THE EUROPEAN COMMUNITIES BIOTECH DISPUTE- HOW THE WTO FAILS TO CONSIDER CULTURAL.pdf

Texas International Law JournalSpring 2007

Comment

*345 THE EUROPEAN COMMUNITIES BIOTECH DISPUTE: HOW THE WTO FAILS TO CONSIDER CULTURALFACTORS IN THE GENETICALLY MODIFIED FOOD DEBATE

Laylah Zurek [FNd1]

Copyright (c) 2007 Texas International Law Journal; Laylah Zurek

Summary

I. Introduction 346

II. Introduction to Genetically Modi-fied Foods

347

A. Genetically Modified Foods 347

B. Potential Risks and Benefits ofGenetically Modified foods

348

III. Attitudes About Genetically Modi-fied Foods

350

A. United States 350

B. Europe 351

IV. Case Discussion 352

A. Overview 352

B. Governing WTO Agreementsand International Law

353

1. The General Moratorium 354

42 TXILJ 345 42 Tex. Int'l L.J. 345

© 2014 Thomson Reuters. No Claim to Orig. US Gov. Works.

2. Specific-Product Moratoria 355

3. Member State Bans 356

V. Case Analysis 357

A. The Opinion Fails to ConsiderOther Values

357

1. Bovine Spongiform Encephalo-pathy and the Distrust of GovernmentRegulations

358

2. The Precautionary Principle 359

3. Food as a Distinct Cultural Valuein Europe

360

B. WTO Process Lacks the Institu-tional Capacity to Consider Non-MarketValues

361

C. Why Europeans Will Resist 363

1. General Resistance to WTO Cul-tural Domination

363

2. European Resistance to WTOCultural Domination

364

D. Labeling as an Alternative 366

VI. Conclusion 368

*346 I. Introduction

“Tell me what kind of food you eat, and I will tell you what kind of man you are.” [FN1]In 2003, the United States, joined by Canada and Argentina (the Complaining Parties), brought a claim to the World

Trade Organization (WTO) that the European Communities' (EC) strict regulation of genetically modified (GM) foodsviolated trade obligations. [FN2] In 2006, the WTO dispute settlement body agreed with the Complaining Parties that theEC had not adequately justified its restrictions on genetically modified foods. [FN3] However, unlike many internationalmatters before the WTO, [FN4] decisions about food and food choice cannot easily be resolved, and it is likely that this



dispute will not end with this decision. [FN5] Food has complex social and *347 cultural meanings integral to the waylegal decisions about food are made and enforced. After all, we are what we eat.

This Comment contends that the decision in EC Biotech fails to account for the cultural significance of food and,therefore, will not resolve the controversy over GM food regulation. It identifies cultural factors that will make it diffi-cult for the EC to comply with the WTO ruling. The Comment then proposes mandatory labeling as an alternative solu-tion advancing free market principles while respecting cultural considerations. Part II provides an overview of GMfoods, including potential risks and benefits. Part III lays out the respective United States and European Union regula-tion of GM foods, outlining the historical development of GM foods and the attitudes underlying the differences in regu-lation. Part IV discusses the EC Biotech decision. In particular, it looks at the Panel finding that the EC violated theWTO Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement) [FN6] and at the EC'sclaim that it should be allowed to impose stricter measures on the regulation of GM foods.

Part V evaluates the adequacy of the WTO's response to European arguments for stricter regulation of GM foods andconsiders the likelihood that the decision will resolve the dispute between the United States and the European Uni-on. The section assesses the Report in light of the underlying cultural aspects of European regulation, and it contendsthat the WTO fails to adequately account for cultural values and therefore will have difficulty implementing the de-cision. The Comment concludes by defending labeling as an alternative resolution--one that better accounts for culturalvalues while encouraging United States' access to the European Market.

