BACKGROUND

In Mauritius, biotechnology has mainly been used in agricultural research, breeding, tissue culture, research on safeguarding endangered species and also traditional applications such as processing dairy products, brewing and transformation of molasses into alcohol.Footnote ¹¹ A few cases of biotechnological treatment of agricultural waste are also known in Mauritius with two pilot projects at the St Martin pig farm and the Union Sugar Estate with the objective of integrating the control of pollution into the farming system.Footnote ¹² Biotechnological tools are used by the main local research institutionsFootnote ¹³ in implementing research programmesFootnote ¹⁴ in activities which range from the formulation and testing of protocols (for plant propagation by tissue culture) to breeding genetically engineered sugar cane.Footnote ¹⁵ Modern biotechnology applications have proved useful to improve varieties and to develop herbicide resistant sugarcane varieties such as “basta” herbicide and “roundup ready” under glasshouse conditions.Footnote ¹⁶ Other projects targeted the transgenic modification of potatoes under glasshouse conditions, such as the “shepody” variety of genetically modified (GM) potato seeds with high tolerance to potato virus Y provided by Monsanto.

Subsequently, the ministry responsible for agriculture and food technology (currently the Ministry of Agro Industry, Food Production and Security) introduced a Non-Sugar Sector Strategic Plan (NSSSP)Footnote ¹⁷ which aimed inter alia at promoting technology-based modern agriculture. This approach takes into consideration inherent local characteristics, such as insufficient land mass, absence of natural mineral deposits, as well as high labour costs, vulnerability to climatic vagaries like cyclones, the increasing cost of inputs and exigencies of export markets in relation to food security and traceability. At the veterinary section of the Ministry of Agro Industry, Food Production and Security, vaccines against “Newcastle” disease and fowl pox are being prepared in the laboratory using imported seed vaccines, while capacity building is being undertaken in terms of equipment and staff training to detect and assess GMOs at this ministry's food technology laboratory.Footnote ¹⁸ There is officially no GM livestock in Mauritius, but it needs to be confirmed whether GM growth hormones are being used for local livestock.

There is currently no national policy or strategy on biosafety, although a study on GM imports, and the potential farm-level impacts of commercially growing GM sugar cane, potato and maize locally, was carried out in the context of the Mauritius Regional Approach to Biotechnology Policy in Southern Africa ProjectFootnote ¹⁹ in 2006. GM crops and food may currently be consumed locally, although insufficient scientific studies are being carried out on the risks posed to human health, such as the risk of carrying unpredictable toxinsFootnote ²⁰ and provoking allergic reactions,Footnote ²¹ as well as the adequacy of safety tests assessing their potential harm to the environment,Footnote ²² human and animal health.Footnote ²³

In 1999, the National Biosafety Guidelines for the Safe Development and Introduction of Genetically Modified OrganismsFootnote ²⁴ were elaborated by the National Committee for Biosafety Regulation with the assistance of the UN Environment Programme and the Global Environment Facility, providing basic principles and recommendations for the administrative and institutional procedures necessary for the safe application of genetic modification activities. Five years later, the GMO ActFootnote ²⁵ was enacted with measures to regulate the responsible planning, development, production, use, marketing and application of GMOs, but it has not yet been proclaimed in its entirety. The act also seeks to ensure that all activities, including the import, export, production, release and distribution of GMOs (as well as their derivatives) are carried out in such a way that possible harmful consequences to the environment and risks to humanFootnote ²⁶ and animal health are limited. Under this legislation, the socio-economic effectsFootnote ²⁷ on people and society at large must be taken into account before permits can be granted to proponents of activities involving GMOs. The Plant Protection ActFootnote ²⁸ the main objective of which is to make provision for the protection of plant resources as well as to prevent, control and eliminate plant pests, also refers to GM plants. This act protects local agriculture from foreign incursion and ensures the harmonization of local provisions with international phytosanitary norms. Furthermore, the minister of health and quality of life may prohibit or regulate the sale as well as advertisement of novel foods under section 18(g) of the Food Act.Footnote ²⁹

