when embedded within transgenic plan t material Bt-proteins can pass even through the 
intestinal tract of cows.
120 The request made by the Italian authority was, therefore, well founded.  In 
reality, some experts consider that the data requ ested by the Italians on food chain should become 
routine information provided in approval documentation. 
305. In paragraph 10.08  of his response, Dr. Andow  concurs with the finding of the SCP at that 
time, that the provided information was 'not scientifi cally convincing that the environmental effects of 
Falcon GS 40/90 are in no way different from non-transg enic cultivars.' Plot sizes were apparently so 
small that no statistical analyses could be conducte d by the notifier and, thus, could hardly detect 
differences anyway. The European Communities consid ers correct to conclude that the scientific 
value from such small studies is rather limited. Theref ore, it is appropriate to request more data from 
the notifier which the notifier in tu rn did on relevant aspects of the risk assessment, 'dispersal of OSR 
pollen', the 'potential invasiveness' and 'a number  of aspects related to fitness, weediness and out-
crossing' – although the expert does note that neither  the data nor the sources were provided which is 
crucial for an independent assessment. 
306. In paragraph 10.09 , Dr. Andow notes the contradiction of the SCP which then concluded 
that there is no evidence to indicate that Falcon GS 40/90 is likely to cause adverse effects on human 
health and the environment while admitting that only 'few studies have been conducted on the safety 
of modified OSR to other organisms' – and no st udies on geochemical cycling or the food chain were 
done.  
307. In paragraph 10.10 , it is quite appropriate of the expert to  point out at this point that 'lack of 
evidence does not imply that there is a lack of an  effect.' Statements on 'no evidence to indicate … 
adverse effects …' clearly need to be substantiated more than just basing it on lack of studies. This is 
not satisfactory from a scientific committee. Such a conclusion is not logically supported by the 
provided information. 
308. Paragraphs 10.13  and 10.14  relate to the problem of unspecified requests by the CA and 
insufficient information delivered in turn by the no tifier.  The European Co mmunities agrees that the 
request from Italian CA is rather general and thus  difficult to address but Dr. Andow clearly states 
that food chain and biogeochemical had not been addressed by the notifier.121 Therefore, the European 
Communities disagree with its conclusion that "unl ess the Italian CA can point to prior regulator 
precedents where these terms are clarified, the phrasing of  the request is not scientifically justified".   
309. With regard to the comment by Dr. Andow, contained in paragraph 10.14 , on the length of 
time it took the Italian authorities to review the in formation received and to pose new questions, the 
European Communities refer the Panel to its General comments  above. 
Question 12 
 
Given the information before the Panel, including the notification by AgrEvo and the conclusions of 
the EC SCP, was the information regarding the mol ecular characterization of this product requested 
                                                      
120 Chowdhury EH, Shimada N, Murata  H, Mikami O, Sultana P, Miyazaki S, Yoshioka M, Yamanaka 
N, Hirai N & Nakajima Y (2003): Detection of Cry1Ab protein in gastrointestinal contents but not visceral 
organs of genetically modified Bt11-fed calves, VETERINARY AND HU MAN TOXICOLOGY 45, pp. 71-75; 
Einspanier R, Lutz B, Rief S, Berezina O, Zverlov V, Schwarz W & Mayer J (2004): Tracing residual recombinant feed molecules during digestion and rumen bacterial diversity in cattle fed transgenic maize, 
EUROPEAN FOOD RESEARCH AND TECHNOLOGY 218, pp. 269-273. 
121 See paragraph 10.09. WT/DS291/R/Add.7 
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by the lead CA (EC-62/At.106)  necessary to ensure that conclusions of the safety assessment were 
valid? 
 
General comments  
310. Two Panel's experts have answered this qu estion, Dr. Healey and Dr. Snape, reaching 
opposite conclusions.  The two experts seem to a ddress the question in a different way. While 
Dr. Healy addresses this question more from a histori cal perspective, Dr. Snape takes into account the 
current state-of-the-art.  In fact, the dossier w as submitted in 1996 and at that moment, molecular 
characterisation was focused on the inserted DNA fragment. However, the European Communities 
cannot concur with Dr. Healy because already then, (1) a number of scientists evaluating the dossiers 
insisted for more information on the molecular char acterisation and were convinced of the value of 
this information for safety assessment;
122  (2) the RoundupReady soybean case was known and could 
have been taken into account;123 and (3) it had already been proven that, technically, it was possible to 
carry out the experiments needed to addr ess the question of the leading CA in 2002.124   
311. For what concerns safety assessment, the Europ ean Communities wants to stress that a safety 
evaluation of a new event cannot be called 'com plete' as long as some aspects of molecular 
characterization, such as the screening for inserted fragments and the sequencing of the plant genome 
DNA flanking these insert(s), are missing. In this  case, no definitive statement can be done on the 
absence of rearrangements and unintended effects, a nd thus neither on the safety of the product. The 
European Communities, therefore, notes that some expe rts, such as Dr. Snape, are of the opinion that 
"more information is still required", which obviously necessitates further clarification and information 
before the issue can be definitively resolved.  Some specific comments on the responses are provided 
below. 
Detailed comments 
 
312. In the first paragraph of page 5, Dr. Healy states that:  
The molecular characterisation submitted included a sequence analysis of the pat 
gene isolated from the soil bacterium, full DNA sequence analysis of the DNA construct containing the pat gene and Southern blot and Polymerase Chain Reaction 
(PCR) analysis of the transgene.  The latter demonstrated that the pat gene was stably 
inserted into two separate locations within  the recipient strain and that vector 
sequences outside the border regions had not integrated.  
This factual assessment is wrong.  In reality, the information (EC-62 At.3, 13, 14) provided before 
2 April 2002 (date of request for additional informat ion, see EC-62/At.106) failed to identify the exact 
                                                     
 
122 Windels P, Theuns I, Dendauw J, Depicker A, Van Bockstaele E, De Loose M (1999), Development 
of a line specific GMO detection method: a case study, Med. Fac. Landbouwk. Wet., 64/5b, pp.459-462. 
Windels P, Depicker A, Van Bockstaele E, De Loose M (2000), Characterisation of the 3'NOS junction of 
Roundup Ready soy, Med. Fac. Landbouww. Univ. Gent, 65/3b, pp.463-465;   
123 Windels P, Taverniers I, Depicker A, Van Bock staele E, De Loose M (2001), Characterisation of 
the Roundup Ready soybean insert, Eur. Food Res. Technol., 213, pp.107-112. 
124 Depicker A, De Buck S, Van Montagu M, Theuns I, Huyghebaert A, Van Bockstaele E, De Loose 
M (1998), Detection and characterizatio n of transgene inserts into plants, Med. Fac. Landbouww. Univ. Gent, 
63/4b, pp.1479-1484;  Theuns I, De Buck S, Depicker A, Van Gaver D, Huyghebaert A, Van Bockstaele E, De Loose M (1998), Anchored PCR method as alternative to detect and identify GMOs, Med. Fac. Landbouww. 
Univ. Gent, 63/4b, pp.1539-1542; Theuns I, Windels P, De Buck S, Depicker A, Van Bockstaele E, De Loose M 
(2002), Identification and characterization of T-DNA inserts by T-DNA fingerprinting, Euphytica, 123, pp.75-84.  WT/DS291/R/Add.7 
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  number of copies of transgenic sequences into GS 40/90.  Initially, two intact copies of the pat gene 
construct were believed to be inserte d.  Later, as correctly noted by Dr. Snape,
125 it was determined, 
following the requested information, that the total copy number of the pat gene was shown to be 
three.126  According to the European Communities, th is underlies the need for complete molecular 
characterization from the beginning and justifies the CA request for more information on this topic. 
 313. In the last paragraph of page 6, Dr. Healy states that:  
Impact of the Additional Information on th e Conclusions of the Safety Assessment  
The additional information requested by th e Lead CA is unlikely to influence the 
conclusions of the safety assessment carried out by the SCP. 
The European Communities submits that this would only be the case if no deletions, insertions or any 
other rearrangements in the flanking plant ge nome DNA had occurred. However, as no sequence 
information was submitted originally on the genom ic DNA adjacent to the insert, but only on the 
inserted genes, at that moment, no evidence could be  given of the absence or rearrangements. As long 
as no evidence is given on the absence of rearrangements, also outside the inserted construct, no conclusions on the safety of the event can be drawn.  314. In the following bullet-points on pages 6 and 7 , Dr. Healey  gives the rationale for her 
conclusions.  In the first bullet-point , she affirms that, as "the transgene was inserted into the Falcon 
GS40/90 line via agrobacterium mediated transformati on techniques, this technique is less likely to 
result in DNA rearrangements and other modifications of the inserted DNA".  The European Communities disagrees.  There is substantial evid ence in literature that Agrobacterium-mediated 
transformation induces severe changes in the plant chromosomes and therefore may be the cause of 
many unintended effects.  In fact, truncations , rearrangements, etc., cannot be avoided with 
Agrobacterium-mediated transformation.
127 
                                                      
125 Report by Dr. Snape of 5 January 2005, p. 1, point (1). 
126 The information (EC-62 At.3, 13, 14) provided before 2 April 2002 (date of request for additional 
information, see EC-62/At.106) shows that oilseed rape event Falcon GS40/90 was transformed using plasmid 
pHoe6/Ac by means of Agrobacterium- mediated transfer.  The T-DNA of the plasmid pHoe6/Ac carries a pat 
gene construct conferring resistance to the herbicide glufosinate ammonium.  Southern Blot analysis indicated 
that two intact copies of the pat gene were inserted at two individual functional loci (At.14).  To prove that no 
region outside the two border sequences of the inserts was present, Southern Blot analysis was conducted.  However, the Southern Blot analysis undertaken seems to have been conducted on an oilseed rape line 
containing only one copy of the pat cassette (At. 113). The additional information (EC-62 At. 114) requested by 
the lead CA on 2 April 2002 gives more information on the transgene loci, denoted EE1 and EE2.  It is said that (data proving this are lacking) one of the two functional lo ci contains two pat expression units in inverted tail-
to-tail orientation, bringing the total copy number of the pat gene to three instead of two.  The sequence of locus 
EE1 and its 5-prime and 3-prime flanking sequences, together with the DNA sequence of its pre-insertion site were determined.  For locus EE2, no sequence data were gi ven on the insert itself, but the 5-prime and 3-prime 
flanking sequences, together with the DNA sequence of its pre-insertion site were determined.  Sequence 
analysis of the EE1 locus showed th at this sequence contains one T-DNA copy and lacks the 65 sub-terminal 
bases at the RB and ends at the break point of the le ft border.  A BLAST search on the 5-prime and 3-prime 
flanking sequences of both transgene loci revealed no m eaningful similarities.   Alignment of the 5-prime and 3-
prime flanking sequences of the transg ene loci with the DNA isolated from  wild type oilseed rape revealed 
minor and major deletions and the pres ence of filler DNA.  For EE1, a fra gment of 1715 bp was deleted upon 
integration of the T-DNA.  In addition, at the 3-prime junction of EE1, eleven nucleotides 'filler' DNA were 
inserted at the transgene locus.  Sequ ence alignment with EE2 revealed a loss of 16 nucleotides at the target site. 
127 Windels P, De Buck S, Van Bockstaele E, De Loose M, Depicker A (2003), T-DNA integration in 
Arabidopsis chromosomes. Presence and origin of filler DNA sequences,  Plant Physiology 133, pp.2021-2068.  WT/DS291/R/Add.7 
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  315. In the second bullet-point, Dr. Healey asserts that  
The molecular characterisation originally  submitted did include a PCR analysis, 
which indicated that only the DNA sequences associated with the pat gene had 
integrated into the recipient strain.  In pa rticular, the analysis verifies that that no 
sequences from the vector, others than intende d, integrated into the recipient strain. 
Now, PCR analysis of inserted genes only canno t provide any information on rearrangements, 
truncations, presence of vector backbone DNA, etc. which occurred outside of the amplified genes. 
This highlights the importance of complete molecu lar characterization, including sequencing of the 
complete T-DNA insert and adjacent plant genome seque nces, and thus justifies the additional request 
of the lead CA. Also, as seen above, the inform ation on molecular characterization submitted after 
additional request by the CA was different  than the molecular data origin ally submitted. Therefore, as 
some aspects were not known originally , some aspects of the risk assessment were missing at the 
moment of the risk assessment. 
 
316. As with regard to Dr. Healy's conclusion  that:  
The additional molecular characterisation re quested by the Lead CA is unlikely to 
affect the conclusions of the safety assessme nt and was not necessary to ensure that 
the conclusions of the safety assessment were valid.
128  
The European Communities would like to note that, if no sequence data of the T-DNA/plant junction 
regions are available, no evidence can be given of the absence of any rearrangement at the locus of 
integration in the plant, and thus neither of the absence of any unintended effect and thus ecological 
impact. As long as this evidence is lacking, th e risk/safety assessment of the event cannot be 
considered as being complete.  Question 13 
 
Given the information before the Panel, including the notification by AgrEvo and the conclusions of 
the EC SCP in relation to the potential persist ence or invasiveness of Ba yer oilseed rape (Falcon 
GS40/90), would this product qualify  as a potential "pest" as the term is used in ISPM 11? 
 
General comments  
317. Four Panel's experts provided a response to th is question: Dr. Andow, Dr. Nutti, Dr. Snow 
and Dr. Squire.  Dr. Nutti states, without much of an explanation on why, that Bayer oilseed rape 
(Falcon GS40/90) is not dangerous and thus cannot qualify as a "pest".  Both Dr. Snow and Dr. Squire, 
on the contrary, recognise that Bayer oilseed rape ha s the potential to be a "pest", but Dr. Snow adds 
that other methods of weed control could manage  this problem.  Dr. Andow considers that the 
information in front of the Panel, both as submitted by the notifier and as contained in the SCP opinion, are insufficient to determine the "pest" status of this product. 
                                                                                                                                                                    
 
See also, for instance, Genome Scrambling - Myth or Reality?; Transformation-Induced Mutations in 
Transgenic Crop Plants by Allison Wilson and Jonathan  Latham and Ricarda Steinbrecher available at 
<http://www.econexus.info/pdf/ENx-Ge nome-Scrambling-Summary.pdf> (last visited on 25 january 2005): 
 "This report identifies the insertio n-site and genome-wide mutations created by plant transformation 
procedures as potentially major, but p oorly understood, sources of hazard a ssociated with the production and use 
of commercial transgenic cultivars". 
128 Responses by Dr. Healy of 6 January 2005, p. 7.  WT/DS291/R/Add.7 
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  318. For its general view on the persistence of HT  products and their potential as "pests", the 
European Communities refers the Pa nel to its comments under Question 6 above.  With regard to the 
specifics of this question, the European Communitie s considers oilseed rape (OSR) a crop with weedy 
potential, especially in other broad leaved crops in arable rotations. Introducti on of herbicide tolerance 
into OSR further reduces options for managing it and thus it could be argued that, under certain 
circumstances (e.g. existing use of the specific herbicid e), its pest or weed status is increased by the 
introduction of HT traits and requi res additional measures to manage it. Likewise some related species 
are also weeds and their weediness could be enhanced by the introduction of HT traits via gene flow.  
The European Communities thus concurs with Dr. Snow's acknowledgment of the fact that specific 
measures should be taken to control a "potential p est" and that "management options become more 
challenging and more complicated when the pest po pulation has genes for several types of herbicide 
resistance".
129  Furthermore, as this "potential pest" could spread out of the GM farms, control should 
also be applicable by non-GM farmers in order to be efficient.  However, some of these management 
options may be difficult to implement (especially in non-GM farms), have higher costs and/or less 
desirable environmental impacts. 
Detailed comments 
 
319. As said in the comments under Question 6 above, all crops are weeds to a greater or lesser 
extent when they grow in other crops. Oilseed rape  has many characteristics of a weed: high seed set, 
high seed dormancy, variable germination, compet itive under fertile growing conditions, etc. In 
addition GMHT rape has the ability to grow in sub sequent non-GM rape crops  even when grown after 
several years interval, resulting in potential impurity problems130. In addition if the HT gene transfers 
to existing related weeds, they in turn can b ecome problematic weeds of the HT crop since the 
specific herbicide will not control them.131 
320. Glufosinate is currently used as a herbicide a nd a dessicant in certain crops (e.g. potato).  
Introduction of glufosinate tolerant oilseed rape will  mean that glufosinate cannot be used to control 
HT rape volunteers in these crops. Glufosinate is also widely used as a dessicant in conventional 
oilseed rape crops. This practice would have to change in order to manage conventional crops 
containing admixtures of glufosinate tolerant crops . In addition another dessicant would be required 
on glufosinate tolerant  oilseed rape crops. 
321. Glufosinate tolerance has been developed in maize and sugar beet. Glufosinate tolerant 
oilseed rape would be a problematic weed in  these crops requiring additional weed control 
measures.132  
                                                      
129 See also Responses to Scientific Questions from the Panel of Dr. Snow of 5 January 2005, page  14, 
question 6d. 
130 SWEET, J. B., SIMPSON E. LAW., J, LUTMAN, P.J., BERRY, K., PAYNE, R., CHAMPION, G., 
MAY, M. WALKER, K., WIGHTMAN, P., & LAINSBURY, M. (2004). Botanical and Rotational Implications 
of Genetically Modified Herbicide Tolerance in winter oilseed rape and sugar beet (BRIGHT Project). HGCA 
Project Report No 353, 265 pp. Available at <www.hgca.com>. 
131 Norris,  Carol, Jeremy Sweet, John Parker & John Law (2004) Implications for hybridization and 
introgression between oilseed rape (Brassica napus) and w ild turnip (B. rapa) from an agricultural perspective. 
In: Hans C.M. den Nijs, Detlef Bartsch & Jeremy Sweet (E ditors 2004) Introgression from genetically modified 
plants into wild relatives and its consequences.  Pro ceedings of an ESF AIGM conference, Amsterdam, 21-24 
January, 2003, pp. 107-124. 
132 See Sweet et al (2004), cited above. MESSEAN, A. (2002). Monitoring case report: impact of 
transgenic plants within cropping systems. In LMO' s and the Environment: proceedings of an international 
conference. November 27-30, 2001. Raleigh, USA. Edited by Craig Roseland. pp 207-215. WT/DS291/R/Add.7 
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Page I-272 
  322. All of these above issues were not raised by the SCP in its Opinion (EC62/Att.74) who 
focused very much on whether the HT rape would be  a problem in crops other than oilseed rape or 
other HT crops. However the SCP did comment that gl ufosinate tolerant rape should not be grown in 
proximity to rape with other HT traits, since combination of HT genes in a single rape plant might 
make it harder to manage. This is based on the Ca nadian experiences of gene stacking referred to in 
Dr. Snow's submission.   
323. SCP also commented that: Glufosinate drift in to field margins may enhance establishment of 
feral HT rape populations in these areas. This conclu sion may have been based on the report by Sweet 
et al
133. 
324. Although most of these above issues are manage able by changing agronomic practices and 
using different herbicide programmes, some of these changes (e.g. extending crop rotations between 
HT and non-HT crops) may not be economically justif ied, environmentally desirable or even difficult 
to implement (changes in non-GM farms).  
325. Furthermore, the SCP qualified its response by saying that oilseed rape is a relatively new 
crop in Europe, information on weediness, gene flow and invasiveness (especially of related species) is limited and that caution and close monitoring is required.  
Bayer hybrid oilseed rape (MS8/RF3)
 
C/BE/96/01  (EC chronology 63) 
 
Question 15  Given the information before the P anel, including the conclusions of the EC SCP, was the information 
regarding the assessment of the long-term effect of  the newly expressed protein on the biogeochemical 
cycle and the food chain requested by the Italia n CA (EC-63/At.87) necessary to ensure that 
conclusions of the safety assessment were valid?  
 
General comments 
 
326. Two Panel's experts answered this question: Dr. Andow and Dr. Nutti. As under question 10, 
where the issues at stake were similar, their conclusi ons diverge substantially, on the basis of the same 
information before them. While the lack of evid ence – no additional evidence was put forward in 
addition to the limited amount contained in th e notifier's documentation – was interpreted as 
indication for safety by Dr. Nutti, Dr. Andow stated correctly that it is not sound science to interpret 
lack of evidence as evidence for lack of an effect and even less so as evidence for safety. While this 
may seem subtle, it is yet of great bearing for the safety discussion and often the reason for dissent. 
Detailed comments 
 
327. Dr. Nutti  focuses on the bar-gene and PAT gene expression and transgene product. She 
concludes that since the bar-gene is controlled by  plant promoter, it would not be functional in a 
bacteria. "Consequently, its expression in the un likely event of transformation would not occur"
134. 
While Dr. Nutti may be correct to state that in the unlikely event of horizontal gene transfer of a bar-
gene, PAT product expression might no t have negative effects as long as the substrate, the herbicide 
                                                      
133 Sweet J.B., Shepperson R., Thomas  J.E., Simpson E. (1997) The impact of releases of genetically 
modified herbicide tolerant oilseed rape in the UK. Proceedings of the Brighton Crop Protection Conference - 
Weeds. pp 291-302. 
134 Answers by Dr. Nutti of 7 January 2005, p. 14, first paragraph of Answer 15.  WT/DS291/R/Add.7 
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  glufosinate, is missing. However, the argument th at the bar gene would not be expressed because the 
plant promotor controlling this transgene in the plan t would not work in bacteria is insufficient. The 
bacterial promoters can be expected to be able to  do the job even better than the plant promoters. 
Expression of a transferred transgene of former b acterial origin cannot be excluded in bacteria.  
328. Further, the expert speaks of "weight of ev idence available elsewhere concerning the safety 
…"
135, however the evidence is missing and no refere nces are provided. Arguments like these can 
often be heard in the discussions about safety of GM  food and products. However, when researching 
for the 'weight of evidence' one finds more often than not that this evidence is actually meagre, 
unpublished, informal, contained in grey literature  or notifier documentation. If such points become 
crucial for the case, the weight of evidence should  actually be requested to be put forward in 
verifiable form. 
Question 16 
 
Given the information before the Panel, including th e conclusions of the SC P, was the information 
regarding molecular characterization of this pr oduct requested by the lead CA (EC-63/At.107) 
necessary to ensure that conclusions of  the safety assessment were valid? 
 
General comments  
 
329. Two Panel's experts have answered this qu estion, Dr. Healey and Dr. Snape, reaching 
different conclusions.  While for Dr. Healy the l ead CA had enough information to conclude on the 
safety of Bayer hybrid oilseed rape (MS8/RF3) already in 2002, accordin g to Dr. Snape "more 
information is still required".   
330. The European Communities general comments on the experts' replies on question 16 are the 
same as those made on question 12, with the differe nce that here the missing molecular data – that 
were requested by the lead CA in 2002 – con cern the comparison between the GM event and the 
isogenic line. Thus, complete characterization of GM events at the molecular level, including a 
comparison at DNA level between the insertion locus in the GM event and the corresponding locus in 
the isogenic line, gives detailed and highly valuab le information on (1) the exact composition of 
transgene inserts, (2) the exact number of inserts a nd number of transgene copies per insert (including 
inverted repeats of a transgene copy at one site of integration), (3) the presence of vector backbone 
DNA sequences within the insert or outside the insert,  (4) the occurrence of deletions, insertions or 
any other rearrangement within the transgene insert( s) and/or the adjacent plant genome DNA, (5) the 
stability of transgene inserts. Un expected and unintended effects of transgenes cannot be excluded 
without detailed molecular data on all above me ntioned topics. Some specific comments on the 
responses are provided below. 
Detailed comments 
 331. With regard to molecular characterisation data, in the first and second paragraph of page 9 , 
Dr. Healy concludes that no homology with known seque nces was found using the 3' and the 5' 
flanking sequences. The fact that no sequence homologies with known sequences were found for the 3' flanking sequence of MS8 and the 5' flanking seque nce of RF3, and the fact that the sequence data 
of T-DNA/plant junction regions have not been comp ared to the isogenic line, cannot exclude that 
unexpected and unwanted truncations or rearrangeme nts occurred at these sites of integration. 
Providing this type of information gives the CA  a more comfortable position to come to a positive 
evaluation of the safety. Absence of this informa tion does not necessarily lead to a negative report. 
                                                     
 
135 Ibidem, second paragraph of Answer 15. WT/DS291/R/Add.7 
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Page I-274 
  332. With regard to the impact of additional information on the conclusions of the safety 
assessment, Dr. Healy concludes that  
The additional molecular characterisation da ta sought by the lead CA in 2002 were 
not required to demonstrate the safety of food products derived from MS8, RF3 or 
MS8xRF3 hybrid lines.  
The European Communities submits that, if th e sequenced plant DNA regions, adjacent to the 
transgene inserts, are provided and compared to th e corresponding sequences at the site of integration 
in the isogenic lines, this additional information a llows to conclude on the fact that besides the 
insertion of the intended fragment , no other changes in the DNA seque nce have taken place during the 
transformation process. If this is the case, this is a positive element to conclude on the safety of the 
GMO.  333. In the following bullet-points on pages 9 and 10 , Dr. Healey  gives the rationale for her 
conclusions.  In the last bullet-point , she affirms that, 
The most significant elements of the assessment of MS8 and RF3 oilseed rape lines 
more appropriately focus on the molecular characterisation of the insertion events and 
the resultant novel gene products, particularly  in terms of their potential toxicity and 
allergenicity. The food products derived from transgenic oilseed rape are likely to 
contain at most only trace amounts of plant proteins due to processing. Comparative 
compositional data from the seeds of bot h transgenic lines and the corresponding 
isogenic lines therefore provides necessary information to determine unintended effects. 
According to the European Commun ities, risk assessment has to include more than only taking into 
account the impact caused by the main product from a crop. In other words, also non-intended effects 
in side products and on the environment as a whole have  to be considered.  As with regard to the last 
sentence, comparative sequence data between th e transgenic lines and the corresponding isogenic 
lines is exactly what the lead CA requested. Thus, th is paragraph justified th is additional request by 
the lead CA. The European Commun ities respectfully submits that this conclusion is in contradiction 
with the reasoning of Dr. Healy.  
334. As with regard to the analysis of Dr. Snape  of Exhibit EC063/Att.98 , the European 
Communities notes that the molecular data were incomp lete, as sequences at integration loci were not 
compared to sequences at corresponding  sites in wild-type isogenic lines. 
335. Finally, in the conclusion by Dr. Snape , the European Communities notes that the repeated 
reference to "MsR8" is not clear and would appreciate clarifications from this expert. 
Question 17 
 
Were detection methods commercia lly available in 2001 sufficient to  enable the detection of the 
transgenic proteins expressed by the plant line hybrid  oilseed rape MS8/RF3?   Given the information 
before the Panel, including the SNIF (EC-63/At .109) and the updated environmental risk assessment 
(EC-63/At.110-140), was additional informatio n regarding a quantitative detection method 
(EC-63/At.141) necessary to ensure that conclusi ons of the safety assessment were valid? 
 
General comments 
 
336. Question 17 addresses two issues: whether the de tection methods commercially available at 
the time of the request of the lead CA for add itional information regarding a quantitative detection  WT/DS291/R/Add.7 
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  method sufficient to enable the detection of the tran sgenic proteins expressed by the plant line hybrid 
oilseed rape MS8/RF3; and whether this request  for information was necessary to ensure that 
conclusions of the safety assessment were valid.  Two Panel's experts answered this question: 
Dr. Healey and Dr. Nutti.  With regard to the first issue, they both conclude that such a method was 
available, but Dr. Nutti specifies that it had not been  validated. On the second issue, they agree that a 
quantative detection method as required by the lead CA was not necessary for safety conclusions, however Dr. Nutti points out that such a method would have provided relevant information for 
labelling and the consumer. 
337. The European Communities respectfully consider s that the question posed by the Panel is 
vitiated by a misunderstanding.  As it is clear from EC-63/At.141, the lead CA points to the need of a quantitative detection method "to facilitate post-mark eting control and inspection" and does not refer 
to the need for such in a safet y assessment as suggested by the questi on. As remarked by Dr. Nutti, 
the necessity of having a detection method is li nked to monitoring and traceability of GMOs after 
release. For post-marketing control and inspection, as explained by many of the experts, (1) an event-
specific method is required and (2) this can onl y be the case when the method is based upon the 
presence of foreign DNA and not upon the presence of fore ign protein.  Therefore, the conclusions of 
the experts with regard to the necessity of such  a method for safety assessment are of no help in 
understanding the scientific value of the request of  the lead CA with regard to post-marketing 
monitoring and control.   
338. The European Communities provides below Detailed comments  with regard to the experts' 
opinions on the preference for protein- versus DNA-based methods. However, in the context of the 
lead CA's request, this is not of high relevance. 
Detailed comments 
 339. With regard to the conclusion of Dr. Healy on the first part of question 17 , the European 
Communities underlines that it is not possible to conc lude on the availability of a commercial kit for 
PAT detection in 2001. As Dr. Nutti  rightly points out in its first paragraph  of her answer to 
question 17, the method was not validated and, presumably, not commercially available. 
340. The European Communities respectfully disagrees with Dr. Healy  statement in the 
penultimate paragraph of page 12  that 
Quantitative PCR methods have been deve loped for a range of food commodities 
including soybean and maize products but  validation of these methods is not 
straightforward.  
341. In fact, the recently accepted modular validation approach for GMO methodologies perfectly 
allows to validate quantitative PCR methods, acc ording to internationally accepted, harmonized 
guidelines
136.  Collaborative trial validation of quantita tive PCR methods presently included in the 
draft international standards has been done in a number of slightly different ways (prEN ISO 21571 
Foodstuffs - Methods of analysis for the detecti on of genetically modified organisms and derived 
products - Quantitative nucleic acid based methods).   However, essentially the principles are the 
same: Samples of unknown content (test samples) are compared to samples with assigned concentrations (reference materials).  In some c ases the DNA has to be extr acted from the samples (in 
which case validation includes validation also of a DNA extraction component), while in other cases 
                                                     
 
136 See ISO 5725, 1994; Horwitz W (1995) Protocol for the design, conduct and interpretation of 
method performance studies. Pure Appl Chem 67, pp.331-343. WT/DS291/R/Add.7 
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  the samples distributed consist of pre-extracted DNA (in which case validation includes only the PCR 
components).  A recent paper
137 provides justification for separate validation of DNA extraction and 
PCR components, - primarily linked with cost efficien cy and improved flexibility in the application of 
methods. The number of methods included in pr EN ISO 21571 is currently 13 (all collaboratively 
validated), while the number of methods include d in EN ISO 21572 (Foodstuffs – Methods of 
analysis for the detection of genetically modified  organisms and derived pr oducts - Protein based 
methods) for comparison is one!   
342. Not only does this fact demonstrate the feasibility of validating quantitative PCR methods, it 
also demonstrates that quantitative protein-based methods of detection are less directly accessible, in 
contrast to the statements of Dr. Healy. that  
… it is generally recognised that quantitativ e protein-based methods of detection are 
more directly accessible.  
343. Notably, the protein based methods also have a much more narrow application range than 
PCR based methods. To the European Communitie s's knowledge world-wide there is no single 
quantitative protein-based method that has been va lidated and considered fit for the purpose.  
Dr. Nutti seems to agree with this viewpoint when she affirms that: "I can infer that there was no 
general validation of the method used by the notif ier".  The European Communities also wishes to 
underline that accessibility can be interpreted in di fferent ways. First, it can be discussed whether 
ELISA versus real-time PCR is favourable in di fferent conditions. This largely depends on the 
tradition and historical perspective concerning th ese technologies. Second, it can be discussed on the 
accessibility of the target to be detected: (1) DNA can be readily isolated from most samples; (2) 
DNA, in contrast to proteins, is much more stable and generally present in different types of matrices 
and thus enable a more horizontal applicability; (3) PCR is recognized and accepted as the reference 
method for GMO identification and quantification for regulatory purposes in the EU, because of those 
advantages; (4) DNA-based methods for GMO quantif ication, i.e. DNA extraction protocols and 
quantitative PCR assays can be easily found in the lite rature and in annexes of the ISO norms for 
DNA-based GMO detection.138 
Question 18 
 
Given the information before the Panel, including the SNIF and th e updated environmental risk 
assessment (referenced above), was the information regarding molecular data requested by the CA 
(EC-63/At.144) necessary to ensure that conclusi ons of the safety assessment were valid? 
 
General comments 
 
344. This question was answered by two Panel's expe rts: Dr. Healy and Dr. Snape. Dr. Snape has 
answered this question together with question 16. Hi s conclusion is, therefore, the same, which is to 
say that "more information is still required".  On  the contrary, Dr. Healy concludes her assessment 
considering that the additional information sought by the CA was not necessary  to ensure that that 
conclusions of the safety assessment were valid. Dr. Healey adds that "given the pace of advancing 
knowledge in the field of molecular biology an d plant biotechnology and the rapidly evolving 
technical capabilities, for a foreseeab le time, there will often be a di screpancy between the scientific 
data submitted in a dossier for assessment, and the information possible from the most recently 
developed experimental techniques".   
                                                      
137 Holst-Jensen A, Berdal, KG (2004) The modular analytical procedure and validation approach and 
the units of measurement for genetically modified mate rials in foods and feeds. J AOAC Int 87, pp.927-936. 
138 ISO/FDIS 21571, 2004; ISO/DIS 21569, 2004; ISO/DIS 21570, 2003.  WT/DS291/R/Add.7 
 WT/DS292/R/Add.7 
 WT/DS293/R/Add.7 
 Page I-277 
  
  345. The European Communities respectfully disagr ees with the conclusion of Dr. Healy and 
points to the fact that it is the duty of a regulatory authority to continually update its requirements taking new methodologies into account. In particul ar, the Belgian guidelines on the requirements on 
molecular information were devel oped with the help of a panel of scientists specialised in gene 
technology and experts from the European Associat ion of Bioindustries ("EuropaBio", the association 
of biotech industries in Europe).   The need for the demands for mol ecular data in these guidelines has 
been thoroughly discussed  in the light of safety assessment and is purely science based.  Bio-
informatic analysis enables one to check for the presence of novel chimeric open reading frames at the 
transition between plant and insert DNA or in the region of rearranged DNA fragm ents.  This way, the 
risk of production of allergens, toxins or other pharmacologically active proteins in the transgenic 
crop can be assessed.  This approach can therefore be  a valuable tool for biosafety evaluation as long 
as other (genomic, proteomic or metabolomic) techniques aimed at the assessment of potential unintended effects of the transformation are not operati onal.  In addition, bio-informatic analysis can 
also reveal if a transgene has inserte d inside a plant ORF. It must be noted that bio-informatic analysis 
is not only required according to the Belgian Guid elines for molecular characterisation of GM higher 
plants to be placed on the market, but have also been accepted as a tool in safety assessment by the 
EuropaBio
139 and the European Food safety Authority.140  In addition, the guidelines for conducting 
safety assessment of GM foods that were a dopted by the Codex Alimentarius Commission141 require 
information sufficient to identify any new substanc es that may be included in food.  DNA sequence 
information on the junction regions of the transgen e is one mechanism to obtain this information.  
346. In the specific of this case, the new data provided by the notifier in September 2003 in 
response to the request from the lead CA was nec essary to ensure that conclusions of the safety 
assessment were valid.  The original sequence data describing the integrated inserts were incorrect, 
and several errors were detected when the transf orming plasmids and the integrated inserts were 
sequenced for verification (cf. Exhibit EC63/At.1 31 and EC63/At.132).  Fortunately, these errors 
were concluded insignificant with respect to the conclu sions of the risk evaluation.  On the contrary, a 
significant unintended rearrangement of an inserted truncated gene cassette in Rf3 was observed and 
characterised (EC63/At.115).  Without a detailed sequence based characterisation of this rearrangement also with respect to its flanking sequences, it would not be possible to predict the 
potential risk associated with the rearrangement.  The nature of the integration sites in the recipient 
genome was determined through sequence character isation of the 5-prime and 3-prime flanking 
sequences of the inserts in Ms8 (EC63/At.114) a nd Rf3 (EC63/At.115), and these were confirmed to 
be of host plant origin with a high degree of  probability (EC63/At.116-119, EC63/At.133 and 
EC63/At.134).  However, no f unctional assignments of these sequences were provided in the reply 
from the notifier.  To this date, two of the fl anking sequences are believed to represent genes coding 
for proteins for which it is claimed that " overexpression causes pleiotropic phenotypic changes ".  
Pleiotropic phenotypic changes means unpredicte d or unexpected changes in the appearance of 
presumably unrelated or unlinked characters induced by the character under study.  Such a statement 
would therefore undoubtedly attract the attention of risk assessors, if it had been provided by the 
notifier.  It is, however, likely that this partic ular information was unavailable to the notifier by 
September 2003.  Information that was available wi thout being forwarded until specifically requested 
concerned the sequence of the flanking sequen ces (cf. EC63/At.114 and EC63/At.115).  The 
                                                     
 
139 EuropaBio, 2003. Molecular Characterisation in Guidance document for Safety Assessment of GM 
Crops. 
140 EFSA, 2004. Guidance document of the scientific panel on genetically modified organisms for the 
risk assessment of genetically modified plants and derived food and feed. The EFSA Journal 99, 1-94. 
141 Codex Alimentarius Commission (2003), Principles for the risk analysis of foods derived from 
modern biotechnology. Codex Guideline for the Conduct of Food Safety Assessment of Foods derived from 
Recombinant-DNA plants, CAC/GL 45-2003. WT/DS291/R/Add.7 
WT/DS292/R/Add.7 WT/DS293/R/Add.7 
Page I-278 
  publication of genetic rearrangements and the flanking sequences of GTS 40-3-2 (RoundupReady®) 
soybeans
142 led to rapid establishment of consensus co ncerning the relevance of detailed (sequence 
based) genetic maps of the inserted and flanki ng sequences.  The detection methods provided 
(EC63/At.136 and EC63/At.137) are not event specific and not quantitative.  Furthermore, the 
specificity of the methods was only assessed against Brassica napus  samples (EC63/At.138).  It is 
common practice in peer review journals to require  considerably wider taxon samples in this kind of 
specificity test. 
347. More Detailed comments  on the information relating to molecu lar data in this notification to 
complete the assessment of Dr. Healy  are provided below. For comments to Dr. Snape 's response, 
the European Communities refers to its comments to answer 16. 
Detailed comments 
 
348. The EC chronology includes several exhibits  which are relevant for this issue. 
349. In particular, EC-63/At.114 , which forms an integrated part  of the updated risk assessment of 
Sept 2003, was completed on November 26th 2001, and shows that the flanking sequences of Ms8 
were available and known to Aventis CropScience almo st two years before making it available to the 
CA. See page 4 of the exhibit: 
To demonstrate the nature of the flanking sequences of Brassica napus  elite event 
Ms8, PCR analysis was performed on a numbe r of templates using different primer-
pairs.  In a first PCR reaction the identity  of the Ms8 template was confirmed using 
the primer-pairs described in the Ms8 Di scriminating PCR protocol.  A primer-pair 
targeting the flanking sequence was used to  demonstrate the nature of the flanking 
sequence.  The PCR analysis demonstrat ed unequivocally that the characterized 
flanking sequences are present in all tested Brassica napus  entries and are thus of 
Brassica napus  plant origin. 
350. Exhibit EC63/At.115  on confidential information on the characterisation of Rf3, which forms 
an integrated part of the updated risk assessm ent of September 2003, was completed on November 
26th 2001, and shows that the flanking sequences of Rf3 were available and known to Aventis 
CropScience almost two years before making it available to the CA.See from page 4 of the exhibit:   
To demonstrate the nature of the flanking sequences of Brassica napus  elite event 
Rf3, PCR analysis was performed on a numbe r of templates using different primer-
pairs.  In a first PCR reaction the identity  of the Rf3 template was confirmed using 
the primer-pairs described in the Rf3 Di scriminating PCR protocol.  A primer-pair 
targeting the flanking sequence was used to  demonstrate the nature of the flanking 
sequence.  The PCR analysis demonstrat ed unequivocally that the characterized 
flanking sequences are present in all tested Brassica napus  entries and are thus of 
Brassica napus  plant origin. 
351. Genetic rearrangements as a result of the integration event are common.143  The nature of such 
rearrangements is not predictable, and each case may therefore deserve examination as part of the risk 
                                                      
142 Windels P., Tavernier I., Depicker A., Van Bock staele E. & De Loose M. (2001). Characterisation 
of the Roundup Ready soybean insert. Eur. Food Res. Technol. 213:107-112. 
143 Qpcrgmofood (2004).  Final report of workpackage 3 "Sequence characterisation of transformation 
events (junction between insert and insertion site in the genome)" QLK1-1999-01301. Available at  <http://www.vetinst.no/Qpcrgmofood/Deliverable3.pdf> (last visited on 27 January 2005).  WT/DS291/R/Add.7 
 WT/DS292/R/Add.7 
 WT/DS293/R/Add.7 
 Page I-279 
  
  assessment procedure.  In Rf3 rearrangement was observed at the 3-prime end, as described in 
paragraph 4.2 on page 8 of the document:  
The integration of the T-DNA resulted in a large plant DNA duplication: the flanking 
sequences at the 3-prime end (1275 bp in tota l) consist of 816 bp duplication of 5-
prime flanking sequences ('duplicated 5-prime flanking sequence') and 459 bp ('3-prime flanking sequence').  The identity of the 'duplicated 5-prime flanking sequence' is described in 4.1.). 
352. Also Exhibit EC63/At.116
, containing confidential alignment with transformation plasmid of 
Ms8 and which forms an integrated part of the updated risk assessment of September 2003, was 
completed on October 10th 2001. It shows that the flanking sequences were not derived from the Ms8 
transforming plasmid. 
353. Exhibit EC63/At.117  on confidential BLAST with flanking sequences of Ms8, which forms 
an integrated part of the updated risk assessm ent of September 2003, was completed on September 
26th 2001, and shows that no similarity to known sequences was observed, with exception for some 
similarity to an 87 bp sequence derived from the closely related species Arabidopsis thaliana .  
Apparently, no attempts were made to determin e if any function was assigned to the sequence, 
although this would be permitted in  connection with the BLAST sear ch.  The similar sequence motif 
in Arabidopsis thaliana is not assigned any function in the NCBI /GenBank database as per this date. 
354. Exhibit EC63/At.118  on confidential alignment with transformation plasmid of Rf3, which 
forms an integrated part of the updated risk  assessment of September 2003, was completed on 
October 10th 2001, and shows that the flanking sequences we re not derived from the Rf3 transforming 
plasmid. 
355. Exhibit EC63/At.119  on confidential BLAST with flanking sequences of Rf3, which forms an 
integrated part of the updated risk assessment  of September 2003, was completed on October 8th 2001, 
and shows that both the 5-prime and 3-prime flanki ng sequences show similari ty to known sequences 
from the closely related species Arabidopsis thaliana . The 5-prime flanking sequence shows 
similarity to two 97 bp and 33 bp sequences derived from Arabidopsis thaliana .  Apparently, no 
attempts were made to determine if any functions  were assigned to the se quences, although this would 
be permitted in connection with the BLAST search .  Both the 97 bp and 33 bp sequence motifs in 
Arabidopsis thaliana are assigned function in the NCBI/GenBank database as per January 18th, 2005, 
cf. Box 1  and Box 2 , and both are coding for proteins.  Notably, it is stated with the accession in Box 
1 in a description of the function of the protein that " overexpression causes pleiotropic phenotypic 
changes ".  The European Communities has not been ab le to determine whether these accessions were 
released by September 2003, although the accession described in Box 1  was submitted to GenBank on 
March 11th 2003.  The 3-prime flanking sequence shows similarity to a 52 bp sequence derived from 
Arabidopsis thaliana .  Apparently, no attempt was made to de termine if any function was assigned to 
the sequence, although this would be permitted in connection with the BLAST search.  The 52 bp 
motif in Arabidopsis thaliana  is assigned function in the NCBI /GenBank database as per January 18th 
2005, cf. Box 3 , and it is coding for a protein.  Notably, the retrieved accession is very similar to the 
accession shown in Box 1 , and for both it is believed that " overexpression causes pleiotropic 
phenotypic changes ".  The European Communities has not be en able to determine if the accession 
described in Box 3  was released by September 2003, although it was submitted on March 11th, 2003.  
 WT/DS291/R/Add.7 
WT/DS292/R/Add.7 WT/DS293/R/Add.7 
Page I-280 
  
Box 1.  Sequence retrieved from Blast search on the NCBI server January 18
th 2005, applying 
the 97 bp sequence motif from Arabidopsis thaliana  as a probe . 
 
LOCUS       AY254319                 123 bp    mRNA    linear   PLN 04-MAR-2004 
DEFINITION  Arabidopsis thaliana DVL3 mRNA, complete cds. 
ACCESSION   AY254319 
VERSION     AY254319.1  GI:37955425 
KEYWORDS    . 
SOURCE      Arabidopsis thaliana (thale cress) 
  ORGANISM  Arabidopsis thaliana 
            Eukaryota; Viridiplantae; Streptophyta; Embryophyta; Tracheophyta; 
            Spermatophyta; Magnoliophyta; eudicotyledons; core eudicots; 
            rosids; eurosids II; Brassicales; Brassicaceae; Arabidopsis. 
REFERENCE   1  (bases 1 to 123) 
  AUTHORS   Wen,J., Lease,K.A. and Walker,J.C. 
  TITLE     DVL, a novel class of small polypeptides: overexpression alters 
            Arabidopsis development 
  JOURNAL   Plant J. 37 (5), 668-677 (2004) 
   PUBMED   14871303 
REFERENCE   2  (bases 1 to 123) 
  AUTHORS   Wen,J., Lease,K.A. and Walker,J.C. 
  TITLE     Direct Submission 
  JOURNAL   Submitted (11-MAR-2003) Biological Sciences, University of 
            Missouri, 308 Tucker Hall, Columbia, MO 65211-7400, USA 
FEATURES             Location/Qualifiers 
     source          1..123 
                     /organism="Arabidopsis thaliana" 
                     /mol_type="mRNA" 
                     /db_xref="taxon:3702" 
                     /chromosome="2" 
                     /map="BAC F1N21" 
     CDS             1..123 
                     /note="similar to DVL1; DVL gene family member; 
                     overexpression causes pleiotropic phenotypic changes" 
                     /codon_start=1 
                     /product="DVL3" 
                     /protein_id="AAP13818.1" 
                     /db_xref="GI:37955426" 
                     /translation="MKGTKKKTPCNKKLGGYLKEQKGRLYIIRRCVVMLICWHD" 
ORIGIN       
        1 atgaaaggta ccaagaagaa gacgccatgc aacaaaaagc ttggaggata cttgaaagag 
       61 caaaagggaa ggctttacat catcagaaga tgtgtggtca tgctcatttg ttggcatgac 
      121 taa 
// 
 
  
Box 2.  Sequence retrieved from Blast search on the NCBI server January 18th 2005, applying 
the 33 bp sequence motif from Arabidopsis thaliana  as a probe. 
 
LOCUS       CNS0AEJL                 607 bp    mRNA    linear   HTC 06-FEB-2004 
DEFINITION  Arabidopsis thaliana Full-length cDNA Complete sequence from clone 
            GSLTSIL6ZB03 of Silique of strain col-0 of Arabidopsis thaliana 
            (thale cress). 
ACCESSION   BX818257 
VERSION     BX818257.1  GI:42475241 
KEYWORDS    HTC; GSLT_cDNA. 
SOURCE      Arabidopsis thaliana (thale cress) 
  ORGANISM  Arabidopsis thaliana 
            Eukaryota; Viridiplantae; Streptophyta; Embryophyta; Tracheophyta; 
            Spermatophyta; Magnoliophyta; eudicotyledons; core eudicots; 
            rosids; eurosids II; Brassicales; Brassicaceae; Arabidopsis. 
REFERENCE   1  (bases 1 to 607)  WT/DS291/R/Add.7 
 WT/DS292/R/Add.7 
 WT/DS293/R/Add.7 
 Page I-281 
  
    AUTHORS   Castelli,V., Aury,J.M., Jaillon,O., Wincker,P., Clepet,C., 
            Menard,M., Cruaud,C., Quetier,F., Scarpelli,C., Schachter,V., 
            Temple,G., Caboche,M., Weissenbach,J. and Salanoubat,M. 
  TITLE     Whole Genome Sequence Comparisons and 'Full-Length' cDNA Sequences: 
            A Combined Approach to Evaluate and Improve Arabidopsis Genome 
            Annotation 
  JOURNAL   Unpublished 
REFERENCE   2  (bases 1 to 607) 
  AUTHORS   Genoscope. 
  TITLE     Direct Submission 
  JOURNAL   Submitted (18-NOV-2003) Genoscope - Centre National de Sequencage: 
            BP 191 91006 EVRY cedex - FRANCE (E-mail: seqref@genoscope.cns.fr 
            - Web: www.genoscope.cns.fr) 
COMMENT     The sequences are based on single pass reads. 
            Life Technologies (a division of Invitrogen) members carried out 
            full-length librairies construction: Temple G. 
            Genoscope members carried out sequencing and annotation: Castelli 
            V., Aury J.M., Jaillon O., Wincker P., Menard M., Cruaud C., 
            Schachter V., Weissenbach J., Salanoubat M. 
            URGV INRA: Clepet C., Caboche M. 
            Annotation is based on the June 2003 version of the Arabidopsis 
            genome released by MIPS (Munich Information center for Protein 
            Sequences). 5 prime and 3 prime are assembled with Phrap. 
            http://www.genoscope.cns.fr/externe/sequences/Banque_Projet_EF/Full 
            _length 
            http://www.genoscope.cns.fr/cgi-bin/ggb/ggb?source=Arabidopsis. 
FEATURES             Location/Qualifiers 
     source          1..607 
                     /organism="Arabidopsis thaliana" 
                     /mol_type="mRNA" 
                     /strain="Col-0" 
                     /db_xref="taxon:3702" 
                     /clone="GSLTSIL6ZB03" 
                     /tissue_type="Silique" 
                     /plasmid="pCMVSPORT_6" 
ORIGIN       
        1 caacatctct atgtgctaag gcatctcttt ctctcccttt ctcaccaaat actctctcaa 
       61 tttctctctg ccactctctt tctctagaga ttttcataat gaaaggtacc aagaagaaga 
      121 cgccatgcaa caaaaagtct tggaggatac ttcgaaagag caaaagggaa ggctttacat 
      181 catcagaaga tgtgtggtca tgctcatttg ttggcatgac taatttacaa cttatatgtg 
      241 ttatatatac atgcatatgc acatgcatat tatagacaat atctacgttg tactacaacg 
      301 gtttgattga agaaagggat cggatcttcg tggttgtggc gatttgtgat gtgagcggag 
      361 ttcgcaagat agagatataa gggcttccaa ccattcatat catgtatatg agtttttact 
      421 cgtatatgag ttaagataat aatttttgag ttagtatgaa aatttatatg tagaatcttc 
      481 tctaatgtta gtgtatgata tagagtaagg agagaaaaat tataagctta gtttgtatat 
      541 gcacacagag agtagttgtt agttgaattt ccttgtctct aattaatcca agtcttcctt 
      601 cttgtta 
// 
 
Box 3.  Sequence retrieved from Blast search on the NCBI server January 18th 2005, applying 
the 52 bp sequence motif from Arabidopsis thaliana  as a probe. 
 
