the European Court of Justice (ECJ) issued an opinion in Bablok v. Freistaat
Bayern (1). The ECJ ruled that pollen, under EU law, must be considered
an “ingredient” rather than a “constituent” of honey.
As a consequence of this ECJ ruling, European honey producers and their
international counterparts faced many complications in complying with ingredient
labelling regulations and with international standards defining honey as
a single ingredient, all-natural substance, i.e., simply honey. The ECJ
ruling had the potential of destroying the European honey industry and to
block imports from third countries (2, 3). Although urgent European Commission
(EC) action was thus required, it took more than 2 years before it happened.
In January 2014, the European Parliament (EP) voted 430 to 224 to adopt an EC proposal amending the EU Honey Directive 2001/110/EC so that pollen is a constituent, not an ingredient, of honey (4). According to EU legislation, there is a huge difference between an ingredient and a constituent. An ingredient is part of a mixture and, as far as GMOs are concerned, would be subject to GMO labelling regulations. Thus, GMO maize pollen, as an ingredient, would require labelling if present at greater than 0.9% of the total maize pollen. In contrast, if honey is a natural entity – and pollen is a constituent of honey – then the GMO labelling requirement is calculated as a % of total honey. Pollen comprises between 0.005 and 0.05% of honey and thus labelling would never be required. After this vote, the EC still must take additional steps to finalize their proposal, now endorsed by the Parliament, into EU law. Assuredly the EC will take these additional steps. Thus, the EJC decision has been overturned by statutory and regulatory revision. The European honey industry has been saved from most legal complications and from potential destruction.
Despite the clarification that, in the EU, pollen is a constituent of honey, not an ingredient, there are several issues that remain unresolved about honey and pollen. This article identifies and discusses these unresolved issues.
Issue 1: What authorization is required for pollen from GM-crop sources?
The EP proposal to make pollen a constituent rather than an ingredient of honey did so by amending the EU Honey Directive. The EP did not amend the EU Directives relating to the authorization of GM-crops, either for release into the environment in Europe or for food and feed import of GM-crops from other nations. The consequences of this distinction between pollen and GM pollen from a GM-crop, in honey, is significant.
(a) First, honey containing GM pollen, from a GM crop not authorized in the EU, would be illegal. The EU laws and regulations on GM content is that there is zero tolerance, no matter how minuscule, for unapproved GM-crops.
(b) Second, as a consequence of the zero tolerance standard for unapproved GM-crops, Monsanto Corporation, seeking renewal for the growing of MON810 in Europe, has amended its renewal application to seek specific approval for pollen as a safe food, feed and environmental element of MON810. It should be well understood that the ECJ, EP and EC decisions have nothing to do with food safety: indeed the word 'safety' is never mentioned. The European Food Safety Authority considers that "the genetic modification in maize MON 810 does not constitute an additional health risk if maize MON 810 pollen is to replace maize pollen from non-GM maize in or as food" (5).
(c) Must other approved GM-crops, all of which are imported because MON810 is the only EU-authorized GM-crop, also have a specific approval for pollen as a safe food or feed element? Or is a general approval of the GM-crop as safe an adequate, legal approval? For future GM-crop approval petitions, the petitioner would be wise to seek specific approval for pollen in the application and petitioners will assuredly do so. But for those already approved GM-crops, has their approval, at least with regards to pollen, become legally defective? This issues is simply unresolved and likely will remain unresolved until further litigation or legislative action occurs within the European legal structure.
Issue 2: What is the measurement for GM-pollen, from approved GM-crops, in honey?
Under the EU proposal about pollen and honey, honey is now a single ingredient food – i.e., simply honey. Hence, as a single ingredient, the percentage of GM-pollen in the honey that would trigger GM labelling under EU law apparently is 0.9 % of the honey as one single ingredient. If that trigger as described in the preceding sentence is correct, GM-pollen from approved GM-crops will never trigger labelling because the percentage of pollen in honey is minuscule. The Report to the EU Parliament gave the levels as between 0.005 and 0.05% of honey, obviously way below the 0.9% trigger.
However, those who adamantly oppose GM content have continued to argue that the correct measure of GM-pollen should be 0.9% of the pollen content of the honey, thereby refusing to treat honey as a single ingredient for labelling purposes.
This much more restrictive measure of GM-pollen may not even be feasible because it is not clear that the amount of pollen in honey can be accurately measured (6). Moreover, the amount of GM-pollen within the pollen component would be significantly less than all pollen, giving rise to concerns about the accuracy of testing at these very small amounts. Indeed, in the ECJ decision, the Court never cited the amount of GM-pollen that Mr. Bablok alleged to have found through testing. The ECJ decision merely stated that Mr. Bablok’s honey contained “the presence of very small amounts of MON810 DNA.” In other words, the ECJ decision apparently took Mr. Bablok’s allegations as true without requiring independent and confirmatory evidence. But just saying that something is “so” does not make it factually “so.” An internet search (in English and German) for the Bablok MON810 pollen analysis certification document yielded no results. In addition, the ECJ document makes no mention of the source of the sample honey; was this provided by Mr. Bablok or sampled by an independent competent authority? The ECJ decision clearly lacks transparency on these critical issues.