THE MAURITIAN DEFINITION OF A GMO

The definitionFootnote ³⁰ of a GMO in the Mauritian framework refers to an organism,Footnote ³¹ the genes or genetic material of which have been modified in a way that does not occur naturally through mating or natural recombination. This definition encompasses the definition of an LMO under article 3(g) of the Cartagena Protocol which refers to any LMO that possesses a novel combination of genetic material obtained through the use of modern biotechnology and which is capable of replication. The term LMO is used in this paper where reference is made to provisions or requirements of the Cartagena Protocol. It is to be noted that this protocol regulates only transboundary movements of LMOs to the extent that the latter are likely to have potentially adverse impacts on biological diversity. GMOs as a broader category may include GM products (such as GM tomato sauce) which are not capable of replication. The term “derivatives of a GMO” is included in the Mauritian framework, but its meaning could be further elucidated in the legislation by adding “any material derived by processing or from any GMO or from a product of a GMO”.Footnote ³² The GMO framework applies to the genetic modification of organisms occurring through recombinant nucleic acid techniques involving the formation of new combinations of genetic materialFootnote ³³ as well as techniques involving the direct introduction into an organism of foreign nucleic acid molecules.Footnote ³⁴ The Mauritian biosafety framework also includes other techniques of genetic modification of organisms occurring through cell fusion (including protoplast fusion), beyond the same taxonomic family or hybridization techniques where live cells with new combinations of genetic material are formed.Footnote ³⁵ The GMO Act explicitly excludes techniques involving the genetic manipulation of human cells or cases where recombinant nucleic acid molecules or GMOs are not employed.Footnote ³⁶

USES OF GMOs COVERED BY THE GMO ACT

The Mauritian GMO Act covers three main types of uses of GMOs, namely general releases, contained uses and trial releases of GMOs. It regulates general releases of GMOs pertaining to the introduction of GMOs into the environment and their commercialization.Footnote ³⁷ The act refers specifically to any means of introducing GMOs where the organisms are no longer contained by any system of barriers or are under any person's control. The contained useFootnote ³⁸ of GMOs in laboratories and greenhouses also needs to be approved before any operation can be undertaken within a facilityFootnote ³⁹ involving GMOs that are controlled by specific measures which effectively limit their contact with and their impact on the external environment. Pursuant to the provisions of this enactment, a trial releaseFootnote ⁴⁰ of GMOs also needs to be authorized and a deliberate release of GMOs in confinement into the environment cannot be undertaken without the requirements of the GMO Act being fulfilled.

While the Mauritian framework covers the use of GMOs in general, there is no regulation for detailed aspects of GM products or feedstuffs. For instance, it does not specify if GM additives or GM flavourings are also regulated. Although the GMO Act does mention feedstuffsFootnote ⁴¹ and not only food containing GMOs, it does not explicitly legislate on feedstuffs. For example, grain maize for local poultry is imported mainly from Argentina which is an important GM crop producer,Footnote ⁴² and there is no specific obligation to distinguish between GM and non-GM feedstuffs. Because of the risks mentioned earlier, it is important that foods which have been genetically engineered to enhance their nutritional value should be specifically regulated.Footnote ⁴³ It seems that the main objective of the Mauritian GMO legislation is to provide for monitoring the use of GMOs in the food and agricultural sector, although it should also cater for other instances where GMOs and GM products are used, such as in pharmaceuticalsFootnote ⁴⁴ and live vaccines. For instance, plants may be genetically modified in such a way that they produce vaccines which can be administered by eating the crop.Footnote ⁴⁵

THE INSTITUTIONAL FRAMEWORK ON BIOSAFETY

The Mauritian institutional framework on biosafety comprises the national biosafety committee (NBC), the minister responsible for agro industry, food production and security, the permanent secretary of the Ministry of Agro Industry, Food Production and Security and authorized officers, as well as the National Focal Point.Footnote ⁴⁶ This article will examine their roles and functions.