LOCUS       AY254203                 156 bp    mRNA    linear   PLN 04-MAR-2004 
DEFINITION  Arabidopsis thaliana DVL1 mRNA, complete cds. 
ACCESSION   AY254203 
VERSION     AY254203.1  GI:37955419 
KEYWORDS    . 
SOURCE      Arabidopsis thaliana (thale cress) 
  ORGANISM  Arabidopsis thaliana 
            Eukaryota; Viridiplantae; Streptophyta; Embryophyta; Tracheophyta; 
            Spermatophyta; Magnoliophyta; eudicotyledons; core eudicots; 
            rosids; eurosids II; Brassicales; Brassicaceae; Arabidopsis. 
REFERENCE   1  (bases 1 to 156) WT/DS291/R/Add.7 
WT/DS292/R/Add.7 WT/DS293/R/Add.7 
Page I-282 
  
  AUTHORS   Wen,J., Lease,K.A. and Walker,J.C. 
  TITLE     DVL, a novel class of small polypeptides: overexpression alters 
            Arabidopsis development 
  JOURNAL   Plant J. 37 (5), 668-677 (2004) 
   PUBMED   14871303 
REFERENCE   2  (bases 1 to 156) 
  AUTHORS   Wen,J., Lease,K.A. and Walker,J.C. 
  TITLE     Direct Submission 
  JOURNAL   Submitted (11-MAR-2003) Biological Sciences, University of 
            Missouri, 308 Tucker Hall, Columbia, MO 65211-7400, USA 
FEATURES             Location/Qualifiers 
     source          1..156 
                     /organism="Arabidopsis thaliana" 
                     /mol_type="mRNA" 
                     /db_xref="taxon:3702" 
                     /chromosome="5" 
                     /map="between At5g16020 and At5g16030" 
     CDS             1..156 
                     /note="DVL gene family member; overexpression causes 
                     pleiotropic phenotypic changes" 
                     /codon_start=1 
                     /product="DVL1" 
                     /protein_id="AAP13816.1" 
                     /db_xref="GI:37955420" 
                     /translation="MEMKRVMMSSAERSKEKKRSISRRLGKYMKEQKGRIYIIRRCMV 
                     MLLCSHD" 
ORIGIN       
        1 atggaaatga agagggtcat gatgagctct gcagagagat caaaggagaa gaagagatca 
       61 ataagtagaa gattggggaa gtatatgaag gaacaaaagg gaaggattta catcatcaga 
      121 agatgtatgg tcatgctcct ttgttcgcat gattga 
// 
 356. Exhibit EC63/At.120
 on confidential description of Rf3 transgene locus, which forms an 
integrated part of the updated risk assessment of September 2003, was completed on April 8th 2002, 
and shows that 5 bp 'filler' has been introduced between the 5-prime flanking sequence and the 5-
prime end of the inserted sequence. 
357. Exhibit EC-63/At.131  on confidential determination of th e inserted sequences in Ms8, which 
forms an integrated part of the updated risk asse ssment of September 2003, was completed on August 
15th 2001, and includes an alignment of the seque nce of the putative transforming plasmid pTHW107 
with the sequence of the inserted sequence present in  Ms8.  This was apparently a re-analysis and 
verification of earlier data, and pr oved to demonstrate several minor errors in the earlier data. The 
errors observed were the following. For the firs t fragment, covering the 5-prime flanking sequence 
and the bar gene cassette, two insertions of one nucleo tide each, one deletion of two nucleotides, and 
three (one plus two) nucleotide substitutions, were observed.  N one of these observed differences 
occurred in coding regions.  For the second fragmen t, covering the 3-prime flanking sequence and the 
barnase  gene cassette, three single nucleotide inserti ons and one deletion of  two nucleotides were 
observed.  The deletion was located in the 5- prime end of the PTA29 promoter sequence which 
regulates the transcription of the barnase  gene cassette.  The reanalysis also revealed that the inserted 
sequence was identical with the true sequence of the transforming plasmid, i.e. different from the putative plasmid sequence included in the or iginal data submitted by the notifier. 
358. Exhibit EC-63/At.132
 on confidential determination of th e inserted sequences in Rf3, which 
forms an integrated part of the updated risk  assessment of September 2003, was completed on 
September 11th 2001, and includes an alignment of the se quence of the putative transforming plasmid 
pTHW118 with the sequence of the inserted sequence present in Rf3.  This was apparently a re-analysis and verification of earlier data, and proved to  demonstrate several minor errors in the earlier 
data. The errors were the following.  For the fi rst fragment, covering the 5-prime flanking sequence 
and the bar gene cassette, three single nucleotide and one double nucleotides insertions, one double  WT/DS291/R/Add.7 
 WT/DS292/R/Add.7 
 WT/DS293/R/Add.7 
 Page I-283 
  
  nucleotides deletion and one single and two double nucleotides substitutions were observed.  The 
double nucleotides insertion was located in the pSsuAr a promoter which regulates the transcription of 
the bar gene cassette.  For the second fragment, covering the TA29 promoter, no deviations from the 
putative transforming plasmid sequence were observed.   For the third fragment, covering the promoter 
region of the anter specific TA29 gene a double nuc leotide deletion and a single nucleotide insertion 
was observed.  The deletion was located at the 5- prime end of the PTA29 promoter sequence. For the 
fourth fragment, no deviations from the putative tr ansforming plasmid sequence were observed.  For 
the fifth fragment, covering the 3-prime flanki ng sequences and the second (inverted) of the two 
integrated barstar  gene cassettes, two single nucleotide in sertions, one double nucleotide deletion and 
a single nucleotide substitution was observed.  The deletion was located at the 5-prime end of the 3'nos which defines the terminus of the transcription of the second (inverted) barstar  gene cassette. 
359. Exhibit EC-63/At.133
 on confidential information analys is of integration sequences Ms8, 
which forms an integrated part of the updated ri sk assessment of September 2003, was completed on 
September 26th 2003, and  
"revealed meaningful sequence similarity of the flanking plant DNA fragments of 
oilseed rape event Ms8 with published Brassica oleracea sequences.  None of these 
Brassica oleracea  sequence entries in the database are annotated.  The intrinsic 
bioinformatics methods used (Open Reading Frame search; analysis of the first ATG codon context sequences; core promoter a nd 3'UTR regulatory motifs search) did not 
produce evidence that a novel transcript might arise at either junction of the oilseed 
rape Ms8 insert." 
360. Exhibit EC-63/At.134
 on confidential information analys is of integration sequences Rf3, 
which forms an integrated part of the updated ri sk assessment of September 2003, was completed on 
September 26th 2003, and  
"revealed meaningful sequence similarity of the flanking plant DNA fragments of 
oilseed rape event Rf3 with published Brassica oleracea and Arabidopsis thaliana 
sequences.  None of these sequence entri es are annotated in the database.  The 
intrinsic bioinformatics methods used (Open Reading Frame search; analysis of the first ATG codon context sequences; core promoter and 3'UTR regulatory motifs 
search) did not produce evidence that a novel transcript might arise at either junction 
of the oilseed rape Rf3 insert." 
361. Exhibit EC-63/At.136
 on confidential Ms8 discriminating method shows that this method is 
not event specific, it is qualitative and it has onl y been assessed with DNA extracted from leaf punch 
or single seed material, i.e. it is not certain whet her it would work with lo w concentrations of GM 
material. 
362. Exhibit EC-63/At.137  on confidential Rf3 discriminating method shows that this method is 
not event specific, it is qualitative and it has onl y been assessed with DNA extracted from leaf punch 
or single seed material, i.e. it is not certain whet her it would work with lo w concentrations of GM 
material. 
363. Exhibit EC-63/At.138  on confidential demonstration of sp ecificity of methods for Ms8 and 
Rf3 shows that the methods are here only tested on Brassica napus  samples (event Ms1, Ms8, Rf1, 
Rf2, Rf3 and wild type).  It is not certain whether it would be specific with other samples, e.g. other 
GM events.   WT/DS291/R/Add.7 
WT/DS292/R/Add.7 WT/DS293/R/Add.7 
Page I-284 
  
Question 19 
 
Given the information before the Panel, includi ng the SNIF, the updated environmental risk 
assessment and the clarification provided by the notifier (EC-63/At.147), was the information 
regarding ecological effects of this product on agricultural systems requested by the lead CA 
(EC-63/At.149) necessary to ensure that conclusi ons of the safety assessment were valid? 
 
General comments 
 364. Three Panel's experts answered this question: Dr. Andow, Dr. Snow and Dr. Squire. They all 
concur that the information on ecological effects re quested by the lead CA was not available in the 
notification.  Dr. Snow considers that "the inform ation on the indirect effects of introducing herbicide-
tolerant crops could be considered as necessary
 because they are still being investigated in the UK".  
However, she questions "the feasibility of obtaining scientific data on all of the processes listed by the 
CA prior to deregulation without extensive multi- year studies and underlines the vagueness of the 
request of the lead CA asking for some unnecessary data".  Dr. Squire writes that "it is legitimate to 
ask what such effects might be since cropping wi th transgenic oilseed rape (MS8/RF3) and its 
herbicide has potentially new effects on arable flora (i.e. different from those of other oilseed rape 
varieties with other herbicides), which may be se verely depleted in any case.  The need for an 
appropriate comparator against which the new technology should be judged is noted".  And 
Dr. Andow states that "...although the UK-FSE trials  will not be published until later in 2003, 
everyone involved was aware of the experiments an d the possibility that th e associated herbicide use 
would have adverse environmental effects.  These issues are not addressed in the response of the notifier.  Hence, I conclude that the request by the lead CA for more information on point 9 was 
necessary  to ensure that conclusions of the safety assessment were valid." 
365. The European Communities concurs with the overall conclusion of the experts that it was 
legitimate to ask what such effects could be. On e of the principles of an environmental risk 
assessment is that it should be carried out in a scientifically sound and transparent manner based on 
available scientific and technical data.  For this r eason, an environmental risk assessment has to be up-
to-date and should cover all the relevant issues even  where uncertainty remains.  Moreover, if new 
information on the GMO and its effects on human hea lth or the environment becomes available, the 
environmental risk assessment may need to be re-addr essed in order to 1) determine whether the risk 
has changed, and/or 2) determine whether it is n ecessary to amend the risk management accordingly. 
366. For its general comments on the persistence of HT products and their potential as "pests", the 
European Communities refers the Pa nel to its comments under Question 6 above.  In the specifics of 
this case, it can easily be taken for granted that th e large scale application of broad spectrum herbicide 
in farmland area will cause wide-spread and serious disruption of trophic structures and food webs as 
the food basis of all species feeding on anything but the crop is eliminated at least temporarily and 
locally. The severity of this effect will be a function of the area sprayed and the frequency of 
applications. Such effects were all anticipated at that time and before 1998, however, solid data on 
GMHT crop production systems were lacking at time th at would have allowed to better quantify such 
effects. The publication of the first conclusions of the FSE trials on 8 October 2003 was a sufficient 
reason to support the request of the lead CA.  One could criticise the way the question has been 
formulated, the type of information asked, and the le vel of detail of the questions but fundamentally it 
was legitimate to ask the notifier to complement its  environmental risk assessment with the available 
data on the ecological impact of the novel weed ma nagement regime. In fact, data on safety issues 
related to combined use of the GM HT crop with th e herbicide, including indirect effects, could have 
been missing from the original environmental risk assessment because of a di fferent interpretation of 
the regulatory framework by the notifier and the lead  CA.  According to the lead CA, the indirect 
effects of herbicide treatments on the farmland biodi versity through the weed population and, more in  WT/DS291/R/Add.7 
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  general, novel weed management associated with the commercial release of  transgenic herbicide-
tolerant crops should be considered as a novel ag ronomic and management technique and should be 
assessed under any legal framework, and could ther efore be addressed under Directive 2001/18/EC. 
Detailed comments 
 
367. With regard to the remark of Dr. Andow  in paragraphs 19.05  and 19.06 , it is true that the 
data on epigaeic predators and honeybees was weak at  that time and remains so until today. It is 
questionable whether with some more studies pr ovided the knowledge would have improved greatly. 
This field was and remains to be qu ite understudied and highly complex. 
368. With regard to the remark of Dr. Andow  in paragraph 19.08 , the European Communities 
notes that
 the "feeding" study on rabbit was, in fact a single digestibility study. This study only 
compared the nutritional values of Ms8*Rf3 as a feed  with respect to its conventional counterpart 
through estimation of the digestible energy and the digestibility coefficients and is therefore neither a 
toxicological study nor a feeding study. A chicken feeding study is mentioned in the environmental 
risk assessment but the specific report was not included in the application. In fact, the lead CA made a 
mistake in this statement as no chicken feeding st udy has been carried out with the event Ms8*Rf3. 
The chicken feeding studies carried out by BCS included other events. 
369. As per comments included in paragraphs 19.09  and 19.10 , OSR indeed participates in 
geochemical cycling. Of course, like anything else in nature, also OSR participates in geochemical 
cycling and there are simple methodologies and experi ments that can be conducte d to provide at least 
some initial basic insights.  
370. The European Communities also concurs with the assessment of Dr. Andow  in paragraph 
19.12  of his response, that one 'benefit' of GMHT cr ops used for promotion of the products is that no-
tillage cultivation becomes possible. This is a very significant change in agricultural practice indeed. 
More information on this is necessary if that  is to be evaluated in the approval process. 
371. With regard to the comment by Dr. Andow, contained in paragraph 19.13 , on the length of 
time it took the lead CA to review the informat ion received and to articulate the questions, the 
European Communities refer the Panel to its General comments  above. 
Trifolium/Monsanto/Danisco Roundup Ready fodder beet (A5/15)  
C/DK/97/01 (EC chronology 64) 
Question 21 
 
Given the information before the Panel, including the lead CA's positive opinion (EC 64/At. 29-30) 
and the conclusions of the EC SCP (EC-64/At.83), di d the additional risk assess ment provided by the 
notifier (EC-64/At.104-105) in response to requests by the Dutch CA for a theoretical safety 
assessment address outstanding scientific concerns relate d to the potential risks associated with this 
product? 
 
General comments 
 
372. Two Panel's experts have addressed this questi on: Dr. Andow and Dr. Nutti, and they reach 
opposite conclusions.  According to  Dr. Andow, "the additional risk  assessment would have addressed WT/DS291/R/Add.7 
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Page I-286 
  outstanding scientific concern related to the potential risks associated with this product".
144  On the 
contrary, Dr. Nutti, without much of an explanation on the reasons, concludes that the additional risk 
assessment provided by the notifier "does not address outstanding scientific concern since they are not 
related to the potential risks associated with th is product", and "was not necessary in the first 
place".145  The European Communities agrees with Dr. Andow.  
373. The European Communities provides below mo re detailed comments on the information 
relating to molecular data in this notifica tion. As with regard to the comment by Dr. Andow , 
contained in paragraph 21.04 , on the length of time it took th e Dutch authorities to review the 
information received and request additional risk  assessment, the European Communities refer the 
Panel to its general comments above. 
Detailed comments 
 
374. The EC chronology includes several exhibits which are relevant for this question, in particular 
the following ones. 
375. Exhibit EC-64/At.029 , containing a short summary report from the Danish Environmental 
Protection Agency [EPA] on the dossier, dated 7 October 1997, states 
Southern blot and PCR analysis made on the genetic modified line A5/15 and 
following generations show that only one gene , cp4-epsps, from the vector is inserted 
and that the inserted DNA is stable.  Sub sequently the evaluation was restricted to 
insertion of the one gene, cp4-epsps, giving tolerance to glyphosate. 
376. Exhibit EC-64/At.083  containing the report from EC Scientific Committee on Plants, dated 
23 June 1998, states that  
2. Terms of reference .  The Scientific Committee on Pl ants is asked to consider 
whether there is any scientific reason to believe that the placing on the market of 
genetically modified fodder beet tolerant to  glyphosate with the purpose to be used as 
any other fodder beet is likely to cause an y adverse effects on human health and the 
environment. 
… 6.1.3. Transgenic construct in the genetically modified plant:  Vector pMON17204 
was designed to transfer DNA located between the right and left borders.  In the 
A5/15 construct it was determined that only part of the DNA between the borders 
were transferred.  Molecular analysis b ased on the Southern blot technique showed 
that the insert contains only the cp4 epsps gene.  The uidA, gox and nptII genes 
located between the borders in the vector we re not incorporated into line A5/15.  By 
PCR experiments it was stated that the pl asmid origins of replication (oriV and 
oriColE1) were not incorporated into line  A5/15.  The T-DNA was truncated in the 
E9 3' element before the 35S promoter and the uidA  gene resulting in a fully 
functional cp4 epsps  gene and no other elements of pMON17204 are inserted into 
line A5/15.  Southern blot analysis showed that there is one copy of T-DNA inserted into line A5/15.   
                                                     
 
144 Responses to Questions Submitted by Dr. Andow of 6 January 2005, para. 21.03. 
145 Answers by Dr. Nutti of 7 January 2005, p. 16.  WT/DS291/R/Add.7 
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  Stability of the insert was determined in two ways: 
(a) Testing of multiple generations of RR hybrids for tolerance suggested that the 
levels of tolerance are cons istent between generations. 
(b) Physical stability testing by Southern blot and PCR walking experiments 
were performed on the original transformati on event (T0) and on 5-6 plants from each 
of the subsequent 3 generations (T1 to T3).  It is indicated that no differences in the 
banding pattern were obser ved among the generations. 
The fact that no meaningful differences be tween the ranges and mean levels of CP4 
EPSPS in A5/15 were observed over 2 years in samples from field trials is consistent 
with stable insertion and expression of the RR gene over generations. 
377. Exhibits EC-64/At.104 and 105, containing a c onfidential letter from Monsanto to Dutch CA, 
dated 19 October 1999, where it is stated that: 
During our last discussion in your office on August 4, you have confirmed that the 
Dutch experts wanted to see new information: 1) either molecular characterization 
data demonstrating the absence of backbone sequences in the beet genome; 2) or a 
theoretical safety assessment based on th e hypothesis that the entire backbone 
sequences are present in the beet genome. 
We are currently in the process of generati ng further data to confirm the absence of 
the backbone sequences, and this informa tion should be available in the following 
months.  In the interim we are providing a risk assessment as requested under point 2 
(See attachment). 
378. It is not uncommon to conduct a theoretical sa fety assessment based on a worst case scenario.  
The lack of available detailed documentation de monstrating experimentally the absence of the 
backbone (plasmid/vector) sequences precluded a more  accurate and reliable safety assessment.  In 
this situation a theoretical assessment could logi cally be performed on a worst case scenario, i.e. 
under the assumption that the backbone sequences were present in the GMO.  Since such sequences at 
least theoretically could lead to establishment of chimeric open reading frames (ORFs) encoding 
proteins or other gene products  of unknown function, the theoretical safety assessment addressed 
outstanding scientific concerns related to pot ential risks associated with the product.   
379. Up until late in the 1990's little attention was pa id to detailed molecula r characterization of 
GMOs, primarily because of technological limita tions.  As technological solutions were made 
available that would allow for more detailed char acterization, i.e. improved PCR, cloning kits and 
automated sequencing tools, the gene tic maps became more detailed.  Pa rallel to this development, the 
literature grew rapidly on genetic  rearrangements and unintended ge netic effects associated with 
transformation.  When the CEN/TC 275/WG 11 had its  first meeting in Berlin in February 1999, 
researchers from several European countries were independently already planning projects that would 
focus on detailed characterization of the inserted and flanking sequences (often referred to as the 
border sequences of the transformation event), and development of event specific quantitative 
detection methods.  Previous communication with biotechnology companies and competent authorities by some of these researchers had made  it clear that the companies were generally 
unwilling to provide any kind of sequence information.   Furthermore, the competent authorities were 
sometimes either unable to communicate requests fo r verified insert and border sequence information 
to the biotechnology companies, or they were some times hesitant to do so.  In effect, requests were WT/DS291/R/Add.7 
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Page I-288 
  not always forwarded to the biotech companies, or they were sometimes lacking sufficient precision.  
However, given the high level of awareness in the biotechnology industry in relation to gene 
technology, it is very unlikely that the notif ier was unaware of the growing demand for such 
information.  The technology required to determin e the border sequences was available since the mid-
1990's,
146 and that to determine the insert sequences was available several years earlier.   
Question 22 
 
Given the information before the Panel, including th e conclusions of the SCP's risk assessment, was 
the information requested by the Italian CA in March 2000 (EC-64/At.116) necessary to ensure that 
conclusions of the safety assessment were valid? 
 
General comments 
 
380. Two Panel's experts addressed this question: Dr. Andow and Dr. Nutti.  Dr. Nutti, without 
explaining the reasons for her answer, comes to the c onclusion that the request of the Italian authority 
was not necessary, as far as food safety was concerne d.  Dr. Andow briefly elaborates on each of the 
aspects and finally considers that only the question on  transfer and recombinant in natural conditions 
was necessary to ensure that conclusions of the safety assessment were valid. 
381. The European Communities considers that the It alian CA was justified in requesting this 
further information in order to have the latest information on these issues and to determine likely 
frequency of such gene flow in order that ri sk management strategies could be developed. 
Detailed comments 
 
382. The Italian CA had asked for additional info rmation on the efficacy of glyphosate, gene 
transfer and gene flow to wild relatives. Italy is a major beet seed producing country and thus is 
concerned to protect the production of high qualit y seeds by maintaining high levels of seed crop 
purity and quality.  
383. Efficacy of glyphosate  is an issue because it would be n eeded to control contamination of 
beet seed crops with non GM and off-type beets,  as well as weeds. However, information on this 
could also have been gleaned from data on effi cacy of glyphosate from other sources (eg pesticide 
registration).   
384. There would also have been concerns about crop  safety and that seed yields or quality would 
not be reduced by applying glyphosate to HT seed crops. Such information was not provided in the 
application though there were comments on crop (root) yields and performance showing that it is often enhanced compared with conventional herb icides. This was also shown by some experts 
work
147.  
385. On the issue of gene flow to wild relatives , the SCP said that cross pollination and gene flow 
are known to occur between cultivated beets and w ild beet types. Different forms of beet are 
                                                      
146 Liu et al. 1995, TAIL-PCR, The Plant Journal 8(3): pp. 457-463. 
147 MAY, M.J. (2003) Economic consequences for UK farmers of growing GM herbicide tolerant sugar 
beet. Annals of Applied Biology, 142: 41-48.  WT/DS291/R/Add.7 
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  interfertile, as shown by the gene flow de tected between wild and cultivated beets
148 and by the 
transfer of useful genes of ssp maritima to new varieties of sugar beet149. 
386. Studies showed that gene introgression occurred150 potentially creating additional problems 
for conventional beet seed producers. This is because the introduction of GM beet may result in flow 
of transgenes to wild beets, where they are incorporated into these wild populations151.  Subsequent 
flow of transgenes from wild beet to non-GM beet  seed crops could introduce these genes into beet 
seed and weed beet contaminants of beet seed.  Th is could have important implications for the seed 
industry. 
387. Also, the SCP did not address in its Opinion the management of re-growth of HT beet roots 
left in the soil after harvest which can flower and cross pollinate with other beets and weed beet. This 
is especially important in seed production areas wh ich are often close to sugar beet production areas 
in Italy.  Glyphosate herbicide is often used in co nventional crop rotations to destroy such volunteer 
plants regrowing from root residues and conventional beet growers should change their practice as 
well. 
388. It was also important to know the tendancy fo r bolting (adventitious flowering in the first 
season) of the beet varieties likely to be transformed particularly as, in the past, fodder beets used to 
show more tendancy than sugar beet varieties. 
Amylogene starch potato  
C/SE/96/3501  (EC chronology 67) 
 
Question 25 
 
Given the information before the Panel, including the application (EC-67/At.13-44), and additional 
information provided by the notifier (EC-67/At.51, 57, 61-63, 75-83, 87, 92-93, 94-95, 101, and 103), 
was the information regarding  molecular characterisation, toxicity,  protein analysis, animal feed 
trials, effects on non-target organisms, bleomycin resistance, and substantial equivalence requested 
by the Scientific Committee for Food (SCF) (EC-67/At .84-86, 96, 98, 100, 10 2, 104, 105 and 106), 
necessary to support a valid safety assessment?  General comments 
 
389. Four Panel's experts have answered this qu estion: Dr. Andow, Dr. Healy, Dr. Nutti, and 
Dr. Snape.  Dr. Nutti considers that "the inform ation required was necessary to support a valid safety 
assessment. The notifier failed to provide inform ation on several fundamental issues concerning 
                                                     
 
148 Santoni S. and Bervillé A., 1992: Evidence for gene exchanges between sugar beet (Beta vulgaris 
L.) and wild beets: consequences fo r transgenic sugar beets. Plant Molecular Biology 20: 578-580; Boudry P., 
Mörchen M., Saumitou-Laprade P., Vernet Ph., Van Dijk H., 1993. The origin and evolution of weed beets: 
consequences for the breeding and releas e of herbicide-resistant transgenic sugar beets. Theoretical and Applied 
Genetics, 87: 471-478; Bartsch D. and Schmidt M., 1997. Influence of sugar beet breeding on populations of 
Beta vulgaris ssp. maritima in Italy. J ournal of Vegetation Science, 8: 81-84. 
149 Debock T.S.M., 1986. The genus Beta: domestication, taxonomy and interspecific hybridization for 
plant breeding. Acta Horticulturae 182: 335-343. 
150 Bartsch D., Cuguen J., Biancardi E., SweetJ. 2003. Environmental implications of gene flow from 
sugar beet to wild beet – current status and future research needs.  Environ. Biosafety Res. 2: 123-127. 
151 Arnaud J.F., Viard F., Delescluse M., Cuguen J., 2003. Evidence for gene flow via seed dispersal 
from crop to wild relatives in Beta vulgaris (Chen opodiaceae): consequences for the release of genetically 
modified crops species with weedy lineages. Proc. Roy. Soc., London, B270, 1565-1571. WT/DS291/R/Add.7 
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Page I-290 
  safety such as substantial equivalence, toxicity, prot ein analysis and animal feeding trials." Dr. Snape 
reinforces this point with regard to  molecular characterisation by concluding that "more information is 
still required". Similarly Dr. Andow, who only comment ed on the "non-target organism" part of the 
question, states that "a request for additional in formation was scientifically justified in 1999 and 
remains justifiable even today". On the contra ry, Dr. Healy concludes that: "The information 
requested after [20 July 2000] (and much of the inform ation requested prior to this date) is unlikely to 
influence the conclusions of the safety assessment." 
390. The European Communities shares the conclusi ons reached by Dr. Andow, Dr. Nutti, and 
Dr. Snape.  Detailed comments on the re ply by Dr. Healy are provided below. 
Detailed comments 
 
391. With regard to molecular characterisation , the European Communities concurs with the 
analysis of Dr. Snape.  The questions of the SCP address problems of elements in the flanking region 
("confusing and inconclusive PCR analyses to de monstrate absence of vector sequences flanking the 
border regions") as well as the antibio tic specificity of the nptII gene
152. The question of the SCP to 
the molecular characterisation of the backbone of th e plasmid as well as the question of the quality of 
the southern blot (overlapping probes, analysis of  nos gene region, contro ls) are according to the 
present state of the art of a characterisation. The question to the detailed level of molecular 
characterisation including an analysis of potential OR Fs and expression of genes is in accordance with 
the present state of the art for a molecular characte risation of a transformation event as defined by 
Codex, FAO/WHO consultations  and scientific literature,153 which requires a precise and detailed 
characterisation including sequencing in flanking re gions outside the boarders (where it is not agreed 
how many bps outside the boarder). Although this w as probably not so clearly defined at the time of 
the assessment by the SCP, the SCP reacted to upcoming evidences about possible unintended effects 
of insertions asking for a detailed molecular charact erisation of the product. The requests of the SCP 
are confirmed in their validity by  the standards presently accepted. 
392. As far as toxicity and feeding trial  are concerned, the identification of an ORF with 
transcription and unclear translation was a consequen ce of the inefficient molecular characterisation at 
this time and could have been of safety releva nce. The argument of Dr. Healy on compositional 
equivalence does not add to safety as a risk assessmen t. Looking for substantial equivalence at this 
time would not likely have detected hazards from such  an ORF event. In fact , the requested feeding 
trials might have not added subs tantially to the safety assessment bu t have been the best possible 
reaction to an unsolved problem and the available tools at this time. 
393. On the issue of protein analysis , Dr. Healy agrees with the requests for additional 
information formulated before July 2000.  On the contrary, on the SCP requests of 20 July 2000 
(EC-67/At.100), 1 February 2001 (EC-67/At.102), 14 March 2001 (EC-67/At.104), 3 April 2001 
(EC-67/At.105) and 8 November 2001 (EC-67/At.106), she concludes that "sufficient information is 
available" and that " further analysis including Western blotting requiring ORF4  specific 
antibodies is not justified". 
                                                      
152 See Exhibit EC-67/At.84. 
153 Codex Guideline for the Conduct of Food Safety Assessment of Foods derived from Recombinant-
DNA plants, CAC/GL 45-2003. FAO/WHO expert cons ultation, 2003.  D.A. ANDOW, D.A. SOMERS, N. 
AMUGUNE, F. ARAGAO,K. GHOSH, S. GUDU, E. MAGIRI, W.J. MOAR AND E. OSIR, Transgene Locus 
Structure and Expression of Bt Maize, Environ. Risk. Chap 04 in:  CAB International 2004. Environmental Risk 
Assessment of Genetically Modified Organisms: Vol. 1. A Case Study of Bt Maize in Kenya (eds A. Hilbeck and D. Andow).  WT/DS291/R/Add.7 
 WT/DS292/R/Add.7 
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  394. The European Communities considers the requ est for detailed sequence comparison as very 
important because it shows, inter alia, the still exis ting different point of view on the assessment of 
allergenicity. The Codex Guideline for the Conduct of Food Safety Assessment of Foods Derived 
from Recombinant DNA plants explains that  
… sequence homology searches have certain li mitations. In particular, comparisons 
are limited to the sequences of known allerg ens in publicly available databases and 
the scientific literature. There are also limita tions in the ability of such comparisons 
to detect non-contiguous epitopes capable of  binding themselves specifically with IgE 
antibodies. A negative sequence homology result indicates that a newly expressed 
protein is not a known allergen and is unlikely to be cross-reactive to known 
allergens. A result indicating absence of significant sequence homology should be considered along with the other data outlined under this strategy in assessing the allergenic potential of newly expressed prot eins. Further studies should be conducted 
as appropriate. 
395. A report of a Joint FAO/WHO Expert Consulta tion on Allergenicity of Foods Derived from 
Biotechnology, 2001, concluded that:  
5.6.1. Level of expression Highly allergenic proteins are often expr essed at relatively high levels. However, 
allergens can sensitize susceptible individuals  at less than milligram levels, possibly 
at less than  microgram levels (Sorva et al., 1994;  Jarvinen et al., 1999). ….Thus, level 
of expression cannot yet be incorporated into  the assessment of the allergenicity of 
genetically modified foods. 
In achieving the objective of conferring a spec ific target trait (intended effect) to the 
host organism by the insertion of DNA sequences, additional traits could, 
theoretically, be acquired or existing traits  lost or enhanced (unintended effects). 
Unintended effects may be due to factors such as random insertion events, which might result in disruption of existing gen es and modification of protein expression.  
6.1. Sequence Homology as Derived from Allergen Databases The commonly used protein databases (PIR, SwissProt and TrEMBL) contain the 
amino acid sequences of most allergens for which this information is known. 
However, these databasesare currently not fully up-to-date…… Structural similarity 
with known allergens may still be important if significant amino acid identity is found, but it is below 35 %. In this case significant cross-reactivity is unlikely…..Since identity of 6 contiguous amino acids has an appreciable risk of occurring by chance, verification of poten tial crossreactivity is warranted when 
criterion (1) is negative, but criterion (2) is positive. In this situation suitable 
antibodies (from human or animal source) have  to be tested to substantiate the 
potential for crossreactivity. 
Conclusion of the Consultation: The original decision tree from the FAO/WHO 2000 Consultation served as a basis 
for this consultation. The C onsultation concurred that this decision tree be modified 
as a consequence of more recent research and which is reflected in the FAO/WHO WT/DS291/R/Add.7 
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2001 decision tree. When the expressed prot ein is derived from a source with no 
known allergenicity, the FAO/WHO 2001 decision tree proposes that the initial investigation would also be analysis of  sequence homology to known allergens from 
food and environmental sources. If positive matches are found with known allergens, 
then the protein is considered likely al lergenic. If no significant sequence homology 
is identified, then targeted serum screeni ng is conducted with serum samples that 
contain high levels of IgE antibodies with a specificity that is broadly related to the 
gene source. If the targeted serum screening is  positive, then the protein is considered 
likely allergenic. If the targeted serum screen ing is negative, then pepsin resistance of 
the expressed protein and the immunogenicity  of the expressed protein in suitable 
animal models. 
396. The latest FAO/WHO consultation on GM foods of 2003 agrees that  
It has been recognized that there is no singl e parameter that can predict the allergenic 
potential of a substance. A strategy to asses s allergenicity of biotechnology products 
has been formulated (FAO/WHO, 2001; Codex Alimentarius Commission, 2003), which relies on the parameters: source of th e gene, sequence homology, serum testing 
of patients known to be allergenic to the source organism or to sources distantly 
related, pepsin resistance, the prevalen ce of the trait and assessment using animal 
models" 
397. The Consultation recommended that additional e fforts should be directed to the further 
development and validation of  models and that there is a need to improve the accessibility and 
interconnectivity of existi ng databases or to establish a centralized database on allergenic linear and 
conformational epitopes and tools for screening transg enes for allergenic potential.  Even the present 
strategy based on a sequence prediction model established by FAO/WHO was contradicted by 
important groups.
154 
398. These facts demonstrate that there is no agreed detailed, standardized common system for 
safety assessment of allergencity and even nowad ays many experts feel that assessment schedules 
need to be improved. Therefore the conclusion of Dr. Healy that "sufficient information is available to 
support the conclusions of the safety assessment" wit hout additional information as required by the 
SCP, cannot be accepted.  Already at the time  of the debate, the SCP adhered to scientific 
uncertainties in the assessment of a potential allerg enicity of GM foods which are even valid and 
more concrete nowadays. The requirement of tests including antibodies/sera is widely accepted in unclear situations nowadays. The assessment of the consequences of a new ORF with a potential 
protein with no history in risk assessment or food saf ety is certainly a case where additional testing is 
required according to the Codex Guideline. 
399. With regard to Dr. Healy's discussion of the SCP request for "in vitro data  on the survival of 
the APH(3')II protein from leaf tissue in the prese nce of rumen micro-organisms (and of ORF4, if 
expressed)"  (EC-67/At.85), the European Communities r espectfully submits that Dr. Healy is 
overstepping her mandate to analyse molecular ch aracterisation by discussing the risks associated 
with antibiotic resistance genes. The inte rnational understanding these issues has evolved 
substantially over the last years (see the Europ ean Communities' comments under questions 1 and 2 
above) and there is now wide international agreemen t that horizontal transfer of genes, especially 
antibiotic resistance genes, from GM plants or produc ts derived from such plants to micro-organisms, 
                                                     
 
154 Stadler and Stadler, Allergenicity prediction by protein sequence, FASEB, J 2003, 17, 9, 1141-3.  
Difficulties in the concept are summarised in Jank and Haslberger, Improved evaluation of potential allergens in GM food, Trends Biotechnol., 2003, 21, 6, 249-250.  WT/DS291/R/Add.7 
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  especially in the gut, is unlikely, but not impossible.  In consequence of this state of the art, an 
appropriate risk assessment, based on a case by case a pproach, in respect to a possible transfer of 
genes from a GMO to micro-organisms of the GI tract or in other relevant ecosystems is necessary 
and has to include aspects of the gene such as the resistance and the consequence of a possible 
transfer of the resistance. Dr. Healy agreed with th e relevance of this evalua tion to determine whether 
the potential ORF4 polypeptide would confer bleomy cin resistance (on bleomycin, see more below). 
400. Similarly, the European Communities respectfully  submits that Dr. Healy has overstepped her 
mandate when assessing the SCP request for data on the safety of modified crops to non-target 
organisms  (EC-67/At.84). 
401. With regard to bleomycin resistance , the dossier submitted contained strong indication that 
(a) an unknown protein may have been synthesised in the potato tubers and (b) that this protein may 
have encoded resistance against the antibiotic bleo mycin which is a chemotherapeutic used in cancer 
treatment. The potential risk was due to the use of a transformation vector, pBin19, which is broadly 
used in plant transformation. Therefore, this dossi er could have had consequences beyond this specific 
file. In this light, the SCP has scrutinised well all data, has had several meetings with the applicant 
and has concluded only when all no further doubt s existed. Consequently, the process might have 
been lengthy but the delays where all based on safety considerations. 
402. On the issue of substantial equivalence , the European Communities notes that, in principle 
the expert agrees with the need of this kind of assess ment. This discussion needs also to be seen in the 
light of developments and changes of concepts at th is time. The concept – that a comparison of a final 
product with one having an acceptable standard of  safety provides an important element of safety 
assessments of GMOs – was a commonly used basis for the development of both, food safety and the 
environmental risk assessment.
155 This concept was elaborated by FAO, WHO and OECD in the early 
1990s and referred to as substantial equivalence for the assessment of GM foods. But in 2000, a 
FAO/WHO consultation acknowledged that this concept  had attracted criticism from the perception 
that it was the end-point of a safety asse ssment rather than the starting point.156 Furthermore, 
evidences gathered about considerable variati on in constituents in GMOs in response to 
environmental conditions.157 The Consultation concluded that a consideration of compositional 
changes is not the sole basis for determination of safety and that safety can only be determined when 
the results of all aspects under comparison, ad not merely comparisons of key constituents are 
integrated. More recently the concept has evolve d to a Comparative Safety Assessment for GMO 
foods.158  
403. Finally, with regard to unintended changes  in GM crops detected by metabolic profiling, the 
European Communities would like to refer the Pa nel to a study using four independent potato 
                                                      
155 World Health Organization. 1991. Strategies for assessing the safety of foods produced by 
biotechnology. Report of a Joint FAO/WHO Consultation. World Health Organization, Geneva. Switzerland. 
156 FAO/WHO 2000; Safety aspects of genetically m odified foods of plant origin, a joint FAO/WHO 
consultation on foods derived from biotechnology, Geneva, Switzerland 29 May - 2 June 2000.  Millstone et 
al.,1999; Millstone E, Brunner E, Mayer S. Beyond 'substantial equivalence' Nature. 1999 Oct 7;401(6753):525-6. Schenkelaars, 2002: Schenkelaars P. Rethinking substantial equivalence. Nat Biotechnol. 2002 
Feb;20(2):119.   
157 Novak,W.K.; Haslberger,A.G., Substantial equivalence of antinutrients and inherent plant toxins in 
genetically modified novel foods., Food Chem.Toxicol., 2000, 38, 6, 473-483. 
158 Kok EJ, Kuiper HA., Comparative safety assessmen t for biotech crops., Trends Biotechnol. 2003 
Oct;21(10):439-44. WT/DS291/R/Add.7 
WT/DS292/R/Add.7 WT/DS293/R/Add.7 
Page I-294 
  genotypes characterized by modifications in sucrose metabolism
159.  This research has general 
implications for food/feed safety and for environm ent (target and non-target organisms could be 
affected in unpredictable ways) but also supports case-by-case assessments, as  each GM event could 
be uniquely different to the parental line or is ogenic (non-GM line). Nine lines for altered sucrose 
metabolism were transformed, a nd 88 metabolites analyzed. Of the 88, the majority exhibited 
significant changes in levels in 1 or more of the 9 transgenic events v. conventional potatoes.  In 
addition, 9 novel metabolites (not present in conventi onal potatoes) were discovered in some or all of 
the transgenic lines. This seems to be a striking  indication of how genetic engineering can cause 
widespread alterations in cellular metabolism.  The study also has an estimate of 90,000 to 200,000 
for the number of different molecules in the co mbined plant kingdoms; while Arabadopsis has 
roughly 5,000.  If 5,000 is typical for a sp ecies, and if the proportion of unmeasured 
potato compounds whose level is altered is anything li ke the "over half" of the 88 this study measured, 
one could be talking significant alterations in the e xpression levels of hundreds to thousands of genes, 
plus dozens or hundreds of novel compounds.  Grante d that most of these changes would likely not 
have any adverse impacts, it is still a large pool of al terations that, it seems to me, would be likely to 
harbour a few nasty ones.  
Monsanto Roundup Ready oilseed rape (GT73)  
C/NL/98/11   (EC chronology 70) 
 
Question 27  Given the information before the Panel, including th e notification, was the information regarding feed 
safety aspects of this product requested by the Netherlands (EC-70/At.8 and 13) necessary to ensure 
that conclusions of the safety assessment were valid?   
 
General comments  
404. Only one Panel's expert, Dr. Nutti, answered this  question. Her conclusion is that the studies 
requested by the Dutch authorities were not necessar y to ensure the product's safety assessment.  The 
European Communities respectfully disagrees because, as it will be shown in details below, very 
serious reserves on the interpretation of the results and on the conclusions of the rat experiments can 
be formulated.  This especially as Dr. Nutti addr esses only some aspects of  the safety assessment. She 
does not at all address the aspects of unintended e ffects based on sincere problems in the molecular 
characterisation, which are at the centre of con cern of the CA. The analysis of potential unintended 
effects is a central element in the gu idelines for a safety assessment in CODEX. 
Detailed comments 
 
405. With regard to the feed safety  aspects, the Dutch authority requested a whole report to 
evaluate composition (Exhibit EC-70/At.08) as well as the experimental results of semi-chronic rat 
and trout studies and an assessment of the relevanc e of the performed studies in experimental animals 
to predict the safety of the product in target animals such as ruminants, pigs and poultry 
(EC-70/At.13). This request for additional experiment s is particularly justified because these target 
species are known to be particularly sensitive for the detection of anti-nutritional factors (ANFs) such 
as goitrogenic effects of GT73, already suspected on rats. 
                                                     
 
159 Roessner U., Luedemann A., Brust D., Fiehn O. , Linke T., Willmitzer L., Fernie A.R., 2001. 
Metabolic Profiling Allows Comprehensive Phenotyping of Genetically or Envir onmentally Modified Plant 
Systems, in The Plant Cell, Vol. 13, 11–29.  WT/DS291/R/Add.7 
 WT/DS292/R/Add.7 
 WT/DS293/R/Add.7 
 Page I-295 
  
  406. It is clear from Exhibit EC-70/At.02 that very unsatisfactory experiment al designs have been 
used in rats experiments. The results on feeding studies were not accurately presented.  The first 6-
week feeding study revealed an incr ease in the absolute liver weight (+ 5 / 20 %) in male rats fed with 
GT 73.  The second 4-week experiment confirmed th e observations of the previous experiment. An 
increase in the relative liver weight (+ 12-16 % in males for a level of 15 % of toasted meal) has been 
observed. In addition, a mixture of seeds of different GT 73 lines has been acknowledged in the second experiment: "Inadvertent commingling of seeds …",
160 sic. Furthermore, the experiment was 
conducted apparently with only one group of animals fed GT 73, without a control group. 
407. What is also to be noted when considering th e answer provided to this question is that the 
assessment of toxicology , such as requiring feeding studies, needs to be supported by important 
aspects of molecular characterisation . Dr. Nutti does not at all consider the aspects of unintended 
effects based on problems in the molecular characterisation, nor could she relied on an answer to question 26, but – nonetheless – she comments on toxi cological relevant questions. This discrepancy 
(especially in the possible understanding of the basi s of her toxicological comments) deserves further 
examination. 
408. As seen above, the question of the Dutch CA addresses sincere lacks in the safety assessment 
of the product, especially significant flaws in th e molecular characterisation.  If the molecular 
characterisation of a product is not adequately pr ovided or if the characterisation indicates potential 
hazards (such as rearrangements in flanking region s, unclear ORFs or not-conclusive results of 
sequence analysis for toxicological assessment) at least toxicological testing using other methods, 
such as feeding studies, are required to exclude hazards from unintended effects which can not be 
clarified by the molecular characterisation. Howe ver, one might/should argue that results from non 
observed effects in toxicological relevant feeding studies cannot serve as a substitute of necessary conclusive results from a molecular characterisation. 
409. Whereas the need for analysing potential uni ntended effects and an adequate molecular 
characterisation was already discussed at the time of the CA request, recently important scientific 
organisation confirmed and detaile d this procedure. In a FIFRA SAP meeting of the US-EPA, the 
expert panel agreed on the relation between molecu lar characterisation and toxicology testing:  
Screening for unintended effects is encouraged. Such a screening could use profiling 
methods for unintended effects, e.g. expression microarrays or metabolomic studies 
(e.g., as discussed in SAFOTEST). However, as these tests are still under 
development, toxicology studies in rodents, looking for effects of unintended effects, 
although unlikely, could be appropriate. Wh ile the targeted safety assessment system 
in place today has apparently been effec tive in risk characterization, it cannot 
eliminate the chance that unintended or une xpected consequences of plant breeding 
will escape detection. It would be extrem ely useful to have comparative data 
regarding the frequency and magnitude of unintended effects associated with 
conventional plant breeding with or without the use of genetic engineering techniques 
upon which a quantitative risk assessment could be based
161. 
                                                      
160 See page 73 of the ACNFP Review of Glyphosate-tolerant Oilseed Rape, annexed to the 
Application contained in Exhibit EC-70/At.02. 
161 Minutes of the FIFRA Scientific Advisory Panel Meeting Held June 8-10, 2004: Product 
Characterization, Human Health  Risk, Ecological Risk, And Insect Resistance Management. WT/DS291/R/Add.7 
WT/DS292/R/Add.7 WT/DS293/R/Add.7 
Page I-296 
  410. As with regard to Codex, Dr. Nutti argues that  
… according to the Codex Guideline for th e Conduct of Food Safety Assessment of 
Foods Derived from Recombinant-DNA Plants  (Page 4, paragraph 53), some foods 
may require additional testing; regarding an imal feeding studies, extra studies may be 
warranted if changes in the bioavailability of nutrients are expected or if the composition is not comparable to conven tional foods. Although the product was 
concluded to be substa ntially equivalent … 
411. This summary of the Codex Guidelines is not comprehensive and is misleading. The cited 
paragraph 53 needs to be analysed together w ith paragraphs 11-13 and 17, which states that: 
… Detecting any potential adverse effects and relating these conclusively to an 
individual characteristic of the food can therefore be extremely difficult. If the 
characterization of the food indicates that the available data are insufficient for a 
thorough safety assessment, properly designe d animal studies could be requested on 
the whole foods. Another consideration in deciding the need for animal studies is 
whether it is appropriate to subject experi mental animals to such a study if it is 
unlikely to give rise to meaningful information.  
Due to the difficulties of applying traditiona l toxicological testing and risk assessment 
procedures to whole foods, a more focu sed approach is required for the safety 
assessment of foods derived from food pl ants, including recombinant-DNA plants. 
This has been addressed by the developm ent of a multidisciplinary approach for 
assessing safety which takes into account bot h intended and unintended changes that 
may occur in the plant or in the foods derived from it, using the concept of substantial 
equivalence.  
The concept of substantial equivalence is a key step in the safety assessment process. 
However, it is not a safety assessment in itself; rather it represents the starting point 
which is used to structure the safety assessment of a new food relative to its 
conventional counterpart. This concept is u sed to identify similarities and differences 
between the new food and its conventional counterpart
2. It aids in the identification of 
potential safety and nutritional issues and is considered the most appropriate strategy 
to date for safety assessment of foods derived from recombinant-DNA plants. The 
safety assessment carried out in this way does not imply absolute safety of the new 
product; rather, it focuses on assessing the safety of any identified differences so that the safety of the new product can be c onsidered relative to its conventional 
counterpart.  
… 
The safety assessment of foods derived from recombinant-DNA plants involves 
methods to identify and detect such unint ended effects and procedures to evaluate 
their biological relevance and potential impact on food safety. A variety of data and information are necessary to assess unintended effects because no individual test can detect all possible unintended effects or id entify, with certainty, those relevant to 
human health. 
412. The misleading conclusion that a risk assessme nt according to the substantial equivalent per 
se can establish safety was corrected explic itly in 2000 when a FAO/WHO consultation 
acknowledged that this concept  had attracted criticism because it was the end-point of a safety  WT/DS291/R/Add.7 
 WT/DS292/R/Add.7 
 WT/DS293/R/Add.7 
 Page I-297 
  
  assessment rather than the starting point
162. The Consultation concluded that a consideration of 
compositional changes is not the sole basis for de termination of safety and that safety can only be 
determined when the results of all aspects under comparison, ad not merely comparisons of key 
constituents are integrated. More recently the concept has evolved to a Comparative Safety 
Assessment for GMO foods.163  
413. The latest FAO/WHO expert consultation on GM animals, which updated the entire field 
(where FAO/WHO expert consultations are usually  the basis for Codex recommendations) concluded 
that  
An extensive molecular characterization of the inserted genetic material construct will 
generally be required, both before and after the insertional event. The molecular 
characterization should furthermore comprise an analysis of the copy number and a 
sequence analysis of the flanking regions of the place of insertion in order to identify 
any unintended effects. It is recommende d that the approach for the molecular 
characterization should be further standa rdized to include the flanking regions.164 
414. As the Dutch CA realised that fundament al problems were present in the molecular 
characterisation, it requested supplementary studi es to investigate potential unintended effects as 
requested in the Codex guidelines for GM plants. The argument that the substantial equivalent did not 
see any significant changes cannot at all mean that in this case no further testing is necessary, even in 
the absence of conclusive information from mol ecular characterisation. The safety assessment carried 
out according to the substantial equivalent does not imply absolute safety of the new product; rather, it 
focuses on assessing the safety of any identified differe nces so that the safety of the new product can 
be considered relative to its conve ntional counterpart (Codex).  Therefore, the requests of the Dutch 
CA fully adhered to Codex Guidelines. 
Question 28 
 
Given the information before the Panel, including the notification and the SNIF (EC-70/At.49-53), was the additional information provided in  Monsanto's submission to the Commission 
(EC-70/At.84-97) necessary to ensure that conc lusions of the safety assessment were valid? 
 