II. Introduction to Genetically Modified Foods

A. Genetically Modified Foods

In order to understand the controversy, it is important to know how GM foods are created and why Europeans mightbe wary of them. Genetically modified foods are derived from organisms whose DNA has been altered through the in-sertion of genes from one organism into a second organism in order to suppress, encourage, or otherwise alter particulargenetic traits in the second organism. [FN7] One example of a genetic modification is the creation of an herbicide-resist-ant cotton plant--a gene increasing herbicide resistance is isolated in one plant, removed, replicated, and then *348 rein-serted into the DNA of the target plant. [FN8] The process often uses bacteria to carry the selected DNA and antibioticmarker genes to identify altered cells. Genes can be transferred between plants, animals, or microorganisms--both plantsand animals have been genetically modified. [FN9]

GM food comes primarily from four crops that dominate GM agriculture: soybeans, maize (corn), cotton, and canola.[FN10] Within commercial GM crops, the predominant modification is herbicide resistance, followed by insect resist-ance. [FN11] Other modifications include viral and fungal resistance, improved ability to resist environmental stresses,acceleration of growth time, and reduction in the maturation time of trees. [FN12] The above traits affect plant growth, or“input,” characteristics. [FN13] Traits affecting the characteristics of the food itself, or “output” characteristics, are lesscommon [FN14] and have had less commercial viability. [FN15]

B. Potential Risks and Benefits of Genetically Modified Foods

Much of the debate over GM food regulation stems from the tension between the potential risks and benefits of GMfoods. Concerns over human health and the environment have driven both sides of the argument: while GM foods may



pose unknown risks to human health, they may also be the key to feeding a growing world population. [FN16]

Because GM foods are relatively new and the techniques that create them are complex, fears abound that GM foodsmay carry serious risks both to human health and to the environment. Two human health risks associated with GM foodsare potential allergies to novel proteins that appear in the GM food [FN17] and the risk that *349 antibiotic resistancecould be spread through GM organisms. [FN18] In addition, there are serious environmental concerns regarding the re-lease of genetically modified organisms (GMOs) into the environment. [FN19] These concerns include negative and un-intended consequences to the biosphere, as demonstrated in U.S. field trials. [FN20]

Balanced against the risks are the potential benefits of GM foods, [FN21] including reduced usage of pesticides andherbicides, better yields, foods with better nutritional value, foods altered to be less allergenic, production of vaccineswithin foods, and even the production of alternative fuels. [FN22] These potential benefits offer strong justifications forfurther research by biotechnology companies. [FN23] However, the difficulty remains in determining how to assess thepotential benefits and risks and whether regulation can adequately manage the risks. [FN24]

As a result, two approaches to GM food regulation have emerged from the different opinions concerning the role sci-ence should play in determining food safety. The first approach assumes that GM foods are safe after limited testing be-cause they are equivalent to foods that have not been genetically altered. The *350 second approach assumes that moreextensive testing on a broader scale is required to prove the safety of GM foods. These competing approaches to regula-tion underlie the different positions in EC Biotech.

III. Attitudes About Genetically Modified Foods

A. United States

Within the United States, GM foods have met with comparatively little opposition because trust in the government'sregulation of food is strong, although not absolute. [FN25] In general, there has been limited response to GM foods in themarketplace. The United States is the largest producer of GM foods, and estimates of the amount of GM food in the do-mestic food supply are quite high. [FN26] Canada and Argentina also produce significant percentages of GM food.[FN27] None of the three nations requires any traceability [FN28] or specific labeling [FN29] for GM foods. Instead, themodified foods are treated in the same manner as unmodified foods on the basis that they are “substantially similar” tounmodified products. [FN30] In the United States, the adaptation of existing regulatory rules to biotechnology has resul-ted in gaps that allow GM foods to pass into the food supply: once GM food has left the grower, no regulation exists re-quiring identification of the GM food, nor is there any traceability of the food. [FN31]

