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REPORT
ON THE COMMERCIAL APPROVAL OF TRANSGENIC SOY IN BRAZIL
On
February 25, 2002, the Federal Regional Court of the 1st District
tried the Civil Suit nr. 19998.34.00027682-0/DF, with IDEC as
plaintiffs, against the approval of RR (transgenic) soy trading in
Brazil. Monsanto and the federal government were the defendants.
The
session began at 2 PM, with Judge Selene de Almeida da Colenda, as
rapporteur of the process; Judge Antonio Ezequiel da Silva as
president of the session; and Judge Joao Batista Moreira. Greenpeace
and the Office of the Attorney General assisted IDEC. The lower court
decision, issued by Judge Antonio Prudente, had established that the
RR soy could not be traded in Brazil, in spite of a favorable
technical assay by the National Technical Commission on Biosafety -
CTNBio (www.ctnbio.gov.br), published through Communiqué 54 of
September 29, 1998. Judge Prudente alleged that:
1.
CTNBio had not established rules for safety evaluation of transgenic products.
2.
CTNBio might not have the authority to exempt applicants from an
Environmental Impact Study.
3.
Unconstitutionality of Decree 1752, which empowers CTNBio to demand
or not an Environmental Impact Study, to its unfettered discretion,
as this competency is not foreseen by law, but rather through a decree.
4.
Lack of regulation for the labeling of foodstuffs produced from transgenics.
The
defense, represented by Executive Branch Attorney Walter do Carmo
Barletta, began by citing historical barriers that had to be overcome
for scientific and technological development to occur, due to sheer
ignorance of facts. He cited the epic Vaccine Uprising, against
Brazilian scientist Oswaldo Cruz, who was severely criticized by the
community for his efforts. He also reaffirmed Socrates dictum that
"Life without science is not worth living." He mentioned
recent studies carried out by United Nations international
institutions, published in the ANBio Journal (www.anbio.org.br),
through which it became clear that by not introducing such technology
we may face harsh economic and environmental impacts. The aim is to
allow for lessened harm to the environment, less deforesting of wild
areas, better farming yields, less use of chemicals, less soil
erosion, lower rates of worker poisoning, and less water consumption
in the planet. He also quoted Lutzemberg by saying that the issue of
RR soy introduction in Brazil is political, rather than technical.
The
attorney for IDEC, Paulo Afonso Leme Machado, said that the decision
to be issued would not be limited to the trading of RR soy, but also
to whether current legislation on biosafety is valid or not, and that
he deems CTNBio as "legal fiction".
Judge
Selene de Almeida spoke for eight consecutive hours, indicating that
she has met with more than 20 scientists and representatives from
non-governmental organizations, who have offered documents with
explanations and statements of position on the subject. She considers
the subject a matter of great technical and scientific complexity,
whereas a judge may only analyze issues from a legal perspective. She
cited the report issued by the Vatican Academy, which supports modern
biotechnology (transgenic products), as the means to solve the food
problem in the world, with a global population that grows
exponentially. She cited the work of Nobel laureate Norman Borlaug,
who points to the increased agricultural production brought forth by
the Green Revolution, at the cost of an increased use of chemicals.
In order to have a food production that meets worldwide demand, one
must look for alternative methods, such as the genetic modification
of seeds, which has brought savings of up to 50% in expenditures with chemicals.
She
mentioned a report from ABRASEM and BRASPOV favoring the
introduction of this technology in Brazil, in order to allow
producers to be more competitive in overseas markets. Today Brazil
spends two billion dollars in agri-chemicals annually, which amount
could be cut by half with the introduction of the new technology in
the agricultural sector.
Judge
Almeida also mentioned the Greenpeace "For a Transgenic-free
Brazil" campaign, indicating that the campaign strategy involves
IDEC, Greenpeace, ASPTA, MST (the landless movement,) among other
entities. She stated that the campaign strategy outlines several
actions, such as legal obstruction, supporting the ban on the trading
of RR soy, as well as contacts with the environmental and health
ministries, the Brazilian Lawyers Association and Congress, aiming to
block the introduction of transgenics in Brazil. She indicated that
although Greenpeace has stated in its letter of request for official
assistance by IDEC that it is not opposed to the introduction of
transgenics, its objective as demonstrated through its campaign
strategy had shown otherwise. She also cited the II Brazilian
Congress on Biosafety, organized by ANBio (www.anbio.org.br), when
guest speaker John Conroy described the full strategy of
organizations that oppose such technology in Europe and Brazil,
clearly an explicit political campaign, and not founded on technical
or scientific grounds.