General comments 
 415. Two Panel's experts have provided answers to  this questions: Dr. Andow and Dr. Nutti.  
Dr. Andow considers that questions related to mon itoring that refer to specific parts of the risk 
assessment are justifiable, including  Italy's question related to the AMPA metabolite that is formed 
from the glyphosate (Roundup) herbicide, whilst he pe rceives the requirements for the monitoring 
procedures (e.g. Sweden, with regard to human and an imal health) as too strict, given that preferably 
                                                     
 
162 FAO/WHO 2000; Safety aspects of genetically m odified foods of plant origin, a joint FAO/WHO 
consultation on foods derived from biotechnology, Geneva, Switzerland 29 May - 2 June 2000; Canadian Royal 
Society: Canadian Royal Society, Elements of Precaution: Recommenda tions for the Regulation of Food 
Biotechnology in Canada, an Expert Panel Report on the Future of Food Biotechnology prepared by The Royal 
Society of Canada at the request of Health Canada, Canadian Food Inspection Agency and Environment Canada, 2001; Millstone et al.,1999; Millstone E, Brunner  E, Mayer S. Beyond 'substantial equivalence' Nature. 
1999 Oct 7;401(6753):525-6; Schenkelaars, 2002: Schenkelaars P. Rethinking substantial equivalence. Nat 
Biotechnol. 2002 Feb;20(2):119. 
163 Kok EJ, Kuiper HA., Comparative safety assessmen t for biotech crops., Trends Biotechnol. 2003 
Oct;21(10):439-44. 
164 FAO/WHO Consultation, 2003. WT/DS291/R/Add.7 
WT/DS292/R/Add.7 WT/DS293/R/Add.7 
Page I-298 
  "worst cases" should be monitored for.  Dr. Nutti, on the contrary, regards the additionally requested 
animal experiments as not necessary given the prev iously provided information and its (positive) 
evaluation by the EFSA GMO Panel.  More Detailed comments  on the experts' replies are provided 
below. 
Detailed comments 
 
416. The European Communities notes that question 28 pertains to additional information provided 
in Monsanto's submission, whereas replies of the Pane l's experts pertain to th e validity of some (but 
not all) of the questions that were addressed by Monsanto.   
417. Thus, for example, with regard to Dr. Andow's  comments on the strictness of the monitoring 
pertaining to, among others, procedures requested by Sweden on 28 February 2003, for monitoring for 
adverse effects to animals (consuming feed) and human health ( cf. EC-70/At.67-transl, pp. 3-4), the 
European Communities notes that Sweden had only reite rated, albeit in different but similar wording, 
the items mentioned in the monitoring plan s ubmitted by Monsanto itself on 13 December 2002
165.  
Therefore, the Swedish request posed no new requirements on the applicant.  It is also to be noted that 
the pertinent monitoring plan was updated with more  details of the animal feed and human health 
surveillance by the applicant in July  2003 (EC-70/At. 92, pp. 19-26). 
418. In addition, Dr. Nutti's notes that additional animal experiments have been requested.  
However, this request is not exp licitly mentioned or addressed by the applicant in its reply to the 
Member States comments (EC-70/At.85).  One exhibit reviews toxicity studies with rats, which had, 
however, previously been provided to the rapporteur Member State and therefore did not represent truly new additional information (EC-70/At. 90). 
419. With regard to additional information not cons idered by the Panel experts, Monsanto has 
provided a certain quantity of add itional information consisting of both replies and appendices.   
420. Additional information pertaining to bioinformatic studies  of open reading frames (ORFs, 
i.e. part of potential new genes) in the DNA fla nking the insert created by the genetic modification 
were requested by the United Kingdom (EC-70/At.85,  p. 10, additional information in EC-70/At.88 
and 94-96 (MSL18493).  These bioinformatics studies of ORFs are in line with Codex guideline,
166 as 
well as its Annex' paragraphs 8-11, regarding the presence of potential fusion proteins and the toxicity 
and allergenicity of newly expressed proteins.  Th e additional information was therefore necessary to 
ensure that conclusions of the safety assessment were valid. 
421. With regard to transgenic protein used for toxicity studies, a study showing the equivalence 
of the recombinant GOX  protein expressed in GM canola GT73 to that expressed in GM bacteria 
(Escherichia coli ) and purified for the purpose of safety testing was requested by Spain (EC-70/At.85, 
p. 11, additional information in EC-70/At.89 (M SL12968).  In addition, the applicability of studies 
with bacterially produced GOX and EPSPS was doubted by Austria.  The provided information is 
relevant for the safety assessment of a "new substance" in a GM plant, as explained by  Codex 
guidelines, paragraph 40: 
                                                      
165 EC-70/At.64, pp. 96-97: "Additional information to complement oilseed rape notification 
C/NL/98/11, as requested by the entering into force of the Directive 2001/18/EC", Annex VII, "Monitoring 
plan", point 2. 
166 Codex Guideline for the Conduct of Food Safety Assessment of Foods derived from Recombinant-
DNA plants, CAC/GL 45-2003, paragraphs 31D and 38.  WT/DS291/R/Add.7 
 WT/DS292/R/Add.7 
 WT/DS293/R/Add.7 
 Page I-299 
  
  This may require the isolation of the new substance from the recombinant DNA-plant 
or the production of the substance from an alternative source, in which case, the 
material should be shown to be bioche mically, structurally, and functionally 
equivalent to that produced  in the recombinant-DNA plant.167  
The additional information was th erefore necessary to ensure th at conclusions of the safety 
assessment were valid.  422. With regard to compositional analysis of glucosinolates  (toxic), additional information 
pertaining to the differences observed between GT73 canola and control canola was requested by 
Austria (EC-70/At.85, p. 13; additional informa tion provided in EC-70/At.90).  The comparative 
safety assessment, also termed the prin ciple of "substantial equivalence",
168 focuses on differences 
between the GM crop and its conventional counterpart  with a history of safe use.  Therefore, the 
statistically significant differences in glucosinolat e levels should be considered as to whether they 
would trigger a further safety assessment.  The add itional information, providing compositional data 
from later periods than previously, has an important role in support of the applicant's arguments that 
the glucosinolate levels are well within safety limits  and that their elevation in GM canola GT73 was 
of a transient nature.  The additional information wa s therefore necessary to ensure that conclusions of 
the safety assessment were valid. 
423. In addition, Monsanto has also provided rep lies without separate appendices that would have 
contained original studies or full reports.  These replies were provided in response to questions 
supplementary to those mentioned above.  These questions pertained to compositional analysis, 
herbicide residues, and potential allergenicity. 
424. For example, with regard to compositional analysis , Member States had sought clarifications 
about statistical analysis, herbicides used in the experiments, size of samp les taken for analysis, 
potential cross-contamination, and comparability of Ca nadian with European conditions.  With regard 
to phenotypic and agronomic characteristics, there was a question about the differences observed in 
one location.  These are details that are important in  the identification and interpretation of differences 
observed during the comparative safety assessme nt approach of "substantial equivalence"169.  The 
Member States' questions were therefore relevant to ensure that conclusions of the safety assessment 
were valid. 
425. Some of the Member States' questions with regard to allergenicity  pertained specifically to 
identicalness of transgenic products (GOX, and from other ORFs)  to known allergens and celiac-
disease-related proteins.  The identicalness at stake c onsisted of 6- or 7- amino acid identities that had 
been documented previously by the applicant, and that, in one case, had been identified in a peer-
reviewed article as part of an anti serum-binding segment of an allergen.170 The Annex to the Codex 
guideline,171 paragraph 8, recommends that: 
                                                      
167 Ibidem, paragraph 40. 
168 Ibidem, paragraph 13. 
169 Ibidem, paragraph 13. 
170 Kleter, G.A., Peijnenburg, A.A.C.M. (2002) Screening of transgenic proteins expressed in 
transgenic food crops for the presence of short amino acid sequences identical to potential, IgE - binding linear 
epitopes of allergens. BMC Struct ural Biology 2: 8. Available at  <http://www.biomed central.com/1472-
6807/2/8> (last visited on 28 January 2005). 
171 Codex Guideline for the Conduct of Food Safety Assessment of Foods derived from Recombinant-
DNA plants, CAC/GL 45-2003, page 40. WT/DS291/R/Add.7 
WT/DS292/R/Add.7 WT/DS293/R/Add.7 
Page I-300 
  
Strategies such as stepwise contiguous id entical amino acid segment searches may 
also be performed for identifying sequen ces that may represent linear epitopes.  The 
size of the contiguous amino acid segment should be based on a scientifically 
justified rationale in order to minimi ze the potential for false positive or false 
negative results
N. 
And in the footnote to this, it reads as follows: 
 
It is recognized that the 2001 FAO/WHO consultation suggested moving from 8 to 6 
identical amino acid segments in searches.  The smaller the peptide sequence used in 
the stepwise comparison, the greater the likelihood of identifying false positives, the larger the peptide sequence used, the greate r the likelihood of false negatives, thereby 
reducing the utility of the comparison. 
In the light of these recommendations by Codex, it  was legitimate for the Member States to ask 
questions about the 6- and 7- am ino acid segment identities.  In its reply to these questions, the 
applicant provided arguments for his c hoice for an 8-amino acid threshold, i.e. its "scientifically 
justified rationale" as recommended by Codex. The Me mber States' questions were therefore relevant 
to ensure that conclusions of the safety assessment were valid.  
Pioneer/Dow AgroSciences Bt corn Cry1F (1507)
 
C/NL/00/10 (EC chronology 74)  
Question 32 
 Given the information before the Panel, including the original notification (EC-74/At.1-15), was the 
information regarding molecular characterizati on of this product requested by the lead CA 
(EC-74/At.17 and 33) necessary to ensure that conclu sions of the safety assessment were valid?   
 
General comments 
 
426. Only Dr. Nutti wrote three lines on this question. Th ere she affirmed that "a lot of information 
was provided", however she felt "not capable of j udging if such material wa s enough to ensure that 
conclusions of the safety assessment were valid". 
427. The molecular characterization provided by the notifier was based on Southern blot analysis 
and assumptions about the specific sequence of the tr ansforming sequence and the insert.  This is not 
sufficient given the technological development in the 1990's and the accumulated literature on 
unintended genetic rearrangements etc. that may accompany presumably successful transformations 
of plants by the time the notification was su bmitted.  The information regarding molecular 
characterization of this product requested by the l ead CA was, therefore, necessary to ensure that 
conclusions of the safety assessment were valid .  The European Communities will provide below 
some detailed comments on the information requested  by the lead CA on molecular characterization. 
Detailed comments 
 
428. Table 4 of exhibit EC-74/At.005  summarizes the observed fragments during Southern 
analyses of the DNA insert of 1507 maize and may be compared with the predicted fragments listed in Table 3 of exhibit EC-74/At.005.  There are sever al fragments listed in Table 4 that were not 
predicted in Table 3, and that could not be referre d to similar fragments observed in negative control 
genomic DNA (see footnotes to Table 4). These extr a bands may represent genetic rearrangements or 
duplicate copies of insert elements.  The Southern blots presented in Figures 4-7 of exhibit  WT/DS291/R/Add.7 
 WT/DS292/R/Add.7 
 WT/DS293/R/Add.7 
 Page I-301 
  
  EC-74/At.005 were not reproduced in sufficient quality  to be evaluated.  The data provided cannot be 
said to demonstrate the absence of additional inserte d sequences. If such sequences were present, they 
would deserve to be characterised in more detail to determine whether they are likely to pose a risk to 
human or animal health or the environment. 
429. Question 3 of exhibit EC-74/At.017  requires the nucleotide sequences of both the vector and 
the integrated insert, i.e. the sequence that is actua lly present in the GMO (that may differ from that in 
the vector). And questions 5-7 of exhibit EC-74/At. 017 appear to say that the notifier was required to 
provide a sequence based characterisation of the DNA sequence(s) that is actually inserted in the 
GMO.  Furthermore, the detection method must be event specific to meet the requirement to confirm 
the unique molecular identity of the maize line.  All other types of detection method will fail to meet 
the requirement.
172 
430. Question 3 of exhibit EC-74/At.017 , as presented in exhibit EC-74/At.019 , and the 
information provided in Figures 1, 2, and 3 of ex hibit EC-74/At.019 appear to give details on the 
intended sequence of the vector but not of the in tegrated insert as it is present in the GMO, and 
possibly also not verified through sequencing of the vector.  This is similar to the situation discussed 
in relation to question 18 (EC chronology 63, exhibits 63/131, 63/132 and possibly also 63/115 above).  
431. The answers to questions 5 and 6 of exhibit EC-74/At.017 , provided in exhibit 
EC-74/At.019 , clearly demonstrate that the characterization was based on Southern blot analysis and 
not supported by DNA sequencing studies.  This al so means that a range of rearrangements and 
substitutions and/or insertions and deletions of short sequen ce motifs (e.g. single or double 
nucleotides) were unlikely to be detected (see comment under this exhi bit question 3, above). 
432. Based on the answer to question 3 of exhibit  EC-74/At.033 , provided in exhibit 
EC-74/At.054 , the European Communities believes that the inserted sequence in the 1507 maize 
should be verified by sequencing of the maize, not ju st by assuming that the sequence of the vector is 
unaltered.  There are several reports of such r earrangements, including a well known and frequently 
cited paper published a y ear before this reply,
173 suggesting that a full characterisation may be 
justified.  
433. Although Southern blot analysis with probes of the size applied here (cf. exhibit 
EC-74/At.054 , reply to question 4 of exhibit EC-74/At.033 ) is unlikely to detect short fragments that 
may have been integrated in other parts of the genome, the lead CA according to exhibit 
EC-74/At.002  seem to conclude that this is not a problem .  In this context, Table 4 of exhibit 
EC-74/At.005  should be noted, where several unpredicted bands were observed that have not been 
explained.  As commented above, it cannot be conc luded that the absence of unintended insertions is 
demonstrated (exhibit EC-74/At.005). 
434. Finally, the detection method seems to target a sequence motif that is not covering the 
junction between the flanking sequence of the recipi ent genome and the inserted sequence, but instead 
target a sequence resulting from a rearrangement of inserted sequences (cf. exhibit EC-74/At.057 ). 
This sequence motif is likely to maintain its status as unique to 1507 maize also if the same vector is 
                                                      
172 See e.g. Miraglia, M., Berdal, K.G., Brera, C., Corbisier, P., Holst-Jensen, A., Kok, E., Marvin, 
H.J.P., Schimmel, H., Rentsch, J., van Rie, J.P. & Zagon, J. (2004; alphabetical order).  Detection and 
traceability of genetically modified organisms in the fo od production chain.  Food  Chem. Toxicol. 42: 1157-
1180. 
173 Windels P., Tavernier I., Depicker A., Van Bock staele E. & De Loose M. (2001). Characterisation 
of the Roundup Ready soybean insert. Eur. Food Res. Technol. 213:107-112. WT/DS291/R/Add.7 
WT/DS292/R/Add.7 WT/DS293/R/Add.7 
Page I-302 
  used to transform new maize or ot her plants in the future.  The sequence is furthermore a single copy 
sequence in the haploid genome that carries the geneti c modification, and as such could be fit for the 
purpose of DNA based quantitation as well.  The detec tion method is qualitative, not quantitative, and 
the limit of detection is reported to be 0.1 % on kernel count basis (cf. exhibit EC-74/At.058 ).  The 
length of the amplification product is slightly longer than other typical event specific targets used in 
real-time PCR assays, and this may potentially limit its applicability for analyses of processed 
materials in comparison to methods that target s horter sequences.  However, no specific requirements 
concerning the length of amplicons have been rais ed in connection with the requests from the lead 
CA.   
Question 34 
 Given the information before the Panel, including the original notification and additional information 
provided by Pioneer (EC-74/At. 18-13, 35-50, and 53 -59), was the information regarding feed safety, 
detection methods and reference materials requested by the lead CA (EC-74/At.52 and 60) necessary 
to ensure that conclusions of the safety assessment were valid? 
 General comments 
 
435. Only Dr. Nutti addresses this question asserting that the requests from the Dutch CA were 
correct and necessary. Only with regard to th e request on detection method (EC-74/At.60), she 
considers herself not apt for judging. 
436. On this regard, the European Communities woul d like to note that the data relating to the 
detection has not yet been validated acc ording to international standards (see http://crl-gmo.jrc.it
) but 
has only been tested in the laboratory where it has b een developed. This is a completion of the first 
step of the process, i.e. the development and initial characterisation of the method. The second step is 
the evaluation of the data by an independent laborat ory (under the current legislation EC legislation, 
this is the Community Reference Laboratory) and the evaluation of the data in the light of the 
"minimum performance criteria for carrying out a validation study". In the case of Event TC1507, the 
full validation is currently still on going and therefor e, as of today there is no detection method that 
can be considered as "fit for the purpose". 
437. Furthermore, as for question 17, the European Co mmunities wishes to point out that the need 
for a detection method has been requested in the c ontext of post-marketing surveillance and not in the 
context of safety assessment. 
438. This said, the request contained in exhibit EC-74/At.060 is very clear and detailed with 
respect to the type of information sought and the sci entific basis for requesting the information.  Thus, 
although the need for a detection method is usually cons idered to be more rele vant to consumer policy 
than to safety, the availability of a reliable detec tion method constitutes also a precautionary measure.  
In fact, in the very unlikely event that an authori sed GMO is found to be harmful to human health, the 
availability of a reliable detection method may fac ilitate efficient tracing and withdrawal of the GMO 
and its derived products.  Without reference materials, no detection method can be considered truly 
reliable.  The request for a detection method and re ference material is therefore necessary also from a 
safety perspective.  
Question 35 
 In your view can EC field trials, in France, Italy, and Chile, provide compositional data on maize 
kernels that is relevant to evaluating cu ltivation areas exporting maize to the EC? 
  WT/DS291/R/Add.7 
 WT/DS292/R/Add.7 
 WT/DS293/R/Add.7 
 Page I-303 
  
  General comments 
 
439. Two Panel's experts, Dr. Andow and Dr. Nutti, replied to this question. Their conclusions 
diverge substantially.  Dr. Nutti states that the com positional data on France, Italy, and Chile were 
supplementary to other previously provided data (w hich, in fact, they were not) and that therefore, 
they would not have been necessary.  In so doi ng, she does not really address the question of the 
Panel.  Dr. Andow, on the contrary, clearly concludes that "maize from France , Italy, and Chile would 
not provide compositional data on maize kernels th at is relevant to evaluating cultivation areas 
exporting maize to the EC". 
440. The European Communities conc urs with Dr. Andow's above conclusion and will provide 
below some detailed comments on replies from both experts. 
Detailed comments 
 441. In paragraph 35.07 , Dr. Andow  discusses the point that no explicit scientific rationale has 
been provided for the lead CA's request mentione d above.  Whereas the lead CA's request is not 
mentioned in question 35, it is in line with th e Codex guideline, paragraph 45, pertaining to 
compositional analysis of key components, which reads as follows: 
The location of field trials should be representative of the range of environmental 
conditions under which the plant varieties w ould be expected to be grown.  The 
number of trial sites should be sufficient to allow accurate assessment of 
compositional characteristics over this range.  Similarly, trials should be conducted 
over a sufficient number of generations to a llow adequate exposure to the variety of 
conditions met in nature.
174 
Therefore, while no explicit rationale is provided in the lead CA's request, this is in line with Codex 
recommendations. 
 442. Indeed, Dr. Nutti correctly notes that the com positional data should be  in line with Codex 
recommendations, citing paragraph 45 of these guidelin es with regard to the choice of field trial 
location being representative for the various environm ental conditions for crop cultivation.  However, 
Dr. Nutti assumes that the compositional data from Fr ance, Italy, and Chile has been provided as a 
supplement to previous data that would comply wi th Codex guidelines.  Perhaps the answer by the 
applicant (EC-74/At.36, p.5), recapitulating what has previously been provided, might have created this confusion.  However, the data from France, Italy, and Chile were the only compositional data 
provided by the applicant at that time (summa rized on pp. 11-26 of EC74/At.7).  Based upon the 
Codex paragraph cited by Dr. Nutti,  and given that the applicatio n concerned import of maize 1507, 
the question whether France, Italy, and Chile are re levant for areas exporting maize to the EU would 
therefore still be relevant.  And, as discussed by Dr. Andow, as these countries are not among the major exporters of maize in the world, the answer to the question should be negative.  
                                                     
 
174 Codex Guideline for the Conduct of Food Safety Assessment of Foods derived from Recombinant-
DNA plants, CAC/GL 45-2003. WT/DS291/R/Add.7 
WT/DS292/R/Add.7 WT/DS293/R/Add.7 
Page I-304 
  
Pioneer/Dow AgroSciences Bt corn Cry1F (1507)
 
C/ES/01/01 (EC chronology 75) 
 
Question 36  Given the information before the Panel, includi ng (EC-75/At.1), was the information regarding 
molecular characterization, toxicity, and environm ental impact of this product requested by the 
National Biosafety Committee of Spain (NBC) (EC-75/At.5) necessary to ensure that conclusions of 
the safety assessment were valid?       
 (a) Given that Pioneer had notified this product under the regulation concerning the 
deliberate release of this plant (cultivation) , were concerns raised by the lead CA on 
allergenicity and toxicity of the proteins  expressed by the inserted gene sequences 
relevant to the risk assessment of this product? 
 General comments 
 
443. Both Dr. Nutti and Dr. Andow have provided an swers to this question in their respective 
fields of expertise. Their replies overlap on toxicity issues, on which they take widely differing 
positions. Dr. Nutti's comments point to a factual misunderstanding dismissed. Dr. Andow's analysis 
to the greatest extent confirms the lead CA's approa ch in this instance.   Furthermore, the European 
Communities notes that no expert has commented on the request for additional molecular characterisation and will, therefore, offer a few brief comments itself. 
Detailed comments   
 
444. Dr. Nutti's reply on question 36 points to a mi sunderstanding on the lead CA's side. When 
stating that "the protein used in the toxicology a nd allergenicity tests was obtained in a heterologous 
system and not in other maize" Dr. Nutti bases herself on the data contained in EC 75 At. 1. These data are actually from a later date (February 14
th, 2002) than the requests in EC 75 At.5 (November 
28th, 2001).  In fact, these are the data that the app licant provided in response to the lead CA's request 
in At. 5. 
445. In any event, specifically in the context of f ood safety the requested information with regard 
to the source of the transgenic protein is relevant  for the safety assessment of a "new substance" in a 
GM plant, as explained by the Codex guideline CAC/GL 45-2003: 
"This may require the isolation of the new substance from the recombinant DNA-
plant or the production of the substance from an alternative source, in which case, the 
material should be shown to be bioche mically, structurally, and functionally 
equivalent to that produced  in the recombinant-DNA plant. "175  
446. Dr. Nutti's reply on question 36a which she links to the lead CA's question on degradation of 
proteins (question 6 of At. 5) seems to be b ased on a misunderstanding regarding the chronological 
order of data submitted as above, a nd the data discussed in the answ er may not have been known to 
the lead CA at the time of the request.  In a ddition, the lead CA's questions on toxicity and 
                                                      
175 Codex Alimentarius, 2003. Codex Principles and Guidelines on Foods Derived from Biotechnology. 
Codex Alimentarius Commission, Joint FAO/WHO Food Standards Programme, Food and Agriculture 
Organization, Rome. ftp://ftp.fao.org/codex/standard/e n/CodexTextsBiotechFoods.pdf, {Codex alimentarius, 
2003; par. 40}  WT/DS291/R/Add.7 
 WT/DS292/R/Add.7 
 WT/DS293/R/Add.7 
 Page I-305 
  
  allergenicity were relevant, since the applicati on for cultivation of maize 1507 also included animal 
feed purposes. 
447. In any event, Dr. Andow provides a thorough explanation on why data on degradation of 
protein is necessary (Dr. Andow's reply on question 36, para. 36.06). Specifically in the context of 
food safety, this is confirmed by the recommendations by Codex in its guideline for the safety assessment of foods from plants derived through modern biotechnology:  
In the case of proteins, the assessment of  potential toxicity should focus on …… 
stability to heat or processing and to degrad ation in appropriate representative gastric 
and intestinal model systems."
176  
The absolute exposure to the newly expressed  protein and the effects of relevant 
processing will contribute toward an overall conclusion about the potential for human 
risk.  In this regard, the nature of th e food product intended for consumption should 
be taken into considerati on in determining the types of processing which would be 
applied and its effects on the presence of  the protein in the final product.177  
448. Dr. Andow addresses the environmental issues in great detail. He concludes that most of the 
requests of the Spanish CA were valid to ensu re the conclusions of the safety assessment were 
relevant to Spain and rigorously conducted. Indeed , toxicity and environmental impact data on other 
species (e.g. regionally appropriate non target in sects, including other non-do mesticated herbivores) 
and regional environments (local gr owing regions in Spain) would be  needed to accurately determine 
toxicity and environmental impacts to local Span ish fauna of Bt corn Cry1F and its degradation 
products (i.e. resulting from ingestion by herbivores and decomposition in the soil of plant material 
and root exudates). Even for target pest species from different countries or regions, sensitivities to 
expressed Bt toxins vary widely.  Hence it can be r easonably expected that the same (species-specific 
and even population-specific variability in sensitivit y to Bt toxins) will apply to local non target 
species that could be affected by this Bt toxin e.g. local butterflies of conservation concern or of 
heritage value. There is thus s upport for the argument that there still was scientific uncertainty about 
impacts of Bt crops on regionally-appropriate target pest populations and non-target species. 
Therefore there were scientifically justified envir onmental concerns (i.e. case-by-case and potentially 
member state specific) and also unanswered scientific  questions over the reliability of the 'high dose 
and refugia' strategy to work if the particular Bt crop event has not been tested regionally. The point 
of these specific tests are to ensure that a) th e regionally selected species of target pests are 
susceptible to the expressed Bt t oxin AND that b) regionally selected non-target species are not 
susceptible to the expressed Bt toxin or meta bolites, if exposure is considered likely. 178  
                                                      
176 Codex guideline CAC/GL 45-2003, para. 38. 
177 Codex guideline CAC/GL 45-2003, para. 16. 
178 Publications on the issue of target pest and non- target lepidopterans differing in their sensitivity to 
Bt toxins include Felke, Lorenz & Langenbruch (2002). J. Appl. Entomol. 126: 320-325; Wolt, Peterson, 
Bystrak & Meade (2003). Environ. Entomol. 32(2) 237- 246; Dutton, Romeis &  Bigler (2003). BioControl 27: 
441-447; Fitt et al., 2004 Report for International  Cotton Advisory Committee, pp 1-64; Fitt 2003; Proc. 3rd 
World Cotton Research Conf, Cape Town, pp 371-381; Bern al, Griset &  Gillogly (2002 ). J. Entomol. Sci. 37: 
27-40.  Publications showing species differences in Bt toxin sensitivities for lepidopteran, non-pest species 
which could have regional- or country-specific conservation or heritage value. i.e. non-target herbivores 
(butterflies) that could be affected by Bt crops include: Wraight, Zangerl, Carroll &  Berembaum (2001). Proc. Natl. Acad. Sci. USA 97: 7770-7773;  Zangerl, McKenna,  Wraight, Carroll, Ficarello, et al., (2001). Proc. Natl. 
Acad. Sci. USA 98: 113-118; Sears, Hellmich, Stanley-Horn, Oberhauser, Pleasants, et al., (2001). Proc. Natl. 
Acad. Sci. USA 98: 119317-42; Jesse & Obrycki (2000) Oecologia 125: 241-248; Jesse & Obrycki (2002). J. WT/DS291/R/Add.7 
WT/DS292/R/Add.7 WT/DS293/R/Add.7 
Page I-306 
  449. Finally, as the issue of molecular characterisa tion has not been addressed by any expert, the 
European Communities would like to offer the following brief comments: 
450. The European Communities would refer to the in ternationally agreed principles regarding the 
necessity of detailed molecular characterisation in a thorough safety assessment (see section III on 
general and methodological issues, and the expert rep lies on Q 9, 111 et suiv).  As regards the present 
case, the National Biosafety Committee of Spain (NBC,  EC-75/At.5) concluded that the issue of a 
possible open reading frame (ORF) was not suffici ently addressed, and requested more information 
on this, along with a verified sequence characterisation of the insert.   
451. It should be noted that the dossier is dated July 6
th 2001, i.e. several months after the 
publication of Windels et al. (2001).179  The applicant, therefore, must have been familiar with the 
issue of unintended rearrangements and the unin tended presence extra fragments.  The original 
dossier did not include essential data for the molecu lar characterization, such as a verified sequence 
characterisation of the insert nor flanking sequences or a PCR method for detection of the GMO.  The 
CA's request for additional information was, theref ore, necessary to ensure that conclusions of the 
safety assessment were valid. 
Monsanto Roundup Ready corn (NK603)  
C/ES/00/01  (EC chronology 76) 
 
Question 37 
 
Given the information before the Panel, including  the notification (EC-76/At.1-2 and 27), was further 
information regarding molecular characterisation,  nutritional analysis, and environmental impact 
requested by the lead CA (EC-76/At.6) necessary to ensure that conclusions of the safety assessment 
were valid?   
 
General comments 
 
452. Dr. Nutti, Dr. Andow and Dr. Squire have pr ovided answers to this question in their 
respective fields of expertise.  Dr. Nutti's repl y seems to be based on an erroneous assumption due 
perhaps to a misreading of the Spanish text. While disagreeing with some of the requests made by the 
lead CA, Dr. Andow confirms the necessity of requesting informati on on gene escape/spillage. In that, 
he is supported by Dr. Squi re who adds further argumen ts on the relevance of such  data for the case at 
hand.  Furthermore, the European Communities notes that no expert has provided comment on the request for additional information on molecular charact erisation and will, therefore, offer some brief 
comments itself. 
Detailed comments 
 
453. Dr. Nutti's
 comment relates to toxicity and nutritio nal studies in the context of determining 
substantial equivalence.  Her st atements acknowledge the importance of the animal studies that have 
been carried out by the applicant on chicken broilers and rats.  The point she makes is that no additional studies beyond a broiler feeding study and a subchronic rat toxicity study are needed: 
"Whatever studies were further requested by the lead CA in EC-76/At.6, such studies were not 
necessary." Thus, she seems to assume  that the lead CA had asked for additional studies, which would 
                                                                                                                                                                    
 
Kansas Entomol. Soc. 75: 55-58; Jesse & Obrycki (2003) Agric. Environ. 97: 225-233; Hellmich, siegfried, 
Sears, stanley-Horn, Daniels, et al., (2001). Proc. Natl. Acad. Sci. USA 98: 11925-30. 
179 Windels P., Tavernier I., Depicker A., Van Bock staele E. & De Loose M. (2001). Characterisation 
of the Roundup Ready soybean insert. Eur. Food Res. Technol. 213:107-112.  WT/DS291/R/Add.7 
 WT/DS292/R/Add.7 
 WT/DS293/R/Add.7 
 Page I-307 
  
  expand on the previous experiments with broilers a nd rats. However, the lead CA had not asked for 
additional studies, but had merely repeat ed a request for submission of the reports  of the chicken 
broiler and rat studies (in Spanish):  
se reitera  la petición de remisión de los estudi os de alimentación realizados con 
pollos y los estudios de toxicidad de la pr oteína a dosis repetidas, tan pronto estén 
disponibles," (EC76, At. 6, p. 2, par. 8, emphasis added). 
454. These reports, which are the ones referred to as necessary by Dr. Nutti herself, were not 
included in the original application.  Following the above renewed request, they were submitted by 
the applicant in September 2001 (Annexes 4 and 5 of EC76, At. 8_SCI, summary on pp. 20-31, title 
pages on pp. 39-40).  
455. Dr. Nutti, therefore, apart from the erroneous assumption she makes, is in complete 
agreement with the lead CA in this instance. 
456. Dr. Andow
 is rather critical of the need for certain data, on the basis of a request found in a 
previous attachment (At5) which, as regards envi ronmental assessment and management plan, he 
believes would only be needed in the context of cu ltivation, but not, as is the case here, where the 
product in question is destined for import only. Two po ints should be made on th is: First, it seems that 
all three experts discuss different background docum ents and requests.  Second, it may be safe to 
assume, as does Dr. Andow, that the lead CA was an ticipating future cultiva tion of the product in 
light of an impending application for cultivation.  In  light of this, even if one were to argue, that 
requests relating to herbicide use, non target orga nisms etc. were outside the scope of the present 
application, the request for information considered by Dr. Andow would have been relevant if the CA 
had reasons to believe that the im ported grains could have escaped unintentionally and be maintained 
into the environment, or more likely, that th ey wanted to better prepare the assessment of a 
forthcoming application on deliberate release. That CA request does not state at any point that it is 
"suspensive", and it may therefore simply be a nor mal cooperative exchange of information between 
applicants and CA to prepare the ground ffor future or imminent applications. 
457. In any event, Dr. Andow  suggests that accidental spillage should be the focus of the 
information provided by the applicant: "Some inform ation is necessary to consider how gene escape 
can occur either during processing, storage or trans port, but detailed information is not necessary."  
Dr. Squire's reply supports and reinforces this view for the particular case at hand (Spain): "On the 
more specific question of whether GMHT maize persis ts (accidental germination), it is justified to 
query the original statement since emergence has be en recorded in some southern European areas." 
458. Finally, as regards the request for additional information on molecular characterisation, on 
which no expert has commented, the European Co mmunities would like to offer the following brief 
comments: 
459. The European Communities would refer to the in ternationally agreed principles regarding the 
necessity of detailed molecular characterisation in a thorough safety assessment (see section III on 
general and methodological issues, and the expert rep lies on Q 9, 111 et suiv).  In the present case, it 
should be noted that the notification is dated January 2nd 2001.  The applicant, therefore, was already 
familiar with the contents of Windels et al. (2001)180 and the issues of molecular characterisation of 
inserts, flanking sequences and possible rearrangement s and extra fragments.  According to the SNIF 
                                                      
180 Windels P., Tavernier I., Depicker A., Van Bock staele E. & De Loose M. (2001). Characterisation 
of the Roundup Ready soybean insert. Eur. Food Res. Technol. 213:107-112. WT/DS291/R/Add.7 
WT/DS292/R/Add.7 WT/DS293/R/Add.7 
Page I-308 
  (EC-76/At.2) the notification did not include verified sequence data for the full insert, only for the flanking sequences and the 5' and 3' ends of the insert.  The Spanish CA's request pertains to these 
data ("la secuencia genética completa introducida, incluidas las secuencias flanqueantes"), and was, 
therefore, necessary to complete the risk analysis, and in particular to enable the development of 
appropriate detection methods.  The applicant partially provided the data on September 5
th 2001 
(EC-76/At.7-8), (but not the verified sequence data for the complete insert).   
Question 38 
 
Given the information before the Panel, including  the notification and letter from Monsanto providing 
additional information (EC-76/At.7-9), was additio nal information necessary regarding molecular 
composition and environmental impacts associated with  accidental germination requested by the lead 
CA (EC-76/7-9 and 10) necessary to ensure that conclu sions of the safety assessment were valid?   
 
General comments   
 
460. Dr. Andow and Dr. Squire both comment on this question in addressing the issue of 
environmental impact of accidental dissemination or germination. This issue was already addressed by both experts in question 37, where both conf irmed the necessity of a request for additional 
information on this. The present comments add to the debate on the specificity of such a request.  
Although perhaps generally more critical than Dr. Squire on the question of specificity, Dr. Andow 
supports the lead CA's request as "necessary to ensure that conclusions of the safety assessment are 
valid."   
461. Furthermore, the European Communities notes that no expert has provided comment on the 
request for additional information on molecular ch aracterisation.  The Eu ropean Communities would 
refer to the internationally agreed principles regarding the necessity of detailed molecular 
characterisation in a thorough safety assessment (see  section III on general and methodological issues, 
and the expert replies on Q 9, 111 and following).  
462. On October 10
th 2001 (EC-76/At.10) the request of the CA was for the application of PCR to 
detect small fragments, and for the application of RT-PCR to detect possible transcripts of a possible unintended open reading frame (ORF). The notifie r provides more data concerning the possible ORF 
in EC-76/At.12. These data clearly indicate that the use of RT-PCR improved the sensitivity of the 
molecular characterisation in comparison to the Nort hern blot data provided in the notification. A 
previously undetected transcript was detected  and characterised with RT-PCR, although this 
apparently did not derive from the possible ORF.  Therefore, although the notifier concludes that the 
conclusion in relation to safety provided in the notifi cation is not altered, one can conclude that the 
lead CAs request for additional information at this  point was necessary to ensure that conclusions of 
the safety assessment were valid. 
Question 39 
 Given the information before the Panel, includi ng the notification and additional letter from 
Monsanto providing additional in formation (referenced above and EC-76/At.11-12), was additional 
information regarding molecular characterizati on and toxicology requested by the lead CA 
(EC-76/At.14) necessary to ensure that conclu sions of the safety assessment were valid? 
 General comments  
463. Dr. Nutti and Dr. Squire have commented on parts of  this question in their respective fields of 
expertise.  Dr. Nutti addresses the issue of safety marg ins in feeding studies.  As she bases herself on  WT/DS291/R/Add.7 
 WT/DS292/R/Add.7 
 WT/DS293/R/Add.7 
 Page I-309 
  
  a document which she cannot have seen (as it has not been submitted to the Panel) her reply must be 
dismissed.  Dr. Squire restates his general reply to questions 37 through 39 with which the European 
Communities is generally in agreement.   
Detailed comments 
 
464. Dr. Nutti refers to the lead CA's request for clar ification on the titles of tables 2 and 3 on p. 24 
of Appendix 2 ("una aclaración sobre los títulos de  las tablas 2 y 3, pág. 24 del Apéndice 2), 
concluding that that request was not necessary.  Ho wever, the appendix that the lead CA is referring 
to is not part of the documents submitted to the Pane l.  EC 76 Att. 12 SCI only contains the title page 
of the appendix.  It is therefore not known to which details the request of the lead CA pertains.  Dr. Nutti's conclusion that the request was not necessary, thus, has no foundation.  
465. In general, safety margins for animal feeding, i.e. the ratio between the minimum level where 
adverse effects occur and the actual intake, are impo rtant in assessing the risks associated with the 
intake of a potentially noxious compound.  Prefer ably the safety margin is way above 1, in other 
words: the intake of a noxious compound should be  way below the minimum dose at which it would 
exert adverse effects.  This information was therefor e relevant to risk assessors in the interpretation of 
toxicity data and is addressed, for example, by Codex guideline
181, paragraph 35: 
The safety assessment should take into account the chemical nature and function of 
the newly expressed substance and identify th e concentration of the substance in the 
edible parts of the recombinant-DNA plant,  including variations and mean values.  
Current dietary exposure and possible effects on population sub-groups should also be considered 
466. In addition, paragraph 10 of the Codex guide line also addresses safet y margins, as follows: 
It is therefore relatively straightforward to feed such compounds to animals at a range 
of doses some several orders of magnitude greater than the expected human exposure 
levels, in order to identify any potential adverse health effects of importance to 
humans.  In this way, it is possible, in most cases, to estimate levels of exposure at which adverse effects are not observed and to set safe intake levels by the application 
of appropriate safety factors.
182 
467. The same reasoning as for human food derived from GM crops (Codex) applies to animal 
feed. 
468. Furthermore, as identified in EC 76 Att. 27, th ere were detected chang es (two nucleotides) in 
the CP4EPSPS, and CP4EPSPS L214 P genes, which con sequently coded for two new proteins which 
had not been assessed before. As a consequence, ev en if it is judged a cautious approach, the CA 
request proved fully justified a posteriori , in light of the subsequent information provided by the 
applicant.  
  
                                                     
 
181 Codex Alimentarius, 2003. Codex Principles and Guidelines on Foods Derived from Biotechnology. 
Codex Alimentarius Commission, Joint FAO/WHO Food Standards Programme, Food and Agriculture 
Organization, Rome. ftp://ftp.fao.org/codex/standard/en/CodexTextsBiotechFoods.pdf 
182 Codex guideline CAC/GL 45-2003, para. 10 WT/DS291/R/Add.7 
WT/DS292/R/Add.7 WT/DS293/R/Add.7 
Page I-310 
  
Question 39bis 
 Given the information before the Panel, includi ng the notification and additional letter from 
Monsanto providing additional information (previ ously referenced and EC-76/At.11-12), was 
additional information regarding allergenicity studies and PCR tests requested by Austria (EC-76/At.44) necessary or useful to ensure that conclusions of the safety assessment were valid? 
 General comments 
 
469. Dr. Nutti simply concludes that the requ est was not necessary without providing any 
explanation.  Her reply, thus, is  unfounded and must be dismissed.  In making their request, in fact, 
the Austrian authorities had followed the reco mmendations of the latest FAO/WHO Expert 
Consultation on that issue at the time.  The request was therefore relevant and necessary.   
Detailed comments 
 
470. The request for additional studies on allergenicity  came in addition to the simulated stomach 
degradation studies and computer-aided comparisons w ith allergens that had al ready been provided by 
the applicant.  This request had been made by Au stria and addressed two issues (EC76, At. 44_transl): 
A request for additional screening of the transgenic proteins  for binding to sera from 
allergy patients, and 
Another request for testing potential changes in the intrinsic allergenicity of maize 
caused by the genetic modification, using whole plant extracts for these studies 
471. The request for this information was dated Marc h 21st, 2003 (EC76, At. 44).  At that moment, 
an FAO/WHO Expert Consultation on the Allergen icity of Genetically Modified Foods had been 
concluded.
183  This consultation provided input for the establishment of the pertinent Annex on 
allergenicity testing in the Codex guideline for safety assessment of foods derived from GM crops,184 
which was published on July 9th, 2003. 
472. The FAO/WHO Expert Consultation devised a decision tree approach for the testing of 
potential allergenicity of GM foods, in which serum  screening was one of the steps that had to be 
followed.  Serum screening could be either specific (i f the foreign gene was from an allergenic source, 
and therefore sera directed against this allergen s hould be used) or targeted (if the gene was from a 
source unknown to be allergenic, and therefore sera ag ainst broadly related allergens should be used).  
Within this approach, a targeted serum screening s hould have been carried out with the transgenic 
EPSPS proteins from maize NK603.  Austria's questi on for the serum binding tests was therefore 
relevant at that time. 
473. In addition, potential alterations of intrinsic al lergens (which were already present in the GM 
organism before it became modified) should be considered during the comparative safety assessment (also called "substantial equivalen ce").  This is because the geneti c modification might unintendedly 
                                                     
 
183 FAO/WHO, 2001. Joint FAO/WHO expert consultation on foods derived from biotechnology - 
allergenicity of genetically modified foods - Rome, 22 - 25 January 2001. Food and Agriculture Organisation of 
the United Nations, Rome. 
http://www.who.in t/foodsafety/publications/b iotech/en/ec_jan2001.pdf 
184 Codex Alimentarius, 2003. Codex Principles and Guidelines on Foods Derived from Biotechnology. 
Codex Alimentarius Commission, Joint FAO/WHO Food Standards Programme, Food and Agriculture Organization, Rome. Available at ftp://ftp.fao.o rg/codex/standard/en/CodexTextsBiotechFoods.pdf  WT/DS291/R/Add.7 
 WT/DS292/R/Add.7 
 WT/DS293/R/Add.7 
 Page I-311 
  
  have changed this intrinsic allergenicity of the plan t.  Intrinsic allergens ar e mentioned, for example, 
in the Codex guideline section dealing with compositional analysis of key components, as footnote 5 to paragraph 44: 
"Key toxicants are those toxicologically significant compounds known to be 
inherently present in the plant, such as those compounds whose toxic potency and level may be significant to health (e.g. sola nine in potatoes if the level is increased, 
selenium in wheat) and allergens
." 
474. The experiments proposed by Austria for testin g the allergenicity of whole plant extracts 
included binding tests with sera against a range of plants, as well as sensibilization studies in animals.  
Both types of tests are in acco rdance with the decision tree appr oach recommended by the FAO/WHO 
Expert Consultation {FAO/WHO, 2001} and are also  mentioned in the Codex guidelines as methods 
and tools that may be considered as sci entific knowledge and technology evolves.185  Austria's 
question for these tests for altered intrinsic allerg enicity was therefore relevant at that time. 
475. In EC76, At. 44, Austria also requested availab ility of the necessary data and material for an 
analytical method, including the necessary PCR prim er sequences, and the reference material. This 
request appears fully justified and necessary, as no detection method, specific for that transformation 
event, had been made available at that time by the applicant.  
Monsanto Roundup Ready corn (GA 21)  
C/ES/98/01 (EC chronology 78), C/GB/97/M3/2  (EC chronology 85) 
 
Question 40  Given the information before the Panel, including the application (EC-85/At.25-26), questions by Denmark (EC-85/At.32) and responses to these qu estions (EC-85/At.41), was the additional 
information requested by Denmark (EC-85/At.42) n ecessary to ensure that conclusions of the safety 
assessment were valid?    General comments 
 
476. Dr. Nutti only replies to one aspect of the Danish  request for additional information, namely 
the safety of the GM crop for animals, not, however, to the safety of the herbicide applied to maize 
GA21.  Her reply is based generally on a n on-comprehensive approach to safety based on 
compositional analysis and animal toxicity tests with purified proteins (see also the comments on 
broader risk assessment in the section on general and methodological issues, as well as comments on 
Q111 to 113) and more specifically on a limited a nd misleading citation of the Codex Guidelines.   
Detailed comments 
 
477. The Danish request comprises two aspects, namely  the safety of the GM crop for animals, and 
the safety of the herbicide used on the GM crop ( i.e. feeding of herbicide-treated  GM maize to 
animals and measurement of transfer of herbicides to  edible animal products, in this case milk of dairy 
cattle).  Dr. Nutti only addresses the first, but not the second aspect.  
478. As regards the first aspect, Dr. Nutti states th at "[a]ccording to the Codex Alimentarius 
Guideline for the Conduct of Food Safety Asse ssment of Foods Derived from Recombinant-DNA 
                                                     
 
185 Codex Alimentarius, 2003; Annex on "Assessment of Potential Allergenicity, para. 17 WT/DS291/R/Add.7 
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Page I-312 
  Plants [...], additional animal testing will be re quired if the composition is not comparable to 
conventional foods, which is not the case of Monsanto's event corn GA 21."   
479. Several points need to be made.  First, Dr . Nutti's general approach to safety based on 
compositional analysis and animal toxicity test s with purified proteins is non-comprehensive 
as 
explained in the comments on broader risk assessment in the section on general and methodological issues, as well as comments on Q111 to 113.  In f act, the very paragraph Dr. Nutti is quoting (i.e. 
paragraph 53 of the Codex Guidelines) also links  the issue of insufficient data on other aspects ( e.g. 
molecular characterisation) to the requirements of animal studies, a link which Dr. Nutti herself does 
not make. Thus paragraph 53 recommends that 
If the characterization of the food indicates th at the available data are insufficient for 
a thorough safety assessment, properly designe d animal studies could be requested on 
the whole foods. 
480. Based on this recommendation and the consid erations provided belo w, it would still be 
relevant to ask for additional animal feeding studies. 
481. Second, it should be pointed out that the Codex Guidelines concern food safety, but not feed 
safety.  Thus, they do not apply directly to the issue at hand.   
482. Third, contrary to what Dr. Nutti states, the C odex Guidelines, if applies by analogy, would 
support a request for additional animal testing.  
483. Cattle and pigs belong to the target animals of  feed products derived from maize, such as 
maize gluten.  These animals therefore constitute "consumer subgroups" with a different physiology 
than that of the broiler chicken previously used by the applicant for nutritional testing.  The Codex 
guidelines, when considering human food applications  of GM crops (and not animal feed), address the 
issue of different physiologies of subgroups.  The fo llowing sentence, for example, has been extracted 
from  paragraph 49 of the Codex guideline secti on dealing with nutritional modifications: 
Attention should be paid to the particular  physiological characteristics and metabolic 
requirements of specific population groups such  as infants, children, pregnant and 
lactating women, the elderly and those with chronic diseases or compromised immune systems.
186  
484. Whereas this paragraph deals with human subpopul ations, it can be envisioned that the same 
applies also to animals with different physiologi es in the case of GM crops used for animal feed 
purposes. 
485. In addition, the genetically modified protein introduced by the applicant, the mutant maize 
EPSPS protein, was different from the bacterial CP4 EPSPS protein previously introduced into other GM crops.  This GM crop would therefore be the fi rst crop with this particular modification to be 
marketed within the EU.  The concept of "familiari ty" would therefore not be applicable to maize 
GA21. 
486. Furthermore, an OECD document reviewing animal feeding studies, which was published in 
2003, recommends nutritional testing with certain an imals in case it is indicated that unintended 
                                                     
 
186 Codex guideline CAC/GL 45-2003, para 49.  WT/DS291/R/Add.7 
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  effects might have occurred.
187  This includes, for example, the fast-growing broiler chicken, which 
are considered to be most sensitive to alterations in  nutritional value.  Broile rs had already been used 
by the applicant when the Danish CA made its re quest.  The OECD document also mentions the use 
of other species, such as lactating dairy cattle, of  which the milk production can serve as a substitute 
for growth rate. 
487. Taken all these considerations (different ph ysiology, non applicability of "familiarity", and 
usefulness of animal models) together, contrary to  Dr. Nutti's assertions the data requested by the 
Danish authorities concerning additional animal f eeding studies for no treated event maize would 
have provided relevant information. 
488. As regards the second aspect, na mely the safety of the herbic ide applied to maize GA21, 
Dr. Nutti does not address it at all.  The European Communities offers the following brief comments:  
489. With this second issue, the Danish author ities address potential risks for human health: 
Herbicide residues may remain in pr oducts of animals fed with herbic ide treated GM crop (e.g. milk).  
490. The Codex Guidelines consider this issue in paragraph 54 (Potential accumulation of 
substances significant to human health): 
Some recombinant-DNA plants may exhibit tr aits (e.g. herbicide tolerance) which 
may indirectly result in the potential for accumulation of pesticide residues, altered metabolites of such residues, toxic metabo lites, contaminants, or other substances 
which may be relevant to human health .  The safety assessment should take this 
potential for accumulation into account.  Conve ntional procedures for establishing the 
safety of such compounds (e.g., procedures for assessing the human safety of chemicals) should be applied.
188  
491. The questions are therefore relevant from the point of view of safety of the GM crop and any 
pesticides that might accumulate in it. 
Question 40bis 
 Given the information before the Panel, including the first whole food study and agronomic performance tests (attached, co ver letter provided in EC 78/85/At. 19), was a second animal whole 
food study requested by Denmark, Austria and Italy (EC-78/85 /At. 67, 40 and 72) necessary or useful 
to identify potential adverse effects t hat had not been previously identified? 
 