The StarLink corn [FN32] incident demonstrated weaknesses in the U.S. regulatory system--providing an example ofthe unexpected migration of GM foods into the human food supply, even when a scientific basis exists for a regulatorydecision to keep the GM food from human consumption. [FN33] Due to questions about the *351 allergenicity of analtered protein in the corn, GM corn was approved for animal feed but not for human consumption. [FN34] However,subsequent testing by an anti-GM organization found the GM corn to be present in Kraft taco shells on grocery storeshelves. [FN35] Aventis voluntarily withdrew the corn, [FN36] but it had already been consumed domestically andshipped abroad. [FN37] While subsequent research failed to show any allergic reaction, the fact remains that the producthad not been proven safe or approved for human consumption. [FN38]

Mistakes such as these cast doubt on the ability of the U.S. government to properly regulate GM foods. [FN39] Out-



side the United States, such events have led to calls for labeling and traceability of GM products, particularly from tradepartners that regulate GM products more stringently. [FN40]

B. Europe

Since the late 1990s, GM food regulation by the European Union, and many Member States, has become increasinglystringent. Thus, the European Union has been caught between domestic pressure to regulate and international trade pres-sure not to regulate at the same time.

The regulatory scheme for approval of GM foods for sale within the European Union has always been much stricterthan in the United States. [FN41] However, the gap has widened since an authorization process for GM foods was estab-lished by the European Union. [FN42] In addition, political pressure from citizens of Member States subsequently led theEU to reevaluate its procedures for accepting GM foods in an attempt to harmonize different regulatory regimes withinthe EU. [FN43] The EU did not *352 approve genetically modified food from 1999 to 2003, while they were determiningthe risks and benefits of such food. [FN44] Finally, the EU passed a directive that made labeling mandatory for all GMfoods that contain more than 0.9% of GM ingredients and GM foods that contain more than 0.5% of GM ingredientsfrom GMOs not approved by the EU. [FN45] In addition, Regulation 1829/2003 centralized authorization of GM foodand crops in the European Food Safety Authority (EFSA), which is responsible for the scientific assessment of genetic-ally modified food and feed. [FN46]

These labeling and traceability requirements allow for increased citizen choice, and, this in turn, may alleviate someof the pressure to ban GM foods, although it is still unclear how easy it will be for GM foods to be approved in practice.[FN47] The EC's policies reflect an uncertain compromise between the concerns of its citizens and those of its tradingpartners, such as the United States, and now the WTO. Resistance to GM foods continues, accompanied by claims thatthe EC was motivated by market concerns to push the regulations on Member States without having satisfactorily re-solved health concerns. [FN48]

IV. Case Discussion

A. Overview

In 1998, the European Communities responded to political pressure for stricter regulation of GM foods by reviewingtheir approval processes; no approvals of biotech products were completed during the review and six individual MemberStates implemented restrictions on certain GM foods already approved by the EC. [FN49] On May 13, 2003, the UnitedStates and Canada requested WTO consultations with the European Communities, claiming that the EC and individualMember State actions regarding GM foods were inconsistent with WTO trade agreements. [FN50] The *353 UnitedStates and Canada, joined by Argentina, brought a complaint claiming that: 1) the EC's failure to approve any GM foodfor five years was a de facto moratorium violating obligations under WTO Agreements; [FN51] 2) a moratorium on ap-provals of specific products also existed, in violation of WTO Agreements; [FN52] 3) certain EC Member States had im-posed limits on specific biotech products already approved by the EC, violating EC obligations under the WTO Agree-ments. [FN53] On August 29, 2003, after consultations failed to resolve the issues, [FN54] the WTO established a panelto consider the complaints. [FN55] This Panel issued an interim decision in February 2006, after extended delays due tothe complexity of the case. [FN56] In late 2006, the final Panel decision was circulated and then accepted by the mem-bers of the WTO. [FN57]



B. Governing WTO Agreements and International Law

The United States, Canada, and Argentina (the Complaining Parties) alleged that the EC general moratorium,product-specific moratorium, and Member State bans of GM products were inconsistent with the SPS Agreement whichrequires measures be based on scientific principles and supported by scientific evidence. [FN58] Canada and Argentinaalso alleged that the moratoria and bans were inconsistent with the Agreement of Technical Barriers to Trade (TBTAgreement) and the General Agreement on Tariffs and Trade (GATT). [FN59]

