Regulation of Agricultural gmos in China
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VIII. ConclusionThis paper made a survey of the regulation of agricultural GMOs in China. As the paper shows, China embraced agricultural GMO technology with enthusiasm since the middle of 1980s, mainly out of economic and political reasons. Considerable public funds have been invested in this area. As a result, encouraging results came out. China is the among the top five agricultural GMO producers. In the future, China will continue to pursue the development of agricultural GMOs because such technology is expected to ultimately become the solution to many existing problems of the Chinese agricultural sector, including production efficiency, food security, food safety and environmental protection.141 The regulatory framework for agricultural GMOs was triggered by many considerations, including domestic and international ones. Many competing interests are involved, both internationally and domestically. Internationally speaking, the EU and the US stand for two opposing sides on the regulation of the agricultural GMOs. The above survey shows that the EU’s precautionary approach is more influential in the design of the whole regulatory framework in China. The US is more influential in forcing China to remove the regulatory obstacles to American GM products into Chinese market. An obvious reason why China chose the EU model is that China, like the EU, is not a major exporter of GM products, but an importer. As an importer, the issues of biosafety and food safety all are real and challenging. Moreover, China has continuously invested much in this area since the mid of 1980s, so it is logical that China expected that this high-tech tree should bear fruits now and the fruits can be sold well. Because this tree is a young one, protection is natural and necessary. If the international rules (the Biosafety Protocol) and foreign rules (the EU model) provide ready and useful models for this purpose, how can China ignore them? From the first list of GM products that have to be labeled, it is clear that the target is imported GM products, but Chinese biotechnologists want more, like treating imported and domestic GMOs differently when examining their application for a Biosafety Certificate (a suggestion made in Qifa Zhang’s Recommendation). As far as the international rules are concerned, there is indeed scientific and legal uncertainty in this area, especially when the EU-US WTO dispute is still pending before the WTO Dispute Settlement Body. Despite the pushing effort by Chinese biotechnologists to get GM rice commercialized, China will continue to take a wait and see attitude on the commercialization of new GM crops, especially on rice, the number one food crop. Domestically speaking, the interests of the biotechnologists, GM crop farmers and the MOA, etc. are prevailing. The interests of other agricultural scientists, non-GM crop farmers and the SEPA are neglected. The issue of biosafety is not given the importance it should have. The beneficiaries of GM technologies do not seem to really care about the interests of others and do not take precautionary measures to reduce the risk of gene pollution, for example. The issue of biosafety is expected to be given proper attention in the future GMO safety law. As to the characteristics of the GMO regulation in China, the following features may be identified. Firstly, China used legal binding regulations, rather than the voluntary guidelines. Instead of revising the existing regulation, a new regulatory mechanism was created, limited to agricultural GMOs. Secondly, China took a multi-ministry approach so several ministries and agencies are involved in the regulatory framework. Thirdly, with the accession to the WTO, the decision-making has become more transparent than before; relevant documents and information have been published on official websites. Fourthly, the MOA plays the leading role in this regulatory framework. Biosafety and environmental considerations are, in theory, taken into account, but the priority of the MOA is agricultural production. Therefore, a more active role of the SEPA is definitely