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Wheat that is resistant to mildew and maize that knows no stress: Only two recent examples of crops with improved characteristics, as they have been the focus of commercial interests since the early days of genetic engineering and have sometimes earned sad fame.

Currently, the CRISPR/CAS9 technology plays a role, which is also referred to as the „gene scissors“. With this revolutionary and certainly soon Nobel Prize-winning process that was developed by Zhang and Charpentier, it is possible to change the genetic material and, therewith, the properties of plants and other living things faster, more precisely and, thus, more cost-effectively than before.

Specifically, CRISPR can target genes that are responsible for certain characteristics of a plant. The gene strand is cut at the appropriate location and then reassembled by the cell’s own repair system. Since the repair is not always perfect, the gene may be changed, for example, switched off. New genes can also be inserted at that location.

The most interesting aspect of this procedure is that CRISPR leaves no traces in the genome other than the cuts. Therefore, the artificially induced „mutations“ can subsequently not be distinguished from those that arose naturally.

That is why critics of gene technology are afraid that the market will shortly be flooded with genetically modified plants that can no longer be identified as made by human intervention thanks to CRISPR and which for this reason need not be tested, approved or marked accordingly.

For further discussion, therefore, a judgment of the European Court of Justice (ECJ) is of particular importance, which is expected in the coming months and will have a central question on the subject: Are the cases in question genetically modified organisms (GMOs) that fall under the strict requirements of European genetic engineering law?

Or are CRISPR products not GMOs because they are indistinguishable from plants that are naturally grown or produced using conventional breeding methods?
The decision has far-reaching consequences because in the first case, the organisms would have to go through a strict authorization procedure and be labeled, otherwise, they could be put on the market without special testing and labeling.

The scientific view is not burdened by political motives. Ralf Wilhelm, head of the Institute for the Safety of Biotechnological Methods in Plants at the Julius-Kühn-Institut, explained that CRISPR represents a special opportunity to achieve breeding goals such as disease and pest resistance or increased resistance to moisture or dryness much faster and cheaper than ever. However, he also admits that especially in case of incorporation of foreign genes, a comprehensive safety examination of the resulting products is unavoidable.

With regard to a legal assessment of the proceedings, however, Wilhelm keeps a low profile. „From a scientific point of view, we would not see any sense in legally valuing two organisms that are completely alike differently.“ However, it must be decided case by case and consider the nature of the respective change.

The ECJ’s Advocate General, Michal Bobek, delivered an opinion on the legal evaluation of the proceedings in January this year. It states, inter alia, that organisms produced by CRISPR and similar processes should not be considered as genetically modified as long as the changes made could have been natural.

Experience has shown that the ECJ almost always follows the rapporteur’s vote. In the interest of the consumer, one would wish that the assessment of the facts would be made more differentiated.

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