Issue 3: Impact of the EU pollen in honey dispute and clarification on EU international legal obligations?
With the EU clarification that pollen is a constituent of honey, rather than an ingredient of honey, the EU has brought its definition of honey into conformity with the Codex Alimentarius definition of honey. The Codex Alimentarius, defined pollen as a natural constituent of honey, defined honey as a single ingredient (i.e., simply honey), and defined the removal of pollen as requiring a special label, indicating that honey with pollen removed is not natural honey. Hence, the EU clarification brings the EU law into compliance with EU international obligations under the Codex Alimentarius.
However, by leaving pollen subject to GM-authorization procedures and by leaving unclear what is the legal standard for measuring GM-pollen in honey, the EU is at risk of violating its WTO obligations under the Technical Barriers to Trade (TBT) Treaty. (Remember that the GM-pollen must be from an EU approved GM-crop, meaning that the EU has already approved Mon810 pollen as safe). Consequently, the EU (and its member states) would have no basis under the Sanitary and Phytosanitary Treaty for rejecting GM-pollen from an EC-approved crop when imported from other nations. The EU regulatory system and measurement may leave the EU open to a WTO challenge that its system is disproportionate and discriminatory, thereby creating an impermissible, excessive barrier to international trade. Argentina presently is a significant source of imported honey to EU; Argentina has already raised the issue of the EU handling of pollen in honey as a violation of the WTO-TBT Treaty. Mexico, the fifth largest exporter of honey, too has concerns about GM-pollen being found in honey exported to Germany (7). Whether Argentina, Mexico, or another honey importer will pursue compliance concerns further is another unresolved issue about pollen and honey in the EU.
Issue 4: What does “natural” mean?
In the light both of the EU proposal that pollen in honey is a constituent, not an ingredient, and that honey is thus a single entity (i.e. simply honey), and of the Codex Alimentarius definition that honey must contain pollen to be considered natural honey, honey producers can apparently put the word “natural” on their product. Honey with pollen is a “natural” product.
This conclusion – that honey is a “natural” product with pollen – seems to lead to the conclusion that honey producers can use the word “natural” even if some percentage of the pollen is GM pollen. While the natural honey may need a GM label if the percentage of GM pollen (however measured) triggers the EU labelling laws, the presence of GM pollen should not affect the legal reality that honey with pollen is natural.
As one can anticipate, those who adamantly oppose GM content are unlikely to accept a “natural” label on honey whenever the honey contains GM pollen content, no matter how minuscule the percentage; to those opponents, “GM” and “natural” are mutually exclusive categories. Assuredly this dispute about the purity of honey is a dispute that is forthcoming in the EU.
While the present authors likely have not thought of all the unresolved issues about pollen and honey in the EU, we have raised four of them which we consider significant. We leave our dear readers to think about these issues while eating corn bread spread with honey.
1. Honey and food supplements containing pollen derived from a GMO are foodstuffs produced from GMOs which cannot be marketed without prior authorisation. Judgement in Case C-442/09: Karl Heinz Bablok v Freistaat Bayern. Court of Justice of the European Union (6.9.11)
2 John. Davison (January 2014). GM-pollen in Honey: a constituent or an ingredient? EPSOBLOG (http://epsoblog.wordpress.com/2014/02/12/gm-pollen-in-honey-a-constituent-or-an-ingredient/)
3. Drew Kershen (16.11.13). Consequences of changes to the EU honey directive. CropGen (http://www.cropgen.org/article_510.html)
4. Report to the European Parliament # A7-0440/2013 (Rapporteur: Julie Girling)
(2014) Honey debate at the European Parliament (http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+CRE+20140114+ITEM-012+DOC+XML+V0//FR&language=fr&query=INTERV&detail=2-663-000)
5. Scientific Opinion on an application (EFSA-GMO-NL-2012-107) for the placing on the market of maize MON 810 pollen under Regulation (EC) No 1829/2003 from Monsanto. EFSA Journal, 10(12), 3022-3030 (18.12.12) (http://www.efsa.europa.eu/fr/efsajournal/pub/3022.htm)
6. Zmijewska et al. (Dec. 2013). Pollen from genetically modified plants in honey – problems with quantification and proper labelling. Journal of Apicultural Science, 57, 5-19 (http://www.degruyter.com/view/j/jas.2013.57.issue-2/jas-2013-0013/jas-2013-0013.xml)
7. R. Villanueva-Gutiérrez et al. (7.2.14). Transgenic soybean pollen (Glycine max L.) in honey from the Yucatán peninsula, Mexico. Nature Scientific Reports 4, Art. No. 4022 (07 Feb 2014) (http://www.nature.com/srep/2014/140207/srep04022/full/srep04022.html)
Davison, Research Director (retired), INRA Versailles, France
Drew Kershen, Professor of Law (emeritus), University of Oklahoma, Norman, USA