The Development of Law No. 29811

On December 9, 2011, under the Presidency of Ollanta Humala (2011-2016), the Peruvian government approved Law 29811 enacting a ten-year moratorium on GMOs. The moratorium was the product of a 20-year process that began in the early 1990s. It included a multitude of stakeholders, including anti-transgenic activists, scientists, non-governmental organizations, farmers and the Peruvian government. It is important to know that up until 2006, the discussions of transgenics were limited to Peruvian political leaders, International Conventions and resulting legislative maneuvers. It was not until 2006 did the debate over transgenics become more inclusive (Martinez & Pinzás 2014). Each of these groups participated in the convoluted process, some specializing in scientific and political debate, while others focusing the on preservation of Peru’s biodiversity, and protection of rural, often Indigenous, farming lifestyles.

The debate over the varied impacts of transgenics began to take form in 1992 with the Convention on Biological Diversity (CBD) in Rio de Janeiro, Brazil. Interested in the CBD, Peru sent a committee to participate. Having agreed with parameters of the CBD, concerning the safe handling of, and potential impacts from the transfer of GMOs, the Peruvian delegation signed the convention. The CBD would prove to be the first international instrument focusing on biotechnology—followed up later by the Cartagena Protocol on the Safety of Modern Biotechnology.

Continued progress towards the usage of the transgenic in Peru was made in 1994, under the Presidency of Alberto Fujimori. President Fujimori, along with the National Environmental Council (CONAM), enacted Law No. 26410 which was designed to formulate, coordinate, and evaluate a new environmental policy. Shortly after, in 1999, Law No. 27104, or the ‘Biosafety Law’ was also put into place. This law established the necessary provisions and Peruvian agencies—such as the National Agricultural Research Institute (INIA) and the Directorate General of Environmental Health (DIGESA)—that would be in charge of biotechnological governance in Peru (Martinez & Pinzás 2014). It was designed to run parallel with the parameters launched by the CBD in 1992, providing guidelines and creating methods for acquiring approval for the regulation and release of transgenics within Peruvian borders.

In 1999 a committee was formed within the CONAM to deliberate about biosafety. The committee included experts from the field as well as members from civil society organizations. Included in the CONAM committee was Dr. Alexander Grobman, a renowned supporter of biotechnology, consultant to the Ministry of Agriculture (MINAG), and president of PeruBiotech—a private association for the development of biotechnology. Grobman openly argued that biosafety measures, and other anti-transgenics regulations, would “hinder” Peru’s development and prevent the country from escaping poverty and debilitating food insecurity (Martinez & Pinzás 2014).

Just four years later, in 2003, the Peruvian Association of Consumers and Users (ASPEC), a NGO designed to protect consumers’ rights, carried out a campaign to raise Peruvian awareness about transgenics. Much to their chagrin, the initiative was unsuccessful due to the lack of participation from major civil society actors, as well as limited media attention. Despite the shortcomings of the ASPEC, the association represented a deliberate expansion of stakeholder voices in the debate over GMOs.

In July of 2004, the Cartagena Protocol, which was signed in 2000, was finally approved by the Peruvian Congress. It is important to note that during the debates of Protocol, the Peruvian delegation openly opposed and voted against the binding instrument—a tool designed make corporations responsible for the potential negative impacts of GMOs (Martinez & Pinzás 2014). Their outright voting against this portion of the Protocol crystallized Peru’s support of transgenics. Despite the Peruvian delegation’s opposition to the binding instrument, a consensus was reached in favor of the binding agreement, solidifying corporate responsibly for any negative externalities as a result of transgenics.

On July 11, 2006, Peru’s Congress approved the General Law for the Development of Modern Biotechnology. This new law provoked vehement opposition from NGOs and other anti-transgenics activists. The big problem revolved around the issues of patentability of biotechnological inventions (intellectual property) and the rights of indigenous peoples over their traditional knowledge and practices related to their biodiverse cultural heritage (Martinez & Pinzás 2014. For the first time light was shed upon the epistemological dichotomy of different types of knowledges. Due to this controversy, the CONAM was increasingly cautious about the outcomes of the new law, however, other agencies such as the MINAG and INIA, were openly in favor of allowing GMOs into the country. Later that year, after many arduous debates, the Peruvian government signed a Free Trade Agreement (TLC) with the United States. This maneuver, symbolic of the increasing neoliberalization in Peru, created a path for the entry of transgenics into Peru’s borders.

