Last week, the European Commission published its latest European Green Deal initiative: the biodiversity and food package. The package comprises legislative proposals on soil health, food and textile waste, seed marketing and new genomic techniques to create gene-edited crops. We take a closer look at the EU’s proposal on new genomic techniques (and related developments in the UK) and the proposal on textile waste.
New Genomic Techniques
The Commission proposes a new regulation that focuses on fostering development, use and monitoring of New Genomic Techniques (NGTs): innovative tools used to change the genetic material of an organism to create improved plant varieties that are climate and pest resilient. Created successfully, NGTs would require less reliance on the use of fertilisers and pesticides and deliver higher crop yields.
The NGT proposal compliments the EU’s aim (laid down in the proposed Sustainable Use of Pesticides Regulation (discussed in our previous blog post here)) to cut the use and risk of chemical pesticides in half by 2030.
A Commission study on NGTs published in 2021 found that requirements of the existing GMO Directive were not fit to regulate certain NGT plants and products derived from them. The proposal notes that, without this new legislation, the EU risks being excluded from economic, social and environmental benefits that NGTs offer.
The key elements of the proposal include:
- The establishment of two categories of plants developed using NGTs: those plants that are comparable to naturally occurring or conventional plants, and others with more complex genetic modifications
- Differing notification and monitoring requirements to apply to the different categories of plants: those in the first category will need to be notified to regulators before reaching the market, whereas plants with more complex modifications will remain subject to the more extensive process of the existing GMO Directive
- Provision of incentives to encourage development of more sustainable plants (i.e. those that are less reliant on pesticides and fertilisers)
- Measures to ensure transparency about NGT plants on the EU market, including labelling requirements
- Robust monitoring of economic, environmental and social impacts of NGT products.
Agri-biotech businesses can therefore expect potentially higher rewards for the development of certain NGT products, together with new requirements regarding product labelling and descriptions, and more targeted monitoring and oversight by regulators.
Related developments in the UK
Unlike other elements of biodiversity and pesticide regulation (covered in our previous blog), the UK views itself as a market leader on NGTs, with the Genetic Technology (Precision Breeding) Act 2023 having received Royal Assent in March 2023. The Department for Environment, Food and Rural Affairs (DEFRA) said the Act would introduce a new science-based and streamlined regulatory system to facilitate greater research and innovation in precision breeding. Various similarities exist between the Act and the EU proposal: both have stated aims of enhancing food security and reducing reliance on pesticides and fertilisers through the introductions of lighter, more streamlined regulation, while stricter regulations would remain in place for those crops that could not have occurred through traditional breeding or occur naturally. Introduction of the new framework will be phased in the UK, with DEFRA noting that “work will commence to make sure the commercial cultivation of precision bred plants, or the sale of precision bred food, is possible in the near future”.
Noting that some of the largest businesses in the agri-biotech sector are also key producers of pesticides and fertilisers, it will be important to track these regulatory changes as a whole and adapt practice where necessary, as NGOs and claimant law firms will no doubt also be monitoring the changes closely with a view to assessing potential new avenues in which to challenge large producers in the years to come.
Amendment to EU Waste Framework Directive to reduce food and textile waste
The Commission proposes to amend the existing EU Waste Framework Directive (WFD). From a food waste perspective, the headline 2030 targets envisaged by the EU will require Member States to reduce food waste by 10% in processing and manufacturing; and by 30% per capita, jointly, at retail and consumption (i.e. restaurants, food services and households).
In relation to textile waste, the Commission is proposing to introduce mandatory and harmonised ‘extended producer responsibility’ (EPR) schemes for textiles in all Member States. Under these schemes, producers will be financially responsible for the full lifecycle of textile products and in particular the end of their products’ life, meaning that they will cover the costs of managing textile waste. This is similar to EPR obligations in place for end-of-life vehicles, provided for in the End-of-Life Vehicles Directive (soon to be repealed and replaced by a regulation on the same topic), as well as EPR for packaging materials in the UK. The Commission believes that the measures will incentivise producers to reduce waste and increase the circularity of textiles. EPR fees will be calculated based on the environmental performance of a producer’s textiles, the key incentive (called “eco-modulation”) being that the most sustainable textile producers will pay lower EPR fees.
These new requirements will ensure that all Member States collect textile waste separately from 2025, in line with the current WFD rules. The new law would also clarify: (i) what constitutes waste (for example, preventing waste being illegally labelled as “used goods” by introducing specific criteria to differentiate between waste and used goods for specific commodities such as used vehicles and batteries); and (ii) what are considered to be reusable textiles to stop exports of waste to non-EU countries. This is intended to complement a proposed Regulation on waste shipments which seeks to ensure that textile waste is only exported when there are guarantees that the waste will be managed in an environmentally sound manner.
In the short-term, producers in the EU are likely to face increased operating costs associated with the management of textile waste due to the greater responsibility they will carry, and due to the proposed requirement to pay EPR fees as described above.
Further details of the Commission’s proposals should provide clarity on the implications for businesses, in particular how producers will be assessed to be more or less sustainable or circular, and therefore liable for higher or lower EPR fees.
Conclusion and next steps
Each of the proposals above adds to the EU’s legislative programme which aims to boost the sustainable use of key natural resources. This feeds into efforts to meet targets set out in the Kunming-Montreal Global Biodiversity Framework agreed at COP 15 (see our blog on this here). Now the proposals have been published, the co-legislators (the European Parliament and Council) will deliberate and come to a joint position. This could take some time and with EU elections taking place in 2024 we do not expect the proposals to become law until 2025 at the earliest.
It is also worth noting the EU’s proposed Nature Restoration Law faces headwinds. The European Parliament narrowly voted in favour of a weakened report on the law on 12 July 2023. The Parliament is now in a position to negotiate with the Council and the Commission on a joint agreement under the so-called trilogue negotiations, but these will take some considerable time and may also be subject to tense political battles.