General comments 
 
492. Similar to her reply on question 40, Dr. Nu tti's reply is based on a non-comprehensive 
approach to safety based on compositional analysis and animal toxicity tests with purified proteins 
(see also comments on broader risk assessment in the section on general and methodological issues, as 
well as comments on Q111 to 113) as well as limited reference to the Codex Guidelines. The reply, 
therefore, should be dismissed. 
                                                     
 
187 OECD (2003) Considerations for the Safety Assessment of Animal Feedstuffs derived from 
Genetically Modified Plants. Series on the Safety of Novel Foods and Feeds, No. 9. Organization for Economic Cooperation and Development, Paris, 46 pp. Available at  
http://www.olis.oecd.org/ olis/2003doc.nsf/LinkTo /env-jm-mono(2003)10 
188 Codex guideline CAC/GL 45-2003; para. 54. WT/DS291/R/Add.7 
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Detailed comments 
 
493. Dr. Nutti relies on paragraph 53 of the Codex Gu idelines when stating that "my understanding 
is that additional animal feeding studies may be warranted for GM foods if changes in the 
biovailability of the nutrients are expected or if th e composition of the GM food is not comparable to 
conventional food, and this was not the case of maize GA21." 
494. This conclusion is overlooking important issues in at least two respects. First, as set out in the 
comments on broader risk assessment in the secti on on general and methodological issues, as well as 
in the comments on Q111 to 113, Dr. Nutti's approach  to compositional analysis is generally non-
comprehensive.  Indeed, the very paragraph, Dr . Nutti is quoting (i.e. paragraph 53 of the Codex 
Guidelines) also links the issue of of insufficient data on other aspects ( e.g. molecular 
characterisation) to the requirements of animal f eeding studies, a link which Dr. Nutti herself does not 
make.  Thus paragraph 53 recommends that 
If the characterization of the food indicates th at the available data are insufficient for 
a thorough safety assessment, properly designe d animal studies could be requested on 
the whole foods. 
495. Based on this recommendation and the consid erations provided belo w, it would still be 
relevant to ask for additional animal feeding studies. 
496. Second, as pointed already, Dr. Nutti cites the Codex guideline for foods  derived from GM 
crops, whereas the application at stake pertains to animal feed purposes  (and incidental human 
consumption).  That said, if one is to draw elem ents from these guidelines by  analogy, the following 
consideration apply: 
497. The target animals of feed products derived from maize, such as maize gluten, include, for 
example, cattle, pigs, and poultry.  These animal s therefore constitute "c onsumer subgroups", which 
may have a different physiology than that of the broiler chicken previously used by the applicant for 
nutritional testing.  The Codex gui delines (in consider human food a pplications of GM crops and not 
animal feed), address the issue of different physio logies of subgroups.  The following sentence, for 
example, has been extracted from  paragraph 49 of the Codex guideline section dealing with 
nutritional modifications: 
Attention should be paid to the particular  physiological characteristics and metabolic 
requirements of specific population groups such  as infants, children, pregnant and 
lactating women, the elderly and those with chronic diseases or compromised immune systems."
189  
498. Whereas this paragraph deals with human subpopul ations, it can be envisioned that the same 
applies also to animals with different physiologi es in the case of GM crops used for animal feed 
purposes. 
499. In addition, an OECD document reviewing anim al feeding studies, which appeared after the 
request had been done, recommends nutritional testi ng with animals showing high production, which 
are considered to be most sensitive to alte rations in nutritional value of the GM crops.190  T h i s  
                                                      
189 Codex guideline CAC/GL 45-2003, para. 49. 
190 OECD (2003) Considerations for the Safety Assessment of Animal Feedstuffs derived from 
Genetically Modified Plants. Series on the Safety of Novel Foods and Feeds, No. 9. Organization for Economic Cooperation and Development, Paris, 46 pp..  WT/DS291/R/Add.7 
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  includes, for example, the rapidly-growing broile r chicken, which has alre ady been used by the 
applicant.  Also lactating dairy cattle, of which milk production and characteristics can be measured, 
may serve as a model, in which case milk pr oduction would substitut e for growth rate. 
500. Furthermore, the genetically modified protein in troduced by the applicant, the mutant maize 
EPSPS protein, was different from the bacterial CP4 EPSPS protein previously introduced into other GM crops.  This GM crop would therefore be the fi rst crop with this particular modification to be 
marketed within the EU.  The concept of "familiari ty" would therefore not be applicable to maize 
GA21.  
501. In light of these considerations, contrary to Dr. Nutti's conclusi on, the data requested by the 
three Member States' CAs would have provided rele vant information to assure the safety of maize 
GA21.  
Question 41 
 
Given the information before the Panel, including  the notification (EC-87/At.1), additional letters 
from Monsanto providing additional information (EC-87/At.3, 7, CBI part in 8, and 14) and the 
conclusion of the Commission on Genetic Mod ification that this pr oduct did not present 
environmental risks (EC-87/At.8-9), was additional in formation regarding data on the composition of 
high-oleic soybeans and the alteration in the protein profile of this product requested by the lead CA 
(EC-87/At.11, 13, and 15) necessary to ensure that conclusions of the safety assessment were valid? 
 
General comments 
 
502. Dr. Nutti and Dr. Squire commented on this qu estion. Given that Dr. Nutti agrees that the 
request for additional information was necessary, th e European Communities will at this stage refrain 
from commenting on this issue.  As regards Dr. Squire, he states that "the requests for further 
information (EC-87, At 11, 13, 15) appear to be mainly about safety as a feed."  This concurs with the lead CA's correspondence specifically mentioning th at the request pertained to the safety assessment 
for animal feed purposes.   
Question 42 
 
Given the information before the Panel, incl uding the notification (EC-88/At.1) and additional 
information provided by the notifier (EC-88/At.10- 11), was the information regarding allergenicity, 
molecular characterisation, and gene transfer in  digestive tracts requested by the lead CA 
(EC-88/At.12) necessary to ensure that conclu sions of the safety assessment were valid? 
 
General comments  
503. Dr. Nutti does not reply to the question. The qu estion is about the lead CA's very specific 
request for additional information contai ned in question contained in EC 88 Att. 12 .  Dr. Nutti instead 
offers (a less relevant) analysis on the lead CA's  request for additional information contained in EC 88 
Att. 9 , to which the applicant provided answers in EC 88 Att. 11 .  Her comments, therefore, must be 
dismissed.  The European Communities will offer a brief reply to the actual question. 
 
                                                                                                                                                                    
 
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Detailed comments 
 
504. Question 42 addressed at the Panel Experts pertaine d to the questions posed by the lead CA in 
EC88, Att. 12. The request for add itional information contained in that attachment (letter from lead 
CA of 01. 10.1999) very specifically addresses the risk  to humans and animals of potential survival of 
GM material during digestion in ruminants and sub sequent transfer to intestinal cells. Dr. Nutti, 
however, addresses the questions to which the applic ant has already provided answers in EC88, At. 11 
and not the questions in EC88, At. 12.  Her analys is on the answers in Att. 11, moreover, is non-
comprehensive, as she only considers refined suga r as a product for food and animal feed, whereas 
by-products of sugar production, such as sugar b eet pulp, are also used for animal feeding. 
505. As regards the actual request for additional info rmation, horizontal gene transfer from GM 
food and feed in digestive tracts, among others with  regard to the use of antibiotic resistance genes 
(see comments on Q1 and 2), has been debated in fo rums organized by international organizations 
since 1990.
191  The same pertains to the digestibility of proteins derived from the expression of 
transgenes.192  Recent publications show that a fraction of  transgenic proteins and DNA in GM crops, 
such as the Cry1Ab protein and its gene in GM maize, may survive the intestinal passage after 
consumption of these GM crops by target animals in vivo .193  Therefore, consideration of the issue 
                                                      
191 IFBC (1990) Biotechnologies and food: Assuring the safety of foods produced by genetic 
modification. Regulatory Toxicology and Pharmacology 12: S1-S196;FAO/WHO (1991) Strategies for 
Assessing the Safety of Foods Produced by Biotechnology, Report of A Joint FAO/WHO Consultation. World Health Organisation, Geneva. http ://www.who.int/foodsafety/ publications/biotech/1990 /en/; FAO/WHO (1996) 
Biotechnology and Food Safety. Report of a Joint FAO/WHO Consultation, Rome, Italy, 30 September – 4 
October 1996. FAO Food and Nutrition Paper 61. Food and Agriculture Organisation of the United Nations, 
Rome. http://www.fao.org/es/ESN/food/pdf/biotechnology.pdf ; FAO/WHO (2000) Safety Aspects of 
Genetically Modified Foods of Plant Origin. Report of a Joint FAO/WHO Expert Consultation on Foods Derived from Biotechnology, Geneva, Switzerland, 29 Ma y - 2 June 2000. Food and Agriculture Organisation 
of the United Nations, Rome. ftp://ftp.fao.org/es/esn/f ood/gmreport.pdf ; OECD (1993) Safety Evaluation of 
Foods Derived by Modern Biotechnology. Organisation fo r Economic Co-operation and Development, Paris.  
http://www.oecd.org/dataoecd/57/3/1946129.pdf ; OECD (1996) Food Safety Evaluation. Organisation for 
Economic Co-operation and Development, Paris.; OECD (1998) Report of the OECD Workshop on the 
Toxicological and Nutritional Testing of Novel Foods, Aussois, France, 5-8 March, 1997. Organisation for Economic Co-operation and Development, Paris. http://www.olis.oecd.org/olis/1998doc.nsf/LinkTo/sg-
icgb(98)1-final 
192 IFBC (1990) Biotechnologies and food: Assuring the safety of foods produced by genetic 
modification. Regulatory Toxicology and Pharmacology 12: S1-S196; FAO/WHO (1995) Application of the 
Principles of Substantial Equivalence to the Safety Evaluation of Foods or Food Components from Plants 
Derived by Modern Biotechnology, Report of A WHO Workshop. World Health Organisation, Geneva; FAO/WHO (1996) Biotechnology and Food Safety. Report of a Joint FAO/WHO Consultation, Rome, Italy, 30 
September – 4 October 1996. FAO Food and Nutrition Paper 61. Food and Agriculture Organisation of the 
United Nations, Rome. http://www.fao.org/es/ESN/ food/pdf/biotechnology.pdf.; FAO/WHO (2001) 
Allergenicity of Genetically Modified Foods. Report of a Joint FAO/WHO Expert Consultation on Foods 
Derived from Biotechnology. Rome, 22 - 25 January 2001. Food and Agriculture Organisation of the United 
Nations, Rome. ftp://ftp.fao.org/es/esn/food/allergygm.pdf 
193 Chowdhury, E.H., Shimada, N., Murata, H., Mikami, O., Sultana, P., Miyazaki, S., Yoshioka, M., 
Yamanaka, N., Hirai, N., Nakajima, Y. (2003) Detection of Cry1Ab protein in gastrointestinal contents but not 
visceral organs of genetically modified Bt11-fed calves. Veterinary and Human Toxicology 45: 72-75; 
Chowdhury, E.H., Mikami, O., Murata, H., Sultana, P., Shimada, N., Yoshioka, M., Guruge, K.S., Yamamoto, 
S., Miyazaki, S., Yamanaka, N., Nakajima, Y. (2004) Fate  of maize intrinsic and r ecombinant genes in calves 
fed genetically modified maize Bt11. Journal of Food Protection 67: 365-370;  Einspanier, R., Lutz, B., Rief, S., 
Berezina, O., Zverlov, V., Schwarz, W., Mayer, J. (2 004) Tracing residual recombinant feed molecules during 
digestion and rumen bacterial diversity in cattle fed tr ansgene maize. European Food Research and Technology 
218: 269-273.  WT/DS291/R/Add.7 
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  raised by the Belgian lead CA in EC88, At. 12, w as highly relevant for the assessment of animal feed 
safety of GM crops including Roundup Ready sugar beet. 
Question 43 
 
Given the information before the Panel, includi ng the notification and additional information 
provided by the notifier (EC-88/At.10, 11, 13, 14, 15, 16, and 18-26), was the information regarding 
molecular characterisation and allergenicity of event '77' requested by the lead CA (EC-88/At.27-28) 
necessary to ensure that conclusions of  the safety assessment were valid? 
 
General comments 
 
506. Dr. Nutti comments only on the issue of allergenic ity.  Her statement that "[the information 
previously provided by the applicant] on this ite m covered all the points recommended by WHO/FAO 
Expert Consultation 1996, and the Codex Alimentarius  Guidelines for the Conduct of Food Safety 
Assessment of Foods Derived from Recombinan t-DNA Plants (CAC/GL 45-2003) and its Annex on 
Possible Allergenicity Assessment " is totally unsubstantiated and misleading as it does not explain 
whether the request of additional data by the l ead CA was scientifically founded.  Conveniently, 
Dr. Nutti omits to mention that also the lead CA's  request is entirely in accordance with Codex and 
FAO/WHO recommendations.  
507. Furthermore, the European Communities notes that no expert has provided comment on the 
request for additional information on molecular char acterisation.  The European Communities refers 
to the internationally agreed principles regarding the necessity of detailed molecular characterisation 
in a thorough safety assessment (see section III on ge neral and methodological issues, and the expert 
replies on Q 9, 111 and following).   
Detailed comments 
 
508. As she has not provided any explanation, one can only assume that Dr. Nutti's general 
approach to allergenicity assessments is based on the same assumptions the applicant had made, namely that there are two common ch aracteristics shared by most allergens: first, food allergens are 
generally abundant in food, usually greater than 1% of the total protein and, second, food allergens are 
stable to gastric digestion, and a specific test fo r gastric stability has been established and validated 
using a broad array of known food allergens.  
509. In this view the assessment of allergen icity is possible solely on the basis of in silico  and in 
vitro  parameters, such as sequence homology and stability.   
510. However, this view is not adhered to by many ot her scientists who take the position that more 
tests, especially using sera from patients and anim al models, are needed to assess allergenicity.   
511. The answers and requests of the lead CA refl ect this debate among sc ientists in a very 
scientific way: According to the lead CA the method of homology comparison and sequence 
comparison as well as stability testing alone is not relevant in all circumstances as, for example, three dimensional epitope characteristics and instability of several known allergens need to be considered.  
The CA refers to the need to identify possible cross-reactivities using methods such as "RAST".  
512. The scientific debate about the assessment of a llergenicity has been discussed controversially 
in international organisations such as OECD  for a long time and concluded in increasingly 
comprehensive models in FAO/WHA expert consul tations and CODEX guidelines.  The CA reflected WT/DS291/R/Add.7 
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Page I-318 
  the consequences of these discussions accordingly.   The Codex guideline CAC/GL 45-2003, Annex 
on the Assessment of Possible Allergenicity explains that  
[…]sequence homology searches have certain limitations. In particular, comparisons 
are limited to the sequences of known allerg ens in publicly available databases and 
the scientific literature. There are also limita tions in the ability of such comparisons 
to detect non-contiguous epitopes capable of  binding themselves specifically with IgE 
antibodies. A negative sequence homology result indicates that a newly expressed protein is not a known allergen and is unlikely to be cross-reactive to known 
allergens. A result indicating absence of significant sequence homology should be 
considered along with the other data outlined under this strategy in assessing the allergenic potential of newly expressed prot eins. Further studies should be conducted 
as appropriate.
194 
513. Similarly, the 2001 FAO/WHO Expert Consultatio n on Allergenicity of Foods derived from 
Biotechnology (Dr. Nutti refers  to an older one of 1996)  concluded that:  
When the expressed protein comes from a sour ce that is not known to be allergenic, 
the FAO/WHO 2001 decision tree focuses on (1) sequence homology to known allergens (food and environmental), (2) targ eted serum screening for cross-reactivity 
with sera from patients allergic to materials that are broadly related to the source material for the gene, (3) pepsin resistan ce and (4) immunogenicity testing in animal 
models (Annex 4). In this situation the search for homologous allergens is based on 
two procedures.The first step is a database search for an allergen with a homologous 
amino acidsequence, according to the principles described in Section 6.1. If this search reveals a level of homology with a known allergen that suggests a potential for cross-reactivity, the expressed protein is cons idered to be an allergenic risk. No 
further evaluation for allergenicity would typically be necessary.The second step is 
conducted if no such homologous protein is found. In such cases,cross-reactivity is 
tested with a panel of serum samples that contain high levels of IgE antibodieswith a specificity that is broadly related to the gene source (Section 6.3).
195 
514. Finally, the latest FAO/WHO consulta tion on GM foods (2003) agrees that 
It has been recognized that there is no singl e parameter that can predict the allergenic 
potential of a substance. A strategy to asses s allergenicity of biotechnology products 
has been formulated (FAO/WHO, 2001; Codex Alimentarius Commission, 2003), which relies on the parameters: source of th e gene, sequence homology, serum testing 
of patients known to be allergenic to the source organism or to sources distantly 
related, pepsin resistance, the prevalen ce of the trait and assessment using animal 
models. The Consultation recommended that ad ditional efforts should be directed to 
the further development and validation of  m odels and that there is a need to improve 
the accessibility and interconnectivity of existing databases or to establish a 
centralized database on allergenic linear and conformational epitopes and tools for screening transgenes for allergenic potential.
196 
                                                      
194 Section 3.2, Paras. 10 and 11. 
195 2001 FAO/WHO Expert Consultation on Allergenicity of Foods derived from Biotechnology, 
http://www.who.in t/foodsafety/publications/biotech/e c_jan2001/en/, at para. 5.4. 
196 FAO/WHO Consultation on Food from GM Animals, 2003, 
http://www.fao.org/documents/show_cdr.asp?url_file=/ DOCREP/006/Y5316E/y5316e01.htm, section 5.2.2.3.  WT/DS291/R/Add.7 
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  515. In the present case, thus, whereas some data on sequence analysis and stability were provided 
by the applicant, the request of the CA for further allergenicity tests reflected the scientific dispute for 
a need of improved assessment methods as reflected in turn in the above documents. It is to be noted 
that the Codex does not provide for a final harmoni sed and agreed guidance as regards the assessment 
of allergenicity that would restrict the analysis  to the two tests provided for by the applicant. 
516. As regards additional informa tion on molecular characterisa tion, to which no expert has 
replied, the European Communities would like to offer the following  brief comments:  
517. In the present case, the lead CA in its request (EC-88/At.27, November 16
th 2000) explained 
very clearly the basis for the request for additional information: lack of quality of Southern blot 
images and also an expressed concern regarding a fragment observed without sufficient explanation 
about its nature. On the basis of the available info rmation by the date of the request, the requested 
information regarding molecular characterisation was,  therefore, necessary to ensure that conclusions 
of the safety assessment were valid.  
Question 44 
 
Given the information before the Panel, incl uding the notification (EC-94/At.1-3), was the 
information requested by the Netherlands(EC-94/At. 12) concerning molecular characterization, DNA 
sequence analysis of the insertion event, analysis of pr otein levels, effect of glyphosphate treatment, 
composition, toxicology and the request for a study on dairy cows necessary to ensure that 
conclusions of the safety assessment were valid?     
 General comments 
 
518. Dr. Nutti and Dr. Andow both comment on this questi on in their respective fields of expertise, 
overlapping on questions 4 and 6, of the lead CA's request.  The European Communities disagrees 
with all of Dr. Nutti's conclusions, as they are e ither based on erroneous r eading of the documents 
submitted (question 3) or actually inconclusive to  the question (questions 4, 5) or unfounded 
(question 6).  The European Communities further di sagrees with one aspect of Dr. Andow's analysis 
of question 6 of the lead CA's request.   
519. Furthermore, as no one has offered comments on que stions 1 and 2 of the lead CA's request, 
the European Communities will offer a brief explanation. 
Detailed comments 
 
520. Dr. Nutti's comments on question 3
 of the CA's request are based on an error as she takes the 
applicant's reply to that request to be the data originally submitted.   
521. Dr. Nutti concludes that the information was not necessary to ensure the validity of the safety 
assessment, as "the explanation given by the notifier was acceptable, since in EC-94/ At 13 , the 
                                                                                                                                                                     
Notte that even the present strategy based on a sequence prediction model established by FAO/WHO was shown 
to be amenable to refinement by important groups (for example, Stadler and Stadler, Allergenicity prediction by 
protein sequence, FASEB, J 2003, 17, 9, 1141-3; Kleter and Peijnenburg, Screening of transgenic proteins 
expressed in transgenic food crops fo r the presence of short amino acid sequ ences identical to potential, IgE - 
binding linear epitopes of allergens. BMC Struct Biol, 2002, 2, 1, 8; and Zorzet et al., Prediction of food protein allergenicity: a bioinformatic learning systems approach, In Silico Biol, 2002, 2, 4, 525-534). Difficulties in the 
concept are summarised in Jank and Haslberger, Improved evaluation of potential allergens in GM food, Trends 
Biotechnol., 2003, 21, 6, 249-250). WT/DS291/R/Add.7 
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Page I-320 
  notifier presents the results of second year study in order to test this assumption, and the results confirmed that the expression levels were similar."  
522. Indeed, the data presented by the applicant in  At. 13 are precisely the missing data that the 
CA had asked for.  These data were submitted in 2002.  The CA's request dates from 2000. 
523. Implicitly, therefore, Dr. Nutti confirms that the request of the lead CA was justified and that 
the additional information, thus, was necessary to  reach a valid conclusion on this issue.  
524. As regards question 4
 of the lead CA, Dr. Nutti and Dr. Andow address different aspects of 
that question in their respective comments.   
525. Dr. Nutti comments relate to the necessity of comparing herbicide sprayed and non herbicide-
sprayed GM maize.  The lead CA had asked for such  data in order to verify whether the herbicide-
sprays could have influenced the results of com positional data.  The applicant, in its original 
application had provided some data that collectiv ely compared both sprayed and non-sprayed samples 
with other groups of samples (compositional data EC94; At.2, pp. 76-186; request EC94, At.12). 
526. Dr. Nutti in her comment mentions that the co mparison of GM with non GM crops usually 
does not entail herbicide treatment of th e GM crop.  She also refers to the post-hoc  information 
provided by the applicant (EC94, At.13) indicating that in other GM crops (GA 21 maize, Roundup Ready soybean), no effect of herbicide treatment on compositional data had been noted.  In addition, 
she concludes that the data on both herbicide-sp rayed and non-sprayed had been provided and that 
therefore the requested additional informa tion was not necessary for the safety assessment. 
527. However, the arguments provided by Dr. Nutti are actually in support of the lead CA's request 
for a verification of the absence of an effect of glyphosate.  Since data on both sprayed and non-sprayed samples are already available, spraying constitu tes a variable and the data can be compared to 
check whether this variable cause s differences or not, as has been previously been done for other GM 
crops. 
528. This issue is also addressed by the Code x Guideline 2003 under the heading Compositional 
Analysis of Key Components, in which the comparison of a GM crop with both its sprayed and non-sprayed counterparts is recommended: 
Analyses of concentrations of key components of the recombinant-DNA plant and, 
especially those typical of food, should be compared with an equivalent analysis of a conventional counterpart grown and harvest ed under the same conditions.  In some 
cases, a further comparison with the recombinant-DNA plant grown under its 
expected agronomic conditions may need to be considered ( e.g. application of an 
herbicide).
197  
529. Treatment of a GM crop (MaisGard Roudup Ready using HT and Bt genes stacked) with 
applied herbicide (glyphosate) could trigger metabol ic changes in the GM maize event.  The effects 
on plant metabolism under regional co nditions of the herbicide applie d to this GM crop event were 
unknown at the time.  Thus toxic effects on non target  organisms likely to be exposed to the herbicide 
treated GM maize event ( e.g. humans, dairy cows and a range of other herbivores consuming 
glyphosate-treated Maisgard Roundup Ready) were impo ssible to predict without testing.  Therefore, 
comparative data on treated and untreated GM maize was required to assess such effects.  
                                                      
197 Codex guideline CAC/GL 45-2003, para. 44  WT/DS291/R/Add.7 
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  530. Dr. Andow's comment on question 4 relates to the method of the statistical analysis requested 
by the lead CA.  As Dr. Andow rightly points out, wi th the statistical design and analysis used by the 
notifier, it would not be possible to estimate an RR effect independent of  a glyphosate effect (see 
Dr. Andow's comments at para. 44.07).  The data provi ded thus, is inadequate to reveal interactions 
between the GM crop, local environment, herbicid e treatment(s) and any non-target organisms likely 
to be exposed to GM gene products, the applied herbicides and their metabo lites induced in the HT 
crop after glyphosate treatment. 
531. In conclusion the request by th e lead CA for an additional statistical analysis to verify 
whether herbicide sprays may have caused additiona l changes in composition was therefore justifiable 
and necessary to reach a conclusion on  the safety of maize MON810xGA21. 
532. In her comments on question 5
 in the lead CA's request, Dr. Nutti addresses two different 
issues, namely the request for additional compar isons of hybrid MON810xGA21 with non GM lines 
and the request for data on additional secondary metabolites and antinutrients. 
533. As regards the request for additional comp arisons of hybrid MON810xGA21 with non GM 
lines, Dr. Nutti refers to "different approaches" that  can be used to perform comparisons based on the 
compositional analysis on a hybrid GM.   She takes th e view that the one opted for by the applicant, 
i.e. to compare the hybrid only to its parental lin es (but not to conventional counterparts, providing 
such a comparison has already b een carried out only between the parental lines and conventional 
counterparts) is sufficient.   
534. The lead CA, on the other hand, has taken the vi ew that a (direct) comparison of the hybrid 
with conventional counterparts would also be required.   
535. In fact, the issue of exact data requirements for conventional crosses of two parent GM lines 
is still being discussed in and outside the EU.  Co mparison of the different national legislations 
pertaining to GM crops shows that there are differ ences with regard to the scientific understanding of 
the needs for further risk assessments, and with rega rd to the obligation to notify conventional crosses 
of GM lines or not.198  The issue is not specifically addressed by the Codex guideline. 
536. The safety of the parent lines is important, because the same genetic modifications can be 
present in the hybrid as in these GM parent lines.  However, information on the parent lines alone 
cannot provide full reassurance that the cross will be safe as well.  For example, the introduced 
genetic material and the products that ar e derived from this genetic material ( e.g. enzymes), may 
interact with each other within th e conventional cross of GM lines. 
537. For example, new genes may participate in diffe rent steps in the same pathway (cascade) of 
enzymatic reactions (such as, for example, the forma tion of a vitamin or plant fibre).  In case these 
genes are introduced into separate GM crops, which are subsequently crossed with each other, the 
cross may exhibit features that are distinctive from the parental lines (for ex ample, this has been 
observed by Pincon et al. (2001) in GM tree plants with modified production of precursors for cell 
fibre components).199  Another example is that of "gene silenc ing" (inactivation of gene function) by 
                                                      
198 Kuiper, H.A., Kleter, G.A., Noteborn, H.P.J.M., Ko k, E.J. (2001) Assessmen t of the food safety 
issues related to genetically modified foods. Plant Journal 27: 503-528. 
http://www.blackwellpublishing.com/plantgm/tpj1119.pdf 
199 Pincon, G., et al. (2001) Simultaneous down-regulation of caffeic/5-hydroxy ferulic acid-O-
methyltransferase I and cinnamoyl-co enzyme a reductase in the progeny from a cross between tobacco lines 
homozygous for each transgene. Consequences for plant development and lignin synt hesis. Plant Physiology 
126: 145-155. WT/DS291/R/Add.7 
WT/DS292/R/Add.7 WT/DS293/R/Add.7 
Page I-322 
  bringing together genes with similar sequences fr om different parents within the same plant (as 
observed, for example, by Charrier et al. (2000) and De Wilde et al. (2001)).
200 Interestingly, the 
British CA asked for data on the homology of the tran sgenic constructs inserted into the parental GM 
maize lines MON810 and GA21 (EC94, At. 10).  This in formation would also have been particularly 
relevant for the latter example of "gene silenc ing", for which there would be a likelihood of 
occurrence in the crossed line MON810xGA21 in case of homology between the constructs.  
538. In exhibit 94/013, answer to question 1, clause B, second last bullet point, the notifier states: 
Finally, there are no known mechanisms by which two inserts at different locations 
on different chromosomes could stimulate recombination in each other (if they do not 
express proteins involved in recombination pathways). 
539. While this statement is basically correct, it is also misleading because it gives the impression 
that only recombination in the functional inserts is relevant for the risk assessment.  However, in 
plants the genes interact with other genes in sometimes very complex patterns involving genes 
distantly located on the same or other chromosomes.  It is therefore possible that recombination may 
occur among or within genes at other loci, and that  these genes may interact with an inserted gene.  
Furthermore, the size of sequence motifs involved in recombination events may be short.  It can not 
be excluded that small random unint ended and undetected insertion events can be present in the 
parental GM maize events MON 810 and GA21.  To en sure that the hybrid GM maize is safe, it is 
therefore necessary to test the hybrid separately, and to compare it not only with the GM parental 
events but also with conventional counterparts.201   
540. While this issue is not specifically addressed  in the Codex Guideline 2003 some support for 
the lead CA's approach can be found there as well.   Thus, whereas in para.44 of the Guidelines it is 
recommended that: 
"The comparator(s) used in this assessment should ideally be the near isogenic 
parental  line"[emphasis added]202 
541. It is also recommended that:  
Analyses of concentrations of key components of the recombinant-DNA plant and, 
especially those typical of food, should be compared with an equivalent analysis of a conventional  counterpart grown and harvest ed under the same conditions."
203  
[emphasis added] 
542. The Codex guideline defines a conventional counterpart as: 
                                                      
200 Charrier, B., Scollan, C., Ross,S., Zubko, E., Meyer, P. (2000) Co-silencing of homologous 
transgenes in tobacco. Molecular Breeding 6: 407-419; De Wilde, C., Podevin, N., Windels, P., Depicker, A. 
(2001) Silencing of antibody genes in plants with single-copy transgene inserts as a result of gene dosage 
effects. Molecular Genetics and Genomics 265: 647-653. 
201 See Wilson et al 2004; Technical report for EcoNexus; Freese and Schubert 2004 Biotechnology 
and Genetic Engineering 21: 299-324;  The Committee on Identifying and Assessing Unintended Effects of 
Genetically Engineered foods on human health (2004). "Saf ety of Genetically Engineered Foods: Approaches to 
assessing Unintended Health Effect s". Publishers: The National academic press, Washington, D.C. National 
academy of Sciences (purchasable pdf down load from www.nati onal-academies.org). 
202 Codex guideline CAC/GL 45-2003 para. 44 
203 Ibid.  WT/DS291/R/Add.7 
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  a related organism/variety, its component s and/or products for which there is 
experience of establishing safety based on common use as food.
204  
543. In the present case, the GM parental lines cannot  be considered "conve ntional counterparts" 
with a history of safe use according to these standa rds, since at the moment of the request by the 
Dutch lead CA, MON810 had only been approved for several years in the EU, and GA21 was still in 
the approval procedure.  Therefore, the comparison with the GM parental lines was not sufficient and 
the request for a comparison of the hybrid MON810xGA21 with non-GM lines was justifiable. 
544. More generally, data regarding the safety of th e biotech parent plants are obviously relevant 
to the safety assessment of the hybrid plant produ cts.  However, while relevant, they are not 
sufficient.   
545. Note also that this approach has recently b een confirmed from a molecular characterization 
point of view by an US EPA-FIFRA SAP panel report205 which addressed this general problem in the 
context of a specific new product (Bt Cry1F/Cry1Ac). The US expert panel stated that: 
A molecular characterization of the new product should show that the recombinant 
traits/ sequences in the new product are iden tical to the insertion /traits in their 
parental lines . In principle, the method of breeding the two parental lines could affect 
the genetic characteristics of the inserted tra its. Therefore, evidence is needed that no 
such effect has occurred. For these pr oducts, a risk assessment combining evidence 
from parental lines and the product should be requested .  
546. As already explained in the previous comments, it can not be excluded that unintended effects 
may result from hybridisation between the two pare ntal GM events.  The data requirements for 
assessment of individual transformation events do not normally include provisions for experimental 
data on the effect of hybridisation between the event under study and other GM events previously 
authorised or under separate evaluation.  This ma y be justifiable given the assumption that such 
unintended hybrids will only occur in low frequenc y under field conditions, and consequently the 
exposure from these hybrids to humans, animals and the environment will be low.  On the contrary, 
authorised hybrids will by default occur at high frequency and consequently  the exposure will be 
significantly higher.  Consequently, the intended hybrid must be subject to separate evaluation including additional data from appropriate feeding trials.  
Dr. Nutti also mentions that the comparison with non-GM parental lines may sometimes be 
problematic because they might not have been deve loped.  In fact, the original study on the 
compositional data (EC94, At.2, pp. 76-186) mentions that besides the hybrid MON810xGA21,  the parental GM lines MON810 and GA21, also non-GM  control lines and commercial reference lines 
were grown in the same locations (EC94, At. 2,  p. 82).  However, compositional data of these 
additional non-GM lines have not been included in the statistical comparison by the applicant.  
Therefore, Dr. Nutti's concern about the possible una vailability of non-GM material for a comparison 
of MON810xGA21 with non-GM maize lines does not apply to this case. 
 
                                                     
 
204 Codex guideline CAC/GL 45-2003 para. 8 
205 SAP Report No. 2004-05. MINUTES of Federal Insecticide, Fungicide, and Rodenticide Act 
(FIFRA) Scientific Advisory Panel (S AP) Meeting, June 8-10, 2004, Arlington, Virginia. A Set of Scientific 
Issues Being Considered by the Environmental Protecti on Agency Regarding: Product  Characterization, Human 
Health Risk, Ecological Risk, And Insect Resistance Management For Bacillus thuringiensis (Bt) Cotton 
Products. 84 pages. WT/DS291/R/Add.7 
WT/DS292/R/Add.7 WT/DS293/R/Add.7 
Page I-324 
  547. As regards the lead CA's request for da ta on additional secondary metabolites and 
antinutrients Dr. Nutti's assessment is being contradi cted by the standard set out in Codex Guideline 
CAC/GL 45-2003.   
548. The lead CA requested data on five additiona l, secondary substances that could provide an 
indication of potential unintended a lterations of metabolic pathways.  This would supplement the data 
that had already been provided for the secondary substance phytic acid, which also acts as an "antinutrient" since it interferes, for exam ple with mineral uptake from the intestines. 
549. Dr. Nutti concludes that this additional analys is would not have been necessary, since the 
previous compositional data provide d by the applicant indicated that  the pathways leading to these 
substances had not been affected.  For example, leve ls of phytic acid, which is formed from inositol 
(one of the recommended substances), had not been altered in MON810xGA21 maize. 
550. In the Codex Guideline CAC/GL 45-2003, this i ssue is dealt with under "Unintended effects" 
and under "Potential accumulation of subs tances significant to human health". 
551. Thus paragraph 15 of the Codex Guideline CAC/GL 45-2003 states that 
Unintended effects may also result in the formation of new or changed patterns of 
metabolites. 
552. Paragraph 54 of the Codex Guideline states: 
Some recombinant-DNA plants may exhibit tr aits (e.g. herbicide tolerance) which 
may indirectly result in the potential for accumulation of pesticide residues, altered 
metabolites of such residues, toxic metabo lites, contaminants, or other substances 
which may be relevant to human health .  The safety assessment should take this 
potential for accumulation into account.  Conve ntional procedures for establishing the 
safety of such compounds (e.g., procedures for assessing the human safety of chemicals) should be applied. 
553. Based upon these standards, the request of the lead  CA was relevant from the point of view of 
safety of the GM crop and any plant secondary meta bolites that have been changed as an unintended 
side-effect of the genetic modification.
206 
554. It may be noted in passing that the applicant has also provided data on such plant secondary 
metabolites in a study on another GM maize line.207   
                                                      
206 Specifically from an environmental point of view unusual crop phenotypes arising from unintended 
genetic changes could have a significant impact on one or more ecological interactions of the particular GM 
cultivar (event). This is because crop plants produce a multiplicity of bio-active compounds that are individually 
or as a mixture associated with positive and negative nutritional qualities when consumed by non target 
organisms associated with the crop in any particular region and local agro-ecosystem. Because of unknown or 
unpredictable dose responses to bio-active compounds in plants and in general, "hormesis demands a reappraisal of the way risks are assessed" (Calabre se and Baldwin, 2003; Toxicology rethinks its central belief. Nature 421, 
691-692).  The Codex Guidelines for GM foods includes  analysis of unintended an d indirect effects on the 
environment due to increasing evidence of unanticipated changes in biologically-active plant compounds arising 
unexpectedly in transgenic crops. (e.g. Shewmaker et al., 1999; Saxena & Stotsky 2001; Birch et al., 2001; 
Haslberger, 2003 
207 Monsanto (2002) Safety Assessment of Roundup Ready Corn Event NK603. Monsanto Co, St. 
Louis. www.monsanto.com/monsanto/content/sci_tech/prod_safety/roundup_corn/pss_NK603.pdf; Ridley,  WT/DS291/R/Add.7 
 WT/DS292/R/Add.7 
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 Page I-325 
  
  555. Finally, as regards question 6
 of the lead CA's request, the European Communities disagrees 
both with Dr. Nutti's and Dr. Andow's comment. 
556. In question 6, the lead CA considered that the method to genetically modify the parental 
maize may have caused the unintended insertion of a dditional fragments into the maize DNA.  Shortly 
before the lead CA's request, it had become know n that Roundup Ready soybeans (developed by the 
same applicant, Monsanto), which had previously  been approved in the EU for food and feed 
purposes, but contained additional DNA fragments.  Th ese previously undetected fragments had been 
revealed by molecular techniques to sequence DNA inserts.  
557. Dr. Nutti concludes that the information that ha d already been submitted by the applicant was 
sufficient for the safety assessment.  With regard to  the toxicology studies, she refers to studies ( e.g. 
acute toxicity, in vitro stomach fluid digestion) that have been performed with purified proteins and 
not with the whole maize product.  However, whol e feed/food studies should be performed in order to 
assess the potential health consequences of unintended effects, such as those  may have been caused 
by the insertion of additional DNA fragments, beyo nd the intended modifications (e.g. transgenic 
proteins) that have been tested for toxicity. (See also EC Comments on Question 44bis). 
558. Dr. Andow acknowledges the lead CA's concer n about additional DNA fragments are "valid 
concern," (Dr. Andow's reply, para. 44.10), but commen ts in this regard that "it would seem that the 
notifier would have other alternatives to the toxicity test to address the concern of the Netherlands 
CA." ( ibid.).  However, Dr. Andow does not give the de tails of the alternative techniques that he 
claims may address the concerns of The Nether lands.  These methods should therefore provide 
reassurance about additional fragments having been inserted or not. 
559. In literature, other ways to detect unintende d effects are described,  such as the use of 
advanced analytical technologies called "profiling"  or "metabolomics".  These techniques are still 
under development and have not been  validated yet for routine appli cation in the safety assessment of 
GM foods.208 
560. As previously mentioned, there has already b een a post-market discovery of an unintended 
effect, i.e. additional DNA fragments having been inserte d into GM herbicide-resistant (Roundup 
Ready) soybean.  In this case, the applicant (Mon santo) itself argued that these additional fragments 
could not pose a risk, since no adverse effects had been observed in previously published animal 
feeding studies with whole feed products derived from Roundup Ready soybeans.209 
561. The lead CA made its request shortly after the new information surrounding the issue of 
fragments in GM soybean had become public.  For this reason, as well as those given above, it is 
justifiable that the lead CA asked an additional an imal feeding experiment with the whole product as 
additional reassurance for the absence of adverse e ffects that might have been caused by unintended 
insertion of additional DNA fragments. 
                                                                                                                                                                     
W.P., Sidhu, R.S., Pyla, P.D., Nemeth, M.A., Breeze, M.L. , Astwood, J.D. (2002) Co mparison of the nutritional 
profile of glyphosate-tolerant corn event NK603 with th at of conventional corn (Zea mays L.). Journal of 
Agricultural and Food Chemistry 50: 7235-7243. 
208 Chassy, B., Hlywka, J.J.,. Kleter, G.A., Kok, E.J., Kuiper, H.A., McGloughlin, M., Munro, I.C., 
Phipps, R.H., Re, E.B., Reid, J.E. (2004) Nutritional an d Safety Assessments of Foods and Feeds Nutritionally 
Improved through Biotechnology, Prepared by a Task Force of the ILSI International Food Biotechnology 
Committee. Comprehensive Reviews in Food Science and Food Safety 3: 35-104. http://www.ift.org/pdfs/crfsfs/crfsfsv3n2p0035-0104ms20040106.pdf 
209 Monsanto (2000) Updated Molecular Characteri zation and Safety Assessment of Roundup Ready 
Soybean Event 40-3-2. Monsanto Co. St. Louis, 20  http://archive.food.gov.uk/pdf _files/acnfp/summary.pdf WT/DS291/R/Add.7 
WT/DS292/R/Add.7 WT/DS293/R/Add.7 
Page I-326 
  562. Finally, the European Communities would like to  briefly comment on the lead CA's request 
for additional information in questions 1 and 2
 of At. 12, on which none of the experts has 
commented.  
563. The European Communities would refer to the in ternationally agreed principles regarding the 
necessity of detailed molecular characterisation in a thorough safety assessment (see section III on 
general and methodological issues, a nd the expert replies on Q 9, 111 and following).  In the present 
case, it should be noted that the notifier applied only Southern blots to establish the number and 
composition of insert(s).  However, by the date  of the notification (EC-94/At.1-3, February 29th 2000) 
DNA sequencing was a standard method that could be applied to verify the composition of the insert.  
To request such information was therefore necessary and justified. 
Question 44bis 
 Given the information before the Panel, including the first whole food study and agronomic 
performance tests (EC 94/At.3, pp. 40), was a second animal whole food study (EC 94/At.12) 
necessary or useful to identify pot ential adverse effects, including tho se associated with small random 
DNA insertions, that had not been previously identified?  General comments 
 564. The question refers to question 6 of the lead CA in its request of July 2000 (At. 12), which 
was already covered by and addressed in question 44.  Dr. Nutti's comments are identical to her 
comments in question 44.  Therefore, the Europ ean Communities refers to its above comments under 
question 44.   
Question 44ter 
 
In the context of this corn product which was pr oduced through conventional breeding from biotech 
parents, is data regarding the safety of the biotech  parent plants relevant to the safety assessment of 
the hybrid plant products? Given the results of th e risk assessment studies of the biotech parents, were 
additional studies necessary or useful to ensure that th e conclusions of the safety assessment related 
to the hybrid plants were valid?  
 
General comments 
 
565. The question can be linked to question 5 of the l ead CA in its request of July 2000 (At. 12), 
which was already covered by and addressed in ques tion 44.  Dr. Nutti refers back to her comments 
on that issue in question 44 and so does the European Communities.   
Question 45 
 Given the information before the P anel, were there scientific or tec hnical reasons which explain why 
the process of validating the detection method took  at least fourteen m onths (June 2002-August 
2003)?  (See EC-91/At.49-56)? 
 
General comments 
 
566. Dr. Nutti acknowledges that detection methodolog y is not her main area of expertise. 
Question 45 turns in fact on an overall delay of a pproximately 14 months.  No specific expertise on 
detection methods is actually required to see that th e applicant took more than 9 months out of these 
14 months to submit any information (methods or mate rials) whatsoever (EC-91, At. 50).  That that  WT/DS291/R/Add.7 
 WT/DS292/R/Add.7 
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 Page I-327 
  
  information could not even be used to start work  on the EU side is something Dr. Nutti does not seem 
to have identified. Her " impression , that there were no scientific or technical reasons which explain 
why the process of validating the detection method took at least fourteen months" is simply a wrong 
impression as will be explained in more detail below. 
Detailed comments 
 
567. The process of method validation for GMO detection methods is both complex and time 
consuming.  Simply put, two sets of information are needed to develop a detection method.  First, the 
actual method (i.e. the protocol) is needed. The me thod consists of two components: (a) a method to 
extract good quality of DNA and (b) a method to assess the amount of GM analytically.  Second, control samples are ne eded.  Control samples serve as an intern al control for any analytical method.  
Provision of precise control materials/samples  for precision instrument calibration must be 
simultaneously  supplied by the notifier along with the detailed method description.  Thus, the 
development of the detection method cannot be exec uted without appropriate control samples.  For 
GMOs they can only be supplied by the appli cant who constructed the transformed organism. 
568. With respect to the present product in qu estion (Monsanto Roundup Ready corn GA21) 
following initial contact with the notifier on 5 June 2002 (EC-91, At. 45) to discuss and agree the method validation for GA21, the applicant and the Jo int Research Centre signed a Material Transfer 
Agreement on February 20
th 2003 (EC-91, At. 49) and the applicant did not provide any of the above 
information before 27 March 2003, i.e. approximately  9 and a half months after the initial contact 
date. 
569. Furthermore, and contrary to what Dr. Nutti claims, the information submitted on that date, 
was incomplete with regard to both of the above set s of information needed.  Therefore, the validation 
process could not to be started.   
570. On the one hand, the information submitted wa s incomplete with regard to the method 
description and this in several respects.  First, the applicant failed to provide component (a) as 
described above, i.e. a method on how to extract the DNA from the control samples, which is in the 
first step in DNA based GMO detection and quantif ication.  Without that information no method 
validation can start.  The missing information with respect to a suitable method for the extraction of 
DNA of good quality was actually provided by JRC: between April and July 2003 (EC-91, At. 56), 
the JRC contributed to the further scientific and t echnical definition and completion of this method 
through the supply of a draft technical prot ocol for DNA extraction for subsequent DNA 
quantification and method application, thus completi ng the system in readiness for validation to begin 
proper.210  
571. Second, certain critical reagents (i.e. chemic al substances needed as ingredients in the 
analysis) provided by the notifier for the purpo ses of the validation procedure were found to be 
supplied not only in insufficient qua ntity, but faulty (EC-91, At. 59 ), further delaying progress.   
572. Finally, the company failed to provide convinc ing empirical data regarding overall method 
performance, a prerequisite of method acceptance (EC-91, At. 52).  
                                                      
210 It should be noted that the European Commission – Joint Research Centre bore all the costs 
associated with this validation procedure. WT/DS291/R/Add.7 
WT/DS292/R/Add.7 WT/DS293/R/Add.7 
Page I-328 
  573. On the other hand, the information submitted on 27 March 2003 was incomplete with regard 
to the control samples.  The applicant provided th e appropriate amount and quality of control samples 
only 9 April 2003 (EC-91, At. 51) 
574. It was not until July 2003, the information necessary to launch the validation process was 
complete.  
575. As soon as this was the case, the JRC launched an in-house validation in its own facilities, 
followed by a pre-validation trial with three laboratories which took place between December 2003 
and January 2004, and the collaborative tr ial took place between April and June 2004.
211  Dr. Nutti 
does not comment on these delays, which are extraord inarily short delays given the complexity and 
dimension of this process.   
Question 46 
 Were detection methods commercia lly available in 2002 sufficient to  enable the detection of the 
transgenic proteins expressed by the plant line Bt11 sweet corn? 
 General comments  
576. Both Dr. Nutti and Dr. Healy comment on this question. The European Communities has 
already explained the need for an event specific as opposed to a trait specific detection method for 
GMOs. Nobody would contest that there was no commercially available event specific detection 
method for Bt11 sweet corn in 2002 . Such a method was only recently published in a peer reviewed 
journal in April 2003,
212 and modified for event specific quantitative application (published on 
22 May 2004),213 while the validated study of this method w as made available on the internet pages of 
the Community Reference Laboratory on 28 July 2004.214   
577. It should be stressed that what both experts discuss here, are generic trait specific methods , 
i.e. methods that allow only for the detection of a specific expressed trait (such as the CryIA(b) protein). Trait specific methods cannot distinguish one GMO product (i.e. transformation event) from 
another if both are genetically modified with the sam e trait (such as for example Bt 11 sweet corn and 
Bt176 maize.  Therefore, whether or not trait speci fic methods existed for CryIA(b) and the PAT gene 
in 2002 is irrelevant , as they would not have ser ved to specifically detect and identify Bt11 sweet 
corn as such.
215 
Question 47 
 Given the information before the P anel, were there scientific or tec hnical reasons which explain why 
the process of validating the detection method took  twelve months (EC-92/At.54-56, 57-65, and 66)?  
                                                     
 
211  Information has been made publicly available on 17 January 2005 on the Internet pages of the 
Community Reference Laborato ry (http://gmo-crl.jrc.it ) 
212 Rønning, S.B., Vaïtilingom, M, Berdal, K.G. & Ho lst-Jensen, A. 2003. Event specific real time 
quantitative PCR for genetically modified Bt11 maize (Zea mays). Eur Food Res Technol 216: 347 – 354 
213 Hernández M., Duplan M-N, Be rthier G., Vaitilingom M., Hauser  W., Freyer R., Pla M. and 
Bertheau, Y. Development and comparison of four RTi-PCR systems for specific detection and 
quantification of Zea mays L. J. Agric. Food Chem. 2004. 52: 4632-4637 
214 Information has been made publicly available on 28 July 2004 on the Internet pages of the 
Community Reference Laborato ry (http://gmo-crl.jrc.it ). 
215 In any event it may be pointed out that while it is correct to say that there was a (trait specific) 
detection method for CryIA(b) in 2002 this method had not yet been validated.  As for a detection method for the PAT gene, as discussed in Question 17, no such method exists to-date.  WT/DS291/R/Add.7 
 WT/DS292/R/Add.7 
 WT/DS293/R/Add.7 
 Page I-329 
  
  What would constitute an adequate amo unt of material to be used in the detection method validation?  
What are adequate performance indicators fo r pre-validation results for this product? 
 