From 2006 to the Moratorium

Up until 2006 much of the debate over transgenics, and the laws resulting from the discussions, were largely exclusive. To a large part, many civil society organizations (CSOs) and other NGOs were not included. As Isabel Lapeña of the Peruvian Society for Environmental Law (SPDA) and a member of the committee for the discussion on biosafety points out, “we had reached a point where the (position) seemed won by the protransgenic sector because the whole legislative landscape had been modified to favour the entry of transgenics into Peru” (Martinez & Pinzás 2014: 10). The second stage of the debate, beginning in 2007 and running up until the moratorium in 2011, was characterized by the amplified involvement of NGOs and CSOs in the controversy over transgenics in Peru.
Much of that increased participation began in 2007 with an important allegation on behalf of Dr. Antonietta Gutierrez, a biologist from the National Agrarian University La Molina and director of the Sustainable Environmental Development Association. Gutierrez reported that GMOs had been found in multiple sample sites in the valley of Barranca.  The allegation was quickly picked up and reported by leading newspapers such as El Comercio and La Republica, further increasing the level laymen participation and number of people aware about GMOs in Peru. Due to this, in October of that year, the platform group Peru Transgenic Free Country (PPPLT) was formed, consolidating multiple organizations who argued for sustainable and organic agriculture, and against the entry of GMOs into Peru (Martinez & Pinzás 2014). One year later, in 2008, Dr. Gutierrez published more results from an extended sample of the first test she carried out in 2007. In her new research, Gutierrez included the departments of Lima, Piura, Lambayeque, La Libertad and Ancash. She found that samples from Lima, Piura and La Libertad contained GMOs—confirming once again the introduction of transgenics in Peruvian agriculture (Martinez & Pinzás 2014).
All the while, Peru’s economy was continuing to grow. The economic growth during this time was no doubt a result of the economic restructuring that occurred during President Fujimori’s stay in office. During his ten years of presidency (1990-2000), the neoliberal hegemony began to reach Peru and dominate Fujimori’s economic and agricultural policies. Inspired by the Washington Consensus, President Fujimori moved towards the privatization of public enterprises and liberalization of foreign trade and labor market regulations. In addition, Fujimori placed a heavy emphasis on garnering foreign direct investment (FDI), especially from exploiting natural resources such as metals, oil, gas and agriculture (Bury 2005). Since then, Peru’s participation in globalized agricultural markets has continued to grow. So much so that the Exporters Association of Peru (ADEX), have expressed their commitment to organic crops and Peru’s incompatibility with GMOs. Their worry is that an agricultural system reliant upon transgenics will only offer economic benefits for the few corporations that own the intellectual property embedded with genetically altered crops. Organic agriculture or non-genetically modified agriculture on the other hand, would benefit a wider array of Peruvian farmers and agricultural markets (Martinez & Pinzás 2014). This economic argument, in conjunction with the arguments to preserve Peruvian biodiversity and livelihoods of farmers, coalesced into a more robust argument in opposition to GMOs in Peru.

In 2008, the Ministry of the Environment (MINAM) was created and Dr. Antonio Brack was appointed as minister. Dr. Brack, an ecologist, teacher and researcher of biodiversity, publicly spoke out against the usage of transgenics. For Brack, the major issue was the potential contamination of Peru’s endemic agrobiodiversity by GMOs. The MINAM, and Brack’s appointment as Minister, helped to balance the debate over transgenics in Peru’s governmental agencies (Martinez & Pinzás 2014).  Outside of the political realm, PPPLT’s anti-transgenics actions continue to intensify. Public displays of opposition—such as marches, public statements, fairs and conferences—continued to achieve media traction. In 2009, the PPPLT proposed a measure for a 5-year moratorium on the entry of GMOs and the labelling of any product containing genetically altered material. In addition, other NGOs joined the Platform, such as the Fair Trade and Ethical Trade Network, the Avantari Naturist Centre, and the National Convention of Peruvian Agriculture (Martinez & Pinzás 2014).

