How GATT Undermines
by Eric Christensen
Food Safety Regulations
Negotiators for the world's leading trading nations are
rushing to salvage stalled international trade talks. In their haste, they
are ignoring the profound impact that trade can have on the quality of
the environment. A prime example is the call for "harmonization" of food
safety laws--a requirement that all nations observe a single international
standard for food safety in order to smooth the way for international trade
in agricultural products.
Harmonization was first proposed by the Reagan
administration in 1986, at the beginning of the current round of trade
negotiations under the General Agreement on Tariffs and Trade (GATT), an
international agreement that lays down the rules for trade between nations.
GATT, first negotiated just after World War II, was designed to replace
the high tariffs, import quotas and other measures that severely restricted
pre-war international trade, with a new and equitable set of trade rules.
About 140 nations have now signed GATT or agreed to observe its rules.
Together, these nations account for about 85 percent of the more than $3
trillion in world trade that occurs yearly.
dispute between the United States and Europe over artificial hormones in
beef ignited the harmonization debate. In 1985, in response to growing
public concern about the potential human health impacts of growth hormones
in cattle, the European Community banned imports of beef treated with these
hormones. This action enraged U.S. beef producers, who charged that the
ban was actually aimed at excluding U.S. beef from the European market.
Although the United States has strenuously pressed this claim with Europeans,
the dispute seems to have ended in a stalemate.
Harmonization has received
the enthusiastic support of large agribusinesses and the chemical industry,
as a means of reining in the perceived regulatory excesses of Europe and
other major U.S. trading partners. If the global trading community agreed
to a uniform international standard, no particular country or group of
countries could impose its own regulations--like beef hormone bans. The
cause has now been taken up by Bush's Secretary of Agriculture, Clayton
Undercutting food safety laws
But harmonization would affect the
United States too, where it could significantly weaken U.S. food safety
standards. Dr. Frank Young, the former commissioner of the Food and Drug
Administration and now a deputy secretary in the Department of Health and
Human Services, states that U.S. and international standards would come
into "direct collision" in the process of harmonization. This is because
many U.S. food safety standards are more restrictive than the current international
standards which are set by an obscure, Rome-based United Nations agency
called Codex Alimentarius. For instance, Codex allows food to contain concentrations
of the pesticide DDT that are up to 50 times higher than permitted under
U.S. law, concentrations of permethrin up to 40 times higher and concentrations
of heptachlor up to 20 times higher. U.S. agencies could also be forced
to change their regulatory techniques, such as risk assessment, in ways
that would weaken their ability to enforce food safety standards adopted
in the future.
Harmonization also implies severe restrictions on the power
of the states to regulate food safety independently. It would be inconsistent
with the concept of harmonization to allow states to impose more restrictive
regulations than national governments. Recent harmonization proposals circulated
during the GATT negotiations have included explicit language limiting the
power of state governments to regulate hazards in food independently. Such
limitations would prevent state legislatures and U.S. environmentalists
from enacting new food safety laws at the state level to reduce health
and environmental threats. Because of the political pressure placed on
Congress by industrial interests, innovations in environmental and other
consumer protections often begin in the state legislatures rather than
Washington. For instance, industry attempted to use GATT to preempt California's
"Big Green" initiative. Big Green, which was defeated at the polls in November
1990, would have instituted a number of significant environmental reforms,
such as eliminating known carcinogenic pesticides from the food supplies.
Harmonization also would severely limit public participation
in the process of developing food safety regulations. With the standards-setting
process ceded to international organizations such as the Codex Alimentarius
Commission, there would be almost no opportunity for public involvement
in the setting of food safety standards, and no opportunity for a court
appeal if the Commission set a standard contrary to law or inconsistent
with scientific evidence.
Though the public would be locked out, industry
could still exert a strong influence over the Codex process, as it does
already. For instance, at a recent meeting of the Commission, the U.S.
delegation included executives from chemical giants DuPont, Monsanto and
Hercules. Department of Agriculture official Dr. Lester Crawford describes
the relationship between U.S. government officials and industry representatives
on the U.S. Codex delegation as "very close to a collegial atmosphere."
The image of a fox guarding the henhouse is inescapable.
The GATT procedures
that would be used to enforce any harmonization agreement are also fundamentally
undemocratic. If a government believes that a particular food safety regulation
is a "non-tariff trade barrier" under GATT, it can call for a review of
the regulation by the GATT Secretariat in Geneva, but there is no opportunity
for the public to participate in this process. Nor can the GATT Secretariat
be held politically accountable. Some of the harmonization proposals currently
being considered would exacerbate this problem because they vastly widen
the scope of GATT review by allowing all food safety regulations to be
challenged under GATT, not just those regulations which burden international
Finally, harmonization turns a wise approach to environmental policy
on its head. In the United States, most federal environmental laws impose
minimum standards that all states must meet, but allow states to impose
more restrictive standards. By extension, international standards should
define the minimum acceptable level of protection nations should provide
to their citizens and the environment, leaving each nation free to enact
more restrictive regulations attuned to the environment of that nation
and the demands of its citizenry. Harmonization entails exactly the opposite
approach, however. It defines the most restrictive standards that nations
may adopt and prevents or discourages nations from adopting more restrictive
A partial derailment
Fortunately, strong opposition from Congress,
environmentalists, consumer advocates and the public has blunted the administration's
most radical harmonization plans.