General comments  
578. As for question 45, Dr. Nutti here acknowledges th at detection methods are not her main field 
of expertise.  Indeed, this time she openly admits th at she has "no expertise or references to answer 
about adequate amount of material to be used in the detection method validation and adequate 
performance indicators for pre-validation results for th is product."  In light of this, her conclusion that 
there were no scientific or technical reasons which explain why the process of validating the detection 
method took twelve months is clearly  unsubstantiated.  For, in order to be able to come to such a 
conclusion, one precisely needs to have some know ledge about "adequate am ounts of material" and 
"adequate performance indicators."  Dr. Nutti her self establishes that all exchanges between the 
applicant and the JRC (At. 56 through 66) were a bout the adequacy of the data submitted.  As she 
does not have the relevant expertise, her reply is, therefore, unfounded and must be dismissed. 
Detailed comments 
 
579. The European Communities refers  to its comments in question 45: For a detection method to 
be developed, two sets of information are need ed. (1) The protocol (method) including (a) a DNA 
extraction method and (b) an event specific quan tification method, and (2) control samples. 
580. At its first meeting with the European Comm ission on 24 June 2002 the applicant confirmed 
that they had a method ready and agreed to supply  the necessary materials (exhibit 92/54). However, 
materials (in this instance DNA) necessary to star t the validation procedure was only received on 22 
January 2003, some 7 months after first contact  with the European Commission, and 3 months 
following a planning meeting (held on 23 October 2002), in which details of the validation and 
materials (DNA from seed) which should be provided by were agreed. 
581. However, by 28 January 2003 quality testing of this DNA material employing a range of 
testing instrumentation by the JRC revealed either very low amounts or, in extreme cases, virtually no 
DNA material (i.e. a virtual absence of DNA) in the tubes provided. This is very clear from exhibit 92/56. Such measurements were considered at ypical, especially from maize seed material, and 
indicated a technical failure (and hence low confid ence with the material). Following some additional 
guidance from the JRC on 30 January 2003, the app licant provided a replacement batch of DNA 
material on 27 February 2003 (exhibit 92/58), e xhibiting adequate quantities in the expected 
concentration range.  
582. All materials and information was then complete to commence the pre-validation study, 
which was subsequently launched on 10 March 2003, some 8 and a half months following the initial 
meeting between the European Commission and the applicant. The pre-validation study was 
completed 51 days later on the 30 April 2003, the re sults of which indicated the proposed method to 
be unsuitable to proceed (exhibit 92/59). In fact, th e results indicated an inherent problem with the 
detection system, experienced by all participating laboratories in the ring-trail and further indicated 
that the applicant had not taken the preparative steps as agreed at the planning meeting in October 
2002 to optimise the method.  
583. On the 23 May 2003, following discussions with the QPCRFOOD
216 consortium, the JRC 
proposed the use of a successfully pre-valid ated Bt11 event-specific quantitative method as 
                                                      
216 QPCRGMOFOOD EU share cost action project (contract no. QLK1–1999–01301). WT/DS291/R/Add.7 
WT/DS292/R/Add.7 WT/DS293/R/Add.7 
Page I-330 
  developed, and offered, by the consortium. Based on  the pre-validation results, it was clear that this 
method did not exhibit the same inherent technica l limitations as the original applicants system 
(exhibit 92/60). After reviewing the details, th e applicant agrees on 7 July 2003 to adopt the 
QPCRFOOD method (exhibit 92/63) and, following r eceipt of requested reagents on 15 July 2003 
(exhibit 92/65) the JRC launches a full validation study on 30 July 2003 (almost 13 months following 
initial contact with the applicant, but just 3 w eeks after the decision to proceed with the better 
QPCRFOOD method was agreed by the applicant). The JRC reported the positive result of the validation study on 2 October 2003 (exhibit 92 /66), in a little over two months from proper 
commencement.  
Question 49 
 Given the information before the Panel, includi ng the application (EC-93/At.1-2), was additional 
information regarding nutritional and biochemical c haracterization and toxicity of the transgenic 
plant requested by the Greek and Italian author ities (EC-93/At.16-17) necessary to ensure that 
conclusions of the safety assessment were valid?    General comments 
 
584. Dr. Nutti concludes on almost all specific request s that they were necessary.  It is only with 
regard to questions related to the herbicide tr eatment that she finds the CA's requests unnecessary 
based on the "understanding that th e risk assessment conducted here is related to GMO and not to the 
herbicide."  The potential effects of herbicide tr eatment on crop characteristics, however, are highly 
relevant to the safety assessment of herbicide-to lerant GMOs. Dr. Nutti, therefore, is wrong in 
assuming that such information would not be necessary , just because the risk assessment is performed 
on the GMO and not on the herbicide itself. Fina lly, in commenting on the necessity of carrying out 
studies of sub-acute toxicity, Dr. Nutti  
confirms the CA's initiative to ask for more information. 
Detailed comments 
 
585. Dr. Nutti correctly asserts in her review of It alian CA's questions 1 and 2 that herbicide 
residues  have to comply with standards like those of the Codex alimentarius.  However, information 
about herbicide treatment  of the GM crop was also requested in question 1.  This is equally relevant 
for the safety assessment of GMOs, since it provides information about the conditions in which the 
tested crops have been cultivated.   In fact, agronomic practices, including herbicide treatment, of GM 
crops used for compositional analysis are also addressed by Codex guideline CAC/GL 45-2003 which 
states: 
Analyses of concentrations of key components 
of the recombinant-DNA plant and, 
especially those typical of the food, should be  compared with an equivalent analysis 
of a conventional counterpart grown and harvested under the same conditions. In 
some cases, a further comparison with the recombinant-DNA plant grown under its expected agronomic conditions may need to be considered ( e.g. application of an 
herbicide).
217 
586. Information on herbicide treatment therefore cons titutes a relevant part of the data on the field 
trials from which samples for the compos itional analysis have been obtained. 
587. Question 2 of the Italian CA pertained to th e "nature of possible residues" derived from 
herbicide treatment.  Whereas Dr. Nutti correctly notes that the levels of these residues should be 
                                                      
217 Codex guideline CAC/GL 45-2003, para. 44  WT/DS291/R/Add.7 
 WT/DS292/R/Add.7 
 WT/DS293/R/Add.7 
 Page I-331 
  
  within the limits specified with standards, the qu estion is relevant from a safety point of view, 
regardless whether the issue falls under a different legislation or not. 
588. In fact, the Codex guideline CAC/GL 45-2003 also considers this issue under the heading 
"Potential accumulation of substances significant to human health": 
Some recombinant-DNA plants may exhibit tr aits (e.g. herbicide tolerance) which 
may indirectly result in the potential for accumulation of pesticide residues, altered metabolites of such residues, toxic metabo lites, contaminants, or other substances 
which may be relevant to human health .  The safety assessment should take this 
potential for accumulation into account.  Conve ntional procedures for establishing the 
safety of such compounds (e.g., procedures for assessing the human safety of chemicals) should be applied.
218  
589. The questions are therefore relevant from the point of view of safety of the GM crop and any 
pesticides that might accumulate in it. 
590. On the issue of sub-acute toxicity studies, the Italian CA requested such information in order 
to obtain a more detailed assessment of the toxicological aspects.   
591. The animal experiments that had been summarized  by the applicant in its application (EC-93, 
At. 2) include a chicken broiler feeding study (nut ritional) and a repeated-dose acute toxicity study 
(14 days) with the purified transgenic protein administ ered to in rats.  Dr. Nutti concludes that if the 
results of the composition analysis of Liberty Link soybean, as well as the acute toxicity animal study 
that have been carried out with it, were satisfactor y, no additional sub-acute animal test would be 
needed.  However, in the absence of  full data on these tests, she says to  be unable to judge the request. 
592. In fact, this inability to judge these data due to their incompleteness at the time of the Italian 
lead CA's request justifies the requ est for an animal study.  This i ssue is also addressed by the Codex 
guideline CAC/GL 45-2003:  
If the characterization of the food indicates th at the available data are insufficient for 
a thorough safety assessment, properly designe d animal studies could be requested on 
the whole foods.219 
593. At the time of the request, it was therefore releva nt to ask for an additional animal toxicity 
study. 
Question 51 
 
Given the information before the Panel, including  the application (EC-95/At.1-2) and the responses 
from Pioneer/Dow AgroSciences (EC-95/At.10- 12), was information regarding molecular 
characterization, compositional analyses and toxicol ogical analyses of the product requested by the 
Health Council of the Netherlands (EC-95/At.8 and 13) necessary to ensure that conclusions of the 
safety assessment were valid? 
 
   
                                                     
 
218 Codex guideline CAC/GL 45-2003, para. 54 
219 Codex guideline CAC/GL 45-2003, para. 11. WT/DS291/R/Add.7 
WT/DS292/R/Add.7 WT/DS293/R/Add.7 
Page I-332 
  
General comments 
 
594. Dr. Nutti addresses issues of compositional analys is and toxicological analysis.  While she 
confirms the necessity of requesting data on the leve ls of certain nutritional elements and secondary 
metabolites, she does not see the need  to ask for three (instead of two) seasons of field data, a view 
which she does not substantiate and which is not supported by Codex standards.  Her comment on the 
broiler chicken study seems misplaced as there w as actually no request for such data in the 
attachments under consideration. Furthermore, th e European Communities disagrees with Dr. Nutti's 
conclusion on the necessity of a 90-day toxicity study.  
595. Finally, as Dr. Nutti has not addressed the issues relating to molecular characterization, the 
European Communities will offer some brief comments. 
Detailed comments 
 
596. First, on the number of seasons for compositional data (question 2 of the lead CA), Dr. Nutti 
notes that, whereas two seasons are generally acceptabl e, the Dutch CA asked for compositional data 
from three seasons.  Actually, the Codex guide line CAC/GL 45-2003 addresses this issue by stating 
that field trials for compositional analysis should be carried out during a sufficient number of generations, but does not mention a speci fic number of generations (or seasons): 
Similarly, trials should be conducted over a sufficient number of generations to allow 
adequate exposure to the variet y of conditions met in nature.
220 
597. At the time of the request, the applicant had provided data from the seasons 1998-1999 in 
Chile (Southern hemisphere) and 1999 in France a nd Italy (Northern hemisphere).  The lead CA 
considered this to be one season (EC95, At.8).  Given this opinion of the CA and the Codex guideline 
CAC/GL 45-2003 recommendation on this issue, it therefor e appears justifiable that, at the time of the 
request, the Dutch CA asked for data from multiple (3) seasons.  
598. In addition, the Dutch CA later (in reply to  additional compositional data provided by the 
applicant) asked for an additi onal study from the US, as this would be representative for the 
commercial production of the new maize line.221   
599. Furthermore, the lead CA's request is in  line with Codex guideline CAC/GL 45-2003, 
paragraph 45, pertaining to compositional analys is of key components, which reads as follows: 
The location of field trials should be representative of the range of environmental 
conditions under which the plant varieti es would be expected to be grown. 
600. Therefore, the data requested by the lead  CA on compositional analyses from multiple (3) 
seasons, as well as from regions representative of co mmercial maize cultivation (and export to the 
EU) are in line with Codex recommendations and relevant to the safety assessment. 
601. Second, Dr. Nutti comments on the necessity of additional data on a broiler chicken study.  
There was no question on the chicken broiler study po sed in EC95, At. 8 and At. 13, neither was the 
broiler study mentioned in the attachment, namely  EC95, At. 11.  Dr. Nutti's comment on the chicken 
broiler study, therefore, cannot be verified, since no reference to this study could be found in the 
                                                      
220 Codex guideline CAC/GL 45-2003, para. 45. 
221 Note that this issue was also dealt with under question 35, where Dr. Andow cited trade statistics 
showing that the major nations exporting maize were the US, Argentina, Brazil, and the People's Republic of 
China (see Dr. Andow's reply, para. 35.03).  WT/DS291/R/Add.7 
 WT/DS292/R/Add.7 
 WT/DS293/R/Add.7 
 Page I-333 
  
  documents mentioned [requests by Member Stat e CA (EC95, At. 8 and 13) and reply from the 
applicant (EC95, At. 11)].  
602. Third, Dr. Nutti seems to argue that the 90 day rat study requested by the lead CA was not 
necessary as "additional testing will be required if th e composition is not comparable to conventional 
foods, which is not the case of Pioneer/Dow AgroSciences Bt corn Cry1F (1507)." 
603. At the moment of the request of the Dutch CA for an additional 90-day rat study, the 
applicant had provided (summaries of) a nutritional st udy in chicken broilers fed whole products and 
acute toxicity in rats with the purified transgenic proteins Cry1F and PAT.  It should be stressed here 
that the chicken broiler study is  not a model for toxicology, but for nutrition (for example, see the 
discussion on this issue in Chassy et al., 2004).  During studies on broilers, the growth, bodyweight, 
feed consumption, and weight and composition of ed ible parts after slaughter are usually measured.  
Therefore, the toxicity animal studies had been limit ed to those on acute toxicity of purified Cry1F 
and PAT, and no toxicity studies with the whole food. 
604. According to Dr. Nutti, the additionally request ed 90-day toxicity study was not necessary, 
since compositional equivalence had been demonstrat ed.  The rationale provided by the Dutch CA for 
its request for the 90-day study was that it woul d provide additional reassurance of no unintended 
changes with adverse effects (EC-95, At.8).  
605. Whole feed/food studies can be used in order to provide reassurance about the potential health 
consequences of unintended effects, such as those that  may have been caused by the insertion of 
additional DNA fragments, beyond the intended modifica tions (e.g. transgenic proteins) that have 
been tested for toxicity.  In fact, other ways to de tect unintended effects, such as the use of advanced 
analytical technologies called "profiling" or "meta bolomics", are in development, but have not been 
validated yet for routine application in the safety assessment of GM foods.
222  
606. An example of animal feeding studies serving as additional reassurance of no adverse effects 
is Roundup Ready soybeans.  It was discovered in 2000 that unintended insertions of DNA fragments 
had occurred in these soybeans, which had alread y been approved as a GM food in a number of 
countries, including the EU.  The applicant (Monsan to) itself argued that these additional fragments 
could not pose a risk, since, among others, no adverse effects had been observed in a previously published peer-reviewed animal feeding study with whole feed produc ts derived from Roundup 
Ready soybeans.
223  
607. It is therefore justifiable of the lead CA that , in the absence of toxicity studies with whole 
foods, it sought additional reassurance for the innoxi ousness of any unintended effects by asking for 
an additional animal toxicity experiment.  
608. Finally, as regards the CA's requests for additional molecular characterization (on which 
Dr. Nutti has not commented), the European Communities would offer the following brief comments: 
                                                      
222 Chassy, B., Hlywka, J.J.,. Kleter, G.A., Kok, E.J., Kuiper, H.A., McGloughlin, M., Munro, I.C., 
Phipps, R.H., Re, E.B., Reid, J.E. (2004) Nutritional an d Safety Assessments of Foods and Feeds Nutritionally 
Improved through Biotechnology, Prepared by a Task Force of the ILSI International Food Biotechnology 
Committee. Comprehensive Reviews in Food Science and Food Safety 3: 35-104. 
http://www.ift.org/pdfs/crfsfs/crfsfsv3n2p0035-0104ms20040106.pdf 
223 Monsanto (2000) Updated Molecular Characteri zation and Safety Assessment of Roundup Ready 
Soybean Event 40-3-2. Monsanto Co. St. Louis, 20 pp. 
http://archive.food.gov.uk/pdf_files/acnfp/summary.pdf WT/DS291/R/Add.7 
WT/DS292/R/Add.7 WT/DS293/R/Add.7 
Page I-334 
  609. The European Communities would refer to the in ternationally agreed principles regarding the 
necessity of detailed molecular characterisation in a thorough safety assessment (see section III on 
general and methodological issues, a nd the expert replies on Q 9, 111 and following).  In the present 
case, the notification contained no evidence of actual verification of the insert by sequencing.  Note 
that it had been submitted on February 15
th 2001, by which date sequencing had been routine for 
almost a decade. 
610. The Health Council of the Netherlands in EC-95/At.8 (June 28th 2001) requested specifically 
sequencing of approx. 1000 bp of genomic DNA flanking the insert, as well as sequencing of the 
complete insert itself.  It was not clear from the responses of the notifier (E C-95/At.10-12, February 
2002-February 2003) if the full length insert had been  characterised by sequencing of the transformed 
maize, or whether only the flanking sequences were ve rified from the GM maize, while the rest of the 
insert sequence was simply determined by sequencing the transforming plasmid.  Furthermore, in the 
responses from the notifier only 271 bp of the 3'-flanking sequence was provided.  The need for as 
much as 1000 bp was reasonable given the state-of-the-a rt concerning gene regulation in plants at the 
time the request was made 
Question 52 
 Given the information before the Panel, incl uding the application and the responses from 
Pioneer/Dow AgroSciences (referenced above), was information regarding the potential unintended 
expression of allergenic proteins requested by Gezondheistsraad (EC-95/At.1 5) necessary to ensure 
that conclusions of the safety assessment were valid?  General comments 
 611. As explained in the European Communities comments on Dr. Nutti's reply to question 43, 
Dr. Nutti's approach to issues of allergenicity does not  take into account the state of the analysis of 
molecular characterisation of the product.   Th at analysis, however, is necessary to comment on 
toxicology problems regarding allergenicity (and uni ntended effects).  Dr. Nutti's conclusion ("as far 
as my knowledge goes") therefore, may be valid as regards general toxicity aspects of the CRY1F protein, but it does not apply to the actual considera tions (related to molecular characterisation) that 
the lead CA had raised. 
Detailed comments 
 
612. As the CA clearly explains, the request fo r the further allergenicity assessment addresses 
problems of unintended molecular effects of the flanking regions, especially the potential fusion 
proteins formed by such effects. 
613. This request is fully in line with modern st andards of assessment of unintended effects in 
flanking regions.  Thus Codex guideline CA C/GL 45-2003 states in its paragraph 31D: 
31. Information should be provided on th e DNA insertions into the plant genome; 
this should include: 
D) identification of any open reading fra mes within the inserted DNA or created 
by the insertions with contiguous plant genomic DNA including those that could 
result in fusion proteins. 
while it also states in paragraph 5 of its Annex on the Assessment of Potential Allergenicity that: 
  WT/DS291/R/Add.7 
 WT/DS292/R/Add.7 
 WT/DS293/R/Add.7 
 Page I-335 
  
  As there is no single test that can pred ict the likely human IgE response to oral 
exposure, the first step to characterize newly expressed proteins should be the comparison of the amino acid sequence and certain physicochemical characteristics of 
the newly expressed protein with those of established allergens in a weight of 
evidence approach. 
614. The CA's request for additional information on put ative fusion proteins was in line with these 
standards and therefore justified.  
Question 53 
 
Given the information before the Panel, includin g the application (EC-96/At.1-2), was information 
regarding molecular characterization, toxicity e ffects of unintended chang es and compositional data 
requested by Gezondheitsraad (EC-96/At.7) necessa ry to ensure that conclusions of the safety 
assessment were valid? 
 
General comments 
 
615. Dr. Nutti comments on the aspects related to compositional analysis and toxicological 
analysis.  As has already been pointed out before , Dr. Nutti's approach does not take into account the 
need for a thorough analysis of the molecular characterisation, which makes her conclusions 
incomplete or flawed.  More specifically, her conc lusion that a semi chronic toxicity study is not 
necessary must be dismissed on the basis of the avai lable scientific evidence on the relevance of such 
studies.   
616. Finally, as she has not commented on the speci fic requests for additional information on 
molecular charcterisation, the European  Communities will offer brief comments. 
Detailed comments 
 
617. Given the publication year (2001) of the requ ested 90-day study on rats (Dudek, 2001, cited 
in EG96, At.2, p. 117), the applicant must have co mpleted this report by the time the CA made its 
request for additional inform ation (December 13th, 2001), i.e. this information could have been 
almost available by that time.  These data should th erefore have been taken into account, in line with 
paragraph 15 of the Codex Principles for the Risk Analysis of Foods Derived from Modern 
Biotechnology, which states that: 
Risk assessment should take into account all available scientific data  and information  
derived from different testing procedur es, provided that the procedures are 
scientifically sound and the parameters being measured are comparable. [Emphasis 
added] 
In addition to this requirement, arguments for requ esting a 90-day toxicity study on whole products of 
maize NK603 are provided below.  618. The rationale provided by CA for its request for a semi chronic toxicity study was that 
unintended, additional modifica tions might have taken place in maize NK603, including 
modifications that had already been describe by the applicant.  
619. With regard to animal studies, the applicant had provided (a summary of) a nutritional study 
in chicken broilers fed whole products and acute toxicity in rodents with the purified transgenic WT/DS291/R/Add.7 
WT/DS292/R/Add.7 WT/DS293/R/Add.7 
Page I-336 
  proteins EPSPS.  It should be stressed here th at the chicken broiler study is not a model for 
toxicology, but for nutrition (for example, see the discussion on this issue in Chassy et al., 2004).
224  
During studies on broilers, the growth, bodyweight, feed consumption, and weight and composition of 
edible parts after slaughter are usually measured.  Therefore, the toxicity animal studies had been 
limited to those on acute toxicity of purified EPSPS, and no toxicity studies with the whole food. 
620. According to Dr. Nutti, the additionally request ed 90-day toxicity study was not necessary, 
since compositional equivalence had been demons trated and the intended modification (the EPSPS 
protein) had also been tested for potential toxicity and allergenicity.  The Dutch CA, on the other 
hand, provided as rationale for its request for the 90-day study that it would provide additional 
reassurance of no unintended effects undesired effects (EC96, At.7). 
621. Whole feed/food studies can be used in order to provide reassurance about the potential health 
consequences of unintended effects, such as those  may have been caused by the insertion of additional 
DNA fragments, beyond the intended modi fications (e.g. transgenic proteins) that have been tested for 
toxicity.  In fact, other ways to detect unintende d effects, such as the use of advanced analytical 
technologies called "profiling" or "metabolomics", ar e in development, but have not been validated 
yet for routine application in the safety assessment of GM foods.225 
622. An example of animal feeding studies serving as additional reassurance of no adverse effects 
would be the case of Roundup Ready soybeans.  It was discovered in 2000 that unintended insertions 
of DNA fragments had occurred in these soybeans, wh ich had already been approved as a GM food in 
a number of countries, including the EU.  The appli cant (Monsanto) itself argued that these additional 
fragments could not pose a risk, since, among othe rs, no adverse effects had been observed in a 
previously published peer-reviewed animal feed ing study with whole feed products derived from 
Roundup Ready soybeans.226 
623. The lead CA, therefore, was justified, in the absence of toxicity studies with whole foods, to 
seek additional reassurance for the innoxiousness of any unintended effects by asking for an animal 
toxicity experiment with the whole food.  In addition, such a study (Dudek, 2001, At96, At.2, p.117)
227 had already been published by the applicant at  the time of the request (or shortly thereafter, 
in 2001), and the report of this study could therefor e have been requested for the sake of completeness 
of the safety evaluation. 
                                                      
224 Chassy, B., Hlywka, J.J.,. Kleter, G.A., Kok, E.J., Kuiper, H.A., McGloughlin, M., Munro, I.C., 
Phipps, R.H., Re, E.B., Reid, J.E. (2004) Nutritional an d Safety Assessments of Foods and Feeds Nutritionally 
Improved through Biotechnology, Prepared by a Task Force of the ILSI International Food Biotechnology 
Committee. Comprehensive Reviews in Food Science and Food Safety 3: 35-104. 
http://www.ift.org/pdfs/crfsfs/crfsfsv3n2p0035-0104ms20040106.pdf 
225 Chassy, B., Hlywka, J.J.,. Kleter, G.A., Kok, E.J., Kuiper, H.A., McGloughlin, M., Munro, I.C., 
Phipps, R.H., Re, E.B., Reid, J.E. (2004) Nutritional an d Safety Assessments of Foods and Feeds Nutritionally 
Improved through Biotechnology, Prepared by a Task Force of the ILSI International Food Biotechnology 
Committee. Comprehensive Reviews in Food Science and Food Safety 3: 35-104. 
http://www.ift.org/pdfs/crfsfs/crfsfsv3n2p0035-0104ms20040106.pdf 
226 Monsanto (2000) Updated Molecular Characteri zation and Safety Assessment of Roundup Ready 
Soybean Event 40-3-2. Monsanto Co. St. Louis, 20 pp. 
227 Dudek, B.R., 2001. Amendment 1 to final report. 13 Week Feeding Study in Rats with Grain from 
Roundup Ready® Corn (NK603) Preceded by a 1-Week Baseline Food Consumption Determination with PMI 
Certified Rodent Diet #5002. Monsanto Technical Report MSL 17555 (Amendment to MSL 17423), St Louis, Missouri  WT/DS291/R/Add.7 
 WT/DS292/R/Add.7 
 WT/DS293/R/Add.7 
 Page I-337 
  
  624. Finally, as regards the CA's request for add itional information on molecular characterisation 
(on which Dr. Nutti has not commented), the Europ ean Communities would offer the following brief 
comments: 
625. The European Communities refers to the inte rnationally agreed principles regarding the 
necessity of detailed molecular characterisation in a thorough safety assessment (see section III on 
general and methodological issues, a nd the expert replies on Q 9, 111 and following).  In the present 
case, it should be noted that the request is dated December 13
th 2001, i.e. almost one year after the 
publication of the paper on GTS 40-3-2 (Windels et al., 2001).228  Thus, the scientific basis for 
requesting full sequence data of appr ox. 1000 bp flanking each side of th e insert is justified, also on 
the basis of state-of-the-art knowledge and tec hnology. Clearly, Southern blot analysis was 
insufficient as evidence by this date.  Therefore, the requested data was necessary to ensure that 
conclusions of the safety assessment were valid. 
Question 53bis 
 
Given the information before the Panel, including the first whole food study and agronomic performance tests (EC 96/At.2, pp. 102-103), was a second animal whole food study (EC 96/At. 7) necessary or useful to identify pot ential adverse effects, including tho se associated with small random 
DNA insertions, that had not been previously identified?  
General comments  
626. The question refers to the lead CA's request fo r a semi chronic toxicity study (question 2 in 
EC-96/At.2), which was already covered by and addressed in question 53.  Dr. Nutti's comments in essence are identical to her comments in question 53  on that issue.  Therefore, the European 
Communities refers to its a bove under question 53.   
Question 54 
 Given the information before the Panel, including th e application, was information requested by Italy 
(EC-96/At.9) necessary to ensure that conclusions  of the safety assessment were valid?   
 
General comments  
627. Dr. Nutti comments on one specific request the Ital ian CA made, namely a request for further 
animal studies.  Her conclusion that such data woul d not be necessary has to be dismissed on the same 
grounds as have been put forward in question 40 on  the issue of feeding studies with farm animals 
with physiologies different from that of the bro iler chicken  Therefore, the European Communities 
refers to its above comment under question 40.   
Question 57 
 Given the information before the Panel, includi ng the application (EC-101/At.1-3) and the additional 
information provided by Pioneer (EC-101/At 13),  was additional information molecular 
characterization, field trials, secondary plant metabolites, and toxicological tests requested by the 
Netherlands (EC-101At.14) necessary to ensure that c onclusions of the safety assessment were valid? 
 
                                                     
 
228 Windels P., Tavernier I., Depicker A., Van Bock staele E. & De Loose M. (2001). Characterisation 
of the Roundup Ready soybean insert. Eur. Food Res. Technol. 213:107-112. WT/DS291/R/Add.7 
WT/DS292/R/Add.7 WT/DS293/R/Add.7 
Page I-338 
  
General comments 
 
628. Dr. Nutti, Dr. Andow and Dr. Squire comment on this question.  Dr. Squire generally 
confirms the CA's request as "consistent with the type of information indicated in the Codex 
Guidelines for the conduct of food assessment of foods deri ved from recombinant DNA plants. "  
Dr. Nutti and Dr. Andow provide specific comments on qu estions 2, 3 and 4 raised by the Dutch CA.  
On questions 2 and 3 the two experts come to  opposite conclusions.  The European Communities 
agrees with Dr. Andow's conclusions. On question 4,  the debate on the necessity of certain animal 
toxicity studies on hybrids is identical to the one in question 44.  The European Communities, 
therefore, refers to its comments in question 44.   
Detailed comments 
 
629. On the issue of data on herbicide treatment Dr. Nutti concludes that the required information 
is not relevant to ensure that conclusions of the safety assessment were valid. In that she is 
contradicted by Dr. Andow who concludes that "t here is a scientific justification for requiring 
comparison of T25 with glufosinate, T25 without  glufosinate and maize without T25 and without 
glufosinate." The European Communities agrees with  Dr. Andow.  Dr. Andow adds that he believes 
"that there is a legitimate scientific debate as to  whether all three are necessary to ensure that 
conclusions of the safety assessment were valid."  Th e fact that there is a scientific debate does not 
call into question the CA's request (which Dr. Andow  himself recognises as scientifically justified).  
For the reasons already set out in its earlier comme nts, eg on question 49, the European Communities 
sides with the view that the CA has taken, namely that the comparison of all three sets of data, which 
the applicant indicated to be readily availa ble (EC-101, At.13, A2, p.2), is necessary.  
630. On the request for data on secondary compounds Dr. Nutti is of the opinion "that information 
required is not relevant to ensure that conc lusions of the safety assessment were valid, as the 
compositional information supplied before leads to  the conclusion that the product was substantial 
equivalent." She adds that "in this case, we have  a product that is a conventional cross of two GM 
corns, but this product has not been submitted to a new genetic modification, so the possibility of 
fortuitous changes in the plant seems to be vanishing small, if exists."  In this assessment, Dr. Nutti is 
contradicted by Dr. Andow who finds that "There is a legitimate concern that there are additional 
transgenes incorporated into the T25 and Mon81 0 lines that could be expressing additional but 
unknown gene products, and that elude  detection by present molecular methods.  In addition, it is also 
possible that the main gene products from T25 or  Mon810 could interact with plant metabolism, 
changing the composition of the plant."  While Dr. A ndow also speaks of a "small likelihood" of this 
happening, he finds that "it is difficult to argue how small."   
631. The European Communities ag rees with Dr. Andow's assessment. While the issue of 
conventional crosses of GM lines is not specifically  addressed by the Codex guideline, it does so for 
the issue of unintended effects, for exam ple in paragraph 15 (Unintended effects): 
Unintended effects may also result in the formation of new or changed patterns of 
metabolites"  
632. Dr. Nutti states that compositional analysis would already have led to the conclusion that the 
conventional cross is substantially equivalent.  This compositional an alysis was, however, "targeted", 
i.e. specific compounds have been measured.  Any changes in compounds that have not been 
measured would therefore remain unnoticed.  WT/DS291/R/Add.7 
 WT/DS292/R/Add.7 
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  633. Dr. Nutti also asserts that additional unintended effects are hardly possible in conventional 
crosses of GM lines.  For example, the introduced GM traits from the particular parent plant may 
interact with each other within th e conventional cross of GM lines. 
634. One example is that of "gene silencing" (inac tivation of gene function)  by bringing together 
genes with similar sequences from different parents within the same plant (as observed, for example, 
by Charrier et al. (2000) and De Wilde et al. (2001)).
229 
635. Based upon the considerations above, including  the fact that unintended effects in 
conventional crosses of GM lines cannot be excluded on beforehand, the request of the lead CA was 
relevant from the point of view of safety of the cross of two GM crops and any secondary metabolites 
that have been changed as an unintended side-eff ect of the combination of genetic modifications. 
636. On the request for additional toxicity testing, both Dr. Nutti and Dr. Andow take the view that 
there is no need for such tests albeit for differing reasons.  Both have discussed their position in more 
detail in questions 44 and 44bis.  There are valid argu ments to refute either's position.  The European 
Communities has discussed those in question 44 and 44 bis, therefore, refers back to its comments 
therein. 
637. Finally, as regards the CA's request for add itional information on molecular characterisation 
(on which no expert has commented), the Euro pean Communities would offer the following brief 
comments: 
638. The European Communities refers to the inte rnationally agreed principles regarding the 
necessity of detailed molecular characterisation in a thorough safety assessment (see section III on 
general and methodological issues, and the expert re plies on Q 9, 111 and following) as well as to its 
comments in questions 44 to 44ter.  
639. Generally, stacked hybrids will require a separat e molecular characterisation and complete 
risk assessment, and can not only rely on evaluation of the parental  GM events.  Furthermore, the 
request from the Netherlands (EC-101/At.14, dated April 23rd 2001) was necessary to ensure that 
conclusions of the safety assessment were valid.  By this date DNA sequencing had been applied 
routinely for characterisation for almost a de cade.  Furthermore, the Windels et al. (2001)230 paper 
was published a few months prior to the request.  Th is paper clearly demonstrated the relevance of 
detailed sequence information including the flanking sequences. 
Question 58 
 
Given the information before the Panel, including the application (EC-102At.1-20) and the information provided by Monsanto/Novartis  (EC-102/At.22, 26 and 27-30), was additional 
information regarding food safety assessment of d erived proteins requested by the Netherlands  
(EC-102/At.32) necessary to ensure that conclusions  of the safety assessment were valid?  Did the 
food safety assessments provided by the applicant  follow the Codex Guide line for the Conduct of 
Food Safety Assessment of Foods Derived from Recombinant-DNA Plants. 
                                                     
 
229 Charrier, B., Scollan, C., Ross,S., Zubko, E., Meyer, P. (2000) Co-silencing of homologous 
transgenes in tobacco. Mo lecular Breeding 6: 407-419. 
De Wilde, C., Podevin, N., Windels, P., Depicker, A. (2001) Silencing of antibody genes in plants with 
single-copy transgene inserts as a result of gene dosage effects. Molecular Genetics and Genomics 265: 647-653. 
230 Windels P., Tavernier I., Depicker A., Van Bock staele E. & De Loose M. (2001). Characterisation 
of the Roundup Ready soybean insert. Eur. Food Res. Technol. 213:107-112. WT/DS291/R/Add.7 
WT/DS292/R/Add.7 WT/DS293/R/Add.7 
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General comments 
 
640. Dr. Nutti concludes that "there was no need for requesting a semi chronic toxicity study in 
mice or rats using the edible parts of the sugar beet in order to rule out possible undesired effects of 
additional unidentified changes."  The request for a semi chronic toxicity study had been one of the 
CA's requests.  The European Communities di sagrees with Dr. Nutti's conclusion on the grounds 
already set out in questions 44, 51, 53, and 57.  The CA had also raised specific concerns on the 
potential presence of a certain fusion protein (pro tein 34550), a concern which Dr. Nutti does not 
specifically address in her comments, presumably because that question pertains to issues of 
molecular characterization, which would be outside the scope of Dr. Nutti's comments. 
VI. THE PANEL'S QUESTIONS ON ISSUE 2 ("SAFEGUARD MEASURES") 
(NOS 59 TO 95)  
A. I
NTRODUCTORY REMARKS  
641. The Panel's questions 59 to 95 concern the Me mber State safeguard measures. Generally, for 
each measure, there are three questions, concerning: the sufficiency of scientif ic evidence; the risk 
assessment, and its relation to inte rnational guidelines; and the jus tification for provisional measures, 
in the light of other available risk management options. 
642. The European Communities would like to make the following general comments.  
643. First, the European Communities understands that what the Panel's question aims to elucidate 
is the issue of the point at which the information or scientific evidence is sufficient for the authority to 
decide definitively  whether or not to approve the product; and the issue of whether or not that point 
had been reached in the specific circumstan ces of the Member State safeguard measures. 
644. Second, in science as in law, it may be pr oblematic to prove a negative, especially 
prospectively. That is, it may be problematic for a scientist to certify definitively that mass 
commercialisation of a new product will have no ad verse effects on human health. In making a risk 
assessment, it is likely that the scientist may have to place the product and the i ssues associated with it 
in context. The scientist may need to get some kind of "helicopter vision" on the problem. The new product may be just one feature of the scientific la ndscape – and the scientist may need to consider the 
landscape as a whole before taking a view on the relative safety of the product. In these 
circumstances, the absence of info rmation or evidence about the context may be just as significant as 
the absence of information or evidence about the product itself. 
645. Third, the Appellate Body has made it clear that  the concept of "sufficiency" is a relative one 
– the scientific information must be sufficient fo r a specific purpose, that is, for the purposes of 
deciding whether or not to approve the product defini tively, taking into account the legislator's chosen 
level of protection. The higher the chosen level of  protection, the more scientific evidence may be 
necessary before the evidence is su fficient to make a definitive decision, and the longer the period of 
time and the greater the resources that may reasonably be required. 
646. Fourth, the evaluation will also be a function of the information or scientific evidence 
available: the less information or scientific informa tion available, the less detailed the evaluation may 
be. 
647. Fifth, it may well be that the available informa tion or scientific evidence and the evaluation or 
assessment are insufficient to support a definitive refusal to authorise: but that it is still sufficient to  WT/DS291/R/Add.7 
 WT/DS292/R/Add.7 
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  support a provisional measure, at least if the conditions of Article 5.7 of the SPS Agreement  are 
complied with. This is the position with regard  to the Member State safeguard measures. 
648. Sixth, as the European Communities has alread y explained in its submissions, to fairly 
understand why the Member States acted as they did it is not sufficient to look only at the text of the 
provisional measures themselves (which is often re latively succinct), and the notification to the 
Commission. It is also necessary to consider th e history of the discussions, including the discussions 
at Community level, in which all the Member States participated. From this perspective, it is unnecessary to distinguish between safeguard measur es adopted by different Member States, except 
insofar as there are additional considerations spec ific to that Member States (such as climate, 
agricultural structures and practices, flora, fauna, et c.). In order to avoid unnecessary repetition, the 
European Communities will, in these comments, refer b ack to the more general observations that have 
already been made. 
649. Seventh, the European Communities would note  that the responses to  the three types of 
question often overlap to a significant extent. In su ch circumstances, where appropriate, the European 
Communities will comment in general terms in relation to each product for which a safeguard 
measure has been adopted. 
650. With these general remarks in mind, the Eu ropean Communities will now comment on the 
expert advice with respect to each of the products. 
B. Q
UESTIONS 59 THROUGH 65 
Question 59 
 Given the information before th e Panel, including the evaluat ions undertaken by the UK 
(EC-161/At.1), the Scientific Committee on Pl ants in May 1998 and May 1999 (CDA-35-A and CDA-
69, respectively), and the European Commission in its Decision of February 1996 (CDA-62), as well 
as the information submitted by France
 with respect to its safeguard measure (EC -161/At. 3 to 11; 
CDA-68, CDA-70, CDA-71), is there any reason to believe that the scientific evidence available to 
France in November 1998 and July 2001 was NOT sufficie nt to permit it to undertake an appropriate 
assessment of potential risks to human, plant and animal health, and the environment from the 
growing for seed production of oilseed rape MS1 x RF1?  If so, what scientific evidence do you 
believe was insufficient? 
 
 (a) If the evidence was not sufficient in  November 1998 and/or in July 2001, was there 
sufficient evidence available to France in August 2003  to permit it to undertake a 
more objective assessment of potential risks to human, plant and animal health, and the environment from the growing for seed production of oilseed rape MS1 x RF1?  If 
not, what scientific evidence do you believe was insufficient?   
 
651. The European Communities would draw the Panel's attention to the fact that, in response to 
this question, Dr. Squire notes that: "The EC SPC  and the information submitted by France therefore 
agreed on the nature of this potential problem, but  differed on its importance or extent"; and that 
"There was insufficient knowledge at that time to be  able to predict accurately, for a country such as 
France, what the rates of spread and cross pollinati on would be (GM to non-GM) if a large part of the WT/DS291/R/Add.7 
WT/DS292/R/Add.7 WT/DS293/R/Add.7 
Page I-342 
  rapeseed areas were GM". Dr. Squire further notes th at even at the end of 2003 no conclusions can be 
drawn and that work is still in pr ogress, citing to specific references
231. 
652. Furthermore, Dr. Snow advises as follows: 
Given that, 1) the SCP identified concerns a bout the spread of herbicide resistance to 
volunteer weeds, even though they considered  this to be more of an agronomic 
problem than an "environmental" one; 2) th e SCP underestimated the extent of gene 
flow that is to be expected to other oi lseed rape crops, volunteer weeds, and weedy 
Brassica rapa; and 3) the SCP recommended that the introduction of herbicide-
tolerant crops should be accompanied by "ii)  a monitoring programme with an agreed 
design and implementation plan to detect  the occurrence and the establishment of 
herbicide-tolerant volunteers and weeds under field conditions in the EU;" I conclude 
that France had valid reasons to follow the advice of its Biomolecular Engineering Committee to carry out more research to "supplement existing scientific knowledge 
and validate methods for managing the cultivation of genetically modified oilseed 
rape." Scientists in France were well awar e of the fact that transgenes would be 
dispersed by means of pollen and seeds, making it difficult to design management plans that would prevent problems in the future. These problems could be compounded if transgenes for glyphosate to lerance were also approved in oilseed 
rape and other crops, as I explain elsewhere.  One could argue that future events are 
not relevant to this isolated product, but glyphosate-tolerant oilseed rape has also 
been proposed for commercialization in Europe."
232 
653. With regard to environmental issues, Dr. Nutti gives no advice233. With regard to human, 
plant and animal health, Dr. Nutti expresses th e opinion that the information submitted was 
"adequate"; that there was "no evidence to indicate"  that the product was "likely" to cause adverse 
effects; and that there was "no scientific evidence" on the basis of  which France could "ask for the 
moratorium"234. 
654. In the opinion of the European Communities, Dr. Nutti's advice on this point is of little if any 
assistance in resolving the relevant issue. First, Dr. Nutti appears to have considered whether or not 
the science could have justified a definitive decision not to approve the product – concluding that this 
is not so. However, that is not the pertinent issu e. The pertinent issue is whether or not the science 
could justify a provisional measure – a matter that Dr. Nutti does not consider at all. Second, the 
question for an authority in such a situation is not whether or not the informa tion is merely "adequate" 
– the standard applied by Dr. Nutti. Rather, the ques tion is whether or not the science is sufficient for 
a definitive decision to be taken. Depending on the a cceptable level of risk chosen by the legislator 
"adequate" may well fall far short of "sufficient". Third, Dr. Nutti appears to have considered whether 
or not the science established that the product "is likely  to cause adverse effects". But that is not the 
applicable standard. In order to provisionally exclude  a product, an authority is not required to show 
that the product "is likely" to cause adverse effect s. Rather, the authority must comply with the 
conditions set out in Article 5.7 of the SPS Agreement , which set out a different standard. Fourth, 
Dr. Nutti's conclusions are based on the alleged absence of evidence  to indicate likely adverse effects. 
That is an erroneous expression of the burden of proof issue.  
                                                      
231 Squire, pages 14 and 15. 
232 Snow, page 21. 
233 Nutti, page 43. 
234 Nutti, page 43.  WT/DS291/R/Add.7 
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  655. Having regard to these fundamental errone ous assumptions, the European Communities 
considers Dr. Nutti's advice to be of no valu e in resolving the issues before the Panel. 
656. The European Communities concludes that, on th e environmental issue, the expert advice 
given unanimously supports the position of the EC; and that on the issue of human, plant and animal 
health, no expert advice has been given capable of  calling into question the lawfulness of the view 
that, for France's purposes, the sci entific evidence was in sufficient to adopt a definitive decision. 
Question 60 
 
With reference to the definition of a risk assessment  in the SPS Agreement (see Background above), to 
what extent does the scientific evidence and other documentation submitted by France evaluate the 
relevant risks to human, plant or animal health, and th e environment from the growing of oilseed rape 
MS1 x RF1 for seed production? 
 
 (a) How does the scientific evidence and other documentation submitted by France 
compare with the relevant international guidelines for risk assessment and analysis identified above? 
 
657. The European Communities would draw the atte ntion of the Panel to the observation of 
Dr. Squire: "It could be argued that France's pos ition was compatible with the tone of the SPS 
Agreement, Annex A, paragraph 4 (including economic as well as biological consequences) and 
compatible also with ISPM-11 Annex 3 on 'Deter mining the potential for a LMO to be a pest'."
235 
658. The European Communities would also refer to Dr. Snow: "To the extent that these concerns 
are justified in the context of i nvoking "safeguard" measures (which I consider to be a legal question), 
I conclude that France had valid reasons for de ciding that additional scientific research was 
needed."236 
659. With regard to Dr. Nutti, the co mments outlined above also apply, mutatis mutandis . 
660. Essentially, the conclusion with respect to ques tion 60 follows inevitably from the conclusion 
with respect to question 59. Once the insufficiency of  the scientific evidence is  established, it follows 
that, even on the Complainants' (erroneous) r easoning, there can no longer be any possible 
controversy about the provisional nature of the meas ure. The relevant provision being Article 5.7 of 
the SPS Agreement , what is required is that the authority act "on the basis of available pertinent 
information", making an assessment appropriate to the circumstances. Thus, the extent of the evaluation will always be a function of the availabl e information and science – a view that is also 
reflected in the relevant international guidelines. 
Question 61 
 
Does the scientific evidence and othe r information submitted by Fran ce support the adoption of a 
temporary prohibition on the growing of oilseed rape  MS1 x RF1 for seed production?  In light of any 
potential risks identified by France, what other ri sk management options were available in November 
1998 and/or July 2001?  What other risk management options are now available? 
 
                                                     
 
235 Squire, page 15. 
236 Snow, page 22. WT/DS291/R/Add.7 
WT/DS292/R/Add.7 WT/DS293/R/Add.7 
Page I-344 
  661. The European Communities notes that, according to Dr. Squire, "The risk management 
options were and are similar to those indicated gene rally for oilseed rape … The risk of spread and 
cross-pollination can be reduced by such measures but not eliminated"
237. 
662. Dr. Snow observes: 
I do not have enough information to answer this question.  If the question refers to 
seed production on a very small scale, a temporary prohibition presumably would be 
less urgent and possibly unnecessary.  If the plants are grown on a fairly large scale, for example on 1,000 hectares per year, the i ssues at hand are similar to those for the 
previous questions. 
The basic concern is that herbicide resist ance genes would spread in conjunction with 
wider use of this herbicide over time, and that other types of herbicide resistance 
genes might also be approved in the futu re (e.g., glyphosate resistance), thereby 
compounding the problem.  One could argue that future events are not relevant to this 
isolated product, but glyphosate-tolerant oilseed rape has also been proposed for 
commercialization in Europe.
238 
663. According to Dr. Andow: 
The adoption of a temporary prohibition can be  justified on the basis of the scientific 
evidence and other information submitted by France. 
Several other risk management options coul d also have been justified in November 
1998 and July 2001.  Risk management strategies include risk avoidance, risk 
mitigation, and risk tolerance.  In 1998 and 2001 mitigation and tolerance strategies 
were probably inappropriate.  Here I consider only the risk that France expressed in 
its original decision to impose a temporary prohibition.  One risk avoidance strategy 
would have been to allow limited planting in a restricted region.  In the first year, this 
could have been at a scale of a large field trial, and build up from there.  This would 
allow determination of scale effects.  Anot her strategy is outlined  in paragraph 3.19. 
Today several alternative risk management op tions are available.  In addition to risk 
avoidance as in the previous paragraph,  risk mitigation strategies may also be 
possible to control HT volunteers and wild species.  It would appear that France is now convinced that if HT volunteers or wild species occur that they can be detected 
rapidly enough and eliminated.
239 
664. The position with regard to Dr. Nutti has already been outlined above. 
665. The European Communities observes that c oncerns raised by France about rapeseed 
applications in 1998 focused on the impact of cr opping systems and agricultural practices on the 
spread and establishment of HT plants, via volunteers or hybrids with wild relatives. Although 
scientific knowledge was already available on pollen flow and out-crossing rate to wild relatives, 
several issues remained open: 
                                                      
237 Squire, page 15. 
238 Snow, pages 23 and 24. 
239 Andow, page 84.  WT/DS291/R/Add.7 
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  • Information available on gene flow (e.g. long distance gene flow) was obtained from 
small-scale experiments and was difficult to extrapolate to large-scale dissemination 
of GM crops; 
• The effect of the various cropping systems and agricultural practices one may find in 
European agriculture and which would ex ert a selection pressure on HT plants was 
not assessed;  
• Inter-specific hybrids with very common wild relatives Raphanus (wild mustard) in 
French cropping systems had been recently established
240); 
• The precise contribution to gene flow of feral plants which are present in non-
cultivated areas was clearly not available.  
 