The minister responsible for agro industry, food production and security is the highest competent authority for biosafety regulation in Mauritius; powers to regulate GMO-related activities are mainly concentrated in his or her hands. Section 24(2)(a)–(f) of the GMO Act gives this minister power to make regulations for levying fees and charges, laying down requirements for laboratory equipments and setting standards for facilities involving the use of GMOs. The minister is also competent to make regulations for the quarantine, transit, marketing, handling and sale of GMOs as well as amending the schedules of the GMO Act.

The NBC, created under the GMO legislation, is meant to advise the minister responsible for agro industry, food production and security on biosafety issues, publish guidelines on biosafety and elaborate a code of practice, as well as encourage public participation in related decision-making processes. However, this committee still has to complete biosafety guidelines and a code of practice and, although a few workshopsFootnote ⁴⁷ on biosafety-related issues have been held in Mauritius after the GMO Act came into existence, there is still a need for public sensitization on biosafety issues. Pending the proclamation of the GMO Act in its entirety, the NBC is mainly limited to investigating the implications of proclaiming the remaining sections of the legislation. The NBC is composed of 11 members from different ministries with expertise in biotechnology and the chairperson is nominated by the minister responsible for agro industry, food production and security.Footnote ⁴⁸ It is recommended that provisions be enacted so that it is compulsory for members of the NBC to declare their interests on a case-by-case basis with regard to the exercise of any of their functions. It is to be noted that a representative from a non-governmental organization (NGO) is also included on the NBC, although this representative is nominated by the minister. One could say that the fact that members of the NBC are nominated and their appointment can be revokedFootnote ⁴⁹ by the minister responsible for agro industry, food production and security, may not allow the NBC to be fully independent. It is to be noted that the NBC does not control safety mechanisms and approval procedures. More powers are indeed vested in the hands of the minister responsible for agro industry, food production and security rather than the multidisciplinary NBC.

As for the permanent secretary of the Ministry of Agro Industry, Food Production and Security, he or she is mainly involved in procedures pertaining to the application and approval of a GMO permit. This ministry is the competent authority to implement provisions of the Cartagena Protocol in Mauritius, through the national parks and conservation service. The National Focal Point is also responsible for liaison with the secretariat of the Cartagena Protocol and the biosafety clearing-house (BCH) in order to facilitate the exchange of information among relevant bodies and authorities. However, not much information on the Mauritian biosafety framework seems to have been made available to the secretariat of the Cartagena Protocol and the BCH apart from the relevant legislation and the national report on the implementation of the provisions of the Cartagena Protocol.Footnote ⁵⁰

By virtue of section 19 of the GMO Act, an authorized officerFootnote ⁵¹ has monitoring powers with regard to any facility which he or she reasonably believes is being used for any activity involving GMOs or upon reasonable doubts that activities involving GMOs are being carried out in a dwelling house. Authorized officers must however secure the consent of the owner or occupier of a dwelling house or have a warrant to that effect issued by a magistrateFootnote ⁵² before any inspection is carried out.

GMO PERMITS

According to the Mauritian biosafety framework, a GMO permit must first be obtained before any development, use, marketing or production of GMOs can be undertaken. Direct release into the environment and the transit, import or export of GMOs also require a GMO permit, which can be obtained only after application to the permanent secretary of the Ministry of Agro Industry, Food Production and Security.Footnote ⁵³ The applicant also has to submit a risk assessment reportFootnote ⁵⁴ on possible risks that the GMO to be used in the activity may pose to human health and the environment as well as the consequences of an unintentional release.

