The Multinational Monitor

November 1990 - VOLUME 11 - NUMBER 11


Food Fight

How GATT Undermines
Food Safety Regulations

by Eric Christensen

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.

Harmonization's origins

The 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 Yeutter.

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.

Closing doors

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 trade.

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 standards.

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."

With opposition 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

Environmentalists 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.

First, Congress 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 trade policy.

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 Defense Council.

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