DEBATE ON LABELING REGULATIONS

1. SUGGSTED AMENDMENTS TO LABELING REGULATIONS17TH AUGUST, 2012David Wafulakenya CoordinatorPBS/IFPRI

2. DEBATE ON LABELING REGULATIONS • NBA stakeholders workshop on labeling regulations held at KARI HQ in 2011 • May and June 2012 OFAB sessions discussed labeling implications • August 2012- 1st NBA annual conference panel discussion also focused on the implications of labeling • Consultative workshops led by Prof. CalestousJuma–this week • UoN-USAID Kisumu workshop emerging issues

3. Why amendments? • Labeling is a positive consideration to inform consumer choice • Labeling should not stifle developments in biotech R and Dor misinform consumer choice • A good labeling regime should be based on credible evidence and informed by best practices • It should be designed in a manner that minimizes costs and mitigates potential negative impacts on farmers, traders and consumers

4. What are the crucial/emerging ISSUES ? • Mandatory versus voluntary labeling • 2. Traceability • 3. 1% threshold level • 4. Labeling of non-prepackaged commodities • 5. Comparatively high fine and penalty • 6. Parliamentary procedures on subsidiary legislation • 7. Stakeholder participation • 5. Others

5. Mandatory versus voluntary labeling • Biosafety Act has provisions on labeling • It is not clear what informed the decision on mandatory labeling • Kenya is a net food importer and why should we have mandatory labeling ? • Mandatory labeling leads to 10-12% increase in costs • Major producers of GMOs appear to have adopted voluntary labeling • Suggestion • Reciprocal labeling- Certification in the country of origin/export should be accepted

6. TRACEABILITY • A major requirement along the product supply chain • Key actors including transporters, processors/millers, wholesalers and retailers required to keep information and traceability and transmit the same to the next level-conveyor belt approach • Maintain registers on traceability at least for 5 years • National implications • Traceability will lead to additional costs and this will increase prices of essential commodities passed on consumers • New area requires capacity building for implementation and compliance

7. Regional and international trade implications • Will our key trading partners be expected to put in place traceability mechanisms to comply with trade requirements. For instance, South Africa maize exports to Kenya? • May demand for changes in the laws and regulations • Additional costs to the economy/exporters and other actors • OPTIONS • Comply with the Kenyan requirements • Exclude Kenya as a trading partner • Seek legal intervention at the level of WTO • WTO- Technical Barriers to Trade (TBT). Countries not allowed to introduce unnecessary barriers that may be seen as non-tariff barriers

8. Threshold level - 1% • It is not clear what informed the 1% threshold level • Require high capacity for testing and compliance • May work well for pre-packaged products • Difficult to enforce at the level of non-prepackaged products especially in the open air markets • Who will be testing and enforcing at this level mainly dominated by smallholder farmers • SUGGESTIONS • Can we consider best practices from other developing countries like Japan, Taiwan, Thailand and Philippines • KEBS initially proposed 5% based on Codex but overtaken by events

9. Deregulated products by nba • Environmental release regulations • Approval granted for a product to be released to the environment/placed on the market for a period of 10 years • An extension of another 10 years can given upon expiry of the initial period • If history of safe use is demonstrated in a period of 20 years based on risk assessment data, a product becomes available without further approval • SUGGESTION • Should labeling and traceability apply to deregulated products? • This should be under EXEMPTIONS

10. Labeling of non-prepackaged foods • Non-prepackaged foods- sold without any kind of • packaging and standards especially in the open air • markets • Monitoring and compliance may require NBA to have inspectors in all open air markets country wide which is a formidable challenge • Difficulties to distinguish GM and non-GM maize, cassava, potato or sorghum by physical appearance in open air markets • Court cases on violation will be high- • The high legal and final costs will keep farmers and traders at bay from adopting GM crops and products

11. Fines and penalties • Violation of the regulations attracts a fine of Kshs 20 M or a jail sentence of 10 years • Safety precedes labeling as a major requirement by NBA • Fine comparatively high compared to environmental release regulations which state that placing a GMO product on the market without the approval of NBA is illegal • SUGGESTION • Fine- Kshs ? • Jail sentence- ?

12. PARLIAMENTARY PROCEDURES, STAKEHOLDER PARTICIPATION and wayfoward • Parliamentary committee on subsidiary legislation should have been engaged. It is a requirement • NBA as the custodian of the regulations should spearheading a stakeholder driven, inclusive and participatory process that would result to regulations that are fair and practical to implement and enforce • Need for case studies on various labeling regimes worldwide to generate credible evidence • Stakeholder driven and balanced process that brings on board all parties