The Mauritian biosafety framework does not refer to an advance informed agreement (AIA) procedureFootnote ⁵⁵ as required by the Cartagena Protocol, but the fact that the import of GMOs must be authorized by a national authority with a risk assessment report means that prior consent of the country of import is required. However, Mauritius has not established legal requirements for exporters under its jurisdiction to notify in writing the competent national authority of the party of import prior to the intentional transboundary movement of an LMO that falls within the scope of the AIA procedure or GMOs in general. It should be pointed out that the existence of an AIA would mean that consent was obtained based on full disclosure of all relevant information as well as the taking of full responsibility by the supplier of the information for its reliability before any activity involving GMOs is undertaken. It is therefore highly recommended that provisions for an AIA in conformity with the Cartagena Protocol be enacted before a GMO permit is granted, since the GMO Act does not include an AIA per se. No legislation or regulation has been adopted locally for the application of the simplified procedure regarding decision-making for domestic use, including the placing on the market of LMOs which are considered as food, feed or food to be processed.Footnote ⁵⁶ The local biosafety framework does not include provisions on the simplified procedure laid down by article 13 of the Cartagena Protocol, which allows states to export LMOs without a written permit if the importing party consents.

With regard to LMOs in transit, pending the proclamation of all the provisions of the GMO Act, Mauritius does not have an official transit policy communicated to the BCH. For instance, Mauritius could adopt a policy whereby LMOs may only cross Mauritian territory for transit purposes if there is full disclosure of all information relating to the respective goods, including a risk assessment, and if the final country of import confirms its acceptance of the consignment.

A contingency plan must also be submitted by the applicant covering the protection of the environment, biological diversity and human health in the event of an unintentional or accidental release. If a GMO permit has been granted for a single use in the context of an activity, but there are possibilities of other uses of the concerned GMO (for instance, GM seeds which can be used for food or for feed or cultivation), the targeted activity should be monitored after the GMO permit has been granted. It should be specified that information on safety measures, and procedures to be adopted in case of an accident, is made available by the applicant to persons likely to be affected by an accident. This information should also be updated periodically on a continuing basis for a period commensurate with the life cycle of the respective species where applicable and made available to the general public.

Another shortcoming of the GMO Act is that it does not specify that an application should refer to existing information on that particular item available at the BCH if any person wishes to import a GMO or a product of a GMO for direct use as food or feed or for food processing purposes. It would obviously be important that information from a previous or current release of the GMO or product of a GMO locally or in any other country be provided by the applicant, especially information on previous rejections of that GMO by any other country. Furthermore, the Mauritian biosafety framework does not provide for a minimum threshold of detection of GM content and is silent about the adventitious presence of GMOs in products placed on the market for direct use as food, feed and processing.Footnote ⁵⁷

After receipt of an application for a GMO permit, together with the necessary documents, the permanent secretary will put a notice of the application to be published in the Government Gazette for three consecutive days in at least two daily newspapers. Interested persons will then be invited to lodge any objection to the application. The minister responsible for agro industry, food production and security will then inform the Mauritian National Assembly about the application and members of the public will have 21 days after the last date of publication in the daily newspapers to lodge an objection in writing with the permanent secretary. The permanent secretary may request further information as appropriate and may, if necessary, seek the views of any public department, any NGO or any other person on the application before referring the application (with all relevant information and views) to the NBC for its recommendations. The NBC, in turn, will try to identify and evaluate the possible adverse effects of the proposed GMO-related activity on the environment and/or on human and animal health.

An appeal mechanism is provided in the local biosafety framework for any person aggrieved by a decision taken by the permanent secretary to have recourse by written notice to the appeal board within 21 days from the date the decision is communicated.Footnote ⁵⁸ The appeal board, in turn, has to dispose of the appeal within six months of the date that the appeal is lodged. This board is required to provide an opportunity for the parties to be heard and pass such orders as it deems appropriate. It is important that the appeal board is sufficiently independent to take decisions based on scientific evidence where applicable.