As
far as the law is concerned, Judge Almeida made the following points:
a.
On the legality of infra-constitutional norms on Biosafety:
She
concluded that the Law on Biosafety (Nr. 8974/95), even after
articles 5th and 6th were vetoed, follows constitutional principles
as established in Article 225, and with the Law on Biosafety being
specific environmental legislation for genetically modified
organisms. She maintained that the reasons for the above-referred
executive veto to the articles did not affect the contents as
previously approved by Congress. The nature of the executive veto was
administrative, which keeps in place the force of the contents of the
articles and the competence of CTNBio, as previously approved by our
Congress and incorporated to Decree 1752/95.
b.
On the Precautionary Principle
Judge
Almeida concluded that Law 8974/95 respects the precautionary
principle, as it creates a branch of the executive power, composed of
experts from various areas, the National Technical Commission on
Biosafety - CTNBio, for specific assays of this technology.
c.
On the competency to demand an Environmental Impact Study
Judge
Almeida affirmed that CTNBio has discretionary competence to demand
the study, as Article 225 of the Federal Constitution indicates that
the study will be required only for works and activities that may
cause "significant" environmental degradation. CTNBio must
qualify the term "significant", as the Constitution
empowers the common legislator to define such situations in
accordance with the law. She also said that the environmental
legislation is generic, whereas the Law on Biosafety is GMO-specific
and, as indicated in the introduction to the Civil Code, a specific
law overrules general law.
d.
On the CTNBio's technical judgement
Judge
Almeida quoted Judge Nelson Neri Jr., on his speech during an event
organized by ABIA, the Brazilian Food Industry Association,
confirming the legal efficacy of CTNBio's technical judgement in
relation to other public sector entities. She also stated that CTNBio
is a deliberating entity, and not exclusively a consulting one, as
per Law 8974, which established its powers as specifically linked to
Biosafety matters.
e.
On CONAMA's competence to legislate on matters involving transgenics
According
to Judge Almeida, CONAMA is not competent to make rules on non
transgenic issues. The Law on Biosafety is specific, whereas the
Environmental Law is generic. Also, the Ministry of the Environment
is represented in the Board of CTNBio. She added that the Law on
Biosafety is a specific environmental legislation covering
transgenics; it foresees the approval of products, and not
environmental licensing.
f.
On the existence of safety norms for transgenic products
Judge
Almeida related the 20 specific instructions, covering every case,
as published by CTNBio. In the specific case of soy analysis, she
emphasized instructions 3, 10 and 20, which prove that the argument
pointing to a potential lack of norms is unfounded.
g.
On the need for an Environmental Impact Study for RR soy
The
judge discoursed on international procedures for hazard evaluation,
as adopted in European countries and other nations that trade in
transgenics, which norms have been incorporated to Brazilian
legislation and are followed by CTNBio. She emphasized that CTNBio is
to decide whether or not to demand the study for each case. In the
specific case of soy, CTNBio did not require the study as it
understood that the RR soy would not cause "significant"
degradation in the environment and, therefore, that CTNBio acted well
within its constitutional rights to exempt applicants from the study.
Conclusion
Judge
Almeida's report made it clear that there are not technical,
scientific or legal reasons to disallow the trading of RR soy in
Brazil, as approved by CTNBio's Communiqué 54. Nevertheless,
Judge Antonio Ezequiel requested the process dossier. Proceedings are
scheduled to continue on March 15, 2002.
Remark
This
report was elaborated by the President of National Association on
Biosafety - ANBio, who attended the session of 02/25/2002. Our aim is
to inform the Brazilian community on a matter that has caused great
concern. We apologize in case any relevant information has been
omitted, in view of the need to summarize a report that covers more
than 2,000 pages, in such a short time.
Interest
parties may use this report, as long as the source is indicated:
Associação
Nacional de Biossegurança ( www.anbio.org.br ).
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