In response, the EC asserted that the general moratorium did not exist and argued that the lack of approvals did notqualify as a formal or informal measure *354 under the SPS Agreement regulations on how measures can be applied.[FN60] Next, the EC argued that failure to complete product-specific applications did not qualify as measures either.[FN61] As to the Member State bans, the EC argued that because they were temporary, they did not violate WTO obliga-tions. [FN62]

Additionally, the EC claimed that the contested moratoria and bans primarily addressed environmental, and nothealth, concerns; consequently, they fall outside of the SPS Agreement. [FN63] According to the EC, the Cartagena Pro-tocol on Biosafety (Cartagena Protocol) applies instead. [FN64] It further contended that even if WTO agreements apply,they should be interpreted in conjunction with, rather than separate from, other sources of international law. Finally, theEC argued that the appropriate WTO agreement is the TBT Agreement, not the SPS Agreement. [FN65]

The decision found that the de facto moratoria and bans were measures as defined by the WTO and that the measuresfell within the SPS Agreement. [FN66] The Panel did not consider the EC claim that Cartagena Protocol should govern.[FN67] Additionally, the Panel considered only one of the GATT claims by Canada and Argentina, and none of the TBTclaims was successful. [FN68]

1. The General Moratorium

The Complaining Parties alleged that the EC maintained a general moratorium on biotech products between June1999 and August 2003 (the latter being the date the Panel was established), in violation of the SPS Agreement. [FN69]While under the SPS Agreement WTO Members are allowed to maintain independent approval procedures for biotechproducts, these procedures must be conducted without undue delay, which the Complaining Parties claim the EC failed todo in creating a de facto moratorium on approvals of GM foods. [FN70]

*355 The EC claimed that the moratorium did not exist and would not constitute a measure under the SPS Agreementif it did exist. [FN71] The Panel disagreed, finding that a moratorium on the approval of biotech products did indeed ex-ist between June 1998 and August 2003, and that the moratorium violated Article 8 and Annex C(1)(a) of the SPS Agree-ment. [FN72] Because the moratorium had ended by the time the Panel issued its Reports, the Panel did not make a re-commendation regarding the moratorium. [FN73]

2. Specific-Product Moratoria

The Complaining Parties also claimed that undue delays in approval of specific GM products violated the SPS Agree-ment. [FN74] The Panel found that EC actions violated Article 8 and Annex C(1)(a) of the SPS Agreement by allowingunnecessary delays in the approvals of two of the twenty-seven products specified by the Complaining Parties. [FN75]As a result, the Panel recommended that the Dispute Settlement Understanding (DSU) ask the EC to “bring the relevantproduct-specific measures into conformity with its obligations under the SPS Agreement.” [FN76]



The Complaining Parties were less successful in their claim that the EC's product-specific moratoria were not basedon risk assessment and thus did not satisfy WTO obligations. [FN77] As was the case with their challenge to the generalmoratorium, [FN78] the Complaining Parties failed in their challenge to the product-specific moratoria under other SPSprovisions; the Panel rejected all claims other than those under the SPS Agreement. [FN79]

*356 3. Member State Bans

Finally, the Complaining Parties challenged the EC-approved restrictions that maintained import or marketing bansfor GM products in six Member States-- Austria, France, Germany, Greece, Italy, and Luxemburg. [FN80] Each of thecountries had justified the measures as protecting human health; consequently, the Complaining Parties argued that theSPS Agreement, governing human safety issues within measures, be justified by scientific risk assessments as defined bythe SPS Argreement. [FN81] The SPS Agreement requires that restrictions in the name of human health be based on sci-entifically supportable risk assessment following appropriate procedures. [FN82] The Complaining Parties argued thatthe bans did not meet this standard. [FN83]