necessary in the GMO regulation. The relevant issues of agricultural GMOs are not only agricultural or economic issues. GMOs should be addressed and regulated in broader context and in the more neutral way. It has been about four years since the 2001 State Council Regulation was enacted. Implementation and enforcement increasingly became a challenge, like is the case with many other regulatory frameworks in China. There are some doubts on the effectiveness of the regulation, taking into consideration the size and diversified situation of the Chinese agricultural sector. We have to have rules for such an expensive game, but if the rules themselves are too complicated and expensive, as complained by the Chinese biotechnologists in the 2004 Recommendation, we have to think about the rationale of making the rules. If the choice is between the immediate risks of pesticide contamination and the potential risks of the GM product, we choose the latter because the former is clearly worse. Consequently, we should give the GM products a more favorable regulatory environment. If the choice is between the long-term biosafety risks of GM products and the short-term agricultural benefits, we have to have second thoughts: who shall pay for the future risks and is that price affordable? To avoid or minimize chances of paying such a price, GM products should be regulated and put under effective control. However, what is effective may vary from place to place and from country to country. After four years of implementation of the agricultural GMO regulatory framework, it is high time to conduct a systematic review of its effectiveness. Hopefully the rules shall not become words on paper, but are implemented and enforced in practice. With the increasing public awareness, the regulation of agricultural GMOs received public support even though many people do not really know or care about who is responsible for what. What many people, especially those in the urban areas, really care about is information and choices. Biosafety and food safety issues will continue to be discussed and debated. For many developing countries where human financial and technological resources are limited, the Chinese experience with agricultural GMO development and regulation may tell the following things: firstly, though the resources are limited, but when you pool them together something important can be done. Secondly, the choice of what needs to be done has to be made carefully, for you may not have a second chance. So far as the development of the agricultural GMOs is concerned, it is costly. It is only worth it if it can solve certain outstanding problems in a country because you may have nothing to waste. Many expectations were attached to the development of agricultural GMOs in China. Thirdly, the rule of law has to be established. One cannot play the game without rules. Rules have to be suitable to the local political, economic, social and cultural environment, and they do not necessarily have to be fancy, like the ones used in the developed countries where financial resources are abundant. There is no universally applicable model for this. The people should work it out with their own wisdom. Fourthly, in order to reduce potential conflicts of regulation, the clarity of relevant international rules is necessary and the domestic rules have to be compatible with the international rules. 1 Clive James, Preview - Global Status of Commercialized Biotech/GM Crops: 2004 (Executive Summary), No. 32 – 2004, http://www.isaaa.org (April 10, 2005); FAO, Regulating GMOs in developing and transition countries, Electronic forum on biotechnology in food and agriculture: Conference 9 (28 April - 25 May 2003), Background Document, http://www.fao.org/biotech/forum.asp (May 15, 2003); see also SEPA, China 10 Years Progress in the Implementation of the Convention of Biological Diversity (zhong guo lu xing sheng wu duo yang xing gong yue shi nian jin zhan), http://www.sepa.gov.cn (May 16, 2003). 