There is currently no official procedure to determine whether GMOs are being brought into the territory of Mauritius. Pending the proclamation of the GMO Act in its entirety, applicants wishing to import GMOs or GM products must abide by general procedures for agricultural and food imports and not those provided by section 7 of the GMO Act. For now, the import of GM products must respect specific import procedures, which simply request documents such as the packing list, the bill of lading or airway bill, the insurance certificate, the certificate of inspection, the certificate of origin and the import permit where applicable.Footnote ⁵⁹ With regard to the import of plants or plant products, the national plant protection office (NPPO) is competent to grant a plant import permitFootnote ⁶⁰ if the respective plant or plant product complies with phytosanitary requirements in line with the Plant Protection Act. The plant import permit must also be accompanied by a phytosanitary certificate issued not more than 14 days prior to shipment by the plant protection authority of the exporting country. The NPPO may also detain, or keep in plant quarantine stations, any plant or plant product if there is suspicion of non-compliance with national or international phytosanitary standards. The export or re-export of plants or plant products also needs to be approved by the NPPO by means of a phytosanitary certificate.Footnote ⁶¹ However where a consignment is in transit, no phytosanitary certificate or re-export phytosanitary certificate is required unless an officer has reasonable grounds to believe that the consignment in transit may have been exposed to pest infestation and takes necessary measures as appropriate.Footnote ⁶²

It is also of prime importance for local government authorities to take initiatives for more sensitizationFootnote ⁶³ regarding public health concerns as well as to improve communication on biosafety. Persons likely to be affected by an accident should be made aware on a regular basis of information on safety measures and procedures to be adopted if an accident occurs. More importantly, mandatory post-market monitoring requirements must be introduced into Mauritian legislation and public access to information is to be encouraged.

RISK ASSESSMENTFootnote ⁶⁴ AND CONTINGENCY PLANS

Although GMO permits are subjected to whether the applicant has made a risk assessment and a contingency plan, one may wonder how effective these assessments are, given that the risk assessment form contains mainly general requirements for the applicant to give experimental results or information showing the probable consequences of the release of the GMO. Additionally, the applicant may not have all necessary information or sufficient scientific evidence, since there may be uncertaintiesFootnote ⁶⁵ regarding the effects of GMOs. Indeed, there are possible challenges from an environmental standpoint and there remain significant uncertainties concerning the long-term environmentalFootnote ⁶⁶ and other impacts of the introduction of GMOs.Footnote ⁶⁷ One may wonder what the Mauritian standpoint will be with regard to scientific uncertainties pertaining to risks posed by GMOs, since the GMO Act is silent about this issue. In accordance with the precautionary principleFootnote ⁶⁸ where there is reason to suspect threats of serious damage, lack of scientific evidence should not be used as a basis for not taking preventive measures. It is recommended that the applicant be required to submit reports periodically in respect of the monitoring and evaluation of risks carried out after the approval of the import, transit, contained use, release or placing on the market of a GMO.

Additionally, no harmonized method of risk assessment (for instance, in terms of the period of assessment targeted or the specific tests to be used) is mentioned in the second schedule of the GMO Act. The types of tests to be carried out and the period of assessment targeted should also be specified before a GMO permit is granted. Reports on risk assessment should refer not only to the identification and evaluation of direct and indirect impacts of a GMO on biological diversity, human and animal health but also to the evaluation of secondary and long-term effects. The applicant is also requested to provide a list of details on proposed actions to be taken in case there is an accidental release of the GMO from containment or confinement, however the list might be limited in terms of scope of action.

One of the conditions for approval of the GMO permit should be that the applicant is required to provide evidence of insurance (although this would imply that local insurance agencies are prepared to include accidental damage with regard to GMO-related activities in their insurance policies) or financial guarantees to cover any accidental damage. It is also highly recommended that undertakings involving the use of GMOs be included in the list of undertakings which require an environmental impact assessment.Footnote ⁶⁹ More importantly, while the application for a GMO permit should be open to public scrutiny under the form of a notice, it is necessary that the risk assessment report and contingency plan are also available for public consultation after the GMO permit has been granted. The GMO Act provides for socio-economic considerations to be taken into consideration before permits can be granted to proponents of activities involving GMOs, but does not give more details on what is likely to be accepted on the basis of socio-economic grounds and in practice this provision may not be used in an effective way. More precision could be brought to the provision regarding socio-economic considerations by drawing inspiration from the list provided in annex III(g) of the draft African Model Law on Biosafety, on understanding socio-economic considerations such as anticipated changes in existing social and economic patterns resulting from the introduction of the GMO or product, possible threats to biological diversity, traditional crops or other products and, in particular, farmers' varieties and sustainable agriculture.Footnote ⁷⁰

