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

Posted on 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.

The views and opinions expressed in this article are those of the author. This article is for general informational and
educational purposes only and not offered as and does not constitute legal advice or legal opinion).

Jose Eduardo T. Genilo is a Senior Associate of the Intellectual Property Department of the Angara Abello Concepcion Regala & Cruz Law Offices.