A July letter from 10 U.S. senators to
U.S. Trade Representative Carla Hills, initiated by Sen. Tim Wirth, D-Colo.,
voiced "deep concern about the direction of the current GATT negotiations
on sanitary and phytosanitary standards." Inspired by environmentalists,
the letter criticized provisions which discouraged state governments from
establishing independent regulation of pesticides. It called this "an unjustified
incursion on the fundamental right of the states to protect the health
and safety of their citizens." It also condemned provisions which "could
discourage U.S. agencies from setting standards that are more restrictive
than international standards, and subject U.S. health regulations to international
approval." The letter characterized such a proposal as "absurd."
to its harmonization proposals growing, the Bush administration backed
off. Still, the current GATT proposal preserves harmonization as an ultimate
goal. It generally requires countries to adopt international standards,
but allows them to adopt their own standards in certain circumstances.
Bush administration officials confirm that negotiators hope this GATT agreement
will set the world on a course toward more far-reaching harmonization
in the future.
The current proposal allows governments to adopt regulations
more stringent than international standards, but only if there is a "reasonable
scientific justification" for doing so. This proposal, while vastly preferable
to the Bush administration's original position, would still impose severe
restrictions on the ability of national and state governments to regulate
food safety hazards.
The term "reasonable scientific justification" offers
a misleading sense of objectivity, suggesting that there is one and only
one scientifically "reasonable" response to food safety hazards. But food
safety laws are not just scientific-they also reflect the level of risk
that society is willing to accept in its food supply. The "reasonable scientific
justification" test excludes the public from critical decisions about the
safety of its food supply on the false proposition that these decisions
can be determined conclusively by experts on purely scientific grounds.
Further, where a government regulates on the basis of uncertain scientific
evidence, as is often the case with food safety hazards, its regulations
will be subject to potentially endless attacks by industrial interests
who will claim that the regulation is not scientifically "reasonable,"
and that more evidence must be accumulated before the government can act.
The cigarette industry has pursued this strategy for years, for example,
continually attacking the enormous body of scientific evidence linking
smoking with health problems.
The inhibiting force of the "reasonable science"
standard was recently demonstrated in a case involving the U.S.-Canada
Free Trade Agreement. In May 1990, the Canadian government filed an amicus
curiae brief on behalf of an asbestos-using company against the U.S. Environmental
Protection Agency. Canada is the world's largest asbestos exporter, and
the Canadian government was fighting an EPA rule banning the use of all
forms of asbestos. The Canadian government claimed that certain types of
asbestos are safe enough to be used and argued that the EPA's rule should
be disallowed by U.S. courts because "in promulgating this Rule, EPA has
failed to recognize the international scientific consensus that the health
risks of asbestos differ by fibre type and industrial process." Canada
argued that the EPA standard therefore violated the U.S.-Canada Free Trade
Agreement as well as GATT.
Towards environmentally sound trade
and consumer advocates have concluded that the threats posed to the environment
by international trade call for the fundamental restructuring of international
trade law. They argue that several revisions are critical.
should make clear that it will reject any trade agreement containing a
harmonization provision, and that U.S. trade negotiators should pursue
less drastic means of reducing the impact of food safety regulations on
trade. The underlying principle, that environmental protection should not
be bargained away in trade negotiations, should be extended to other environmental
laws as well.
Second, environmental concerns should be systematically incorporated
into the decision-making process for international trade through such mechanisms
as environmental impact assessments of proposed trade-related actions.
The United States could make a start in this direction by imposing environmental
assessment procedures on the office of the U.S. Trade Representative and
other executive agencies engaged in making trade policy, either by Executive
Order or by an Act of Congress. Such a requirement should also be incorporated
into GATT in order to inject a full awareness of the environmental impacts
of trade, and the impact of particular proposals, into the process of making
Third, GATT and other international trade agreements should
be amended to recognize the legitimacy of national laws aimed at environmental
protection. Currently, GATT allows such laws only if they are designed
"to protect human, animal or plant life or health." This provision, written
in 1947 when the environment was not a major public policy issue, was aimed
at legitimizing quarantine restrictions. It should be expanded to protect
laws aimed at preservation of ecosystems, prevention of pollution and restriction
of trade in environmentally destructive products.
Finally, public participation
in trade policy should be formalized and encouraged. Public participation
in trade decisions is essential to prevent health, safety and other environmental
concerns from being overridden by the powerful industrial interests who
dominate closed proceedings. Only substantial reform of trade policy can
prevent health, safety and environmental values from being sacrificed on
the alter of free trade.
EricChristensen is an attorney working with the Natural Resources