REGISTRATIONFootnote ⁷¹ AND INSPECTION OF FACILITIES

The Mauritian biosafety framework provides for the registration and inspection of facilities in which GM-related activities are carried out. The permanent secretary of the Ministry of Agro Industry, Food Production and Security keeps track of facilities using GMOs by means of a register containing the details of permit-holders and their activities. Authorized officers may inspect facilities involving GMOs and ensure that those facilities comply with the provisions of the GMO Act. It is important to enhance the necessary technical capacity of authorized officers to cope with such inspections to maintain, and make available to the public on request, the register or the existing database on GMOs in Mauritius. Additionally, the GMO Act should involve members of the public at not only the approval stage but also the monitoring stage. It is highly recommended that a local biosafety clearing house be set up to monitor procedures on the import and export of GMOs, while providing accurate and timely information with regard to local registers.

IN CASE OF AN ACCIDENTAL RELEASE OF GMOs

The Mauritian biosafety framework also includes obligations in case of accidental releasesFootnote ⁷² of GMOs, to the extent that a GMO permit-holder has an obligation to inform the permanent secretary of the Ministry of Agro Industry, Food Production and Security about any accident pertaining to the release of GMOs. The permit-holder must provide all relevant details of the circumstances having led to the accident, as well as details of emergency measures or actions taken to avoid or mitigate any adverse impact on the environment, or human or animal health.Footnote ⁷³ The permanent secretary will then appoint a special committee comprising three persons having wide experience in the particular field relating to the accident. This committee will make enquiries, prepare a report and make recommendations to the permanent secretary. Following the committee's report and recommendations, the permanent secretary may deem it necessary to take any appropriate decision and inform any country which might have been affected by the accident.

Any personFootnote ⁷⁴ who is aware of an accident pertaining to activities involving GMOs must immediately inform the permanent secretary but, in practice, one may wonder to what extent accidents will be reported. The fact that the Mauritian biosafety framework is based on voluntary reporting or declaration does not guarantee that accidents will be reported. The population at large may not have the necessary technical knowledge to detect activities involving GMOs, while the illegal introduction of GM products may not be easily detected. A GM product being illegally introduced into Mauritius by air or by sea may not be detected by Mauritian customs officers, unless the person undertaking the introduction or release of the GM product declares it to the customs authorities or is discovered with such products. The need for capacity-building in the detection of GMOs in Mauritius was highlighted by the then Ministry of Agro Industry and Fisheries.Footnote ⁷⁵ It recommended that quarantine containment facilities be set up to test GMOs and quarantine intercepted materials with high security systems, and that appropriate safeguards with international standards be introduced.Footnote ⁷⁶ A risk management strategy to protect human health and the environment from potential accidents resulting from the use of GMOs and their products should be developed. It is also important to include a mechanism for addressing emergency measures in case of unintentional and unauthorized transboundary movements of LMOs that are likely to have significant adverse effects on biological diversity in the local biosafety framework.

IDENTIFICATION AND LABELLING ISSUES

One of the most important aspects of biosafety regulation is the transparency of methods of production and traceability of GM products from the first stages of production to the consumer. Being able to trace back a product from its first stages of production also facilitates the withdrawal of the product and its by-products from the market in case of hazards.