666. This meant that, depending on the legislator's c hosen level of protection, it was possible that 
the overall ecological and economic balance of grow ing HT rapeseed varieties could not be assessed. 
This statement was clearly applicable to crop prod uction. As to the seed production, even if the scale 
is lower than for crop production, the acreage of rapeseed production was 4,314 ha in 2004 in France. 
Even if it was unlikely that seed production of MS1 x RF1  would cover all this acreage, the figure of 
1,000 ha mentioned by Dr. Snow is  realistic. As seed production is pe rformed in various regions, this 
could be considered as a significant dissemination (at least much higher than field experiments). 
667. Furthermore, if seeds are produced, it would be  likely that crop production would occur later 
and it seems reasonable to anticipate larger scale di ssemination (in fact, an application for cultivation 
was already submitted before 1998). The same kind of argument is considered re levant for taking into 
account the impact of herbicides on HT crops ev en if the herbicide is not yet approved for 
commercialisation.  
668. With respect to imports, the exposure may be  lower as no intended dissemination through 
cultivation would normally occur. Nevertheless,  spillage from transport or during handling of 
imported seeds can occur241. Even if the potential for spread a nd establishment could be considered 
quite low (especially in the case of glufosinate to lerance), there were uncertainties about out-crossing 
to wild relatives, spread and establishment of fera l plants (see above) while the detection of such 
events in the environment was not yet available.  
669. Wild relatives that outcross with B. napus are present in various regions: wild radish 
(raphanus) and cabbage (B. oleracea) whose Europ ean coastal zone is a centre of diversity. 
670. The European Communities would also note that  if imported seeds entered into cultivated 
fields (directly through seed dispersal or by pollen flow from feral plants to cultivars), their 
development could then be maintained in the case of  farm-saved seeds (more than 30 % of the French 
cultivars).  
671. With regard to the assertion that imports w ould concern spring rapeseed and, consequently, 
lead to a reduced risk of establishment, the Eu ropean Communities observes that, in fact, spring 
cultivars are mainly characterized by a shorter cycl e, but their frost tolerance, although lower than 
winter types, does allow them to surv ive winters in many parts of Europe. 
                                                      
240 Chèvre AM, Eber F, Baranger A,  Renard M. 1997. Gene flow from transgenic crops. Nature 389: 
924. 
241 Crawley et al, 1993. WT/DS291/R/Add.7 
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Page I-346 
  672. Since 1998, various studies have been carried out to address the specific concerns outlined 
above and the initial scientific stat ement was updated in 2001 and 2003.
242  Long distance gene flow 
is now better established even if the precise role  of insects in cross-pollination is still under 
investigation. The potential for long persistence of HT plants has been demonstrated through the post-
release monitoring of HT field trials: in one locati on site, and six years after a HT field trial, GMHT 
volunteers still accounted for almost 2% of the plants  in a non-GM rapeseed field; and this occurred 
without any selection pressure as the glufosinate had not been used in that area243. Such a 
phenomenon was only  observed in one of several locations. However, this, once again, means that it 
was legitimate, as a matter of WTO law, including under the SPS Agreement , for France to take into 
account the great diversity of agro-ecosystems.   
673. Gene flow models have been designed to assess the effect of cropping systems and of 
management practices leading to a better predictive capacity (see question 6). In that context, it has been confirmed that, under some agricultural practi ces, feral plants could highly contribute to the 
spread and establishment of HT crops
244. 
674. In the light of these observations, the European  Communities again concludes that the weight 
of expert advice to the Panel overwhelmingly sup ports the position of the European Communities in 
these panel proceedings with regard to  the French safeguard measure for MS1 x RF1 . 
C. TOPAS 19/2  (NOTIFICATION C/UK/95/M5/1)  (FRANCE AND GREECE ) (QUESTIONS 66, 67 
AND 68) 
675. Essentially, many of the issues and expert comments with regard to Topas 19/2  are very 
similar to those regarding MS1 x RF1 , except that Topas 19/2  was approved for seed processing rather 
than cultivation. The European Communities will not th erefore re-iterate the questions or the experts' 
comments, it being sufficient to observe that, whilst the risks may not have been quite as acute, they 
were nevertheless there. And in this context it shou ld not be forgotten that the relevant question is 
whether or not the Member State authorities, applyi ng their chosen level of protection, were entitled 
to adopt a provisional measure on the basi s of available pertinent information. 
676. The European Communities would in particular not e that Dr. Andow confirms that, at least in 
1998, an authority would have been entitled to take  the position that the scien ce was insufficient to 
take a definitive view. Areas of concern include d molecular characterisation (a particularly 
fundamental issue) and co-existence. Furthermore, the Member States could reasonably have taken 
the view that the risk management measures proposed  by the SCP were not supported sufficiently by 
science. Dr. Andow observes that: "The scientific evidence in 1998 on the agricultural practices 
necessary to eliminate HT volunteers and wild species resulting from spillage may not have been 
sufficient to complete an accurate as sessment of risk management practices."245 
                                                      
242 Opinion of the French Biomolecular Engineering Committee (BEC), 02-2001; BEC Opinion 02-
2004. 
243 CETIOM, internal report. 
244 Bock, A.-K., Lheureux K,. Libeau-Dulos M. Nilsagard H., Rodriguez-Cerezo E., 2002. "Scenarios 
for co-existence of genetically modified, conventional and organic crops in European agriculture", Technical Report Series of the Joint Research Center of the European Commission, EUR 20394 EN., 133p.. Angevin F., 
Colbach N., Meynard, J. M., 2003. Coexistence of Rapeseed Varieties in Time and Space: Using GeneSys 
Model to Adapt Cropping Systems. 11th International Rapeseed Congress, Copenhagen, 6-10 July 2003, pp 732-734. Colbach N., Angevin F., Meynard J. M., Messéan A., 2004 Using the GeneSys model quantifying the 
effect of cropping systems on gene escape from GM rape varieties to evaluate and design cropping systems. 
OCL, 11: 11-20. 
245 Andow, page 86.  WT/DS291/R/Add.7 
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  677. The European Communities would further note that , at least at the time these measures were 
adopted, gene/pollen flow uncertain ties and coexistence were still a si gnificant and relevant area of 
scientific uncertainty, in particular for multip le undesired HT gene stacking in oilseed. 
678. There was also a significant outstanding issue at the time regarding possible seed escapes 
from seed imports and seed dormancy (in particular in the context of the particular seed properties of 
oilseed (size, longevity, etc...), and the well known ri sk of feral escapes during transport from the field 
to the crop or the processing plant. These risks had to  be considered also in the context of the then 
limited availability of proper management tools (including pollen flow unde rstanding and surveillance 
and monitoring). 
679. Even today, the risk arising from possible seed es capes must still be placed in the context of 
the climate in the region of import, including where spring rape is not normally agronomically grown, 
and where winter frost may not be prevalent. Th ere may be significant differences, for example, 
between Mediterranean ports and Scotland. The risk must also be placed in the context of possible 
potential "systemic" HT risks, if several different  HT characteristics become present in oilseed rapes 
from undesired pollen sources, and giving due consider ation to HT oilseed in the context of agro 
management issues, where there are several different  HT crops in rotation, which in turn could be 
considered to gradually increase prevalence of glufosinate use. 
680. In this context, if there is long seed dormancy,  and if there had been a general increase over 
the years of the use of HT crops, potential oilseed  escapes, even limited, may reasonably have been 
perceived then to potentially become a problem later,  given also that tools were not yet identified at 
the time which would have allowed appropriate management or rever sal of the situation, if it had 
arisen.  
681. A related aspect of the problem is that once cultiv ation of some HT crops has been authorised, 
a decision has also been implicitly taken in principl e regarding future HT crops – even before a full 
risk assessment may have been completed. This wo uld, for example, be th e case when it comes to 
authorising glufosinate wheat in the context of auth orised glufosinate oilseed, sugar beet and maize, 
even if the issues regarding oilseed at that tim e would have been limited to escapes from imports. 
682. With regard to Greece, the European Comm unities would also note that Dr. Andow does 
consider that, with reference to the SPS Agreement , the Greek case did raise relevant risks to plant 
health. Dr. Andow also considers that the "poten tial pest" concept derived from ISPM should be 
considered, and that such argument holds for th is particular case because Greece did identify a 
potential risk, and because other potential risks could be identified. He further states that, for those 
risks within the scope of ISPM 11, the risk assess ment process was consistent with ISPM 11. In 
addition, he notes that the science, documentati on and reasoning of Greece are consistent with 
Annex III of the Cartagena Protocol on Biosafety to the Convention on Biological Diversity.  
Specifically, Annex III, Section 8(f), which states: "W here there is uncertainty regarding the level of 
risk, it may be addressed by requesting further info rmation on the specific issues of concern or by 
implementing appropriate risk mana gement strategies and/or monitoring the living modified organism 
in the receiving environment."
246 
683. The Mediterranean region (including Greece) is a ce ntre of diversity for wild crucifer species, 
and gene flow from GM brassica crops to these wild sp ecies is therefore an issue for consideration in 
a risk assessment in Greece (Chèvre et al 2004). If escap ed Topas 19/2 plants establish, then there is a 
possibility of gene flow to these re lated wild crucifer species which occur in Greece particularly in 
                                                      
246 Andow, pages 89 to 91. WT/DS291/R/Add.7 
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  some coastal areas. There was (and still is) uncertainty  about gene flow to wild relatives of the GM 
crop and possible consequences for rare or uncommon species. 
D. M
AIZE BT-176  (NOTIFICATION C/F/11-03)  (AUSTRIA , GERMANY , LUXEMBOURG ) 
(QUESTIONS  69 TO 77) 
1. Introductory remarks 
684. The European Communities consid ers that Dr. Nutti's response to question 69 is seriously 
flawed.  
685. First, as the European Communities has explained,  it considers that question 69 is aimed at 
ascertaining whether or not the science was sufficient for an authority to adopt a definitive  decision on 
whether or not to approve the product. Dr. Nutti's c onclusion does not address this issue at all. Rather, 
Dr. Nutti concludes only that the science was sufficient for an appr opriate assessment. That is self-
evident, the information or science being sufficient for Austria  to adopt a provisional  measure, based 
on an appropriate assessment. Dr. Nutti's conclusi on therefore makes no contribution at all towards 
resolving the dispute between the parties. 
686. Second, Dr. Nutti offers no detailed statement of fact nor developed line of scientific 
reasoning to support her conclusion, confining hersel f to references to certain opinions from certain 
scientific committees. She fails completely to addr ess the issue from the pers pective of the specific 
legislator's chosen level of protection. 
687. Third, she extends her conclusion to environmen tal issues, even though she repeatedly states 
that environmental issues are not her field, and th at she cannot therefore offer any advice in that 
respect. 
688. The European Communities considers that ques tion 70 is designed to assist the Panel in 
determining whether or not, underpinning Austria' s safeguard measure, there was an appropriate 
assessment or evaluation. The European Communities considers that there was, and has pointed in 
this respect not only to the additional documents pr oduced by Austria, but al so to the existing risk 
assessments. Dr. Nutti confirms this – re-itera ting what the European Communities has already 
referred to, namely the adequacy of the relevant risk assessments. Dr. Nutti thus confirms the position 
of the EC. 
689. With respect to question 71, Dr. Nutti states that  she considers that there is no support for a 
temporary prohibition, but offers  no explanation for this assertion. The assertion is, in any event, 
profoundly perplexing, given that it is uncontroversia l that the initial temporary restrictions imposed 
by the general legislation, which are not challenged in these proceedings, are not inconsistent with the 
WTO Agreements. Placed in this context, Dr. Nutti's unqualified and unexplained comments offer no 
assistance in the resolution of the present dispute. Similar comments apply with regard to Dr. Nutti's 
assertions concerning allergenicity and toxicology, in sofar as no consideration is given to the question 
of whether or not Austria, acting provisionally, based itself on available pertinent information. 
690. Similar comments apply with regard to Dr. Nutti's comments concerning Germany and 
Luxembourg.  
2. Anti-biotic resistance 
691. On the question of anti-biotic resistance, the European Communities refers to its comments to 
questions 1 and 2 above.  WT/DS291/R/Add.7 
 WT/DS292/R/Add.7 
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 Page I-349 
  
  3. Non-target organisms 
692. On the question of non-target organisms, apar t from the submissions that it has already made, 
and taking into account the general comments that it has already submitted in these observations, the 
European Communities would like to make th e following additional points. The European 
Communities considers that it is now clear that Bt toxin could accumulate in Bt-resistant herbivores 
(e.g. caterpillars which are able to ingest the Bt  toxin and thus accumulate it and/or its metabolites 
without dying), and so pass the Bt toxin and/or its metabolites to organisms higher up the food web 
(e.g. to predators and parasitoids which feed on Bt-resistant herbivores). This point involving multi-
trophic interactions
247 was not dealt with by the SCP in its analysis of risks to non-target organisms in 
the environment, at least not in a manner reflecting the specific legislator's concerns.  
693. Another issue similarly not considered by the SCP in a manner reflecting the specific 
legislator's chosen level of protection is the point that any increase in Bt-resistant herbivores (target or 
non-target species) will in crease the need for additional pesticide applications to control them. This 
'knock on' effect, arising from the need to contro l Bt-resistant pests using additional pesticides could 
add additional environmental risk to local biodive rsity (i.e. there is the potential for adversely 
affecting natural enemies, depe nding which pesticides were applie d), spray operators (pesticide 
handling and exposure risks) and c onsumers (pesticide residue risks). 
694. On economic grounds (cost: bene fit) the requirement of additional pesticides on Bt corn 176 
to control any Bt-resistant insects could negate any initial economic advantage of using GM crop 
event 176 (i.e. the savings on pesticide application could be lost and enviro nmental harm could be 
increased). 
695. The European Communities disagrees that the use of event 176 'and any progeny derived 
from crosses with traditional varieties' should automa tically be considered unproblematic, taking into 
account the specific legislator's chosen level of pr otection. The genetic background of each parent as 
well as any unintended genetic changes during tr ansformation and back-crossing are likely to 
introduce changes in plant metabolism and gene expr ession that can affect efficacy of the Bt toxin 
(important in the high dose / refuge strategy for insect resistance management) and nutritional value, 
via the potential for altered primary and/or secondary plant metabolites248. Such risks are mitigated 
(reduced) in plant breeding by several generations of back-crossing and careful selection of 'normal' 
crop phenotypes under a range of appropriate environments - taking several years, normally. 
696. The European Communities agrees with Dr. Andow's opinions on the likelihood of Bt toxin 
entering the soil ecosystem (via plant debris and/or ro ot exudates) and being more (not less) likely to 
cause harm to soil organisms (e.g. collembolan that consume plant remains in the soil) than residues 
from Bt sprays applied to foliage, where UV  br eaks down Bt toxin in foliar sprays quickly. The 
publication by Zwahlen et al. (2003) on earthworm s was apparently criticised by EFSA in July 2004 
as not being conclusive and definitive. The EFSA al so made comparisons between growing Bt crops 
with risks from using Bt sprays (the latter are know n to be UV unstable, contain different toxins, only 
present on leaf surfaces etc) that have been s ubsequently criticised. The cited criticisms by EFSA 
should at least have required that further follo w-on scientific investigations were performed 
(precautionary approach after some evidence of adver se effects to an important soil NT organism), not 
that the scientific evidence shoul d be dismissed and the potential risk to earthworms ignored.  The 
EFSA also appeared to discount linked eviden ce that in GM maize lines lignin content was 
                                                      
247 Groot & Dicke 2002; Plant Journal 31(4): 387-406. 
248 Haslberger 2001; Birch et al 2001; Ann Appl Biol 140: 143-149. See also the comments on the 
responses to question 3 for further details and citations. WT/DS291/R/Add.7 
WT/DS292/R/Add.7 WT/DS293/R/Add.7 
Page I-350 
  unintentionally altered, leaving open possible l ong term effects on GM crop decomposition and 
nutrient cycling
249. 
697. The European Communities agrees with Dr. Andow that by 2003 some, but not all, scientific 
uncertainties had been resolved. In particular, not all the most regionally important non-target species 
that could be exposed to Bt toxin via consumption of pollen from event 176 had been identified in 
Austria or other EC member states. Also, the risk of gene flow to non-GM varieties was still considered a valid risk by Austria in 2004 – an  observation with which the European Communities 
would agree. The risks of pests developing resistan ce to Bt toxin, of adverse effects on regionally 
important non-target organisms a nd of gene flow to conventional corn, could all potentially be 
managed by Member States. Once sufficient region- specific research had been conducted in relevant 
Member States. The methods now being developed (e.g. GMO Guidelines project) may now (in 2005) 
assist Austria in developing suitable risk assessment and risk management strategies, but this would take some time to conclude and verify in each relevant Member State.  
698. The EU project Bt-BioNoTa reported uninte nded effects of Cry1Ab proteins and Bt 
corn/cotton leafworm/green lacewing tri-trophic interactions
250. These results have still to be 
published but add to already known uncertainties a bout effects of Bt crops and Bt toxins on NT 
organisms. 
699. Specifically regarding question 69, Dr. Andow 's comments that prior to 1997 impacts on non-
target organisms and the risk of resistance had not been considered effectively are correct. There are 
at least two important issues here. First, the di fference between the situation as it was generally 
understood in 1997 compared with 2003. Dr. Andow correctly points out that attitudes changed between these two dates. However, a more fundame ntal change was the increase in both the quantity 
and quality of scientific data on NTO effects. By 2003, better designed, more field-based studies had 
been conducted. Examples include the extensive st udies on Monarchs by Hellmich, Sears and others 
published in 2001. These data models  have been further refined
251 and clearly show that effects exist, 
even if they are small.  
700. The second issue is the agricultural context. Th ere are undoubtedly effects on at least some 
non-target organisms252. It may reasonably be anticipated that as more species are tested, more effects 
will be found. This supports the view it is very di fficult to be sure that all appropriate NTO effects 
have been tested for. 
701. A second difficulty which hampers interpretation of the evidence is that findings relating to 
NTO effects are often conflicting and may be highly specific to particular GM lines. For example there was early concern that lacewings would be affected by Bt
253 but more recent work has 
contradicted this254. Similarly with Collembola, there are at least 4 studies – 3 of which show no effect 
and 1 that has suggested the small effects observed ar e very specific to the particular type of cry1 
product.  
                                                      
249 Birch et al., 2004, in Biodiversity and non-target impacts: a case study of Bt maize in Kenya, pp 
117-188, CABI Publishing , UK. 
250 Scientific presentation by Ruud de Maagd at international scientific conference in Ascona, 
Switzerland, Sept 2003 – 'Biodiversity Implications of GM Plants'. 
251 E.g. Dively et al 2004. 
252 E.g. the examples mentioned by Dr. Andow, indi rect effects on parasitoid abundance as in the 
Steffey et al. 2004 study and many others. 
253 Hillbeck et al. 
254 Romeis 2004.  WT/DS291/R/Add.7 
 WT/DS292/R/Add.7 
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 Page I-351 
  
  702. The discussion about soil organisms nicely illustrat es the difficulties in terms of sufficiency 
and NTO effects. It is a reasonable and lawful pos ition to say that no Bt crops can be planted until 
there is information on all potential non-target organism s in the soil, particularly given that scientists 
do not know much about most of the organisms in the soil (they cannot be reared and it is not known 
what they feed on).  
703. Another issue raised by Dr. Squire is that ther e is almost no information on the impact of non-
GM Bt preparations, which is a real concern if this is suggested as a comparator in monitoring 
schemes. The comments of Dr. Andow relating to the te mporary nature of Bt sprays must be seen in 
the light of the fact that there has been almost no monitoring of the impact of these sprays on either 
resistance or NTO effects.  
704. In terms of how monitoring can help with mitig ation of the risks as suggested by Andow and 
Squire, there is still a huge amount of disagreement about how best to proceed. Schemes for specific 
monitoring, e.g. to detect resistance, are easy to design, as are those testing specific hypotheses (such 
as, are there fewer parasitoids in Bt crops than  conventional ones). However, significant problems 
arise on the question of general surveillance to detect unforeseen effects: because the effects are 
unanticipated it may remain unclear how they are to be detected and dealt with. EFSA has published 
draft guidance on general surveillance and both EFS A and the EC working group on PMM are in the 
process of designing improved schemes. For example EFSA have already drawn up an environmental 
risk assessment and monitoring plan for Bt11 maize.  Other suggestions are in the ACRE guidance on 
PMM. 
4. Resistance management 
705. On the question of resistance management, apart from the submissions that it has already 
made, and taking into account the general comme nts that it has already submitted in these 
observations, the European Communities would like to make the following additional points. The 
European Communities would recall, first, that there is  a significant risk, given that this is a new issue 
specifically relating to Bt crops (regarding continu ous exposure and so on). Second, experience in the 
context of the use of conventional pesticides confirms how quickly problems can arise and how difficult it can be to control the situation once it has developed.  
706. Data on resistance management is improving and th ere is less uncertainty in both the results 
and how to measure them. The European Commun ities agrees with Dr. Andow that understanding in 
2003 is better than in 1997. The Spanish monitoring scheme had been in place for more than 5 years 
by 2003 and the EC protocol was published in 2003.  There is also improved information from the US, 
China and Spain to show how the development of resistance may be controlled if fields are well managed and there are standard protocols for mana ging the risk. For example, there is the 1998 EPA 
resistance management protocol and the report form the EU working group on insect-tolerant crops 
protocol
255. There is thus more information on baselin es, monitoring procedures and length of time 
needed – although many of these studies are not fro m Europe. Baselines remain problematic in terms 
of general surveillance (few are available and those that are are poorly characterised and movable). 
The criteria for monitoring plans may be better understood, but there remain arguments about 
indicator species, etc. and these will vary between  locations. The European Communities agrees that 
Dr. Andow's suggestion of a progressive determination of the risks is a sensible one, and is an idea 
that has been suggested in the literature many times before256. This tiered approach moves from lab to 
small scale field to larger scale field studies and there are several examples of it working very 
                                                      
255 Doc Nr ENV/03/24. 
256 E.g. Poppy; Romeis. WT/DS291/R/Add.7 
WT/DS292/R/Add.7 WT/DS293/R/Add.7 
Page I-352 
  effectively. It is also probably the only sensibl e way forward in terms of general surveillance and 
indeed it has already begun with the crops in Spain, China and the US. 
E. M
AIZE MON 810 (NOTIFICATION C/F/95/12-02)  (AUSTRIA , ITALY ) (QUESTIONS 78 TO 80) 
707. The European Communities has al ready indicated above the funda mental criticisms it has of 
the approach adopted by Dr. Nutti. 
708. In particular, the European Communities consid ers that Field data on development of Bt-
resistant pests or adverse effects on NT species from cotton in USA and Australia is clearly not appropriate to determine the risks of growing Mon 8 10 maize in European countries, such as Austria 
and Italy. The crop is different (cotton v maize), the target pests are often different in different 
continents and countries,  the NT species in EC  countries are different in different countries and 
regions, the cultivation methods for Bt maize are diff erent (due to climate, pest and disease pressures, 
scales of fields, etc), the regional environments are different (impacting on plant genotype x environment interactions), the scales of cultivation ar e different (size of maize fields, connectivity to 
non-cultivated flora and fauna), etc. Thus, such gro ss simplification (i.e. considering Bt cotton in USA 
or Australia equivalent to Bt maize in Europe or  Austria) is, without doubt, seriously scientifically 
flawed. 
709. The research by Cornell on Monarch butterflies and Bt maize pollen was considered 
'inconclusive'. In these circumstances, it would be appropriate to identify knowledge gaps and 
uncertainties, as appropriate to the specific envi ronment under consideration, as well as NT species 
and cultivation methods which warrant further scientific testing - not to simply reject the results out of 
hand because they are inconclusive. 
710. The European Communities thus shares Dr. A ndow's conclusion that scientific evidence in 
1999 and 2003 was insufficient to reduce scientific  uncertainties surrounding environmental impacts 
of Bt Mon810 if grown in the relevant Member State, to an acceptable level. 
711. The European Communities would also observe that  this product, like Bt 176, also contains 
the Cry1ab gene and many of the issues raised are the same (non-target organisms; resistance 
management; monitoring). The European Commun ities therefore here also comments on certain 
issues that are specific to this pr oduct. One issue which is rather different between Bt-176 and Mon 
810 is the molecular characterisation. It is clear  that there was uncerta inty over the molecular 
characterisation of Mon 810 in 1998, with mo re information being provided by late 2003
257. 
Dr. Andow raises this issue in his consideration of  Bt 176, to which consid erations he continuously 
refers in his comments on Mon 810. 
712. The issues relating to resistance management a nd monitoring and NTOs are very similar to 
Bt 176. However, the post-market monitoring (P MM) plan was very poor. Even by 2003 ACRE 
considered that the PMM plan was not proactive enough. 
713. Dr. Andow comes to the conclusion that, as in  the case of BT 176, the scientific evidence 
available in June 1999 was NOT sufficient to perm it it to undertake an appropriate assessment of 
potential risks to plants and the environment. Furthe rmore, in 2003, there remained some uncertainty 
about non-target risks of Mon810. Dr. Nutti answer s these questions focussing mainly on resistance 
induction and effects on target organisms, which ar e environmental questions, although she indicates 
that this is not her field of expertise. Furthermor e she only cites the statements of various Scientific 
Committees and agrees, but without discussing the issues. 
                                                      
257 See ACRE documents and UK opinions in the relevant attachments.  WT/DS291/R/Add.7 
 WT/DS292/R/Add.7 
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 Page I-353 
  
  714. The European Communities considers that the SC P obviously endorsed the critical arguments 
by asking for and encouraging fundamental new and massive instruments for safety management, 
such as monitoring in this area to detect any delete rious impacts. Obviously the scientific uncertainty 
was very high at this time. As already publicly stat ed, the SCP considers that it would be sensible to 
conduct monitoring in post-release situations. Furt hermore, it strongly endorsed the practice of 
monitoring with appropriate and adequately targeted methodology,  the large-scale introduction of 
such crops in order to detect any deleterious im pact on non-targeted Lepi doptera and other insect 
populations. The SCP wished to be informed of the results of any such field monitoring studies and as 
relevant information continues to  become available would further advise the Commission and draw its 
attention to any significant concerns that may arise. 
715. The European Communities also notes from a US -EPA FIFRA/SAP panel that uncertainties 
in Bt resistance induction, models and effects on non target mechanisms are still remarkable. The 
European Communities also refers to the WHO/ ANPA report on environmental effects of GMO 
where this report indicated significant concerns  in the addressed areas at the relevant time. 
716. In Exhibit EC 158/30, 1/2004 Austria discusses the principal problems of GM plant 
assessment in the fields of non target effects or  allergenicity where especially the arguments of 
Valenta for difficulties in the assessment of allergen icity are of relevance. Austria argues (Exhibit EC 
158/31) that, despite the contrary opinion of the sci entific committee involved at the time, Austria's 
doubts for the most part continued to persist. In th e case of the Bt maize varieties admitted, further 
doubts had in the meantime also been expressed by sc ientists regarding the possible allergenicity of a 
number of Bt proteins, in particular Bt 176 and MON 810 (and also Bt 11). In this connection, a study 
commissioned by Austria established that all previous applications for admission under Directive 2001/18/EC and also EC Regulation 258/1997 were inadequate in their safety assessment with respect 
to possible toxicological, allergenic and chronic effe cts of proteins formed by genetic modification. 
Austria therefore considered that they do not co mply with the new requirements in Annex II of 
Directive 2001/18/EC or with the criteria of the new Food and Feed Regulation. 
717. Even if a given protein per se  does not represent an allergen, its expression in another host 
organism may indirectly upregulate the expression of  potential allergens. It is therefore recommended 
to compare the engineered plant/plant product with  that of the parent/wildtype plant/plant product 
regarding IgE reactivity to establish whether the transgenic organism represents a more potent 
allergen source than the parent/wildtype organism  for already sensitized patients. The potentially 
increased ability of the transgenic organism versus  the parent/wildtype organism to induce de novo 
IgE responses (i.e. allergic sensitization) needs to be compared by immunization experiments. 
718. Concerning the results of the toxicological assessme nt of the companies, it must be stated that 
the comprehensive toxicological risk  assessment as described in Spök et .al. should be carried out. The 
recommendations given for a standardized and harm onized approach to the generation, presentation 
and interpretation of data concerning toxicology an d allergenicity of GM pr oducts are based on in 
depth scientific studies, performed by experienced sci entists in the field. The proposed tests should be 
performed by the notifier and the resulting data provi ded in order to guarantee a high level of safety 
and public confidence in the approach taken. 
719.
 Preliminary results of scientific research  on Cry1Ab proteins and the Bt-corn/cotton 
leafworm/green lacewing tritrophic interaction – unde rtaken within the scope of the EU-project "Bt-
BioNoTa" show the following unintended effects. Pote ntial effects on non-target organisms (level of 
expression) were influenced by the diet chosen, i. e. artificial versus tritrophic diet. This "dietary 
effect" is regarded as stronger that the effect of  the toxin itself. Cry1Ab increased the mortality in WT/DS291/R/Add.7 
WT/DS292/R/Add.7 WT/DS293/R/Add.7 
Page I-354 
  green lacewing larvae both when fed directly as well as through a preherbivor (when expressed in 
cotton). 
720. The European Communities would also note that this maize line contains an ampicillin 
resistance (bla gene) controlled by a bacterial pr omoter. Considerations detailed in the answer to 
general question 1 apply to this GMO. This GMO contains an antibiotic resistance gene already 
widely distributed in nature but confers resistan ce to antibiotics which are important and used for 
therapy in defined areas of medicine. Since it is rath er difficult to have a quantitative estimation of the 
risk for human health and since there are still contr oversy on the risk, it seems preferable to use this 
GMO only for limited trials in field but not for commercialization. 
721. There is a similar environmental case as for Mai ze Bt 176. This consent is for cultivation, so 
comments on the environmental impact of Bt on target, and non-target organisms and the 
development of resistance in corn borers have mu ch phytosanitary relevance, since they will be 
exposed by the growing of Bt maize in Austria or Italy. 
722. Austria expressed concern that these issues of the environmental impact of Bt on target, and 
non-target organisms and the development of r esistance in corn borers had not been properly 
addressed by various committees across Europe. Scien tific papers were appearing which appeared to 
show some adverse impacts on non-targets. Resist ance development was considered an agricultural  
problem by these committees where as Austria saw resi stance development as an environmental issue 
(and under current EU regulations it is now considered as an environmental issue). Strategies for 
managing resistance in corn borer were onl y beginning to be developed in Europe. 
723. Dr. Andow observes that, with reference to  the SPS Agreement, Austria has evaluated 
relevant risks to plant health.  Specifically, Au stria has taken into account available scientific 
evidence. The "potential pest" concept of ISPM 11 mu st first be considered.  This is a special case of 
the general argument, and that argument holds for this case because Austria argues that there is a plant 
pest risk.  For those risks within the scope of I SPM 11 the risk assessment process is consistent with 
ISPM 11. Furthermore, the reasoning of Austria is consistent with Annex III of the Cartagena 
Protocol on Biosafety to the Convention on Biological Diversity. 
724. In conclusion, Austria and Itlay had several phytosanitary grounds for requesting a ban on 
cultivation of maize Mon810, which are mostly supported by Andow: 
the environmental impact of Bt non-target organisms;  
the development of resistance to Bt in corn borers; and  
the lack of clear strategies for managing resistance in corn borer. 
725. Austria and Italy felt that these issues had not been properly addressed by various committees 
across Europe while scientific papers were appear ing which appeared to s how some adverse impacts 
on non-targets and Resistance development was cons idered an agricultural  problem by these 
committees and guidelines were only beginning to be developed. 
726. Dr. Nutti states that the issues at stake con cerned undesired effects on NT organisms and 
development of resistance in insects based on studies of other Bt plants in other continents. Clearly she admits that she is not an expert in this area and her answer is inadequate to address the scientific 
concerns raised.  WT/DS291/R/Add.7 
 WT/DS292/R/Add.7 
 WT/DS293/R/Add.7 
 Page I-355 
  
  727. More recent studies on possible environmental impacts of Bt crops
258 may provide the basis 
(risk assessment tools) for appropriate risk manageme nt studies in future, at least in a generic sense. 
However, these would need to be modified and valid ated for each Member State so that they were 
appropriate (i.e. used to identify most regionally important NT species or ecological functions, most 
regionally appropriate cultivation and crop mana gement systems, most appropriate crop and 
management systems as 'baselines' to compare levels of risk and benefit). 
728. The Codex Guidelines for GM foods to include  analysis of unintended effects. "The 
broadening of the Codex  risk assessment to includ e indirect effects (e.g. unintended changes in GM 
crops) now encompass effects of novel foods on the environment that have an indirect impact on 
human health". Human health is viewed as an  'integrating index of ecological and social 
sustainability', as outlined by the WHO and the Nati onal Agency for Protection of the Environment in 
Rome (2000) when reviewing potential environm ental hazards of GM crops. These findings were 
based on peer reviewed studies of GM barley, canola, maize, oilseed rape, potato and rice, published 
between 1994-2001259.  
729. Hence the European Communities disagrees with  Dr. Nutti's analysis. There were several 
scientific uncertainties in 1998 regarding environm ental harm and animal nutrition (interpreting 
animals in its broadest sense to include a range of  NT organisms). Levels of protein in GM crop 
events are only one of several indicators of unintended changes during transformation which could affect Italian NT organisms (others would in clude sugars, amino acids and plant secondary 
metabolites known to be ecologically important to most insect species). 
730. These uncertainties were in part confirmed later in 2003
260, when several unintended effects 
in GM crops were reported which would require testing under Italian cond itions (i.e. regionally 
relevant NT species, crop management systems, environments etc – see my earlier responses for references). 
731. Dr. Nutti often concludes on environmental issues and refers to CODEX/ FAO/WHO 
guidelines, materials. However, Codex Guidelines do not relate to the environmental issues. The 
European Communities refers to a published paper
261 which addresses the point that Codex Guidelines 
might include the assessment of unintended effects in  the environment as a prerequisite for health 
assessment. This could include e.g. the need of an assessment of effects in the environment (such as 
gene flow) which is relevant for assessing GM health and food safety in case contamination from 
products without foods safety assessment enter the food chain. 
732. According to Haslberger, the development of ri sk assessment concepts reflected the progress 
in the understanding of possible unintended effects of biotechnological methods in breeding.  Early 
regulations (e.g. EC, directive 90/220) for GMO di d not differentiate betw een environmental and  
product specific risks assessments wh ereas most modern regulations differentiate between  a general 
environmental assessment and asse ssments for specific products, such as pharmaceuticals, foods and 
feeds,  seeds, chemicals or even fibre products262. Specific risk assessment procedures were developed 
                                                      
258 Eg. from the GMO Guidelines Project; Birch et al., 2004 In: Environmental Risk Assessment of 
Genetically Modified Organisms vol 1. a case study of Bt maize in Kenya. Eds Hilbeck and Andow. CABI 
Publishing. pp 117-1850, and further case studies in press. 
259 See Haslberger, A.G., 2003. Codex guidelines fo r GM foods include the analysis of unintended 
effects. Nature Biotechnology 21, 7, 739-741 for summary. 
260 See Haslberger, A.G., 2003. Codex guidelines fo r GM foods include the analysis of unintended 
effects. Nature Biotechnology 21, 7, 739-741. 
261 Ibidem. 
262 EC, Biotechnology, 2004. WT/DS291/R/Add.7 
WT/DS292/R/Add.7 WT/DS293/R/Add.7 
Page I-356 
  for these products. This specification resulted in to a diversification for the assessment; however, 
experiences drawn from a growing body of risk assessment processes often indicate similar underlying problems. Notably the need for a mole cular characterisation and assessment of potential 
unintended molecular effects was identified as th e basis for the assessment in all fields.  
733. The concept that a comparison of a final produc t with one having an acceptable standard of 
safety provides an important element of safety assess ments of GMOs was a commonly used basis for 
the development of both, food safety and the environmental risk assessment
263. This concept was 
elaborated by FAO, WHO and OECD in the early 19 90s and referred to as substantial equivalence for 
the assessment of GM foods. Bu t in 2000 an FAO/WHO consultati on acknowledged that this concept 
had attracted criticism from the perception that it w as the end-point of a safet y assessment rather than 
the starting point264. The consultation concluded that a consid eration of compositional changes is not 
the sole basis for determination of safety and that safety can only be determined when the results of 
all aspects under comparison, and not merely comp arisons of key constituents are integrated. More 
recently the concept has evolved to a Comparative Safety Assessment for GMO foods265.  By 2003, 
both international systems covering GMO, GM f ood safety (Codex) and environmental safety (CPB) 
became effective,  where both systems are base d on the concept of a case by case approach. More 
recently, the need for a comprehensive molecular characterisation of each transformation event, 
including the analysis of integrated constructs and the flanking region as well as the need to address potential unintended effects was appreciated  fo r food safety- and environmental assessments
266 and 
this idea was also enforced by general recommendations of a US-FIFRA expert panel267. 
734. The Codex Alimentarius Commission adopted the Principles for the Risk Analysis of Foods 
Derived from Modern Biotechnology, and the Draf t Guidelines for the Conduct of Food Safety 
Assessment of Foods Derived from Recombinan t-DNA Plants and Microorganisms (Codex). The 
principles for the safety assessment dictate a cas e by case pre-market assessment on the basis of a 
comparative safety assessment (CSA). The CSA is basi cally a two-tiered approach. The initial step is 
comprised of a thorough comparison with the closely related conventional food  organism counterpart 
to identify any differences that may have safety implications for the consumer. This comparison 
includes both phenotypic characteristics as well as a compositional analysis. The second step comprises the toxicological and nutritional evaluation of the identified differences between the food derived from the GMO and its comparator.  Hazard identification and characterization are typically 
the first steps in any risk assessment and an ex tensive molecular characterisation of the inserted 
                                                     
 
263 WHO, 1991. Strategies for Assessing the Safety of Foods Produced by Biotechnology, Report of A 
Joint FAO/WHO Consultation. World Health  Organisation, Geneva. Available at 
<http://www.who.int/foodsafety/pub lications/biotech/1990/en/>. 
264 FAO/WHO, 2000. Safety Aspects of Genetically M odified Foods of Plant Origin. Report of a Joint 
FAO/WHO Expert Consultation on Foods Derived from Biotechnology, Geneva, Switzerland, 29 May - 2 June 
2000. Food and Agriculture Organisation of the United Nations, Rome. 
ftp://ftp.fao.org/es/esn/food/gmreport.pdf; Millstone, E. , Brunner, E., Mayer, S., 1999. Beyond 'substantial 
equivalence'. Nature 401, 525-526; Schenkelaars, P. , 2002. Rethinking substantial equivalence. Nature 
Biotechnology 20, 2, 119. Canadian Royal Society, 2002 
265 Kok, E.J., Kuiper, H.A., 2003. Comparative sa fety assessment for biotech crops. Trends in 
Biotechnology 21, 439-444. 
266 FAO/WHO, Safety assessment of foods derived from genetically modified animals, including fish, a 
joint FAO/WHO expert consultation on food derived from biotechnology, Rome, Italy, 17 - 21 November 2003. 
Available at <http://www.who.int/foodsafety/biotech/meetings/en/gmanimal_reportnov03_en.pdf>.   
267 SAP Report No. 2004-05. MINUTES of Federal Insecticide, Fungicide, and Rodenticide Act 
(FIFRA) Scientific Advisory Panel (S AP) Meeting, June 8-10, 2004, Arlington, Virginia. A Set of Scientific 
Issues Being Considered by the Environmental Protecti on Agency Regarding: Product  Characterization, Human 
Health Risk, Ecological Risk, And Insect Resistance Management For Bacillus thuringiensis (Bt) Cotton Products. 84 pages.  WT/DS291/R/Add.7 
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  genetic material construct is required. The safet y of the gene product must be assessed on a case-by-
case basis. Following the phase of h azard identification, characterization and food intake-assessment 
an integrated toxicological evaluation will combine al l the information with relation to the food safety 
of the GMO-derived food. For the identification of  potentially occurring unintended effects, profiling 
methods have been proposed and different possibilities for profiling methods have been characterized
268. In addition to investigating health risks directly associated with food production, the 
broadening of the Codex risk assessment to includ e indirect effects now encompass effects of novel 
food on the environment that may have an indirect impact on human health269. 
735. A case by case assessment considering any organisms derived from a transformation event as 
well as different receiving environments is broa dly recognised as the best framework for assessing 
environmental risks of GMOs. Internationally the c oncept of familiarity was developed also in the 
concept of environmental safety of transgenic pl ants. The concept facilitates risk/safety assessments, 
because to be familiar, means having enough information to be able to make a judgement of safety or 
risk270. Familiarity can also be used to indicate appropriate management practices including the 
evaluation whether standard agricultural practices are adequate or other management practices are needed to manage the risk
271. As familiarity depends also on th e knowledge about the environment 
and its interaction with introduced  organisms, the risk/safety assessment in one region may not be 
applicable in another.  
736. Currently The Cartagena Protocol on Biosafety (CPB) to the Convention on Biological 
Diversity is the only international regulatory instru ment which deals specifically with the potential 
adverse effects of  GMOs on "the conservation and the sustainable use of biological diversity", an important amenity of the environment, taking al so into account effects on human health. The CPB 
covers transboundary movements of an y genetically modified foods that meet its official definition of 
living modified organisms (LMOs). Article 11 of the CPB asks for a risk assessment where annex III 
of the Protocol specifies general principles and step s for environmental risk assessment of LMOs and 
focuses especially on identification of any novel genotypic and phenotypic characteristics that may 
have adverse effects on biological diversity in th e likely potential receiving environment. Annex III 
recommends that the risk assessment should also take  into account risks to human health and evaluate 
the likelihood of these adverse eff ects. The information on the receiving environment includes data on 
the location, geographical, climatic and ecological ch aracteristics, including relevant information on 
biological diversity and centres of origin of the lik ely potential receiving environment. As the focus of 
the CPB is biodiversity, in line with the scope of  the Convention itself, its consideration of human 
health safety is limited, concentrating on situati ons in which an LMO itself may end up in the  food 
supply, such as might happen via trade of crop seeds
272. Pharmaceuticals are explicitly excluded. 
737. Recent work for the implementation of the CPB recommends the analysis of effects of GMOs 
on species in the environment before an assessment of effects on the biodiversity for the assessment 
of non target environmental risks. This mainly  because of a better access to species assessment and 
                                                      
268 Kuiper et al., 2003. 
269 Haslberger, A.G., 2003. Codex guidelines for GM foods include the analysis of unintended effects. 
Nature Biotechnology 21, 7, 739-741.. 
270 Environmental Effects of Transgenic Plants. The Scope and Adequacy of Regulation. National 
Research Council, 2002. National Academy Press, Washington, 320 pp.Conner et al., 2003 
271 OECD, 1993. 
272 Miraglia, M., Berdal, K.G., Brera, C., Corbisier,  P., Holst-Jensen, A., Kok, E., Marvin, H.J.P., 
Schimmel, H., Rentsch, J., van Rie, J. P. & Zagon, J. (2004; alphabetical order).  Detection and traceability of 
genetically modified organisms in the food production chain.  Food Chem. Toxicol. 42: 1157-1180. WT/DS291/R/Add.7 
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  methodological limitations of an an alysis of effects to diversity
273. Specifically a non target risk 
assessment for non target effects of GM crops was discussed to be more useful than the 
conventionally used eco-toxicology or non-indige nous-species model. This new model requires 
information about the intended receiving environment and aims to focus on the analysis of possible 
effects of local species with a specific ecological function in this system.  
738. Both, the Codex principles for food safety a nd the risk assessment provisions of the CPB 
provide opportunities to more explicitly consider interactions between food safety and environmental 
safety. The broadening of the Codex Risk assessment  to include indirect effects provides for assessing 
effects on the environment that may have an indirect impact on human health274. 
739. In the explanatory guide to the CPB (CPD, explanatory guide) indirect effects on the 
environment are described as effects on human health  or the environment occurring through a causal 
chain of events, through mechanisms  such as interactions with other organisms, transfer of genetic 
material, or changes in use or management. Observati ons of indirect effects are likely to be delayed. 
Given examples include impacts which can arise from changed agricultural practices associated with 
the management of a genetically modified (GM) cr op rather than from the genetically modified crop 
itself. The explanatory guide suggests that questions related to human health effects were intended to 
be covered by the Protocol only if the human health  aspect is linked to biological diversity. Such a 
link exists if the health effect is consequent to exposure in situ , for instance, if a farmer were to 
develop an allergenic reaction to pollen from genetically modified plants; it also exists if the health 
effect resulted from effects on biological diversity (secondary effect). Direct effects on human health 
(e.g. caused by consumption of GM food) would,  however, not be covered by the Protocol. 
F. MAIZE T25  (NOTIFICATION C/F/95/12-07)  (AUSTRIA , ITALY ) (QUESTIONS 84 TO 89) 
740. The European Communiti es has already outlined above its fundamental criticisms of the 
approach adopted by Dr. Nutti. 
741. The European Communities considers each GM cr op event should be examined on a case by 
case basis, as stated in the Cartegena Protocol. This means that Member States are justified in 
requesting region specific testing, since each GM ev ent can respond differently to regional differences 
in environment (weather, soil types etc), regiona l pest and disease pressures, regional agronomic 
practices (e.g. pesticide and herbicide use, tillage systems), regional abundance of flora (including 
weeds which could become resistant to herbicides)  and fauna (which could be affected by any 
unintended changes in the GM crop). 
742. The European Communities agrees with Dr. A ndow that secondary ecological effects (longer 
term over several seasons and indirect effect s resulting from the GM crop and its management 
system) need to be assessed for each Member State under regionally appropriate conditions. 
743. For GMHT crops, the UK Farm Scale Evaluation (FSE) trials indicated particular risks of 
using HT crops in combination with particular he rbicides and particular crop management systems. 
For maize no adverse effects were detected for GMHT maize, but the comparison was with 
conventional maize used with the herbicide atrazi ne. This herbicide has known adverse effects on the 
environment and NT organisms and will be banned in the UK shortly, so was widely criticised as a 
                                                      
273 Andow & Hilbeck (2004). Science-based risk assessm ent for non-target effects of transgenic crops.  
BioScience 54: 637-649. Birch et al., 2004 In: Environmental Risk Assessment of Genetically Modified 
Organisms vol 1. a case study of Bt maize in Kenya. Eds Hilbeck and Andow. CABI Publishing. pp 117-1850.. 
274 Haslberger, A.G., 2003. Codex guidelines for GM foods include the analysis of unintended effects. 
Nature Biotechnology 21, 7, 739-741.  WT/DS291/R/Add.7 
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  poor/inappropriate choice as a 'control treatment' fo r comparison with GM HT maize in the UK FSE 
trials.  
744. Hence the European Communities considers that regionally appropriate combinations of the 
GMHT crop, herbicides, pesticides and agronomic prac tices need to be tested in comparison with an 
appropriate baseline combination of these factors (e.g . to detect beneficial or adverse changes in 
regional biodiversity on herbivorous  species fe eding on weeds affected by the GMHT crop 
management system). 
745. Co-existence (and related contamination levels  in seeds) is a relatively new issue, although 
even here scientific uncertainties about distances of GM gene flow and establishment for several GM 
crops including maize were widely discussed and str ongly debated Europe for several years prior to 
2003. 
746. The European Communities would agree with  Dr. Andow that in 2003 maize T25 was 
inadequately characterised regarding Austria's n eeds on risk management in relation to possible 
effects on regionally import NT species, on regional ge ne flow, on regionally important weed control 
issues and agronomic practices and on possible contamination issues if GM genes are introgressed into conventional or organic maize in Austria, or other Member States. Johnson
275 provides a set of 
generic questions which EC Member States could now adapt to carry out a more scientifically rigorous risk assessment of GMHT crops and a review of regionally-appropriate management 
strategies. 
747. The European Communities observes that the an alysis of Dr. Andow is differentiated and 
science based. He argues that the amended SCP Opin ion (CDA-77, 20 July 2001) does not provide an 
assessment of environmental risks beyond gene flow risks.  These would include non-target and other 
biodiversity risks.  The amended SCP Opinion (CDA-77, 20 July 2001) does not provide an assessment of this environmental risk.  Even tho ugh the Member States did not provide any scientific 
evidence that this risk exists for T25 maize, resistance risks are widely recognized, and the consistent 
use of glufosinate with T25 maize would result in a resistance risk.  Thus, there was insufficient 
scientific evidence available to the SCP and Austri a and Italy to assess weed resistance risk and 
appropriate risk management measures. 
748. The Member States expressed the view that risks from gene flow (dispersal) is small but still 
must be monitored. This is especially true for specific regions. Here a concept for specific regions, 
sensitive areas, is specified, scientifically cited an d explains why a monitoring is especially necessary 
in the light of risks to specific areas/regions. As no monitoring concept was available Austria's 
concern was justified. 
749. Furthermore, special measures monitoring the possi ble – mostly regarded as safe – spread of 
pollen to fields in the surroundings cultivat ed with conventional maize are missing. 
750. The lack of a monitoring programme regarding th e long term effects of genetically modified 
plants and herbicides can be criticised especially because of the fact that the approval conditions do 
not foresee a protection of sensitive areas. Fu rthermore, regional ecological aspects are not 
differentiated: the use of herbicide resistant plants  in areas of unavoidable applications of herbicide 
seems to be useful, if good agricultural practice minimizes the danger of a resistance development. 
                                                     