2 The “863 Program” is a state-funded high scientific and technology development program launched in March of 1986. Biotechnology is one of the priorities of the program. The projects funded in biotechnology include two areas, the agriculture (47.28% of the biotechnology fund) and the medicine (52.72% of the biotechnology fund). Up till now, 455 projects were granted patent, including 10 international patents. See News article, Summary of the Biotechnology in the 863 Program of Our Country (wo guo 863 ji hua sheng wu ling yu kai kuang) , http://www.sina.com.cn (March 1, 2001). 3 Jikun Huang and Qinfang Wang, Biotechnology policy and regulation in China, IDS Working Paper 195, August 2003, http://www.ids.ac.uk/bookshop/wp/wp195.pdf (November 30, 2004). 4 LIU Qian and ZHU Xinquan eds., Biosafety (sheng wu an quan) – “Biotechnology Series in the 863 Program” (“863”sheng wu gao ji shu cong shu), Science Publication (ke xue chu ban she), at 9 (2002). 5 Jikun Huang et al., Plant Biotechnology in China, 295 Science, Number 5555, 674-676 (25 Jan 2002), http://www.sciencemag.org/content/vol295/issue5555/index.shtml (May 24, 2002). 6 China National Center for Biotechnology Development, Report on China Biotechnogical Development (2003) (zhong guo sheng wu ji shu fa zhan bao gao), China Agricultural Publication, 2004, at 305; Qifa Zhang et al., Recommendations on the Development Strategies for the Research and Industrialization of Agricultural GM Crops in China (guan yu wo guo zhuan ji yin zuo wu yan jiu he chan ye hua fa zhan ce lue de jian yi), September 29, 2004, http://www.cas.cn/html/Dir/2004/09/29/8456.htm (May 11, 2005). 7 LIU Qian and andZHU Xinquan (2002), supra note 4, 9-11. The exchange rate between US$ and RMB for the past few years stayed at the rate: US$ 1 = RMB 8.26. 8 China National Center for Biotechnology Development, Report on China Biotechnogical Development (2002) (zhong guo sheng wu ji shu fa zhan bao gao), http://www.cncbd.org.cn/nianbao/2002/ (May 10, 2005). 9 News article: Our Scientists Have Succeeded in GM Carps (wo guo ke xue jia yan zhi chu zhuan ji yin li yu), http://www.sina.com.cn (January 12, 2001). Apart from animal biotechnology, medicine is another area of focus. A number of new medicines that were produced with the genetic engineering technology have already entered the stage of commercialization, including the vaccine for the hepatitis (Type B). By the end of 2000, 18 kinds GM medicine and vaccine have been put on market, among which 15 received state fund from the “863 Program”. See LIN Lin et al., Outstanding Achievements in Biotechnology (sheng wu ji shu ling yu qu de ling ren zhu mu de cheng jiu), 21 Bio-Enginering Progress (sheng wu ji shu jin zhan), No. 3, 2001. 10 Jikun Huang et al (2002), supra note 5. 11 See also China National Center for Biotechnology Development, 2002 Report, supra note 8. 12 See the Appendix 1 attached at the back of this paper. The information in the first table is provided by the FAO. The second is by Jikun Huang et al (2002), supra note 5. With regard to the number and sown area of GM crops planted in China, there is no single official statistics available at present. When a certain statistics is quoted in this paper, please see the footnote for reference. 13 State Research Report of Biodiversity of China (zhong guo sheng wu duo yang xing guo qing yan jiu bao gao), 183-184, China Environmental Science Publication, 1998. 14 ISAAA, Global Status of GM Crops, http://www.isaaa.org/kc/Global_Status/gstat/2002/globalstat.htm (May 20, 2003). 15 Clive James (2005), supra note 1. 16 FAO, Inventory of GMOs for Selected Countries – China, http://www.fao.biotech/inventory_admin/dep/default.asp (April 15, 2005). For complete information, please see the Appendix 1 attached at the back of this paper. At present, no official statistics are available for the GM crops planted in China by the public authority in China. 17 YANG Zongliang et al., The Status and Safety Management of Agricultural GMOs (nong ye zhuan ji yin sheng wu yan jiu xian zhuang ji an quan xing guan li), Shangdong Agricultural Science, vol.5, 2002, at 51. 18 Among these 4 GM crops, there are 4 varieties of cotton and 3 varieties of tomato. Altogether there are 9 varieties approved for commercialization 19 LIU Qian and ZHU Xinquan (2002), supra note 7, at 12. See also China National Center for Biotechnology Development, 2003 Report, supra note 6, 110-120. Of these GM crops, the 5th generation of herbicide resistant soybean has been developed and at the stage of field trial. China is the first country to successfully develop disease resistant CMV/TMV tobacco. 