The EC contended that the actions were justified by environmental concerns, and therefore should be allowed regard-less of the SPS requirements. [FN84] Further, the EC argued that each ban fell under the Article 5.7 exception, which al-lows for temporary precautionary measures when there is insufficient scientific information to adequately assess the risk.[FN85] Finally, the EC argued that because the measures were based on some scientific knowledge, the requirements ofArticle 5.1 were satisfied. [FN86]

The United States claimed that the bans did not qualify for the Article 5.7 exception because the scientific informa-tion available was in fact sufficient to show that GM foods were safe. It contends that rather than consider this informa-tion, the six countries attempted to justify their bans by using non-human studies that do not meet the standards for sci-entific assessment established in the SPS Agreement. [FN87]

The Panel found that the bans fell under the SPS Agreement and failed to satisfy the risk assessment requirementsunder that Agreement, violating Articles 2.2 and 5.1. [FN88] The Panel further found that because there was sufficientinformation with which to assess risk, the temporary exception under Article 5.7 was not applicable. [FN89] It also foundthat the available information did not establish that the restrictions protected human health or the environment and weretherefore not justified. [FN90] The *357 Panel determined that the bans must be lifted in order to comply with WTOtrade obligations; if the EC--or more likely an individual Member State--unreasonably delayed, the Complaining Partieswould be able to impose retaliatory tariffs. [FN91] The EC has already asked for more time to determine how to bringMember States and EC law into compliance with the WTO trade obligations as established in Reports of the Panel.[FN92]

In conclusion, the Panel found that the EC acted inconsistently with its obligations under specific articles of the SPSAgreement but not under any of the other WTO trade agreements. The moratoria against GM foods existed and createdunnecessary delays inconsistent with the SPS Agreement. The Panel found that Member State measures were not ad-equately justified by a scientifically based risk assessment as defined in the SPS Agreement. Of particular interest, thePanel read the Article 5.1 exception narrowly, rejecting the EC's claim that precaution was justified because of insuffi-cient scientific information. [FN93]

V. Case Analysis



A. The Opinion Fails to Consider Other Values

The Panel decision did not consider legal authority beyond the WTO, reflecting the WTO's commitment to preservemarket access and free trade. This is especially apparent in its treatment of scientific evidence about risk. The Panelnarrowly defines an acceptable risk assessment, following the requirements of the SPS Agreement. [FN94] The Panelread the Article 5.1 exception as placing the burden on the EC to prove GM foods unsafe and rejected the EC claims thatrisk assessments were not adequate in the face of insufficient scientific data. [FN95] It also failed to consider the EC'sclaims of environmental safety brought under alternative Environmental treaties, such as the Convention on BiologicalDiversity (CBD). [FN96] In so doing, the Panel's process did not respect the cultural values that underlie the EC's ac-tions and will likely lead to difficulties in the implementation of the Panel's decision.

The EC's actions were not based solely on market considerations. The moratoria responded to political pressure res-ulting from citizen mistrust of biotech foods and demands for more stringent oversight. [FN97] This citizen reaction wasrooted in cultural considerations existing outside the market and helped structure the EC's determination that GMproducts were not proven safe. [FN98] Given its unwillingness to *358 incorporate the broader scope of international lawregarding biotech decisions or to separately consider non-market values, the WTO decision will not resolve the biotechdebate between the EC and the producers of biotech products (primarily the United States, followed by Canada, Argen-tina, and China). This section outlines three cultural variables motivating the EC regulations--variables the opinion failsto consider.