 
275 Johnson, Blancas and Borem (2004) (CABI book: 'Environmental Risk Assessment of GMOs: A 
case study of Bt maize in Kenya'. WT/DS291/R/Add.7 
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  751. This concerns of Austria and Italy were ev en more substantiated when science in the 
following years elaborated hazards from gene flow and dispersal, also in maize, addressing especially problems in the area of co-existence. Co-existence arguments were addressed by Austria in detail in 
subsequent discussion.  Some points of the opinion  of the SCP presented in 2000 may need to be 
reflected by subsequent scientific findings on gene flow.  
752. At the time of this application, concerns about  the ecological impacts of  the herbicides used 
on HT crops was high and UK had implemen ted the Farm Scale Evaluation programme
276 to examine 
these effects in maize and other crops.  
753. There are at least 6 reasons for the safeguard measures. The reasons are: (1) The 
environmental risks of T25 have not been sufficientl y evaluated under realistic  conditions in Europe.  
(2) There is no post-commercialization monitoring program.  (3) Although harm from pollen transfer 
is likely absent, the potential for gene flow to conventional maize production fields needs to be quantified and included in monitoring because of its agricultural consequences. (4) There is no 
provision for the protection of ecologically sensitive regions. (5) There is a need for "good farming 
practice" guidelines to minimize the danger of herbicid e resistance.  (6) There is a need to assess long-
term and secondary ecological effects, especially those due to changes in herbicide management. 
754. With reference to the SPS Agreement, the Member  States have evaluated a risk relevant to 
plant health. The "potential pest" concept of ISPM 11 must first be considered.  This is a special case 
of the general argument, and that argument holds for this case because Austria argues that there is a 
plant pest risk. For those risks within the scope of  ISPM 11 the risk assessment process is consistent 
with ISPM 11.  The reasoning of Austria and Ital y is consistent with Annex III of the Cartagena 
Protocol on Biosafety to the Convention on Biological Diversity. 
G. M
AIZE MON 809 (NOTIFICATION C/F/95/12-01/B)  (ITALY ) (QUESTIONS 90 TO 92) 
755. The reasons why Italy declines to authorise th e placing on the market of this product refer 
especially to the risk assessment based on substantia l equivalence (see the previous discussion of that 
question in these comments), to international discussi ons and criticisms of this principle also under 
CODEX, and to changes of the use of  the principle and the legislation: 
"… Having regard to the subsequent opinion of  the Superior Institute of Health, dated 
28 July 2000, addressed to the Minister of Health, which addresses the concept of "substantial equivalence" from a technical- scientific viewpoint and states that, if 
interpreted from a legal viewpoint, the concep t could be defined differently, given the 
lack of clarity in the Community legislation;  
Considering that the Superior Institute of Health, in its opinion, pointed out that, of 
the seven notified products cited above, the four types of maize contain levels of 
protein deriving from the genetic modifica tions ranging from 0.04 to 30 parts per 
million and that, therefore, the foodstuff has been permanently affected by the 
modified elements;   
Considering also that, in the same opinion, it is reported that the technical 
documentation available does not examine the GMOs in comparison to their conventional counterparts with regard to th e presence of certain micro-constituents, 
                                                     
 
276 Firbank et al 2003 e.g. Rieger et al., 2002. SQUIRE, G.S., BROOKS, D.R., BOHAN, D.A., 
CHAMPION, G.T. et al. (2003)  On th e rationale and interpretation of the Farm Scale Evaluation of genetically 
modified herbicide-tolerant crops.  Philosophical Transactions of the Royal Society B,  358, 1779-1800..  WT/DS291/R/Add.7 
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  and it finds a substantial identification with the conventional counterparts from a 
purely nutritional standpoint (micro and macronutrients) but not from the standpoint of the composition of the product, as foreseen in the Community regulations, because 
of the presence of modified molecules;  
Whereas, in the aforementioned opinion, the S uperior Institute of Health also comes 
to the conclusion that, in the light of current scientific knowledge, there are no apparent risks to the health of humans or livestock from the consumption of derivatives of the aforementioned GMOs, but that this conclusion is reached in a 
context in which, from the correspondence with the President of the European 
Commission and with the pertinent European  Commissioner, it is evident that there 
are inadequacies in the risk assessment procedures; 
Whereas, furthermore, in the aforementioned opinion, the Superior Institute of Health 
declines to express an opinion regarding the risk of possible "environmental release" 
of the GMOs in question, even when it has been ascertained that residues of modified 
components remain in the foodstuffs, so that  the inadequacy of information deriving 
from the previous phase of preliminary assessment of this environmental release for the simplified authorization procedure appear s to be even more deleterious to the 
precaution principle, generally adhered to in these matters;" 
756. The European Communities notes that Dr. Nutti agrees with the opinion of the Italian CA 
regarding the ambiguity of the term "substantial e quivalence", and agrees that this concept could be 
defined differently. In this respect, the European Communities notes that the assessment of the Italian 
arguments by the SCF (in CDA 86) did not directly a ddress in detail the substantial equivalence issue. 
757. The European Communities also not es that there are some important toxicological issues that 
have not been addressed by Dr. Nutti. For instance, the recently published observation on 
occupational allergy to Bt bacterium spores in farm ers using Bt pesticides mentioned by the SCF and 
by Italy. Furthermore, the Italian argument concer ning the risk of possible environmental release of 
the GMOs in question, even when  it has been ascertain ed that residues of modified components 
remain in the foodstuffs is not discussed by Dr . Nutti. Thus, in essence substantial disagreement 
remains on the question of substantial equivalence. It  would appear that Italy effectively anticipated a 
change in the relevant scientific and legal elements. 
758. The concept of substantial equivalence is a key step in the safety assessment process. 
However, it is not a safety assessment in itself; rath er it represents the starting point which is used to 
structure the safety assessment of a new food relative to its conventional counterpart. This concept is 
used to identify similarities and differences between  the new food and its conventional counterpart. It 
aids in the identification of potential safety an d nutritional issues and is considered the most 
appropriate strategy to date for safety assessme nt of foods derived from recombinant-DNA plants. 
The safety assessment carried out in this way do es not imply absolute safety of the new product; 
rather, it focuses on assessing the safety of any iden tified differences so that the safety of the new 
product can be considered relative to its conventional counterpart.  
759. The misleading conclusion that a risk assess ment according to substantial equivalence per se  
can establish safety was corrected explicitly in 2000 when an FAO/WHO consultation acknowledged 
that this concept had attracted criticism from th e perception that it was the end-point of a safety WT/DS291/R/Add.7 
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  assessment rather than the starting point
277. The Consultation concluded that a consideration of 
compositional changes is not the sole basis for de termination of safety and that safety can only be 
determined when the results of all aspects under comparison, and not merely comparisons of key 
constituents, are integrated. More recently the concept has evolved to a Comparative Safety 
Assessment for GMO foods278.  
760. Thus, in the light of its chosen level of prot ection, the European Communities considers that, 
as a matter of WTO law, Italy was justified, before carrying out analysis on substantial equivalence, to 
require access to data describing the molecular make -up of the transgenic events. This is necessary in 
order to have a good description of the plant material used in the comparative analysis (e.g. chemical 
composition, nutritional value, etc.). 
H. MAIZE BT-11 (REFERENCE C/GB/96/M4/1)  (ITALY ) (QUESTIONS 93 TO 95) 
761. The European Communities refers to its observatio ns with regard to the preceding product, as 
well as its general observations and its observations  in the context of the alleged product specific 
delays, which apply mutatis mutandis . The European Communities h as the following additional 
remarks and conclusions. 
762. The information requested and supplied from the company was mixed, scarce, delivered 
consecutively all over years, and not convincing.  The quality of the dossier can therefore be 
considered as not sufficiently informative, taking in to consideration the specific legislator's chosen 
level of protection. The major weaknesses of the dossier relate to: 
No sufficient experimental evidence to assess the safety; 
Compositional data insufficient for a product directly consumed by human; No in vivo  experiments conducted on laboratory or farm target animals with grain of 
the event "sweet maize"; 
Field maize used as a control - grain materi al was spiked with Bt proteins (resulting 
in poor and unsatisfactory experimental conditions); 
Further experiments performed on ruminants using the whole plant silage or stalk 
have no meaning for the safety assessment. 
763. Taking into account the legislator's chosen level of protection, these issues could be 
considered to have justified requests for  further evidence on the safety of the product. 
 
                                                     
 
277 FAO/WHO, 2000. Safety Aspects of Genetically M odified Foods of Plant Origin. Report of a Joint 
FAO/WHO Expert Consultation on Foods Derived from Biotechnology, Geneva, Switzerland, 29 May - 2 June 
2000. Food and Agriculture Organisation of the United Nations, Rome. 
ftp://ftp.fao.org/es/esn/food/gmreport.pdf; Millstone, E. , Brunner, E., Mayer, S., 1999. Beyond 'substantial 
equivalence'. Nature 401, 525-526; Schenkelaars, P. , 2002. Rethinking substantial equivalence. Nature 
Biotechnology 20, 2, 119. Canadian Royal Society, 2002 
278 Kok, E.J., Kuiper, H.A., 2003. Comparative sa fety assessment for biotech crops. Trends in 
Biotechnology 21, 439-444.  WT/DS291/R/Add.7 
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  VII. THE PANEL'S QUESTIONS ON ISSUE 3 ("LIKENESS") (NOS 96 TO 109)  
Question 96 
 
Has there been a significant change in the und erstanding of physical, chemical and biological 
characteristics of biotech products, gene interac tions, gene expression, gene silencing, molecular 
characterization, and product specific detection since 1998? 
 General comments  
 
764. The Panel has received responses from Dr. Nutti and Dr. Squire, indicating a difference of 
approach. Dr. Nutti makes clear that she excludes from her response any view in relation to "any 
environmental issue", which she states is "not my area of expertise". On the matters within her expertise she states that "the approach remains essentially the same". The European Communities 
considers that this does not provide a clear or unambiguous response to the question posed. 
765. Dr. Squire considers that "most of the underl ying molecular and biochemical knowledge of 
the subject has not changed substantially during th is period." However, he makes it clear that the 
absence of substantial change should not be taken as an inherently positive development in the state of 
scientific understanding. As he puts it: "There is  still uncertainty over unintended side-effects 
occurring in biotech products, and the continued stab ility of phenotype in biotech plants or continued 
expression of their genes outwith the crop itself (i.e. in volunteers and feral plants)." The 
Communities understands this to mean that the ab sence of substantial change indicates continued 
levels of uncertainty. 
766. The European Communities considers that th ere has been a significant change in the 
understanding of the issues addressed by the question.  
Detailed comments 
 
767. Although, the basic principles of risk assessm ent remain unaltered, there has been a 
significant change in the understanding of most of th e characteristics listed in the question. This is 
primarily because of the accumulation of considerab ly more data and the development of more 
effective analytical tools for characterization, data mining and data comparison.  
768. The Communities would refer by way of example in the food safety domain to a research 
project - "ENTRANSFOOD, European network - safety assessment of genetically modified food crops" – which was launched in 2000 to identify ke y issues of the safety evaluation of genetically 
modified food crops, and to examine whether current  research methods were adequate to characterize 
specific safety hazards.  The project was conclude d in 2003, and a series of position papers were 
published in a special volume of Food and Chemical Toxicology.
279  
769. The first position paper280 provides an updated approach for adapting the test strategy to the 
characteristics of the modified crop and the introdu ced trait, and assessing potential unintended effects 
from the genetic modification.  The second position paper281 focuses more specifically on detection 
and characterization of unintended effects in GM crops .  It pays particular attention to new profiling 
                                                      
279 G. van den Eede, H. Aarts, H.-J. Buhk, G. Corthier, H.J. Flint, W. Hammes, B. Jacobsen, T. 
Midtvedt, J. van der Vossen, A. von Wright, W. Wackemagel, A. Wilcks. Food and Chemical Toxicology 42 (2004), 1127-1156. (Volume 42, issue 7, July 2004). 
280 König et al., 2004. 
281 Cellini et al., 2004 WT/DS291/R/Add.7 
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Page I-364 
  technologies, including metabolomics, proteomics  and transcriptomics.  The background for the 
project was that significant developments had been made with respect to the scientific understanding 
of underlying biological, physical and chemical m echanisms in general, and particularly biological, 
physical and chemical characteristics of biological  products, including biotech products. Considerably 
more is known since 1998 about gene interactions and gene expression. The approaches applied to 
molecular characterization are different, in particular they are much more efficient and sensitive, and allow us more efficient data mining.  Information made available in e.g. genome and protein sequence 
databases has made possible assignment of function to numerous sequences characterized in e.g. plant 
species by comparison with characterized sequen ces of related plant species.  One example is 
provided in this report under EC chronology 63, exhibit 63/119. 
770. As is clear elsewhere, there has also been adva nces of several orders of magnitude in the 
development and availability of product specifi c detection (see comments on question 8), 
methodologies for genetic modification characterization (see comments on question 9), and 
identification of unintended effects th ereof (see comments on question 111). 
Question 97 
 On the basis of the information before the Pane l, is there new scientific evidence since 1998 that 
would suggest that the potential risks to human, plan t or animal health, or to the environment, from 
any of the specific biotech products subject to this dispute (including products subject to the member 
State safeguard measures), are different in nature or magnitude as compared to the scientific 
understanding of the risks associated with such biot ech products prior to 1998, taking into account: 
 
• the intended use of each product (direct human or  animal consumption, further processing for 
consumption, planting or any other specified use); 
 
• any potential risks that may arise from the combination or successive use of biotech products.  
 Does the information before the Panel support the vi ew that the potential risks from the products in 
this dispute should be assessed differently than the risks from biotech products approved prior to 
1998? 
 
General comments 
 
771. The European Communities notes that there is  support amongst the independent experts for 
the view that the potential risks to human, plant or animal health, or to the environment, from some of 
the specific biotech products subject to this dispute (including products subject to the member State safeguard measures), are different in nature or ma gnitude as compared to the scientific understanding 
of the risks associated with such biotech products prior to 1998. The information before the  Panel 
supports the view that potential risks from some of  the products in this dispute should be assessed 
differently than the risks from biotech products approved prior to 1998.  
Detailed comments 
 772. The Panel has received responses from Dr. S now, Dr. Andow and Dr. Squire which are 
broadly consistent, and a response from Dr. Nutti wh ich adopts a different approach. Dr. Nutti once 
again excludes any consideration of environmenta l risks from her response. In relation to the 
remaining matters she concludes that:  
  WT/DS291/R/Add.7 
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  "My opinion is that, based on the existing literature and knowledge on the subject, 
and from a scientific perspective, there is no new evidence that would suggest that the 
potential risks to human, animal or plant health, from any of the specific biotech 
products subject to this dispute, are different in nature or magnitude as compared to 
those products of biotechnology approved by the European Communities prior to 
October 1998." 
773. In relation to environmental risks Dr. Snow reaches a different conclusion:  
Yes, new scientific evidence has become available since 1998 with regard to gene 
flow from herbicide-tolerant crops and taking into account the environmental 
concerns and management goals of EC Member States.  New scientific studies published during 1998-2003 showed that the dispersal of transgenes that confer resistance to glufosinate and glyphosate will occur much more widely and more 
quickly than was previously expected, as I discuss in Part I.  Also, new studies 
showed that the widespread use of gluf osinate-tolerant and glyphosate-tolerant 
oilseed rape could lead to populations of volunteers and weeds that are more difficult 
to manage than their nontransgenic pred ecessors.  Adopting these herbicide-tolerant 
crops could lead to greater dependence on these and other herbicides (see Part I and 
Friesen et al. 2003). These problems would not arise without the use of transgenic crops because the genes that confer resistance to glufosinate and glyphosate have not 
been found to occur naturally in the crop's gene pool." She concludes her response as 
follows: "In summary, the types of new scientif ic information that I discuss in Part I 
of my answers can be used to support the view that potential risks from the products 
in this dispute could be assessed differen tly than the risks from biotech products 
approved prior to 1998. 
Dr. Squire concludes that  
 
knowledge of the ecological impacts of biotech products and their spread and concentration in the agricultural environm ent has changed, particularly in that 
emergent properties at the scales of the field and landscape are now much better appreciated even if they are still far from fully understood. 
774. He provides several examples to support that conclusion. 
775. Dr. Andow provides a detailed response which c oncludes that "risk assessment methodologies 
and evidentiary standards for what constitutes an objective environmental risk assessment had 
changed substantially from 1998 to 2005." These cha nges have come about "from increased scientific 
knowledge about transgenic crops.  This has affected  risk assessment for transgenic crops intended for 
planting in the environment.  Scientific investiga tion of risks of combination biotech products has 
lagged behind." According to Dr. Andow the basi s for risk assessment of transgenic crops has 
changed  
because several significant scientific points had come to light.  (1) It became widely 
appreciated that the molecular basis of  transformation was more complex than 
originally thought, and the implications of  these findings for risk assessment were 
articulated.  (2) Non-target risk assessment shifted from assessing indicators of 
environmental risk to assessing actual identified potential environmental risks.  Presently this is done on an ad hoc basi s, as no systematic methodology has gained 
widespread acceptance.  (3) Gene flow ri sk assessment has shifted from being based WT/DS291/R/Add.7 
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primarily on an assessment of the probabilit y of gene flow to being based on an 
assessment of both the probability of gene flow and the conditional hazard 
probability.  (4) Resistance risk is cons idered an environmental risk, and science-
based resistance management measures are required. 
776. The European Communities notes that the respon ses of Dr. Snow, Dr. Squire and Dr. Andow 
are consistent with the concerns of the European Communities in relation to environmental risks, and 
that they justify the case-by- case approach to which the Commun ities is committed. The consensus 
amongst them is that the whole field is very complex,  that we do not fully understand it, that some of 
the hazards predicted pre-1998 are beginning to em erge. These effects include the molecular basis of 
the transformation, horizontal gene flow, resist ance and problems with non-target species. 
777. With regards to non-environmental risks, the Communities does not share the views of 
Dr. Nutti. In particular, on the basis of existing research (and the absence of any exposure data on 
which Dr. Nutti or other might rely) it is impossibl e to know whether the introduction of GM food had 
had any human health effects other than acute toxi c reactions. Therefore it is impossible to comment 
on any changes that might have occurred since 1998. 
778. As regards research which has been carried out , this indicates a growing understanding of the 
inadequacies of risk assessments which have been  carried out on GM foods, having regard to the 
uncertainties already referred to: see Freese and Schubert.
282 The scientific concerns noted by Freese 
and Schubert (and which have been shared by many other scientists for several years) relate to:  
• the use of surrogate Bt toxins to test for allergic, toxic or environmental NT effects; 
 
• unintended effects being ignored or deemed unimportant by US assessors283 when 
there are several peer reviewed publications on such effects in GM crops; 
 
• test protocols for risk assessment of poten tial human health aspects of GM crops are 
not considered rigorous by these authors;  
 
• comparisons with Bt sprays are considered  invalid because of major differences with 
Bt crops in terms of Bt toxin types, expo sure routes, exposure times, thermostability, 
digestive stability, etc;  
 
• metabolic profiling methods deployed to da te are largely only semi-quantitative and 
often fail to accurately measure smaller,  biologically active secondary metabolites in 
GM plants (which can change as a result of transformation); 
 
• metabolic stress responses of GM crops grow n in particular envi ronments have been 
largely ignored by US assessors; 
 
• chronic (long term) tests on GM crops and GM  products are often lacking or poorly 
executed;  
 
                                                      
282  Review published in Nov 2004, covering literature from 1991-2003 – Biotechnology and Genetic 
Engineering Reviews 21, 299-324 
283 See also Haslberger, A.G., 2003. Codex guidelines for GM foods include the analysis of unintended 
effects. Nature Biotechnology 21, 7, 739-741.  WT/DS291/R/Add.7 
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  • the effects of different genetic backgr ounds and growing conditions (determining 
plant genotype x environment interactions) for GM crops has been largely ignored, 
although many scientists have expressed concerns  about lack of data in this area; and  
 
• the effects on human health post-release requires properly conducted epidemiological 
studies, comparing GM food intake as a treatment with intake of conventional food not contaminated with GM products, or with organic food not contaminated with GM products. There do not appear to be any such epidemiological studies on human populations having been published in peer reviewed journals. 
 Question 98  From a scientific perspective, is there a significant  difference in risks to human, animal or plant 
health or the environment arising from the use of a bacterial antibiotic resistance marker gene, or 
part thereof, in any biotech product at issue in this  dispute (e.g., Monsanto Bt cotton (531), Monsanto 
Roundup Ready cotton (RRC1445), Amylogene starch  potato) compared to those products of 
biotechnology approved by the European Communities prior to October 1998?  General comments 
 
779. The European Communities notes that there is  support amongst the independent experts for 
the view that there may be significant difference in risks to human, animal or plant health or the 
environment arising from the use of a bacterial antibio tic resistance marker gene, or part thereof, in 
some of the biotech products at issue in this dispute as compared to those products of biotechnology approved by the European Communities prior to Oct ober 1998, having regard to changes in the state 
of scientific understanding.  
Detailed comments 
 
780. The Panel has received a response from Dr. Nutti, which does not address environmental 
risks. She states that "There have been numerous experiments aimed at evaluating the possibility of transfer of plant DNA to microbes and mammalian ce lls. To date, there are no reports that marker 
genes in plant DNA transfer to th ese cells." As noted and commented under question 1, this statement 
which is taken from her reply to question 1, is ab solutely not correct. She notes, however, that "Even 
so, the use of alternative tr ansformation methods, which do not use ARMG, is encouraged. If 
alternative marker genes are used, they also must be evaluated regarding their safety." And she then 
concludes: 
My opinion is that, based on the existing literature and knowledge on the subject, and 
from a scientific perspective, there is no new evidence that would suggest that the 
potential risks to human, animal or plant h ealth arising from the use of a bacterial 
antibiotic resistance marker gene, or part th ereof, from  any biotech product at issue 
in this dispute (e.g., Monsanto Bt cotton - 531, Monsanto Roundup Ready cotton - RRC1445, Amylogene starch potato) are different in nature or magnitude as 
compared to those products of biotechnology approved by the European 
Communities prior to October 1998. 
781. The European Communities notes that Dr. Nutti acc epts that the use of marker genes other 
than ARMG "is encouraged". The Communities consid ers that the evidence indi cates that the use of a 
bacterial antibiotic resistance marker gene, or part  thereof, may contribute to a significant difference WT/DS291/R/Add.7 
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  in risk including by means of transfer,
284 and that precautionary measures are therefore justified. The 
Communities notes that evidence of the risk of tr ansfer only began to emerge in the scientific 
literature in 1998 and in following years, and that no studies were available prior to 1998. A lot of the 
relevant research is referred to in the ENTRANSFOOD publication.285 The European Communities 
refers to its comments on questions 1 and 2 above.   
782. The presence of antibiotic resist ance genes in some of the biot ech products at issue in the 
dispute (Monsanto Bt Cotton, Monsanto Round Read y Cotton, Amylogene starch potato, Maize T25, 
Maize MON 810, Maize Bt-176, Topas 19/2, clearly makes a difference as compared to older 
products, and this difference has been examined  for its medical impact. The evidence is still 
controversial.  
783. For risk analysis, the risk should not be take n in general but analysed on a case-by-case basis. 
Two parameters are to be considered: the existing spread of the antibiotic resistance marker in 
bacteria isolated in man, in animals and in th e environment, and the relevance of the concerned 
antibiotic(s) for human therapy. Based on these para meters, the lowest degree of risk (although not 
zero) is represented by the nptII gene (kanamycin resistance), and a higher degree of risk by the bla 
and the aadA  genes. The qualification of "higher" risk for the later category is justified by the fact that 
these genes confer resistance to important antibiotics.  These genes have already spread, but so far, no 
experiment has provided data to quantify the cont ribution of these resistance genes to the increase of 
resistance genes in pathogenic b acteria. The assertion that the transfer is null or very low is not 
documented and this question remains open. The bla Topas 19/2 and Amylogen Starch potato contain 
the nptII gene and Maize MON 810, Maize T25, Maize Bt-176 contain the bla gene (ampicillin 
resistance). 
784. The Communities considers, in accordance with the relevant Codex guidelines, – and 
Dr. Nutti appear to agree, albeit less strongly – th at there is no justification to maintain these 
unnecessary resistance genes where alternatives exis t, and that ARMG coding for resistance to 
antibiotics of clinical use, shoul d not be present in GM products. 
785. Finally, the European Communiti es wold like to indicate, that new ARMG were to be present 
in GM product assessed between 98 and now, some  of them being though to present significant 
human health threads, such as nptIII, encoding fo r amykacin resistance, an antibiotic of critical 
importance in certain pathological conditions.  
Question 99 
 For those biotech products at issue in this disput e for which no significantly different nature or level 
of risk has been identified, does the information be fore the Panel provide a scientific or technical 
rationale for monitoring the occurrence of potential adverse effects, or of unintentional effects, 
                                                     
 
284 See: de Vries J, Wackernagel W. Integration of foreign DNA during natural transformation of 
Acinetobacter sp. by homology-facilitated illegitimate recombination. Proc Natl Acad Sci U S A. 2002, 
99:2094-9; Gebhard F, Smalla K. Transformation of Acinetobacter sp. strain BD413 by transgenic sugar beet 
DNA. Appl Environ Microbiol. 1998, 64:1550-4 ; Jain  R, Danziger LH. Multidrug-resistant Acinetobacter 
infections: an emerging challenge to clinicians. Ann Pharmacother. 2004,38:1449-59; Nielsen KM, Bones AM, Smalla K, van Elsas JD. Horizontal gene transfer from tr ansgenic plants to terrestri al bacteria--a rare event? 
FEMS Microbiol Rev. 1998, 22:79-103; Nielsen KM, van Elsas JD, Smalla K. Transformation of Acinetobacter 
sp. strain BD413(pFG4DeltanptII) with transgenic plant DNA in soil microcosms and effects of kanamycin on selection of transformants. Appl Environ Microbiol. 2000, 66:1237-42. 
285 G. van den Eede, H. Aarts, H.-J. Buhk, G. Corthier, H.J. Flint, W. Hammes, B. Jacobsen, T. 
Midtvedt, J. van der Vossen, A. von Wright, W. Wackernagel, A. Wilcks. Food and Chemical Toxicology 42 (2004), 1127-1156.  WT/DS291/R/Add.7 
 WT/DS292/R/Add.7 
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  arising from the consumption or use of these produc ts compared to those products of biotechnology 
approved by the European Communities prior to October 1998?  
General comments  
786. The European Communities notes that there is general s upport amongst the independent 
experts for the rationale for monitoring, and suppor t amongst some for the view that monitoring may 
be appropriate for unanticipated risks having regard  to the state of scientific understanding (noting in 
particular that it has developed significantly since 1998). 
Detailed comments 
 
787. The Panel has received responses to this ques tion from Dr. Nutti, Dr. Snow and Dr. Andow. 
788. Dr. Nutti considers that  
"the biotech products at issue in this dis pute should be treated in the same way as the 
biotech products approved by the European Communities prior to 1998. The products approved prior to 1998 are the so called "fir st generation" products. Most of them had 
the new trait introduced in order to become insect resistant or herbicide tolerant, and 
they  were assessed as equivalent to th eir conventional counterparts. The products 
approved prior to October 1998 have been c onsumed in different regions of the world 
(USA, Canada, Argentina, Australia, New Zeal and) and, no adverse effects related to 
their consumption have been reported in  any of these countries." Dr. Nutti does not 
appear to object to monitoring or consider that there is no scientific or technical rationale under certain circumstances: "C ontinuous use of risk assessments based on 
the Codex principles and, where appropriate, including post market monitoring, 
should form the basis for evaluating the safety of GM foods." 
789. Dr. Snow notes that this question refers to pro ducts for which no significant risks have been 
identified, whereas many of the questions above re fer to products for which one or more Member 
States have identified potential risks. She states that 
"the scientific basis for which environmental consequences to monitor and how to do 
this in a scientifically rigorous manne r are not well developed (e.g., NRC 2002).  
There are certain types of environmental effects for which monitoring can be justified 
on scientific or technical grounds. Specific and plausible environmental harms should 
be identified before allocating time and money to these efforts." 
790. In his response Dr. Andow begins by noting that "For all of the products at issue in this 
dispute, there are some member countries that di sagree with the assessment of the relevant SCP (for 
example) that there are no significant identified risks.  This disagreement is sometimes related to 
different standards of acceptable risk being applied by the disagreeing parties." He considers that this 
disagreement provides "the only rationale for monitori ng potential adverse effect s" and that "[i]f all 
parties agreed that there were no significant iden tified risks, there would no need to consider 
monitoring for potential adverse effects."   He identifies the various mechanisms by which an 
unanticipated risk could arise, and states that "All of these possible sources unanticipated effects are 
equally likely to occur for plant biotech products before 1998 and plant biotech products after 1998." 
In his view all of these factors "provides a rationale for monitoring". WT/DS291/R/Add.7 
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Page I-370 
  791. The European Communities notes that  none of the responses indicate any a priori  objection to 
the principle of monitoring. There is a differen ce of emphasis, however, as to the circumstances in 
which it might be justified. Dr. Andow's comments focus on unanticipated ri sks in a manner which 
confirms the pertinence of the Community's appro ach. In light of her other responses, Dr. Snow 
appears to accept that post-release monitoring will be especially well-justified where pre-release risk 
assessments have not been carried out as rigorously or as completely as desirable.  
792. The Communities considers that these responses are consistent with the approach it has taken, 
namely that environmental monitoring is requi red when risk assessments identify potential risks 
associated with factors such  as time and scale of the release (e.g. large scale and delayed impacts) 
and changes in management associated with cultivati on of GMOs. Monitoring will also be justified if 
the environmental risk assessment identifies gaps in  knowledge which are likely to be filled by studies 
of commercial crops. And monitoring is also used to observe unanticipated effects caused by the 
cultivation of GM crops such as significant chang es in crop production or management practices 
which may have an environmental impact.   
793. Prior to 1998 the extent of knowledge and unders tanding of potential impacts was less than it 
is now, so that the approach to environmental ri sk assessments (ERA) was rather narrowly focused.  
These earlier approaches have been criticised by  some Member States and by Dr. Snow and 
Dr. Andow. Experience of the methods and appro aches to ERA has developed and there is now a 
greater understanding of complex ecological inte ractions, allowing consideration of broader 
environmental issues, even if considerable uncerta inties remain. This is the logic which justifies 
monitoring, in the face of changing scientific know ledge, particularly in relation to environmental 
risks. This scientific and technical rationale is reflected in the numerous international instruments 
which endorse the use of monitoring.  
Question 100 
 
For those biotech products at issue in this di spute for which an approval has been sought for 
environmental release (notifications submitted und er Directives 90/220 or 2001/18), and for which no 
significantly different nature or level of risk has b een identified, does the info rmation before the Panel 
provide a scientific or technical rationale for requiring specific agr icultural management practices 
that differ from those for products of biotechnology  approved by the European Communities prior to 
October 1998?  
  General comments 
 
794. The European Communities notes that there is general s upport amongst the independent 
experts for the rationale for requiring specifi c agricultural management practices, and support 
amongst some for the view that such practices ma y be appropriate to address unanticipated risks 
having regard to the state of scientific understand ing (noting in particular that it has developed 
significantly since 1998). 
Detailed comments 
 795. The panel has received comments from Dr. S now, Dr. Andow and Dr. Squire. Dr. Nutti 
considers that this question relates to envir onmental risks and accordingly does not provide a 
response. 
796. Dr. Snow and Dr. Andow refer to their earlier responses to Question 99. Dr. Squire provides a 
response that is consistent with the approach ta ken by the European Communities. He states that   WT/DS291/R/Add.7 
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  the innate biological qualities and behaviour of a product may not have changed, but 
it is quite possible that the context in whic h that product would operate has changed, 
in two ways. (A) The physical or agronomic environment is different. The agronomy 
of these crops changes rapidly: examples of factors that have changed markedly in 
Europe in recent times are the proportion of autumn-sown crops, the area covered by oilseed rape, and the type and effectiven ess of pesticides used. An example, given 
already, of the change in pesticides is the rise in use of glyphosate as an arable 
herbicide in some countries in the past few years. (B) The understanding of the GM 
product's role in the ecosystem has changed. It was also reported previously that some 
major effects of intensification on arable ecosystems have become well established scientifically only in the last few years. Th e way arable plants and their food webs are 
considered is now different from the way they  were generally considered in the early 
1990s. The question is sometimes referenced back to before the early 1990s: why was 
the large scale change to autumn-sown cropping in some parts of Europe not 
scrutinised with the same rigour as the poten tial change to GM cropping? The answer 
is that it was thought not to be important, while it is now known to have been very 
important for farmland food webs. 
797. The European Communities agrees with this  approach. Since 1998 there is a greater 
awareness of the impacts that the management of GM crops – especially HT crops - can have on the 
environment. There has also been a greater desire  to ensure that innovations in agriculture are 
sustainable. Thus there has been a change in attitudes to what is environmentally acceptable in 
agriculture in the late 1990's, and this has im pacted on the evaluation of GMOs in Europe and 
elsewhere.  
798. Beyond the examples given by Dr. Squire, the Communities notes that there are other 
examples of changes in crop production which may be of importance in this case, including the 
development of surfaces with no or simplified tillage  (due to the increase of useful agricultural 
acreage per farmer), as well as the significant devel opment of organic farming (which benefits from 
aids at the national and European Communities leve ls on the grounds that these farming practices 
bring environmental benefits). More significantly is  the growth in acreage under GM cultivation, 
giving rise to conditions under which the results of ea rlier risk assessments  may no longer hold true.  
The scale of use has a significant effect on risk.
286  Some GMHT crops have gained significant spatial 
scales of use that dwarf those of non-GMHT crops.  For example, RoundUp Ready® soybean now 
occupies >60 of the US soybean area (>20 million hectares), while no non-GMHT trait has come close.  With greater scale, small effects can rein force each other and become more apparent.  This 
would be especially true for non-target effects, such as those found in the farm-scale evaluations 
carried out in the UK. Relatedly, between 1998 a nd 2001 new research results were published on 
spatially explicit models which aim is to simula te the impact of GM crops in cropping systems.
287 
This kind of models allows: th e ranking of cropping systems according to risk of gene flow 
(diagnosis); testing the effect of different practices;  and determining best crop  management to control 
it.288 This allows to adapt practices according to risk intensity, technical constraints, spatial 
distribution of fields in the agricultural landscape e.g.  to adapt practices to the diversity of situations.  
 
                                                      
286 NRC (National Research Coun cil).  (1987).  Introduction of recombinant DNA-engineered 
organisms into the environment: key issues.  National Academy Press, Washington, DC 
287 Colbach et al, 2001 a et b. 
288 See Bock et al, 2002, Angevin et  al, 2003, Colbach et al, 2004. WT/DS291/R/Add.7 
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Question 101 
 Does the information before the Panel support the ar gument that any potential risks from any of the 
biotech products at issue in this dispute should be mitigated in a manner different than the products of 
biotechnology approved by the European Communities pr ior to October 1998?  If so, what means of 
risk mitigation might be envisaged?   General comments 
 
799. The European Communities notes that there is  support amongst the independent experts for 
the view that potential risks from some of the biotech  products at issue in this dispute can and should 
be mitigated in a manner different than the produc ts of biotechnology approved by the European 
Communities prior to October 1998.  
Detailed comments 
 
800. The Panel received responses from Dr. Squi re, Dr. Snow and Dr. Andow. These are 
consistent with the view of the European Communiti es that developments in scientific knowledge as 
well as techniques of risk assessment and mitigation mean that new and different approaches to 
mitigation are required, as compared with the situation which existed in 1998.  
801. Dr. Squire's response indicated that there had b een a change of approach since 1998: "While  
products might have very similar qualities, mitiga tion might differ as a result of new information 
informing risk or a new perception of the importance of a particular risk. Among ecological topics, the perceived mitigation to reduce the 'severity' of  a risk to biodiversity and ecosystem functioning 
has changed because of a greater appreciation that arable systems have been affected by intense 
agriculture. Mitigation is unlikely to remain consta nt. For example, some current mitigation measures 
which leave margins round the cropped area of land are insufficient when it is appreciated that 
biodiversity in the cropped areas is necessary to main ecological function there." He added that new research has developed new knowle dge: "That risk has not remained the same over time is an 
inevitable consequence of scientific information on  arable systems being collected at increasingly 
larger scales since the mid-1990s."  
802. Dr. Snow's response recognised the possibility th at although several of the products that were 
approved before 1998 are the same as (or similar to ) those in the present dispute the possibility could 
not be excluded that post-1998 scientific knowle dge could result in a different approach:  
"The answer to this question hinges on which potential environmental risks might 
require mitigation, and whether any new scientific knowledge has become available 
to justify changes to any mitigation plans that were required prior to October 1998. I 
am not sure which mitigation plans may ha ve been required at that time, but new 
scientific knowledge that was gained after 1998 certainly could be relevant to risks 
related to gene flow (see above) and the evol ution of resistance in target pests of Bt 
crops (e.g., NRC 2000)." 
803. In a similar vein, Dr. Andow confirms that "there are new risk methodologies and assessment 
standards being applied to biotech products today than prior to 1998.  Thus, it is possible that risks 
will be identified for new products that were not ev en considered in the older products.  Under such 
conditions, differences could be justified." 
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  Question 102 
 Does the information before the Panel support the vi ew that the biotech products at issue in this 
dispute (including products subject to the member State safeguard measures) give rise to the same 
types of potential risks to human, plant or animal hea lth or to the environment as novel non-biotech 
products, such as plant products  produced by selective breeding, cross-breeding and induced 
mutagenesis?  If so, for any biotech product at i ssue in this dispute are there significant differences, 
from a scientific perspective, in the nature or m agnitude of any potential risks from these products 
compared to comparable novel non-biotech products taking into account: 
 
• the specific genetic modification introduced and the resulting product; 
 
• the intended use of each product (direct human or  animal consumption, further processing for 
consumption, planting or other use); 
 
• any potential risks that may arise from the comb ination or successive use of biotech products 
or comparable novel non-biotech products. 
 
Please explain with referen ce to specific products at issue in this dispute. 
 General comments 
 
804. The European Communities notes that there is  support amongst the independent experts for 
the view that the biotech products at issue in this dispute (includi ng products subject to the member 
State safeguard measures) give rise to different a nd new types of potential risks to human, plant or 
animal health or to the environment as compared with novel non-biotech products.  
Detailed comments 
 
805. The Panel received responses from Dr. Andow, Dr. Snow and Dr. Nutti. The responses from 
the first two indicate that biotech products give rise to new risks as compared with non-biotech 
products. This is consistent w ith the approach taken by the European Communities in these 
proceedings. 
806. Dr. Andow provided a detailed response on the differences between conventional breeding 
and "molecular breeding," referring to the differences  between clonal species (e.g. potato and banana) 
and sexual species (e.g. oilseed rape, maize and soybean) and, as regard sexual species, between 
outcrossing species (e.g. maize and oilseed rape) and inbreeding species (e.g. soybean and wheat). As 
regards the type of risk, Dr. Andow stated that "the re are no differences in the types or kinds of risks 
posed by biotech crops compared with their non-bi otech counterparts.  The kinds of risks include 
toxicity to humans and animals, allergenicity, nu trition, potential for prod ucing disease, gene flow 
risks, non-target and biodiversity risks, and resist ance risks."  However, he concludes that "Within 
these kinds of risk, there are new risks of biotech plants." Dr. Andow states clearly that "Nearly all 
risks associated with novel toxins (e.g., all Bt cr ops) introduced into crop plants are new risks", and 
refers to "other risks of a new nature" identified in  responses to other questions. He confirms that the 
European Communities is correct  in consider ing that new open reading frames (ORFs) "could 
theoretically produce a new protein, which could cause or influence a new risk" and that insertional mutagenesis is "another outcome of transgenesis that  is new to breeding, and could cause or influence 
a new risk". He clearly rejects Canada's claim th at transgenesis allows more precise control than 
selective breeding. And he concludes that although the US, Canada and Argentina may be correct in 
saying that translocations and other genomic disr uptions can occur in conventional breeding, such WT/DS291/R/Add.7 
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Page I-374 
  genomic disruptions "are normally  rare in conventional breeding" . Dr. Andow refers to ongoing 
research which may lead to technical improvements which could "alter" these concerns. 
807. In relation to environmental risks, Dr. Snow adopted a similar approach:  
In my opinion … the biotech products in this  dispute could be considered as different 
from non-biotech products in the some cases". Her response referred in particular to 
pesticide-producing crop plants and to he rbicide-tolerant crop plants with feral 
(volunteer) populations or wild relatives that can hybridise with the crop.  
808. In relation to non-environmental risks, Dr. Nutti stated that: "I am of the opinion that both 
novel non-biotech products and biotech products shou ld be assessed in a comprehensive, scientific, 
step by step , case by case bases, so the same safety assessment principles should be applied in all 
cases." To the extent that this response suggests equiva lence of risk it is not consistent with the views 
of  Dr. Andow and Dr. Snow.  
809. The European Communities would like to point out to the Panel, however, that there is wide 
international agreement that each GM product should  be assessed on its individual perits, taking into 
account the individual transformation event and the par ticular genes that have been introduced. In that 
respect, potential risks, in particular unintended or n on target effects, are certa inly specific to each of 
the biotech products. The European Communities w ould like to refer to the comments it provided on 
the evolution and the broader issues of risk anal ysis of GM products in Section III on general and 
methodological issues. 
810. But more strikingly, this being taken into account , it is noteworthy that most of the products 
in dispute contained traits and genes that are specific to GM products, as they have not net been found or obtained without the use of genetic engineering techniques (glyphosate, gl uphosinate resistance, Bt 
resistance). Consequently, they present unique protential risks, which may not compare with non GM products. 
Question 103 
 Does the information before the Panel support the view that any of the biotech products at issue in this dispute poses a substantially greater risk as  regards the direct or indirect consequences of 
unintentional "contamination" of other plant vari eties than a comparable novel non-biotech products, 
such as one of the 2300 different crop varie ties that have been developed using induced 
mutagenesis?
289  If so, what means of risk mitigation might be envisaged? 
 General comments  
 
811. The European Communities notes that there is  support amongst the independent experts for 
the view that the biotech products at issue in this  dispute may pose a substantially greater risk, in 
particular as regards indirect conseque nces of unintentional "contamination".  
  
                                                     
 
289 FAO/IAEA (Food and Agriculture Organization of the United Nations/International Atomic Energy 
Agency). 2001. FAO/IAEA Mutant Varieties Database.  Available online at http://www-
infocris.iaea.org/MVD/.  WT/DS291/R/Add.7 
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  Detailed comments 
 
812. The Panel received responses from Dr. Snow, Dr . Squire, Dr. Andow and Dr. Nutti. These 
responses indicate scientific support for the view that some of the biotech products at issue in the 
dispute may pose a substantially greater risk by mean s of indirect contamination. The extent of the 
risk will depend on definitions of harm (including economic harm) and the nature and extent of the 
activity. This confirms the approach ad opted by the European Communities.  
813. Dr. Snow indicated that "The present dispute involves only a few crop species with a limited 
number of transgenic traits, and the question is whethe r the dispersal of these traits to other plants, by 
means of pollen and seed movements, could pose subs tantially greater risks as compared to non-GM 
traits." She stated that some of the biotech products at issue in the dispute posed  "risks that are greater 
in certain GM crops as compared to their non-GM  predecessors" (referring to her responses to Part I 
and answers to Question 6 and others).  
814. Dr. Andow considered that risk and "contami nation" "depend on the scale of release and the 
nature of the adverse effect". Ri sk depends on exposure and adverse e ffect. He states that "There is 
little evidence to suggest that ceteris parabis , gene flow will be greater from a transgenic variety than 
a conventional one", but that "There has been little  discussion and less agreement over the nature of 
the adverse effects of contaminati on". Depending on the definition of harm, "the risk associated with 
biotech crops is substantially greater than the risk  associated with any of the conventionally produced 
varieties". He suggests that "the probability of cr oss-contamination rises slowly with spatial scale for 
very small scale production, but once it reaches a large-size threshold, the probability rises much faster". 
815. Dr. Squire concludes that as between certain crops  
"Given present knowledge of the life cycle and reproductive behaviour of  the crops, 
there is no reason to suppose that biotech crops confer different degrees of impurity 
compared with crops produced from, say, induced mutagenesis." 
816. Dr. Nutti's response implies that there is no di fference of risk between plants that were 
developed using induced mutagenesis and tho se produced from the Recombinant-DNA technology. 
Unlike other responses, however, and in particular that of Dr. Andow, she provides no indication of 
the reasoning which might assist the reader form a view as to the basis upon which she reaches such 
an implied conclusion.  
Question 104 
 
From a scientific perspective, is there a significant  difference in risks to human, animal or plant 
health or the environment arising from the use of a bacterial antibiotic resistance marker gene, or 
part thereof, in any biotech product at issue in this  dispute (e.g., Monsanto Bt cotton (531), Monsanto 
Roundup Ready cotton (RRC1445), Amylogene starch  potato) compared to novel non-biotech 
products, such as comparable plant products pr oduced by selective breeding, cross-breeding and 
induced mutagenesis?  General comments  
 
817. Consistently with the approach set out above , the European Communities notes that there is 
support amongst the independent experts for the view th at there is a significant difference in risks to 
human, animal or plant health or the environment arising from the use of a bacterial antibiotic WT/DS291/R/Add.7 
WT/DS292/R/Add.7 WT/DS293/R/Add.7 
Page I-376 
  resistance marker gene in any biotech product at issue, including as regards other non-biotech products.  
Detailed comments 
 
818. The Panel has received a response only from Dr. Nutti.  
819. Dr. Nutti states that  
"the use of antibiotic resistan t marker genes has been recogni zed as a safe tool and its 
employment should be evaluated on a case by case basis. The same rule should be 
applied to novel non-biotech products, such  as comparable plant products produced 
by selective breeding, cross-breeding and induced mutagenesis. I mean, these products should be evaluated on a case by case basis, so the same safety assessment 
principles should be applied in all cases." 
820. In relation to other questions Dr. Nutti has indicated that she has no expertise in 
environmental risk, so this response must be take n to be limited only to non-environmental risks. 
Even if, as with other responses she provides no indication of the reasoning which might assist the reader form a view as to the basis upon which she reaches such an implied conclusion, the European 
Communities strongly disagrees with Dr. Nutti's vi ews that ARMG has been "recognized as a safe 
tool" for the reasons outlined in its comments to Questions 1, 2 and 98, and in accordance to the 
relevant latest Codex guidelines which recomme nd not to use such ARMG. Furthermore, the 
European Communities notes the apparent inconsiste ncy between Dr. Nutti's response to this question 
and that of Question 98, where she recognises that "the use of alternative transformation methods, 
which do not use ARMG, is encouraged". 
821. The European Communities refers to its co mments under Questions 1 and 2 for further 
detailed considerations regarding the use of ARMG, or part thereof may  pose a significant risk of 
harm. 
822. Furthermore, the European Communities would lik e to note the potetntial inconsistency of 
Dr. Nutti's response, when she states that the same rule (namely that  the use of antibiotic resistant 
marker genes has been recognized as a safe tool and its emplyment should be evaluated on a case by case basis) should be applied to novel non-biot ech products, such as comparable plant products 
produced by selective breeding, cross-breeding and induced mutagenesis. Indeed, ARMG are 
bacterial genes, and although it may not be excluded that such genes may be seldomly found in plant 
genomes, as nobody has systematically searched for it,  they can only be present in the plant biotech 
products in dispute through genetic modification technique. There does not exist yet any novel non 
biotech plant product produced by selective breedi ng, cross-breeding and induced mutagenesis which 
has been found to contain ARMG, and theref ore Dr. Nutti's comparison does not make sense. 
Question 105 
 For those biotech products at issue in this disput e for which no significantly different nature or level 
of risk has been identified, is there a scientific or  technical rationale for monitoring the occurrence of 
potential adverse effects, or of unintentional effects,  arising from the consumption or use of these 
products compared to novel non-biotech products, such as plant products produced by selective 
breeding, cross-breeding and induced mutagenesis?  If so, would such monitoring relate to the 
specific genes or traits introduced into a biotech  product, and how would this compare with the 
monitoring of induced changes in novel non-biotech products?    WT/DS291/R/Add.7 
 WT/DS292/R/Add.7 
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 Page I-377 
  
  General comments 
 
823. The European Communities notes that there is  support amongst the independent experts for 
the view that there may be a scientific or technical  rationale for monitoring the occurrence of potential 
adverse effects, or of unintentional effects, aris ing from the consumption or use of biotech products 
(as compared to novel non-biotech products) even where no significantly different nature or level of 
risk has yet been identified, having regard to the possibility of unanticip ated consequences.   
Detailed comments 
 
824. The Panel received responses from Dr. Snow, Dr. Nutti and Dr. Andow. Taken together these 
are consistent with the growing support now eviden t in international instruments and around the world 
for monitoring of unanticipated effects of biot ech products, including thr ough general surveillance 
schemes, without prejudice to whatever monitori ng may be required for non-biotech products.  These 
responses support developments in the European Co mmunities towards greater monitoring in the face 
of uncertainties.
290 
825. Dr. Snow's response takes the question as stated  that "It does not seem logical to require 
monitoring if  no risk has been identified (see Question 99)." (emphasis added). Conversely, it would 
appear that Dr. Snow accepts that if a risk h as been identified it would be logical to require 
monitoring. Dr. Snow's response cannot be taken as an  indication of her view that the products which 
are the subject of this dispute fall within the cate gory of products for which no significantly different 
nature or level of risk has been identified. Fu rthermore, her answer does not  address all potential 
unanticipated and non target effects which have b een discussed elsewhere by the experts and in the 
EC comments, which may indeed require also mon itoring and general surveillance programs, even if, 
by definition, these portential effects have gone unde tected at the stage of risk assessment because of 
limited scientific knowledge. 
826. Dr. Nutti states that  
"the monitoring of occurrence of potential adverse effects or of unintended effects 
should be carried out based on scientific pa rameters in both cases, that is, for those 
biotech products at issue in this dispute, for which no significantly different nature or level of risk has been identified, and fo r novel non-biotech products, such as plant 
products produced by selective breeding, cross-breeding and induced mutagenesis. In 
both cases, I am considering that the products were assessed as safe."  
She recognises the difficulty of monitoring for "any e ffect that we are not aware of" and proposes that 
the subject should be "introduced in the agenda of the Codex Alimentarius Task Force on Foods 
Derived from Biotechnology, which will start working in September 2005." 
 