20 China National Center for Biotechnology Development, 2002 Report, supra note 8. The report did not specify what GM crops were approved. 21 LIU Qian and ZHU Xinquan (2002), supra note 4, at 17. 22 Clive James (2005), supra note 1; Jikun Huang and Qinfang Wang (2003), supra note 3, at 17. 23 Dayuan Xue, A Summary of Research on the Environmental Impact of Bt Cotton in China, published by Greenpeace in June 2002, http://archive.greenpeace.org/geneng/reports/env_impact_eng.pdf (April 7, 2005). 24 China National Center for Biotechnology Development, 2003 Report, supra note 6. 25 YU et al., A Draft Sequence of the Rice Genome, 296 Science, Number 5565, 79-92 (April 5, 2002). http://www.sciencemag.org/content/vol296/issue5565/index.shtml (May 22, 2002). 26 Jikun Huang, et al, Insect-Resistant GM Rice in Farmers’ Fields: Assessing Productivity and Health Effects in China, 29 April 2005, Vol. 308, Science, at 688-690, http://www.sciencemag.org (May 10, 2005). 27 YANG Xiaohong and SHI Rong, Launching of biosafety Assessment for the GM Rice (zhuan ji yin shui dao an quan ping jia qi dong), http://finance.sina.com.cn (2004-12-07). 28 State Planning Commission, Communication on the Project of Biotechnology Engineering and Production in the 10th Five-Year Plan (February 11, 2002)(guan yu shi wu qi jian shi shi sheng wu ji shu chan ye gao ji shu gong cheng gong gao), http://www.sdpc.gov.cn/ (May 3, 2003). 29 RMB 20 billion is about US$ 2.42 billion if the exchange rate is at US$ 1 = RMB 8.26. If taking into consideration of the price pooling program multiplier (PPP: 4.29333 (1999-2000)), RMB 20 billion is about US$ 10.39 billion. 30 The 2004 national GDP is RMB 13,651.5 billion. See the State Statistic Bureau, 2004 National Economic and Social Development Statistic Communication of the People’s Republic of China (zhong hua ren min gong he guo 2001 nian guo min jing ji he she hui fa zhan tong ji gong bao) (February 28, 2005). 31 It was issued by the Guangdong Provincial Government on October 18, 2001, http://law.chinalawinfo.com/newlaw2002/ (May 21, 2003) 32 Beijing Municipal Government, Beijing 10th Five-Year High and New Technology Industry Development Plan (bei jing shi shi wu shi qi gao xin ji shu chan ye fa zhan gui hua), issued by the Beijing Municipal Government on September 11, 2001, http://law.chinalawinfo.com/newlaw2002/ (May 22,2002) 33 HOU Dongmin, A Study of the Safety of Food in China (xun qiu zhan lue tu po: po jie zhong guo liang shi an quan wen ti), China Environmental Science Publication, 2002. 34 Qifa Zhang, China:Agricultural Biotechnology Opportunities to Meet the Challenges of Food Production, at 45. 35 Due to the rapid shrinking of farmland and serious natural disasters such as droughts and floods, the grain production of 2001 decreased by 2.1% compared to the production in 2000. See State Statistic Bureau (2005), supra note 33. 36 See WEI Jianhua, Conversion of 30 million mu farmland into Forest Land this Spring, People’s Daily (Overseas Edition) (ren min ri bao, hai wai ban), at 1, (May 15, 2002). 37 State Council, Framework for the Agricultural Science and Technology Development (nong ye ke ji fa zhan gang yao), (April 28, 2001). 38 State Development and Planning Commission, The Achievements and Experiences in the Process of Implementing Modern Agro-Industry (June 10, 2002) (guo jia ji wei zai shi shi xian dai nong ye chan ye hua guo cheng zhong qu de de cheng xiao he jing yan), http:// www.sdpc.gov.cn (May 21, 2003) 39 James Keeley, The biotech developmental state? Investing the Chinese gene revolution, IDS Working Paper 207, September 2003, http://www.ids.ac.uk/ids/bookshop/wp/wp207.pdf (November 30, 2004). 40 Its purpose is to identify the top priority of policy and administration of the government in the year. 41 State Development and Planning Commission, 2002, supra note 27. 42 MA Shuping, Improving the Quality of Cotton and Competitiveness (ti gao mian hua zhi liang zeng qiang jing zheng li), China Agriculture Yearbook, 2003, at 86. 