1. BSE and the Distrust of Government Regulations

European consumers do not trust their governments to regulate food safety. A series of incidents in the 1990s, in-volving foot and mouth disease, food-borne illnesses, and, most significantly, BSE (Mad Cow Disease), undermined con-sumers' trust in their governments. [FN99] BSE is a lethal disease in cattle that, if transmitted through certain meat con-sumption, can cause a related disease in humans. [FN100] When the first mad cow cases were discovered, the Britishgovernment downplayed the significance and denied that there was a connection between the diseased cows and a humanhealth threat. [FN101] This was later determined to be untrue--BSE had spread from cows to humans who had eaten tain-ted meat. [FN102] The revelation created a panic, and British beef was rejected throughout Europe. [FN103] Public trustin the British government eroded. [FN104] The British resumed eating beef, but the distrust of the British government re-mained. [FN105] In a recent poll, more than half of Europeans were still concerned about BSE. [FN106] Further, morethan one in three Europeans polled thought that the government should do more to regulate food, expressing particularconcern that regulation favored industry over the protection of human health. [FN107]

The initial risk assessments of BSE were based on scientific information incorrectly thought to be sufficient at thetime. [FN108] This failure of science eroded confidence in governmental regulations, as illustrated by the public reactionto the potential threat caused by artificial hormone use in American beef. [FN109] The uncertainty of the hormones'safety has resulted in enormous political pressure on the EU to support a ban on beef from cattle treated with hormones.[FN110]

*359 2. The Precautionary Principle

The European attitude about food safety is characteristic of Europe's broader concern with risk and safety issues, asexpressed in the precautionary principle. While there is no single definitive statement of the precautionary principle, theRio Declaration on Environment and Development's definition is widely considered an expression of the principle:

In order to protect the environment, the precautionary approach shall be widely applied by States according to



their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shallnot be used as a reason for postponing cost-effective measures to prevent environmental degradation. [FN111]

Europe has wholeheartedly embraced the principle and played a large part in its creation. The principle originated inGerman domestic law, emerging internationally at the 1987 London Conference of the North Sea under the term“precautionary principle.” [FN112] The precautionary principle is in the treaty forming the EU and is employed both inEU law and in European domestic law. [FN113]

The precautionary principle has gained acceptance in the area of environmental protection during the last few dec-ades. Yet the principle has not taken hold in the WTO, where it justifies only a temporary exception that allows a nationto impose stricter measures protecting health and safety only when significant uncertainty exists. [FN114] The exceptionis quite limited: it must be temporary in nature, based on a lack of sufficient information, and new information must besought actively during the time the exception is in place. [FN115] Therefore, the differences between the WTO precau-tionary approach and the EU precautionary principle are significant.

*360 3. Food as a Distinct Cultural Value in Europe

Additionally, the European attitude toward food is an expression of European culture. Throughout Europe, cuisinesare associated with particular nationalities and regions. The EC protects the association of place with traditional foodthrough regulations restricting the identification of particular regions to foods legitimately produced there. [FN116]

Indeed, anthropologists often study food in order to learn about culture--food and culture are closely linked. [FN117]Roland Barthes has argued that food can convey cultural authenticity [FN118] and signify national cultural continuity.[FN119] Thus, food is rooted in culture in such a way that it not only reflects national identity, but also creates and valid-ates it. Moreover, distinctive cultural characteristics arise in nations whose people primarily earn their living through ag-riculture and thus have particular interactions with food and its cultivation. [FN120] This is why it makes sense to distin-guish nations based on their agricultural development, and why we associate certain cultural characteristics with agrariannations. [FN121]

Regional food and food habits in Europe are likewise tied to culture. For instance, Rick Fantasia discusses howFrench identity is linked with cuisine:

France, above perhaps all other nations, is known to take deep cultural pride in its “patrimoine culinaire,”which has been a central part of the national identity since the early nineteenth century, when Grimod de laReynière published the first of his annual Almanach des Gourmands chronicling the development of French gast-ronomy, a “way of life” that was to become enshrined by Anthelme Brillat-Savarin in 1825 in his Physiology ofTaste, a book of “meditations” on taste, the senses, the preparation of meals, the social character of dining, and thephilosophy and aesthetics of food, the table, and the body. [FN122]

The French public has created political pressure to preserve their culture through the protection of French cuisine.[FN123] Moreover, links between protest over globalization and fast food illustrate the ties between food and culture inFrance: *361 “McDonaldization” has become synonymous with cultural homogenization, and McDonald's has been thesource of many protests. [FN124]