According to the GMO Act, a GMO permit-holder must ensure that a GM product is clearly identified and labelled with all specifications of the traits and characteristics of the product.Footnote ⁷⁷ However no specific measure has been taken to require that GMOs that are subject to transboundary movements are handled, packaged and transported under conditions of safety, taking into account international rules and standards. The updated Food RegulationsFootnote ⁷⁸ do cater for the labelling of pre-packed foodFootnote ⁷⁹ as well as requiring appropriate indications to show that the food has been obtained as a result of genetic modification or that the food contains any ingredient that is genetically modified.Footnote ⁸⁰ Nevertheless, it is not clearly specified at which threshold and exactly what should be labelled, even though the traits and characteristics of the product should be indicated. For instance, it should be specified whether the product consists of GMOs, contains GMOs, is produced from GMOs or contains ingredients produced from GMOs. It should also be made compulsory that GM foods or ingredients containing known allergens,Footnote ⁸¹ such as dairy products, egg, wheat, soy, peanuts, tree nuts, fish, shellfish and derived products, are clearly labelled as such.Footnote ⁸² Specific labels for foods for babies or young children, as well as GM additives and flavourings, should be mandatory. Relevant traits and characteristics of the GMO or GM product should also be specified in sufficient detail to ensure traceability. Nutritionally enhanced foods using biotechnological applications should also be labelled appropriately. All necessary measures should be put in place to ensure that any GMO or GM product is handled, packaged and transported under conditions of safety, especially when there are possibilities of pathogenic and/or ecologically disruptive effects. However, there does not seem to be any monitoring of the labelling of GM products pending the proclamation of all the provisions of the GMO Act.

A sensible labelling scheme with standardsFootnote ⁸³ for determining (and detecting) genetic content should also be adopted, including a minimum threshold for the labelling of GM foods without which the enforcement of this scheme will not be easy. The draft African Model Law on Biosafety specifies that the competent national authority needs to put in place appropriate thresholds for the adventitious presence of GMOs that are contained in non-GMO shipments imported for placing on the market as direct use for food, feed and processing; it even indicates that the minimum thresholdFootnote ⁸⁴ should be less than 0.9 per cent. It should be noted that an appropriate threshold for food aid does not apply in the case of Mauritius, since it is no longer receives food aid from the World Food Aid Programme.Footnote ⁸⁵ The Cartagena Protocol is nevertheless silent on provisions for an appropriate threshold. In the European Union, all food and feed containing, consisting of or produced from GMOs must be labelled as genetically modifiedFootnote ⁸⁶ if the GM content exceeds 0.9 per cent, although even lower contractual thresholds are used in practice within the supply chain. Food and feed products with less than 0.9 per cent GM content are not labelled as such, provided that the presence of the GMO is adventitious or technically unavoidable. Compulsory labelling for a minimum threshold of 1 per cent GM content applies in New ZealandFootnote ⁸⁷ and Switzerland,Footnote ⁸⁸ but there is a 5 per cent threshold in JapanFootnote ⁸⁹ and South Africa.Footnote ⁹⁰

Another shortcoming of the Mauritian biosafety framework is that there is no obligation to label feedstuffs. Since GM feedstuffs are actually being used for local poultry, it is of utmost importance that the Animal Feed Control ActFootnote ⁹¹ which controls the import, distribution, keeping, manufacture, production and use of animal feed, be reviewed to include labelling obligations for GM feedstuffs.

While it is essential to have labelling obligations in the Mauritian biosafety framework, the labelling of imported and exported products containing GMOs needs to be monitored as well. The contents of the labels of GM foods are not provided in the local biosafety framework, for instance whether it is a “product containing GMOs” where there is evidence of the presence of GMOs in the product, or whether it should be indicated that a “product may contain GMOs” where there is no evidence of the presence of any GMO. Inspiration can be drawn from annex II(C) of the draft African Model Law on Biosafety which provides more detail regarding the contents of labels and even includes other information concerning the labelling of GM products such as “this product contains genetic material (nucleic acids) from GMOs” or “this product is based on raw materials from GMOs”.