43 See QIAN Chuanfan, Pesticide Residual (nong yao can liu), http://www.cast.net.cn/expert/exp-text.asp (July 12, 2003); News Article, New Trends in Pesticide Market (nong yao shi chang qin qu shi); News Article, Current Status and Development Trends of Domestic Biological Pesticides (guo nei sheng wu nong yao xian zhuang ji fa zhan qu shi), http://www.cast.net.cn/yaowen/yao-text.asp (July 12, 2003) 44 WANG Shiwen, Pesticide Pollution of Agricultural Products in China (zhong guo nong chan pin de nong yao wu ran), in China Environment and Development Review, vol.1, 2001, at 347. 45 Jikun Huang et al., supra note 5, at 675. See also the Appendix 1 attached to the back of this paper. 46 See Appendix 1 attached at the back of this paper. 47 Jikun Huang et al., 2002, supra note 5, 675-676. 48 ISAAA, Global Review of Commercialized Transgenic Crops: 2001. Feature: Bt Cotton, ISAAA Briefs No. 26 – 2002, Crop Biotech Update, Special Edition, December 13, 2002, http://www.isaaa.org/kc/CBTNews/ISAAA_PR/briefs26_exeng.htm (May 3, 2003) 49 Jikun Huang, et al (2005), supra note 28. 50 State Development and Planning Commission, The Tenth Five-Year Plan of the National Agricultural and Rural Economic Development 2001-2005 (quan guo nong ye he nong cun jing ji fa zhan di shi ge wu nian jihua), http://de.cei.gov.cn/lszl/hygh_1/ny1001.htm (May 21, 2003). 51 GUO Peixing, The Major Barriers and Responses to China’s Export of Agricultural Products and Food (zhong guo nong chai pin he shi pin chu kou de zhu yao zhang ai he dui ce), http://www.cafte.gov.cn/gjhzxm/t20021120_27647.htm (April 13, 2003). 52 Ministry of Agriculture, Analysis of Imports and Exports of Agricultural Products in 2002 (2002 nian nong chan pin jin chu kou fen xi), http://www.agri.gov.cn/xxfb/t20030123_49954.htm (March 28, 2003). 53 MOA, 2004 China Agricultural Trade Analysis (2004 wo guo nong chan pin jin chu kou mao yi fen xi), http://www.agri.gov.cn/xxfb (April 25, 2005). 54 GUO Peixing (2002), supra note 60. 55 LIU Qian and Zhu Xinquan (2002), supra note 7, at 45-74 and 198-224. See also the Appendix 1 attached. 56 For the GM green pepper, the trait introduced is CMV (Peking University, 98A01-11; 99A-01-43; 99A-01-44; 99A-01-45). For the GM tomato, the trait introduced are fruit ripening (Huazhong University, 97A-01-15) and CMV (PekingUniversity, 98A-01-10; 99A-01-46; 99A-01-47; 99A-01-48), Liu Qian and Zhu Xinquan (2002), supra note 3, at 47. 57 GUO Peixing (2002), supra note 60. 58 Ministry of Commerce, China Commerce Yearbook (zhong guo shang wu nian jian), vol. 21, China Commerce Publication, 2005, 67-68. 59 LI Ze et al, Experts: Big Potential but Very Cautious about GM Maize (zhuan jia ren wei: zhuan ji yin yu mi qian li ju da dan ying shen zhong zhong zhi), http://www.agri.gov.cn (April 11, 2005). 60 Article 37, 2001 “Administrative Regulation on the Safety of Agricultural GMOs”. 61 See Appendix 2. In 1995-1996, there was not separation between seed and other use (Code: 1201000). In 1997, they are separated: seed 12010010, other use 12010090. From 1998 to 2001, other use is replaced by yellow soybeans 12010091. The statistics is the combination of both seed and other use or yellow soybeans. 62 See Appendix 2. 63 LI Lei, China May Announce the Postpone of the GMOs Interim Measures this Week (zhong guo ke neng zai ben zhou xuan bu zhuan ji yin lin shi cuo shi yan qi), June 25, 2003, http://www.agri.gov.cn/gjdt/t20030625_94693.htm (June 25, 2003). See also the Appendix 2 attached. 64 CHENG Tao, What is behind the Increasing Soybeans Import (da dou jin kou fang liang zeng zhang de bei hou), Nanfang Weekend, July 10, 2003, at B13 (Economy); see also Appendix 2 – Trade Statistics of Relevant Agricultural Products of China (1995-2003). 65 Ministry of Commerce, supra note 72, at 68; see also the Appendix 2. 66 CHENG Tao (2003), Directory: sites -> default -> files -> upload documents upload documents -> Torts Outline Daniel Ricks upload documents -> Torts outline Functions of Tort Law upload documents -> Constitutional Law (Yoshino, Fall 2009) Table of Contents upload documents -> Arrest: (1) pc? 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