B. WTO Process Lacks the Institutional Capacity to Consider Non-Market Values

Free market international trade is a cornerstone of the current international structure. [FN125] As the main body forcoordinating trade among nations, the WTO [FN126] attempts to facilitate trade between its members in three main



areas: goods (including agricultural products), services, and intellectual property. [FN127] The WTO holds itself out as“a rules-based, member-driven organization--all decisions are by the member governments, and the rules are the outcomeof negotiations among members.” [FN128] The objective of the WTO is to encourage the free movement of goods andservices across international boundaries through a systemic and stable framework of trade rules. [FN129]

Based on a modern economic approach to free markets, the WTO emphasizes free access and trade across borderswithout discrimination or protectionism. [FN130] However, the WTO has had difficulty regulating agricultural products,as loyalty and identification with local agriculture have proven to be deeply rooted. [FN131] In particular, when policingthe use of subsidies for local producers and differentiating between legitimate concerns and artificial trade barriers, theWTO has no mechanism in place to consider social values or preferences. Allowing only limited restrictions based onfood safety premised on scientific assessments, the WTO has favored market access. More often than not, it has foundtrade barriers to exist. [FN132] The central problem is that the food safety determinations are framed as questions of sci-ence and disregard social considerations or values. The EC Biotech Reports of the Panel reveals the *362 limitations ofthe WTO process and its failure to give weight to important cultural values in competition with free trade.

The opinion does not reflect adequately European attitudes about food safety. The Panel refused to employ the pre-cautionary principle in a meaningful way; rather it highlighted the temporary nature of the precautionary-based exceptionin the SPS Agreement. The Panel placed the burden of proof on those who want to regulate, which in turn gave greaterpreference to free market trade than other values at stake in regulating GM foods.

The WTO opinion fails to recognize that trade occurs within a framework where other values have weight alongsidefree trade. The opinion rejects alternative justifications of the national bans--justifications that have grounds in publicinternational law, such as the Cartagena Protocol, and in European cultural values. [FN133]

The WTO's decision provides an example of markets undermining important cultural values. Michael Walzer criti-cizes such market imperialism in his book Spheres of Justice, in which he offers a compelling argument for allowinggovernment to protect important social practices from market influences. [FN134]

Walzer contends that the market does not adequately capture important values in society and tends to underminethese values. [FN135] For Europe, eating has such social significance; the price people are willing to pay for food doesnot reflect the importance that locally produced food and an agrarian existence has to the culture they share. [FN136]

Goods exist within a society and derive meaning from a social setting. As Walzer states:

Bread is the staff of life, the body of Christ, the symbol of Sabbath, the means of hospitality and soon. Conceivably, there is a limited sense in which the first of these is primary, so that if there were twenty peoplein the world and just enough bread to feed the twenty, the primacy of bread-as-the-staff-of-life would yield a suffi-cient distributive principle. But that is the only circumstance in which it would do so; and even there we cannot besure. If the religious uses of bread were to conflict with its nutritional uses--if the gods demanded that bread bebaked and burned rather than eaten--it is by no means clear which use would be primary. [FN137] Democracyprovides a more nuanced measure of how we value goods that have cultural significance. Social understandings ofthese goods shape democratic decision-making, As a consequence, democratic regulation of markets accounts forthe cultural significance of food in a way that the free market principles of the WTO ignores. [FN138]

Echoing Walzer, David Bollier contends that markets can co-opt cultural values, stating: “We too easily adopt the de-fault language of the market, which *363 usually translates into that joke about the Golden Rule - ‘He who has the gold,rules.’ Culture becomes a pawn of the market.” [FN139] He goes further to define alternative social and cultural valuesin terms of a cultural commons:



The commons is not just an inventory of marketable assets. It consists of social institutions and cultural tradi-tions that define us as people and enliven us as human beings. The commons consists of lots of inalienable re-sources that belong to us all--resources that are “not for sale” because we consider them more important to us thanany market price can capture. [FN140] In other words, people who share a commons share more than a section ofgrass. Something important would be lost if the land was divided and grazing rights were subsequently sold tothose who valued the land most.