Despite this growing opposition to transgenics in Peru, in April of 2011, President Alan Garcia’s administration issued Supreme Decree 003-2011-MINAG. Just three months before the terminus of his Presidency – one that had always supported the economic interests of multinational corporations—Garcia’s decree allowed farmers and corporations to acquire permits to legally use GMOs in agriculture or forestry.  These new parameters were drafted solely by the MINAG, an agency historically in support of transgenics, and without any participation from MINAM, an agency opposed to the usage of transgenics (Martinez & Pinzás 2014). Due to the lack of equitable participation, MINAM and other anti-transgenics groups responded quickly.

In response, MINAM evoked its constitutional and legal mandate to protecting Peruvian biodiversity and its endemic genetic resources.  Their argument was that an abrupt decision like the Supreme Decree 003, and the exclusion of MINAM in drafting the piece of legislation, violated their constitutional power (Martinez & Pinzás 2014). Until a collaborative agreement could be reached or a moratorium on GMOs enacted, MINAM would continue to stand in opposition to President Garcia’s last effort to allow the widespread usage of GMOs in Peru. MINAM was not the only governmental group in opposition— lower level governments and municipalities issued ordinances declaring their jurisdictions “transgenic-free territories”. In total, thirteen of Peru’s regions, including the Municipality of Lima, had done so (Martinez & Pinzás 2014). This type of widespread mobilization, from multiple strata of government, helped shrink the existing legal dichotomy between pro- and anti-transgenic supporters, as well as represent the will of lay-citizens to preserve their country’s biodiversity.

In late 2011, Manuel Pulgar Vidal was appointed the new minister of MINAM. Vidal, much like his predecessor Antonio Brack, opposed GMOs in Peru and was in full support for a moratorium. By this time, multiple pieces of legislation had reached Congress and begun the process of enacting a moratorium. Finally, on June 7, 2011 Congress adopted Law No. 28911, declaring a moratorium on the entry of transgenics into the country for a period of ten years, On December 8, 2011, under the new Presidency of Ollanta Humala, the new law was officially authorized.

The objective of Law No. 28911 is clear: to prohibit the entry—from both external importation and domestic production— of transgenics into the environment. However, this excludes GMOs that are used in confined laboratory spaces and for pharmaceutical or veterinarian uses. The moratorium goes beyond just prohibiting and sanctioning the usage of GMOs, in addition, it is also designed to develop the Peruvian government’s capacity for biosafety. According to Martinez and Pinzás, this part of the moratorium is two-fold: “to enhance regulatory and capacity building, involving the construction of programmes for the knowledge and conservation of endemic genetic resources, biotechnology and competitive development programs, as well as projects to strengthen scientific and technological capabilities; and to create a multi-sectoral advisory committee to develop tools and skills for the regulation of biotechnology, biosafety and bioethics such as technical reports, proposals and monitoring functions” (2014: 22). In other words, the moratorium is designed to give the Peruvian government more time to regulate and prepare for the eventual entry of biotechnological products within their borders.

The future of GMOs in Peru hangs in the balance. Peruvian farmers and biodiversity are protected for at least another five years. Where the country will decide to move next once the moratorium expires is not certain. The sense is that the usage of transgenics on a massive agricultural scale is somewhat inevitable. Other developed nations, interested in the economic boons of biotechnology in developing nations such as the United States, are already mobilizing to make this possible (Nolte 2016; Nolte & Beillard 2014).  Despite this, the Peruvian government wants to slow down the growth of transgenics. It is important to them to ensure that the necessary regulations and governance technologies are in place beforehand in order to mitigate the potential risks to biodiversity, the Peruvian economy, and perhaps most importantly, to Peruvian farmers and their respective lifeways. However, if this is not the wish of the Peruvian citizenship, then it will be up to the continued resistance from anti-transgenic activists, farmers and scientists, along with support from certain agencies within the Peruvian State, to continue to preserve Peru’s rich biodiversity and long agricultural and cultural history.