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Amicus Curiae

Jose Eduardo T. Genilo

The Bt Talong case and protecting genetically modified plants in the Philippines

Jose Eduardo T. Genilo

March 30, 2016

Last December 2015, the Supreme Court issued a decision in a case involving genetically modified plants, i.e., the Bt Talong case (G.R. No. 209271, 209276, 209301, & 209430, 08 December 2015). The Bt Talong case involved a genetically modified eggplant where the crystal toxin genes from the soil bacterium Bacillus thuringiensis (Bt) were incorporated into the eggplant genome to produce the protein Cryl Ac. This supposedly made the genetically modified eggplant resistant to pests such as the fruit and shoot borer and, in turn, produces higher yields for farmers.
 
The case arose when the proponents of Bt Talong were about to start its field testing. Various groups (e.g., environmentalist NGO Greenpeace Southeast Asia [Philippines], Magsasaka at Siyentipiko sa Pagpapaunlad ng Agrikultura, a coalition of local farmers, scientists, and NGOs, and various individuals) sought to stop the field testing on the ground that it will violate the right to health and balanced ecology since Bt crops may be harmful to health and the environment. These groups presented various studies, such as those showing that other Bt crops can cause harm to the ecosystem by possibly reducing the number of beneficial species. They also contended that the field testing of Bt Talong will inevitably contaminate non-Bt modified eggplants.
 
On the other hand, the proponents of the Bt Talong presented arguments and evidence to contradict the claimed harmful effects of the Bt Talong, citing, among others, 130 research projects covering 25 years of research which concluded that genetically modified plants posed no greater risks than conventional plant breeding methods; and that there was no evidence of the harm that Bt Talong was expected to cause. They also contended that with the Bt Talong, reliance on insecticides will be reduced, which is claimed to be more harmful to animals and humans. Despite these arguments, however, the Supreme Court still stopped the field testing of Bt Talong under the Precautionary Principle.
 
The Precautionary Principle is applied “when there is a lack of full scientific certainty in establishing a causal link between human activity and environmental effect.” It is based on the premise that it is better to stop the human activity now, even if there is no clear evidence of its harmful effect to the environment, rather than risk permanently destroying the environment.
 
With the Supreme Court stopping the field testing of Bt Talong, does it mean that genetically modified plants are forever barred from entering the Philippines?
 
This may not necessarily be the case as it seems that the State also recognizes that genetically modified plants may be needed to address food security and somehow encourages its development.
 
This can be seen in the Philippine Plant Variety Protection Act of 2002 (or PVP Law), where it would appear that creating new plant varieties, including genetically modified plants, is encouraged.
 
The PVP Law was enacted as recognition that new plant varieties are vital in attaining food security. Food security can be achieved, for example, through new plant varieties that are pest resistant which would ultimately result into a better yield.
 
The PVP Law grants any breeder that developed a new plant variety the exclusive right to offer for sale, sell, produce, export, and import the plant’s propagating material (e.g., seeds). Such grant of exclusive rights to the breeder is subject to the condition that the breeder shows that his plant is new, distinct, uniform, and stable.
 
But does the PVP Law apply to genetically modified plants? The PVP Law does not limit the development of new plant varieties to the traditional method of hybridization where the “parents” of the plants are chosen by the breeder for pollination. The PVP Law appears to accept genetically modified plants as proper subjects of plant variety protection.
 
What the PVP Law only requires is for the plant to be new, distinct, uniform, and stable. It is, therefore, the author’s opinion that genetically modified plants can be a valid subject of the PVP Law. In fact, the PVP Law even gives the breeder the exclusive rights over the genetically engineered versions of his new plant variety (referred to by the PVP Law as Essentially Derived Varieties).
 
Although the Supreme Court’s decision appears to contradict one of the purposes of the PVP Law, it should be pointed out that the PVP Law also recognizes the need to preserve the environment, to wit: “The State, while recognizing intellectual property rights in the field of agriculture, does so in a manner supportive of and not inconsistent with its obligation to maintain a healthful ecology in accord with the rhythm and harmony of nature.”
 
Thus, while the Supreme Court in the Bt Talong case stopped the field testing of Bt Talong in the Philippines, it does not necessarily mean that genetically modified plant varieties cannot be registered and protected under the PVP Law. It is submitted that as long as a plant variety that is new, distinct, uniform, and stable has been created, in a way that is consistent with the maintenance of a healthful ecology (say created outside of the Philippines), a PVP Law application may still be successfully filed.