One day, Stefan Jansson jokes, his work could land him in jail. The Swedish scientist’s future crime: growing small garden weeds, thale cress, that have been genetically tweaked to grow slowly. “This will be quite interesting,” said Jansson, a professor at Umea University in Sweden, laughing. “Will the police come here and ask for them?”
Plant geneticists aren’t usually the boundary-testing type, but at the moment, Jansson’s research highlights a legal gray zone in Europe. Fifteen years ago, the European Union adopted a rule that all but banned countries from growing their own genetically modified crops. Unlike the U.S., which has approved dozens of GMOs since the mid-1990s, Europe takes a much stricter regulatory approach that focuses on the way they are made, as opposed to the final products. Food and feed containing GM ingredients can be sold and imported in Europe on a limited basis, but virtually no such crops have approval to be commercially grown there.
The hitch today is that Europe’s rule defined GMOs based on how they were made back in 2001, which usually involved inserting genes from other species. But using a revolutionary technology called CRISPR, scientists have since come up with new ways of making tiny, sometimes indiscernible changes to crops, microorganisms, and animals, without mixing material from different species.
So are these new gene-edited crops still GMOs? A group of experts appointed by the European Commission began debating this in 2007. The commission was expected to issue a legal interpretation by the end of 2015, but still hasn’t.
If the commission finds the new gene-editing techniques to be exempt from the 2001 rule, that loophole could allow companies for the first time in years to sell and grow fruits and vegetables genetically resistant to disease or drought, for example. Scientists like Jansson are thrilled at the possibility that their research could suddenly have more funding, freedom, and commercial potential: Europe’s seed market is worth roughly $7 billion.
But the commission could also swing the other way. Although leading scientific bodies and many independent studies have concluded that GMOs are not dangerous for your health, politically powerful environmental organizations such as Greenpeace don’t agree.
“If you release something into the environment, you’re losing control of it,” Peter Melchett, policy director of the Soil Association, one of the largest organic lobbying groups in the U.K., told BuzzFeed News.
Europe isn’t the only place where new gene-editing technologies don’t quite fit into old laws. There are legal loopholes even in countries that have been generally favorable to GMOs, like the U.S. The Department of Agriculture, one of three federal agencies that oversee GMOs, regulates crops modified with bits of other crops’ DNA — but not necessarily crops modified in other ways. Last month, the U.S. gave the green light to the first CRISPR-edited crop, a non-browning mushroom, which can be grown and sold without further regulatory oversight.
The European Commission’s 2001 rule defines GMOs as those altered in a way that does not occur through mating or some other natural means. This rule — which each EU country has incorporated into its own national laws in a slightly different way — prohibits editing techniques that were popular at the time, such as putting bacterial genes in crops.
But CRISPR and other technologies invented in the last decade or so can make much smaller edits to a genome, down to just a couple of DNA letters. The resulting organism has no foreign DNA, meaning it can’t be told apart from its “natural” counterpart, let alone regulated, gene-editing proponents argue.
At the John Innes Centre in Norwich, England, plant geneticist Wendy Harwood started experimenting with CRISPR a couple years ago. She said its degree of precision has sped up her team’s research, which involves knocking out and tweaking genes in barley and mustard plants to understand how they grow.
And yet, Harwood notes that CRISPR — along with other types of breeding techniques being studied by the European Commission — is also capable of making big, noticeable changes to a genome, not just small ones. That makes it harder to draw a single conclusion about the technologies’ individual risks and benefits.
“Trying to put them all together and trying to come up with some sort of sensible regulation that covers the whole lot is simply not going to work,” Harwood told BuzzFeed News.
The other tricky thing about new breeding techniques is that they are, well, new. New CRISPR discoveries pop up in scientific journals practically every day, and opponents say that it should be regulated until scientists better understand how it works. For example, CRISPR can sometimes affect genes that are not its intended targets. “The technology may be precise,” said Melchett of the Soil Association, “but they’re precisely altering something which they only vaguely understand and barely see.”
In a sign of just how controversial the new gene-editing techniques have become, not all anti-GMO activists feel the same way about them. European news outlets recently had a field day when Urs Niggli, a prominent scientist in Europe’s organic agriculture scene, essentially broke ranks by speaking favorably of CRISPR: It “has great potential,” he told a German newspaper.
There’s no telling which way the European Commission will come down, Jeff Wolt, a professor of agronomy and toxicology at Iowa State University, told BuzzFeed News. “Europeans, if they’re going to do this in a unified way, have to hash through a lot of questions before this is resolved,” he said. “I think it’s something that’s just going to change day to day.”
Regardless, academics like Harwood and Jansson will still be allowed to experiment with gene-edited crops — in labs. Most affected by the commission’s findings will be scientists and companies who want to grow crops in field trials, and license or commercialize their work in Europe.
That includes Cibus, a San Diego biotech that modifies crops with a combination of the techniques being studied by the commission. Last year, it started selling herbicide-resistant canola in the U.S., but its future in Europe is uncertain. It paused field trials in the U.K. and Sweden because the commission asked Cibus to wait for its legal analysis. But Germany, Spain, Sweden, the U.K., Ireland, and Finland have also told Cibus that, in the absence of that interpretation, they would not consider the crop to fall under the 2001 rule, according to the company.
Despite the conflicting information, Chief Scientific Officer Greg Gocal told BuzzFeed News, the company is “hopeful” that it will gain permission to enter the market. Without these new gene-edited crops, he said, farmers won’t be able to provide enough food for the world’s population of 7 billion and counting.
In the interim, regulators in some countries have made up their own minds, making for a messy situation all around. Last year, a German agency decided that CRISPR and other techniques do fall under the 2001 rule — only to be followed by another German agency that arrived at the opposite conclusion. The Swedish Board of Agriculture said in November that it would permit some uses of CRISPR, including Jansson’s, but not others.
So Jansson is in the awkward position of having a green light in Sweden for now, while risking the possibility that the commission will feel differently someday and overrule his local laws. At that point, maybe he’ll have to pause or destroy his experiments. But for now, he’s going ahead with plans to start field trials this summer, after the last snow melts.
And if the cops show up looking for CRISPR-edited thale cress, he chuckles, good luck to them. “They don’t know which are the illegal ones compared to other plants that are around,” he said. “They can’t find it out either, because there is no difference between them.”
The European Commission is working on a legal interpretation of whether crops edited with new technologies are GMOs. An earlier version of this story misidentified this group and the document it is working on.