Further, an obligation to label GMOs and GM products without proper identification techniques or means to trace GMOs and GM products, may unfortunately not be well-respected by permit-holders. Relying on the producers or exporters to label their GM products may not be sufficient. Tracing GM content from the time a GMO is grown, to the time it is integrated into processed foods, needs an extensive as well as expensive monitoring system. However, nothing is mentioned in Mauritian legislation about traces of GMOs in products or the traceability of GMOs. The labelling of GM food and feedstuffs is one of the most important ways to uphold the right of consumers to choose what they wish to consume, and is useful for tracing GMOs through the food chain. Enhancing capacity to identify traces of GMO in products that are on the Mauritian market is also necessary.

SANCTIONS UNDER THE GMO ACT

The Mauritian GMO framework provides specific administrative and criminal sanctions in the case provisions of the GMO Act are violated but does not provide specific civil liability in the case of damage caused by activities involving GMOs.

Administrative sanctions, such as the suspension or revocation of a GMO permit, may be applicable if the permit holder changes the activity for which he or she has a permit or moves from a facility described in the application and which is deemed unfit or appropriate. Undertaking activities which have adverse effects on the environment or human health, or in circumstances justified by the permanent secretary, may also lead to the suspension or revocation of a GMO permit. A stop orderFootnote ⁹² or prohibition noticeFootnote ⁹³ may be served on the proponent of the undertaking, when he or she departs from what is stated in the GMO permit. Failure to comply with any condition, permit or prohibition under the GMO Act, or hindering an authorized officer in the exercise of their functions under the GMO Act, is punishable by criminal sanctions. An authorized officer may give evidence and conduct a prosecution before a magistrate in respect of an offence under the GMO Act.Footnote ⁹⁴ Providing false information to competent authorities may also qualify as an offence. A first conviction may lead to a fine not exceeding Mauritian rupees (Rs) 50,000 and imprisonment for a term not exceeding two years. On a second or subsequent conviction, there can be a fine not exceeding Rs 100,000 and a prison term not exceeding four years. In addition to any penalty, a court may order the forfeiture of any animal, plant, organism or article used or connected in any way with the commission of an offence.

However, there is no specific civil liability provision regarding damage caused by the introduction of GMOs into the environment, such as an unintentional and unauthorized release as a result of the adventitious presence of GMOs in non-GM shipments imported for direct use as food, feed or for processing, or an unintentional move pertaining to an authorized GMO-related activity resulting in a release into the environment and damage to the environment or human health. One can argue that the general civil liability regime based on fault or negligenceFootnote ⁹⁵ would be applicable in such cases, but it may not be easy to prove the causal link between the activity using GMOs and the negative consequences of the respective GMO or GM product. Section 24(2)(e) of the GMO Act does provide that the minister may make a regulation on the liability of permit-holders in respect of prejudices caused by their activities to other persons, but civil liability in cases where there is damage caused by activities involving GMOs should not be dependent on a regulation made by a minister. The GMO Act could have specified that any person undertaking activities involving the use or release of GMOs will be presumed liable for any prejudice caused by the respective GMO and that the onus is upon the GMO permit-holder to prove that their activity has not caused that prejudice.

All relevant information should be given by the applicant before any import, export or transit is undertaken of any GMO or GMO product, failing which there should be sanctions. Specific provisions to regulate proportionality and confidentiality of information should be enacted. The notifier may nevertheless be called to provide information to the person who suffered the damage due to the characteristics of the LMO resulting from the genetic modification. In particular, this includes relevant information on the LMO, its characteristics and potential adverse effects. The person who suffered the damage would also need to provide relevant information to the notifier regarding the nature and the extent of the damage. Specific liability provisions are necessary to induce operators or undertakers to adopt preventive measures to minimize the risks of damage so as to reduce their exposure to financial liabilities. It is recommended that the Mauritian Republic ratifies the Nagoya-Kuala Lumpur Supplementary ProtocolFootnote ⁹⁶ (which provides for international rules and procedures in the field of liability and redress for damages resulting from transboundary movements of LMOs) and implements its contents domestically.