827. Dr. Andow considers that "Monitoring can be used to look for unanticipated effects" and that 
"monitoring may be partially substitutable for mo lecular and biochemical characterization". He 
considers that "Monitoring may also  substitute for identifying all possible effects, by covering various 
categories of unanticipated effects". As regards the objectives of monitoring, he states that monitoring 
related to a specific potential adverse effect "would have  to relate to the specific genes/ traits in the 
transgenic crop", whereas for unanticipated eff ects "a more general approach is needed". 
                                                     
 
290 See Wilson, Latham and Steinbrecher, 'Genom e Scrambling – Myth or Reality? Transformation-
Induced Mutations in Transgenic Crop Plants',  EcoNexus technical Summary Report, October 2004. WT/DS291/R/Add.7 
WT/DS292/R/Add.7 WT/DS293/R/Add.7 
Page I-378 
  
Question 106 
 For those biotech products at issue in this di spute for which an approval has been sought for 
environmental release (notifications submitted und er Directives 90/220 or 2001/18), and for which no 
significantly different nature or level of risk has b een identified, does the info rmation before the Panel 
provide any scientific or technical rationale for requiring specific agricultu ral management practices 
that differ from those for novel non-biotech products , such as plant products produced by selective 
breeding, cross-breeding and induced mutagenesis?  
 
General comments 
 
828. The European Communities notes that there is  support amongst the independent experts for 
the view that there may be a scientific or tec hnical rationale for requiring specific agricultural 
management practices in respect of biotech produc ts (as compared to novel non-biotech products) 
even where no significantly different nature or level of risk has yet been identified, having regard to 
the possibility of unanticipated consequences.   
Detailed comments 
 
829. The Panel has received responses from Dr. Squire and Dr. Andow.  
830. Dr. Squire states that if no significant level or  type of risk has been detected, then no 
particular change in practice should be needed. Howe ver, he recognises that if thresholds are imposed 
(e.g. 0.9%, specifically for GM varieties in non-GM varieties) "then there will need to be different 
agricultural practices for those GM varieties th at leave volunteers or spread genes by pollen to 
neighbouring, sexually compatible cr ops." He also concludes that  
"Under a system of coexistence in whic h a threshold (GM in non-GM) was imposed, 
the agricultural practice might well have to ch ange in a crop such as oilseed rape to 
ensure that threshold would be met.  L onger intervals than normal between oilseed 
rape crops, some regional segregation of  GM and non-GM crop types and the 
dropping of varietal associations (80% ma le sterile, 20% own pollen) from general 
use would probably be necessary. Given present knowledge, these changes would be 
in consequence of an imposed threshold of GM in non-GM product, not of any 
inherent food-risk in the GM product itself." 
831. Dr. Andow concludes that disagreement as to different standards of acceptable risk being 
applied by the disagreeing parties "provides the onl y rationale for risk management.  If all parties 
agreed that there were no significant identified risk s, there would no need to consider monitoring for 
potential adverse effects.  If only some of the parties recognized the risk, then some kind of 
conditional risk management could be justified.  For example, one condition for the management 
measures could be the country of use." 
832. The European Communities generally agrees w ith these responses (although it considers that 
Dr. Squire's response is premised on an assumption that the initial risk assessments were correct in 
their methodology and outcome (a point which is re futed by Dr. Andow, Dr. Snow and Dr. Squire in 
some of their  earlier responses). The Communities recognises that both conventional and GM crops 
have shown unintended and undesirabl e effects after release (e.g. reduced efficacy of pest resistance, 
boll drop, decreased yields, increased requirements for fertilisers etc), so the screening systems are 
obviously not always able to detect unintended effect s prior to large scale rele ase.  However, because 
of the vastly increased scale of GM crop productio n relative to most conventional crop counterparts, 
the Communities considers that post-release monito ring is even more important for large scale  WT/DS291/R/Add.7 
 WT/DS292/R/Add.7 
 WT/DS293/R/Add.7 
 Page I-379 
  
  production GM crops than for convent ional crops grown on smaller scales (because the extent of any 
harm would be much greater due to scaling effects) . This approach is supported by the responses to 
the Panel.  
Question 107 
 Does the information before the Panel support the vi ew that the biotech products at issue in this 
dispute (including products subject to the member State safeguard measures) give rise to the same 
types of potential risks to human, plant or animal he alth or to the environment as foods produced 
using biotech processing aids, including yeasts, bac teria or enzymes that have been modified using 
recombinant DNA technology?   If so, for any biotech product at issue in this dispute are there significant differences, from a scientific perspective, in  the nature or magnitude of any potential risks 
from the products at issue in this dispute compa red to foods produced with biotech processing aids, 
taking into account the intended use of each pr oduct (direct human or animal consumption, further 
processing for consumption, release into  the environment, any other use). 
 General comments 
 
833. The European Communities notes that there is  support amongst the independent experts for 
the view that the biotech products at issue in this dispute (includi ng products subject to the member 
State safeguard measures) may give rise to potential ri sks to human, plant or animal health or to the 
environment, if the food is made available to the en vironment, although the nature and extent of that 
risk may be lower.   
Detailed comments 
 834. The Panel has received responses from Dr. Andow and Dr. Nutti. 
835. Dr. Andow expresses the opinion that since in general, foods produced with biotech 
processing aids "are not expected to be able to self-reproduce in the environment", so that  the kinds of risk associated with these foods "do not include  any of the environmental risks associated with 
transgenic plants." However, he also believes th at foods produced with biotech processing aids "can 
have some non-target effects if the food is availa ble in the environment" and that these effects "are 
more similar to the effects of chemicals rather th an the effects of living biological organisms."  In 
respect of these products unanticipated effects could arise from a transgene by a number of 
mechanisms, although in each case "the likelihood of  it occurring in a transgenic bacterium or yeast 
(that is typically used as a food processing aids) is much lower than in a transgenic plant." 
836. Dr. Nutti addresses only non-environmental risks. In her view "the safety of the new 
microorganisms and of the product thereo f should be assessed according to the FAO/WHO Codex 
Guideline for the Conduct of Food Safety Assess ment of Foods Derived from Recombinant-DNA 
Microorganisms."  
837. The European Communities generally agrees w ith the approach taken by Dr. Andow. As 
regards  environmental issues, the modified food produc t is non-viable and the environmental impacts 
of the transgenes would be restricted to wildlife and environments exposed to these food products or 
the GM processing aids.  Risks associated with these products would be case specific depending on 
the traits produced by the processing aid, the inter action with the crop raw material and levels of 
environmental, human and animal exposure. Sin ce the processing is largely done in contained 
facilities (fermenters etc) the risk of environmenta l exposure will generally be  low. However, gene 
products may pass directly into the environment from human activity or factory discharges or may WT/DS291/R/Add.7 
WT/DS292/R/Add.7 WT/DS293/R/Add.7 
Page I-380 
  pass indirectly into the environment after consum ption by humans and animals. Release of the GM 
bacteria or yeasts which are the source of processing aid could have some environmental impacts depending on the species of organism and the trait. If they can survive as free living organisms in soil 
or water and/or mate with free living microorgani sms then there may be some ecological impacts 
which would need to be evaluated.  
Question 108 
 Is there a significant difference in risks to human, anima l or plant health or the environment arising 
from the use of a bacterial antibiotic resistance ma rker gene, or part thereof, in any biotech product 
at issue in this dispute (e.g., Monsanto Bt co tton (531), Monsanto Roundup Ready cotton (RRC1445), 
Amylogene starch potato) compared to foods produc ed with biotech processing aids, including yeasts, 
bacteria or enzymes that have been modified using recombinant DNA technology?  
General comments  
838. The Panel has received a response from Dr. Nutt i. It raises the same points as arise in 
questions 1, 2, 98 and 104, and the European Communities refers to its comments thereunder.  
Question 109 
 
For those biotech products at issue in this disput e for which no significantly different nature or level 
of risk has been identified, does the information be fore the Panel provide a scientific or technical 
rationale for monitoring the occurrence of potential adverse effects, or of unintentional effects, 
arising from the consumption or use of these pr oducts compared to foods produced with biotech 
processing aids?  Does the information before the Pa nel provide a scientific or technical rationale for 
mitigating any potential risks arising from the biotech  products at issue in this dispute in a manner 
differently than products produced with biotech processing aids?   General comments 
 
839. The European Communities notes that there is  support amongst the independent experts for 
the view there is a scientific or technical rationa le for monitoring the occurrence of potential adverse 
effects, or of unintentional effects, arising from th e consumption or use of biotech products compared 
to foods produced with biotech pr ocessing aids, even where no significantly different nature or level 
of risk has yet been identified, having regard inte r alia to unanticipated effect, and that monitoring 
may be justified. 
Detailed comments 
 
840. The Panel has received responses from Dr. Andow and Dr. Nutti. 
841. Dr. Andow states that sources of sources unanticipated effects  
are more likely to occur for plant biotech products than for foods produced with 
biotech processing aids.  This provides a rati onale for monitoring, but no rationale for 
mitigation, as there are no concrete effects that can be mitigated. 
842. Dr. Nutti states that 
For those biotech products at issue in this dispute for which no significantly different 
nature or level of risk has been identi fied and for foods produced with biotech  WT/DS291/R/Add.7 
 WT/DS292/R/Add.7 
 WT/DS293/R/Add.7 
 Page I-381 
  
  processing aids, where the processing aid and the Recombinant-DNA microorganism 
have been assessed as safe, I am of the opini on that the monitoring of occurrence of 
potential adverse effects or of unintended effects, in both cases, should be conducted 
based on scientific parameters. 
843. The European Communities notes that neither e xpert expresses an objection in principle to 
monitoring, even where no significantly different nature  or level of risk has been identified, and that 
Dr. Andow has identified a positive rationale on the basis of unanticipated effects. As regards 
Dr. Nutti's approach, based on a 
symmetry between both types of products, the European 
Communities considers that this may apply to GM  yeasts and bacteria based on Codex guidelines for 
their safety assessment but that it does not apply to  processing aids consisting of GM enzymes, based 
on the considerations of the diffe rent nature, function, dissemination, viability, activity, complexity, 
and consumer exposure of the GM products at issue. 
VIII.  THE PANEL'S ADDITIONAL QUESTIONS 
Question 111 
 Please provide an assessment of the US statements regarding the evaluation of the safety of biotech 
products in paragraphs 128-133 of the US Supplem entary Rebuttal Submission, and in particular of 
the statement in the last sentence of paragraph 133 th at: "... where all of the data consistently provide 
no indication of adverse effects, and there is no sp ecific indication that the data submitted are 
inadequate, there is generally no reason to expect  that any remaining risk as gone undetected, and 
that further studies are warranted".  What relevanc e does the foreseen end product use(s) have in the 
context of the evaluation of the safety of that product?  
 
General comments 
 844. With question 111, the Panel's sought advice on th e statements in paragraphs 128-133 of the 
US supplementary rebuttal submission, where the US describes its approach to assess the risk of 
biotech products, and in particular, on the sweepi ng statement of the US, in paragraph 133, which 
seeks to minimize the amount of information to be supplied by an applicant, omitting the difficulties 
and the safety problems that may arise wh en following the US federal approach. 
845. Dr. Nutti and Dr. Snow both answered that ques tion succinctly, but with different approaches 
and emphasis; Dr. Snow addressed certain environmental concerns and flaws of the proposed US approach, while Dr. Nutti presented her own approa ch to food safety assessment. Both, again with 
different emphasis, not only agree with the relevance of end products uses in risk assessment, but also 
consider it necessary in the assessment. 
846. The European Communities agrees with Dr. Snow when she concludes that  
"The last sentence of paragraph 133 does not acknowledge that important scientific 
information about environmental consequen ces could be lacking in specific cases, in 
which case further scientific studies would be warranted" 
847. The European Communities believes that that stat ement is equally applicable to other aspects 
of the risk assessment, such as food or feed safety, and, as Dr. Snow herself notes, the inherent 
problems and shortcuts of the US proposed approach generally apply to the products in dispute, where 
further information was sought by one or the other au thority, in order to complete its risk assessment 
in accordance with the lack of important safety information. WT/DS291/R/Add.7 
WT/DS292/R/Add.7 WT/DS293/R/Add.7 
Page I-382 
  848. The issues raised by the Panel's question, albeit of a general nature, are very important as they 
are issues of principle for conducting a risk assessment,  applicable throughout all products in dispute 
and their respective applications, when considering wh ether there was a delay, and, if so, whether it 
was undue.  
849. Therefore, because of the succinct character of both replies, which didn't cover all necessary 
aspects of the inappropriateness of the US approach , and of the general inadequacy of Dr. Nutti's 
reply as regards food safety, the European Communiti es will comment in detail below and provide its 
own analysis. It has prepared this information with the assistance of independent scientists, experts in 
this field, and presents it as objectively as possible so as to complete the information available to the 
Panel. 
850. It will explain why the precise requirements and the principles for the ad hoc risk assessment 
of a GMO have got to be decided on a case-by-case, in light of the specific information supplied (both its content, and its quality), but also taking into  account the likelihood of unintended effects and the 
particular geographical and envir onmental conditions of the foreseen intended or unintended uses.  
851. As widely explained by the experts replies and the comments submitted by the European 
Communities, there was and still is a vast amount of  open and unresolved issues in the assessment of 
the biotech products in dispute. These uncertainties warrant the call for certainly more studies than 
advocated by the US, in order to conduct a pr oper science-based risk assessment, and to reach a 
rigorous conclusion, with a reasonable level of certa inty, as regards the safety of the biotech products 
in dispute. 
852. The European would like, in this context, to re fer the Panel to its general comments in section 
III of this submission, on genera l and methodological issues, which ar e extremely relevant here, in 
particular on case by case assessments, systemic issu es, evolving science, scientific evidence of risks 
or absence of risks, absence of agr eed scientific criteria, judging wh en the scientific information is 
sufficient, interpretation of scientific informa tion, surveillance and food safety, and on new 
developments of broader risk assessment c oncepts for genetically modified products.  
Detailed comments 
 
853. The US statements essentially describes its vi ews as regards, not the conduct of a risk 
assessment, but the endpoints of information and da ta requirements necessary for each isolated and 
independent component of the risk assessment it describes (the safety of the new substance, 
comparisons made with conventional products, molecular characterization, stability of the 
modification, field trials analysis, and environmental impacts). The difficulty is not as much the risk assessment paradigm itself, as described, but rather the studies claimed to be warranted by the US to 
implement each step in this paradigm.  
854. The approach presented by the US seems to  be essentially inspired by food safety 
considerations, in light of the little emphasis given to environmental and non target effects. The US 
risk assessment paradigm is more or less roughly similar to the one used anywhere as regards food 
safety, even if there is intense de bate worldwide as to how to test each  of the individual step, and what 
further components and methods may be necessary to improve it, for instance to better integrate the 
different steps of the risk assessmen t, or to assess the GM plant or th e GM food as a whole, in its real 
environment or in its real uses.  
855. 
The US approach is based on the assumption that it is necessary to benchmark the assessment 
of biotech products against the approaches to  assess "conventional" products and techniques, 
including the most unpredictable plant breeding t echnology, with old risk assessment techniques,  WT/DS291/R/Add.7 
 WT/DS292/R/Add.7 
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 Page I-383 
  
  mainly developed to test the safety and eco-toxi cology of individual compounds in the chemical 
industry.  
856. This assumption was the one initially advocated by  the industry and became the basis for the 
regulation of transgenic crops in th e US (see for instance, for the FDA, 
291). It hasn't changed since, 
despite the large number of new issues and the many weaknesses of the US approach, as largely 
explained by the experts. Each will be addressed below. 
857. It is noteworthy that the inherent shortcuts and limitations of the US federal approach to the 
risk assessment of genetically engineered products  have forced the US federal authorities themselves 
to review frequently their approach in recent years,  and sometimes to improve coordination or revise 
it, albeit scarcely and unwillingly, in the light of many identified flaws and recommendations from its 
own advisory structures,292 even from the least progressive ones. 
858. Even so, the last paragraph of the US statement is qualified (emphasis added): 
… where all of the data consistently  provide no indication of adverse effects, and 
there is no specific indication that the data submitted are inadequate , there is 
generally  no reason to expect that any remain ing risk has gone undetected, and that 
further studies are warranted. 
859. As has been indicated in the comments under issu e 1, there was almost systematically, in the 
biotech product applications at stake, missing data, inconsistency of the data provided, inadequacy or 
bad quality of the data submitted, or specificities of the product or of its in tended or unintended uses, 
which all warranted, according to this very US  statement, the requests for further studies. 
860. Dr. Snow, in her comments, indicates the lack of relevance of the tests proposed by the US to 
assess some environmental risks, such as out-cro ssing impacts. The European Communities would 
add that this applies in particular to unintended effects and non target organi sms. Furthermore, on top 
of the lack of identification by the US of the met hods that could be used as regards "the effects on 
other organisms in the ecosystem", that could include "indirect impacts", it is doubtful, in light of the 
succinct methods proposed for food safety, that the US would address multi trophic (ie involving a chain of organisms in complex food webs), sub chr onic, or delayed effects of the organisms in its 
natural environment. Dr. Andow, although not repl ying to this question, has provided a ample 
evidence to support such a view. 
                                                     
 
291 Kessler DA, Taylor MR, Maryanski JH, Flamm EL, Kahl LS (1992) The safety of foods developed 
by biotechnology. Science 256: 1747-1832. 
292 See for instance the many findings and recommendations regarding the analysis of the US APHIS 
policy and assessment, of GMO monitoring, and of future approaches, stated by the US Committee on 
Environmental Impacts Associated w ith Commercialization of Transgenic Plants (Environmental Effects of 
Transgenic Plants – the scope and adequacy of regula tion; 2002; National Research Council; National Academy 
Press, Washington, D.C.; 320pp.), or the advise given to the US EPA by a FIFRA expert panel, in order to 
address in its assessment approach for Bt cotton, in particular, unintended effects of GMO (SAP Report No. 
2004-05. MINUTES of Federal Insecticide, Fungicide, an d Rodenticide Act (FIFRA) Scientific Advisory Panel 
(SAP) Meeting, June 8-10, 2004, Arlington, Virginia. A Set of Scientific Issues Being Considered by the 
Environmental Protection Agency Regarding : Product Characterization, Human Health Risk, Ecological Risk, 
And Insect Resistance Management For Bacillus thuringiensis (Bt)  Cotton Products. 84 pages.), or the advise 
given recently to the US FDA to revise in depth its approach to the food safety assessment of transgenic 
products. WT/DS291/R/Add.7 
WT/DS292/R/Add.7 WT/DS293/R/Add.7 
Page I-384 
  861. Dr. Nutti addresses only the toxicological and allergenicity assessment of the food safety, not 
even of the whole plant, but of the newly expressed character (mainly the protein). In doing so, while 
quoting the relevant paragraph of the recent C odex guidelines (CAC/GL 45-2003), she presents what 
tests, in her view, would satisfy these guidelines. She concludes in general terms that if these few tests 
are satisfactory, no risk is to be expected, whic h by and large concurs with the US statements 
scrutinized. She does not address feed safety, animal  health, plant health, environmental safety or 
agro-environmental impacts, which are obviou sly all part of a necessary risk assessment.  
862. While it is clear that her analysis on risks s hould be dismissed on the grounds of critically 
missing elements on other aspects than food safety, it is also substantially misleading on the latter.  
863. First, she does not address the other important safety aspects referred to in the above-
mentioned Codex guidelines, namely the evalua tion of metabolites, food processing, nutritional 
safety, accumulation of other potentially hazardous  substances (e.g. pesticides), or antibiotic 
resistance marker genes. These all have bearing on the safety of foods and may require further testing, 
as shown below.  
864. Second, she does not at all take into account  that the assessment of the newly expressed 
substance requires, by definition, its identification.  For that, as an imperative pre-condition, a perfect 
molecular characterisation is required to fulfil this  initial test of the toxici ty assessment. As has been 
shown before, she has often, in specific product appl ications, dismissed request for further food safety 
information, when in most cases the molecular characterisation of the GMO has left substantial doubts 
as regards the integrated construct and/or the expressed genes, hence on the newly expressed 
substance(s), and not to say anything about unin tended genetic changes at, or near, the site of 
integration of the modification. According to her own words, these doubts about the safety of the new 
substances remaining would have warranted th e use of toxicology or other studies.  
865. The points of view of the US and Dr. Nutti are not fully comprehensive, as they imply that the 
safety assessment is static by not taking into account that our knowledge about biotechnology and 
safety issues is still evolving. For example, a DNA  sequencing study revealed in 2000 that the insert 
in GM herbicide-resistant soybean, which had al ready been approved for marketing, contained 
additional fragments of "foreign DNA". For the safet y assessment of the additional insertions, among 
others, the applicant (Monsanto
293) argued that these additional fragments could not pose a risk, since 
no adverse effects had been observed in previously published animal feeding studies with whole feed 
products derived from Roundup ready soybeans. Had the applicant only carried out the compositional 
and toxicity studies mentioned by the US and Dr . Nutti (and thus not the aforementioned animal 
studies), no data would have been available to judge the safety of these additional, previously 
unsuspected modifications. 
866. The US statements call for assessing the "stability  of the transferred genetic material and the 
demonstration of the Mendelian inheritance of the introduced genetic material", as important safety 
considerations. Once done, it would be a static ass essment, as presented by the US. However, more 
and more often, it is apparent that many GM crops  that have been previous ly assessed for the stability 
of the genetic modification appear to have undergone  significant changes in their genetic modification 
structure. This does not come as a surprise, as th e plant genome is not a fixed object, and the plant has 
to adapt to the presence of the newly inserted constr uct, but it raises important safety questions if the 
initial assessment is not  properly reviewed. 
                                                      
293 Monsanto (2000) Updated Molecular Characteri zation and Safety Assessment of Roundup Ready 
Soybean Event 40-3-2. Monsanto Co. St. Louis, 20 pp. 
http://archive.food.gov.uk/pdf_files/acnfp/summary.pdf   WT/DS291/R/Add.7 
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  867. Third, as regards the toxicity and allergenicity  studies she advocates, she only supports the 
use of acute toxicity on mice (to assess the acute toxicity of the newly expressed protein only), and 
very limited investigation of allergenicity potential. Not only, as regards the allergenic potential which 
can not be assessed with certainty, does this not align with the most recent views and methods to 
assess allergenicity, (see also the annex to the C odex guidelines she cites), but she also does not 
mention the use of chronic tests and other t ests, which may often be necessary to assess acute and 
chronic and sub-chronic  toxicity of new substances with no known history of safe food use. Examples 
of relevant tests are mentioned in paragr aph 39 of the mentioned Codex guidelines. 
868. Another example of evolution of knowledge th at is relevant for safety assessment is the 
assessment of potential allergenicity based on computer-aided comparison of the structures of transgenic "foreign" proteins with the struct ures of allergens. The knowledge on structures of 
allergens is still growing and new allergens are identif ied.  Therefore, it is not unlikely that a protein 
at present may not show a relevant similarity to known allergens, but will do so in the future.  
869. There is an obvious discrepancy in the allerg enicity assessment proposed by the US and by 
Dr. Nutti with other relevant views. The US a nd Dr. Nutti assess the potential allergenicity of a 
product with the focus of newly introduced protei ns, in line with their endorsed principle of 
substantial equivalenve, without caring for possible unintended effects and the need for a molecular 
characterisation. From 1996 to now it became gradually  more evident that insertion of constructs into 
plant genomes often causes unintended effects, esp ecially at the recombination boarders/ flanking 
region of insertion. Because of these changes in open reading frame (the segment of DNA coding fro 
protein), expression of new or alte red proteins is possible. These consequences of molecular events 
need to be assessed by the molecular characterisati on in combination with allergenicity testing of the 
potentially new expressed /changed proteins, or wher e this is not sufficiently clearly defined, by 
assessment of the whole product. Dr. Nutti doses not seem to adhere to this approach. 
870. There has also been di screpancy between experts in gene ral about allergenicity testing 
schemes. Even the present strategy based on a sequence prediction model established by FAO/WHO 
was contradicted by important groups
294. Difficulties raised by the current approach are summarised 
in Jank and Haslberger, 2003295. Whereas a general decision tree is  generally accepted many experts 
consider it often sufficient to do sequence homolo gy search and stability testing, whereas some 
experts also in some of these cases ask for more testing. Also the ways to perform the sequence 
homology search is under dispute. This idea is not fully explained in CODEX but there are elements 
in it and the latest FAO/WHO expert consultations  address it more clearly (CAC/ GL 45-2003 and its 
annex; Report of a Joint FAO/WHO Expert Cons ultation on Allergenicity of Foods Derived from 
Biotechnology, 2001). 
871. The latest FAO/WHO consultation on GM foods (2003) agrees that "It has been recognized 
that there is no single parameter that can predict th e allergenic potential of a substance. A strategy to 
assess allergenicity of biotechnology products has been formulated (FAO/WHO, 2001; Codex Alimentarius Commission, 2003), which relies on the parameters: source of the gene, sequence 
homology, serum testing of patients known to be a llergenic to the source organism or to sources 
distantly related, pepsin resistance, the prevalen ce of the trait and assessment using animal models. 
The Consultation recommended that additional effort s should be directed to the further development 
and validation of models and that there is a need to improve the accessibility and interconnectivity of 
                                                     
 
294 Stadler and Stadler, Allergenicity prediction by protein sequence, FASEB, J 2003, 17, 9, 1141-3 
295 Jank  and Haslberger, 2003. Improved evaluation of potential allergens in GM food, Trends 
Biotechnol., 2003, 21, 6, 249-250 ) WT/DS291/R/Add.7 
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  existing databases or to establish a centralized database on allergenic lin ear and conformational 
epitopes and tools for screening tran sgenes for allergenic potential. 
872. Fourth, Dr. Nutti does not refer to the fact that the toxicology of the newly expressed proteins 
in the GM products at stake, was of ten tested with "surrogate" protei ns (ie isolated from heterologous 
systems, different from the GM plant, see review by Freese and Schubert (2004))
296, without proper 
demonstration of biochemical, structural, or functi onal equivalence of the surrogate protein to its 
counterpart (for instance as regards mutational changes,  post translational modifications, or others), as 
recommended in Paragraph 40 of the Codex guidelines. 
873. Fifth, she states that exposure to human diet th at has no indication of adverse effects would be 
a criteria to take into account. Notwithstanding th e ethical question of performing pre marketing 
toxicity tests on humans, that statement is not  scientifically sound for anything else than acute 
toxicological risk, as explained by the Europ ean Communities in the section of general and 
methodological issues, on surveillance and food safety. Standard epidemiology says that, in the 
absence of exposure data with respect to chronic conditions, there is simply no way of ascertaining 
any effect – or lack thereof – on human health. 
874. Sixth, she refers to properly conducted substantia l equivalence tests, while it is clear from the 
US proposed methods, that these would be limited to  key components; for example, carbohydrates, 
proteins, and fatty acids, amino acid and vitami n content, as well as naturally-occurring toxicants, 
antinutrients, and allergens. Substantial equivalence as applied in such a way has received significant 
criticism297, including within the relevant Codex work, as it would obviously miss important changes 
for the safety of the product.  
875. The safety assessment of selected compounds and the "targeted" compositional analysis, also 
on selected compounds {e.g. Codex alimentarius; pa ragraph 16}, leaves room for "unpredictable" 
unintended effects, whose likelihood will be gr eater in GM crops with complex or major 
modifications {e.g. Codex al imentarius; paragraph 15}. 
876. The difficulties with substantial equivalence is at  least three fold: (i) it may largely overlook 
significant and numerous differences in composition th at may remain undetected, (ii) it is often used 
as an endpoint, rather than a starting point of the risk assessment, and (iii) it is a essentially only a 
series of chemical tests, which establish gross differe nces or similarities (but within the broad range of 
values for that species, including the less safe ones as regards toxicants or antinutrients), but by no 
means able to test or demonstrate biological effects298, which would be the most relevant criteria.  
877. Very large number of changes of endogenous metabolites may occur as a consequence of the 
genetic modification. Such unintended changes in  GM crops could be detected by metabolic 
profiling299, but would remain silent according to a sta ndard substantial equivalence test, as proposed 
by the US. For instance, Roessner et al. (2001)300 have detected by metabolic profiling a very large 
amount of significant unintended changes in GM potato, many more than previously assumed. 9 novel 
                                                      
296 Freeze W & Schubert D (2004). Safety testing an d regulation of genetica lly engineered foods. 
Biotechnology and Genetic Reviews . 21: 299-324. 
297 See relevant references in the comments on subs tantial equivalence in section III on general and 
methodological issues. 
298 The brain from a mad cow showing advanced spongiform encephalopathy would pass a test of 
substantial equivalence undetected! 
299 A relatively new technique which looks at a wider range of plant chemicals than before 
300 Metabolic Profiling Allows Comprehensive Phenotyping of Genetically or Environmentally 
Modified Plant Systems, Ute Roessner, Alexander Luedem ann, Doreen Brust, Oliver Fiehn, Thomas Linke, 
Lothar Willmitzer, and Alisdair  R. Fernie; The Plant Cell, Vol. 13, 11–29, January 2001.  WT/DS291/R/Add.7 
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  compounds were detected in GM potato tubers not f ound in the control plants, and more than half of 
the 88 plant chemicals measured had been alte red (levels) as a consequence of the genetic 
modification.  
878. It is not clear how significant these results are, but it seems to be a striking indication of how 
some genetic modifications can cause widespread alte rations in cellular metabolism. If Roessner et al 
has measured a representative sample of all pot ato compounds, the proportion of all unmeasured 
potato compounds whose level could be altered could be anything lik e the "over half" found in this 
study. If 5,000 is typical estimate of the number of  different molecules for a species, one could be 
talking significant alterations in the expression leve ls of hundreds of genes, plus dozens or hundreds 
of novel compounds. It might be assumed that most  of these changes would likely not have any 
adverse impacts, but it would still be a very large pool  of alterations, that, it seems, with regards to the 
novelty in the plant genome of the newly introduced  character, could bring safety concerns, hence the 
need for further testing methods. 
879. In literature, other ways to detect unintended effects than whole feed studies on animals are 
described, such as the use of adva nced analytical technologies called "profiling" or "metabolomics". 
These techniques are in development, but have not b een validated yet for routine application in the 
safety assessment of GM foods {reviewed by Chassy et al., 2004
301}. These new techniques 
(metabolic profiling) are helping to confirm many sci entists' historical views that genetic modification 
does not just result in addition of one gene with no reason to expect any further changes that could 
result in potential risks (the 'clean technology' paradigm). This type of research has general 
implications for food and feed safety, but also fo r the environment (target and non-target organisms 
could be affected in unpredictable ways); it fu rther supports case-by-case assessments, as each GM 
event could be uniquely different to the parental or isogenic line (the closest non-GM line that the 
Codex recommends to use as a control). This type  of new knowledge also seriously questions and 
undermines the safety approach advocat ed the US as regards food safety. 
880. Seventh, Dr. Nutti does not consider feed saf ety concerns. As explained in section III on 
general and methodological issues, there is little guida nce as regards feed safety testing. The lack of 
identification of human safety concern does not necessar ily correlate with a lack of safety concern for 
target animal of the feed deri ved from the GM plant (or even l ess for non target animal), as 
physiology, metabolism, plant parts consumed, pro cessing and exposure can each and all be different, 
in particular for non mammal target species. In the li ght of the requirement to take into account the 
end use of the GM product, feeding studies on targ et animals would be highly recommended for feed 
uses, and have rarely been provided. 
881. For instance, there has been reports302 of significant changes in the lignin content of some Bt 
maize; while this may have limited or no beari ng for the safety of the processed product in food (and 
may also have gone undetected following the safety approach proposed by the US and Dr. Nutti), it 
could have significant nutritional, if not toxicologi cal, impact on target animals and on wild animals 
exposed to the maize in the field, including soil organisms, which would warrant further testing. 
                                                      
301 Chassy, B., Hlywka, J.J.,. Kleter, G.A., Kok, E.J., Kuiper, H.A., McGloughlin, M., Munro, I.C., 
Phipps, R.H., Re, E.B., Reid, J.E. (2004) Nutritional an d Safety Assessments of Foods and Feeds Nutritionally 
Improved through Biotechnology, Prepared by a Task Force of the ILSI International Food Biotechnology 
Committee. Comprehensive Reviews in Food Science and Food Safety 3: 35-104.  
http://www.ift.org/pdfs/crfsfs/crfsfsv3n2p0035-0104ms20040106.pdf  
302 See for instance Saxena D. and Stotzky G. (2001). Bt corn has a higher lignin content than non-Bt 
corn. American Journal of Botany. 88(9): 1704-1706. WT/DS291/R/Add.7 
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  882. Finally, Dr. Nutti, as the US, dismisses by her approach the likelihood of significant impacts 
from genome-wide or physiological unintended chang es. There are however several reports of such 
wide-genome induced changes. A recent EcoNexus technical report
303, although it has not been 
published as a peer review publication, very seriously  and even-handedly present s the identification of 
insertion-site and genome-wide mutations created by plant transformation procedures as "potentially 
major, but poorly understood" sources of hazard asso ciated with the production and use of GM crops. 
883. The significant potential for genome-wide and transformation specific unintended effects 
were recognised304 in a recent FAO/WHO (2003) expert consultation on the food safety of GM 
animals, or in a recent FIFRA expert panel report (see attached305).  
884. That latest FAO/WHO expert consultation on GM animals updated the entire field of 
assessing the food safety of GM products (FAO/WHO e xpert consultations are usually the basis  for 
CODEX recommendations) and concl uded that "An extensive molecular characterization of the 
inserted genetic material construct will generally be  required, both before a nd after the insertional 
event. The molecular ch aracterization should furthermore comprise an analysis of the copy number 
and a sequence analysis of the flanking regions of the place of insertion in order to identify any 
unintended effects. It is recommended that the appr oach for the molecular characterization should be 
further standardized to include the flanking regions" 
885. This EcoNexus report and the othe r expert advice available clearly calls for radical changes in 
the safety approach proposed by the US. There are three basic reasons why one can arrive at the 
conclusion that there is "no evidence" of any remainin g risk: (i) one did not look; (ii) one did look, but 
the investigations were designed in such a way that  they can not find the answer; (iii) on e did look, 
with appropriate and well designed experiments, wi th negative results. Unfortunately, with all the 
difficulties inherent to the need to  test the safety of whole organisms "in real situations", because of 
the novelty of the introduced charact ers, the majority of the potential questions relating to human 
health come under (i): we did not look. And most of the science available to the regulators to assess 
these products, because of lack of proper criteri a, harmonised and scientifically sound methodologies 
to perform these new safety tests, fall under (ii), i. e. they are often poorly designed and inconclusive, 
and very little comes under (iii).  
                                                      
303 See for example: A. Wilson et al. 2004. Genome scrambling – myth or reality; transgenic-induced 
mutations in transgenic crop plants. Econexus technical report (October 2004). Ava ilable at www.econexus.info. 
304 Introduction of a transgene into an animal is not  a precisely controlled process, and can result in a 
variety of outcomes regarding integration, expression and stability of the transgene in the host. The desired outcome generally is stable integration of a single copy  of the transgene into a single location in the genome, 
and not in a functional gene or a regulatory elemen t. However, other outcomes are frequently observed, 
including integration of multiple copies  of the transgene at one locus or in sertion of the transgene at multiple 
locations in the genome. Insertion of  the transgene into a host gene may turn the host gene off, sometimes 
affecting the viability or health of the host. Insertion of  a transgene sometimes can affect expression of another 
gene(s). A transgene may become rearranged before integration, thereby becoming non-functional. During the process of transgenesis, undesired DNA sequences may beco me inserted into the genome, such as marker genes 
or selectable markers from the expr ession vector or contaminating bact erial DNA left over from vector 
production. Hazards stemming from insertional events or  genetic instability can be identified by screening and 
managed by culling individuals that have undesired events during the course of development of the transgenic 
line. Expression of the transgene ideally should have no undesired effects on the expression of other host genes or health of the host. Other outcomes, however, have been observed. The transgene can be silenced by 
methylation or through other mechanisms. 
305 SAP Report No. 2004-05. MINUTES of Federal Insecticide, Fungicide, and Rodenticide Act 
(FIFRA) Scientific Advisory Panel (SAP) Mee ting, June 8-10, 2004, Arlington, Virginia. A Set of Scientific 
Issues Being Considered by the Environmental Protection Agency Regarding : Product Character ization, Human 
Health Risk, Ecological Risk, And Insect Resistance Management For Bacillus thuringiensis (Bt)  Cotton 
Products. 84 pages  WT/DS291/R/Add.7 
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  886. The approach advocated by th e US is essentially designed to look the one new substance, 
enzyme, or protein. But it should be clear now to the Panel that plants, ti ssues, and products derived 
from GM crops are in many instances more complex th an purified enzymes, or proteins. Therefore, 
additional issues, like for instan ce the occurrence of unintended ch anges in the GM crop likely 
deserve greater attention than the single new protein.  
887. The methodological difficulties arising from missing, emerging or new tests to assess such a 
wide area of complex and uncertain organism-w ide potential risks, leaves the assessor and the 
scientist alike to decide, subjectively, what is th e end point of data requirement and risk assessment, 
and what constitutes a reasonable, science- based, evidence of lack of risks.  
888. A last issue, although not explicitly apparent in the US statements on methods to assess 
safety, merits consideration: the issue of whethe r and how to assess the genetic modification stacking 
(an hybrid between two individual GM parents ca rrying the double modification). Following the US 
and Dr. Nutti's approach, there would be no n eed to assess any new hybrid, as all individual 
components would have been assessed separately ( each new gene products and each parent). And 
indeed, the US deregulates GM crops, which can then be bred without any further assessment. 
889. The EPA FIFRA expert panel report, previ ously mentioned, addresses this issue and 
concludes as follow: 
In principle, traditionally bred transforme d lines should have the same characteristics 
as the parent organisms. However, analyses of events have pointed to potential 
different outcomes in some cases where the b asis of these events is not presently fully 
understood. Two specific issues for consideration are:  
(1) A molecular characterization of the new product should show that the 
recombinant traits/ sequences in the new pr oduct are identical to the insertion /traits 
in their parental lines. In principle, the method of breeding the two parental lines 
could affect the genetic characteristics of the inserted traits. Therefore, evidence is 
needed that no such effect has occurr ed. For these products, a risk assessment 
combining evidence from parental lines and the product should be requested.  
(2) Stability is another concern. For ot her similar products, it is uncertain how 
many generations need to be observed to  establish stability of inserted traits.  
890. Consistent findings were made in the report on adequacy of the [US APHIS] regulation of 
transgenic plants, by the US Committee on Environmental Impacts Associated with 
Commercialisation of Transgenic Plants, and p ublished by the National Research Council and 
mentioned earlier:  
Finding 7.5: The current APHIS appro ach for deregulation does not assess the 
environmental effects of stack ed genes for non additive or synergistic effects on the 
expression of individual genes, nor does it assess stacked genes for cumulative 
environmental effects at the field level. 
Finding 7.6: There are at least two levels  at which scientists and regulators must 
look for interactions between inserted genes with regard to environmental effects: 
(1) the individual plant phenotype and (2) the whole-field or farming system level. WT/DS291/R/Add.7 
WT/DS292/R/Add.7 WT/DS293/R/Add.7 
Page I-390 
  891. Finally, as regards the use and validity of field tests data, there is much to debate, as the 
validity and conditions of the tests, and their relevance for other regions and different agro-
environmental conditions, may lead to significant re quest for further risk assessment information. 
These may as well relate to important safety questions , such as, for instance, the different value of 
data collected on GM HT crop sprayed with the herbicide or not. 
892. The debated question of the relative hazard posed between conven tional products and 
genetically engineered ones will certainly remain an  open question after this case; however, it is clear 
that old, reductionist risk assessment approaches,  are found inadequate to assess GM crops, by more 
and more scientists, and more and more globally, in particular to assess their agro-environmental 
direct and indirect effects, their non target imp acts, and their unintended characteristics, including 
genome-wide potential changes and their associated  possible health or environmental effects. 
893. In the light of the expert advice and the above, it is clear that, under today's best science-based 
understanding, the proposed US approach is flawed, incomplete and, by all means, an unacceptable 
standard to properly assess the risks of GMOs. 
Question 112 
 Please provide an assessment of the statements regar ding chronic toxicity t esting in paragraph 43 of 
Canada's Third Submission and paragraphs 134-138 of the US Supplementary Rebuttal Submission.  
What relevance does the foreseen end product use(s) have in the context of the evaluation of the 
toxicity of that product?   
General comments 
 
894. The Panel sought advice on the relevance of the Ca nadian and US assertions referred to in the 
question. Canada's text does not refer to a particular  scientific argumentation and is essentially a legal 
argument to justify that EC's approval proce dures are SPS measures, and hence is not to be 
commented in this submission. The US text is ess entially an illustration, of the disconnected risk 
assessment approaches, applied respect ively to the novel protein and to the substantial equivalence of 
the GM crop, and as outlined in the US met hodology presented in the previous question.  
895. Only Dr. Nutti has replied, simply repeating mo re briefly her line of argument in her previous 
reply, and dismissing that such tests might be necessary. The European Communities disagree with 
her statement. 
Detailed comments 
 
896. The European Communities will refer the Pane l to its detailed comments on the previous 
question and in section III on general and methodol ogical issues, where ther e is ample scientific 
explanation why these studies may be justified. May it simply say here that there are many reasons why chronic or sub chronic studies may be requi red, including for instance when the inserted 
construct has been not appropriately character ised and there might be a doubt on the exact 
identity/modification of the expressed protein, or if  previous acute toxicity tests had been performed 
with surrogate proteins, and the equivalence of the proteins is not sufficiently proven, as requested by 
the Codex guidelines (CAC/GL 45-2003). 
897. The Codex guidelines, in paragraph 37, clearly states that the use of appropriate conventional 
toxicology or other studies on the new substance ma y be necessary if, taking into account its function 
and exposure, doubts about the safet y of the new substance remain. Th is is certainly the case when the  WT/DS291/R/Add.7 
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  construct is poorly characterised, potential unintende d effects of the genetic modification, or when 
there are doubts on the acute gavage studies (protein used, methodology, interpretation, …). 
898. There are generally no accepted clear distinctions available between classic (long-, short term, 
chronic toxicology studies as developed for testi ng of pure proteins, pharmaceuticals or chemicals) 
and whole food toxicology studies (new, and often confused) and feeding studies (developed often for 
testing of feeds ). Furthermore, acute toxicity on mammals would only not assess the toxicity on other animals, which may react very differently and be very important for the assessment of the environmental impact (eg birds, fishes, insects, ..). 
899. Acute toxicity testing may be highly inappropriate to  find unintended effects because of its 
lack of sensitivity. Chronic toxicity testing has been proposed by many scientific reports as a tool 
(together with other profiling methods such as gene- expression micro arrays, biochemical, or proteomic screening ). However limitations of w hole food studies have been identified and discussed 
extensively. 
900. In fact, many CA authorities started to ask fo r these studies because of uncertainties in the 
molecular characterisation. The EU research proj ect on Entransfood has looked at it, and there is 
agreement for the usefulness of ch ronic toxicity studies, however some disagreement on their length.  
901. Finally, the US EPA FIFRA expert panel mentioned earlier recommends multi year non 
vertebrate studies for environmental risk assessment. It states that: 
"The Panel found that testing of multi-year field effects on non-target vertebrates is 
generally essential. It can readily be seen from the numerous publications Brewer et 
al. (1989, 1989a, 1990, 1992; Tank et al. 1992, 1992a) that significant annual differences are apparent with the same pes ticide treatments by the same applicators in 
the same fields" 
902. Although realising the limitations of such studi es, chronic toxicology studies are needed 
especially in the screening for unintended effects of GMOs because there are presently no better 
methods sufficiently developed. 
Question 113 
 
Please provide an assessment of the statements regarding the purpose and use of whole food studies 
in paragraphs 142-144 of the US Supplemental Re buttal Submission.  What relevance does the 
foreseen end product use(s) have in the context of using whole food studies in the evaluation of the 
safety of that product?   General comments 
 903. The Panel sought advice on the relevance of th e US assertion referred to in the question. The 
US stated that whole food studies were not warranted  as a matter of principle, dismissing both a case 
by case approach, and taking into account the final u se of the product, and the target animal with 
which such studies may have been requested. 
904. Only Dr. Nutti replies to this question, essentia lly repeating the US arguments, that requests 
for whole food studies in different species does not have scientific support. The European 
Communities notes that her reply to this question cont radicts her reply to question 112, as she stated 
here that the request for whole food studies was not  supported by Science, on the basis of availability WT/DS291/R/Add.7 
WT/DS292/R/Add.7 WT/DS293/R/Add.7 
Page I-392 
  of 90 days oral studies, and of at least one more feeding study (usually 48 day broiler chicken). This 
seems to indicate that if such studies were not available, she would support the request for whole feed 
studies, and it is anyhow in contradiction with  her reply on question 112, where she dismisses all 
chronic or other studies apart from one acute toxicity study in mice. 
905. Besides, she does not address the quality and relia bility of the information provided in each 
application, and in particular she does not address the molecular characterisation data, nor does she addresses the end use of the GM crop, where different target animals might need to be tested before 
the product can be used safel y as feed with these animals . 
Detailed comments 
 
906. The European Communities will refer the Pane l to its detailed comments on the previous 
question and in section III on general and methodol ogical issues, where, again, there is ample 
scientific explanation why these studies may be justified. 
907. Whole food studies are necessary to complete th e assessment of the safety of new feeds or 
foods for the following reasons:  
The determination of the nutrients-toxicants (substantial equivalen ce) can not detect 
all unintended effects (products); 
The level of proteins may be increasing significantly ins successive products (See the 
comparative levels of CRY IA (b) protein level in the Bt MON 810 compared to that 
found in Bt 176 maize; 
As is well known, acute gavage with recombinant proteins and in vitro  degradation of 
purified proteins have limited value; 
Alternatively, use of well establishe d protocols for tolerance studies of 
pharmaceutical are available but sometimes difficult to follow; 
Whole food studies can and must be used to complement other safety testing 
approaches.
306 
908. There are still a lot of methodolog ical issues that need to be clarified for the conduct of whole 
food studies. The duration of tests on unintended effect s must be standardised (42 days for poultry and 
dairy cows; 100-120 days for pigs and steers). It is  not possible to administrate the product at doses 
that are multiple of the expected human exposure. Extended clinical and histo-pathological studies 
may not possible and not appropriate for such studies.  
909. There is the need, in order to achieve a reasona ble level of certainty in the safety assessment, 
to use a combination of methods. As indicated in of the text FAO/WHO on Expert consultation (Geneva 2000), completing the work of the OE CD (1993): " Integration of nutritional and 
toxicological expertise was needed for the ev aluation and be encouraged and facilitated". 
Whole food studies must be performed on specific target speci es: monogastric for 
grains, herbivores or ruminants for forages; recombinant proteins are more expressed in leaves (x10 compared to grain); rodents could be used but are more resistant to 
specific toxicants; 
                                                     
 
306 See König et al., 2004.Food Chem.Tox. 42-1047.  WT/DS291/R/Add.7 
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  Numerous results have been published in  the scientific refereed literature on 
nutritional equivalence: as safe as….. no r ecombinant material found in animal 
products (milk, eggs, meat…). 
Successive approaches of whole food studies ha ve been performed in the US on RR 
soybean
307, even as late as 2003: 
910. "In vitro degradation and acute toxicity test s were performed on CP4EPSPS protein in order 
to support that RR soybean was safe308. But complementary results from whole food studies have 
been provided from experiments performed on pi gs fed whole soybean meal up to slaughter.309. 
Additional toxicological data have been recently p ublished on mice fed soybean meal, on the basis of 
data on the testicular development310.  
911. This demonstrates clearly that even for a GM crop released already 10 years ago, a sort of 
"monitoring" based on whole food studies  has been performed for the oldest GM plant placed on the 
market.  
912. The US claims (3rd written rebuttal submission summary) that the request for chronic toxicity 
when acute studies show no effect are not warranted  in the case of NK 603 (page 8). However, just to 
take one single example, in the case of maize NK603, there where two proteins were expressed 
(CP4EPSPS and CP4EPSPS L 214 P) and these acute toxicity tests were notably insufficient (See Q. 54). 
913. Furthermore, it is clear that different parts of  the GM crop may have different properties, and 
express the individual genes integrated in the gene tic modification at different levels. This warrants 
studies on different target animals, with different diet s as regards the plant parts, in order to assess the 
unintended effects in the different part consumed. 
__________  
                                                     
 
307 Safety tested by acute gavage with purified CP4EPSPS and by semi chronic studies on rats and 
chickens, catfish and dairy cows in  B.G. Hammond et al., 1996 J. Nutr. 126:717;  Safety tested again in pigs 
(Performance, meat quality) G.L. Cromwell et al.,  2002. J. Anim. Sci. 80:708; Absence of protein in muscle of 
pigs J.C. Jennings et al.,  2003.J. Anim. Sci. 81:1447; Safety tested on mouse in long term studies (Foetal, 
postnatal and testicular development D. Brake et al., 2004. Food.Chem. Tox. 42:29. 
308 Harrisson et al., 1996. J. Nutr. 126:728 
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