C. Why Europeans Will Resist

1. General Resistance to WTO Cultural Domination

While cultural values do not fit easily into the market--they are difficult to quantify and do not disaggregate effect-ively--this does not mean that the values are not worthy of recognition. However, the role of culture in defining the mar-ket for particular foods is not recognized by the WTO, whose interest is in advancing trade. This results in goodsstripped of whatever cultural associations they might have. The act of trade, isolated from an understanding of culturalinteractions, threatens ways of life that people have an interest in protecting. By failing to acknowledge these culturalvalues, the WTO threatens its own goals--large protests against the WTO are occurring, and people are taking politicalaction to protect themselves and others from the costs of free trade. [FN141]

A general perception now exists that the WTO process threatens important cultural values around the world. In 1999,when the WTO held talks in Seattle, in part to settle issues over biotechnology, there was a huge protest partially over bi-otech products. [FN142] As a result, the WTO was thrust into the public eye with a large number of protesters showingup during talks over trade agreements. What had been a relatively anonymous organization came under heavy criticismfor its strict free trade focus, possible bias towards the interest of large corporations, and its lack of transparency anddemocratic process. [FN143] Critics of the WTO claim that it imposes a set of liberal market-based values on the rest ofthe world. [FN144]

*364 Marion Nestle identifies two problems that follow from globalization: (1) a “potential loss of national identityand autonomy” to corporations; [FN145] and (2) a threat that those who regulate food at an international level will givepreference to agribusiness over consumer safety. [FN146] This is particularly relevant to GM food, where the cost ofmeasures, such as labeling, would be initially borne by the industry. Thus the cost to agribusiness is the largest obstacleto international labeling.

2. European Resistance to WTO Cultural Domination

The perception that the WTO threatens cultural values is particularly strong in Europe. Indeed, the European attitudetowards the WTO's EC Biotech interim decision was negative. In a press release following the February decision, theEuropean Consumers Organization stated:

BEUC favours a global rule-based trading system, but it is not the solution to every problem. This recentWTO decision will not make European consumers accept GMOs any more than they do at present. Indeed, it ismore likely to have the reverse effect, if consumers feel that GMOs are being forced upon them. We applaud andsupport the Commission's statement that “every country has the sovereign right to make its own decisions onGMOs in accordance with the values prevailing in its society.” [FN147] Before the EC Biotech opinion, similarWTO opinions encountered a cold reception in Europe. When the WTO found that an EC ban on hormone-growncattle was a trade violation, the EC elected not to remove the ban. As a result of the EC's decision, the controversy



remains active today. [FN148] The protest over these decisions reflects a broader negative attitude towards theWTO, often involving controversy over food and agriculture.

Consider the example of Jose Bove, a sheep farmer and prominent activist in France. Bove gained a following whenhe was arrested at a demonstration at a McDonald's construction site in France. [FN149] He was later voted the mostpopular man in France for 1999, [FN150] as his protest captured a sentiment against McDonaldization--the movement to-wards not only fast food but also a standardized, global production method for food and, in particular, the spread ofAmerican culture through this production of fast food. [FN151] Americanization thus takes place not only in the spread*365 of American food, but also in the American manner of production and McDonald's business model. [FN152]

This resistance to American means of food production emerges again in the dispute over American beef treated withhormones. In 1996, the United States, joined by Canada, requested consultations before the WTO over EC prohibitionson the import of meat containing specific hormones, claiming that EC measures were inconsistent with the SPS Agree-ment. [FN153] Just as in the decision for EC Biotech, the Panel found that the EC had not proven a scientificallydemonstrated risk to health justifying stricter food regulation, as required by the SPS Agreement. [FN154] The core find-ing that the EC was acting without the requisite showing of scientifically demonstrated risk was upheld, [FN155] and theEC again had the burden of proving a product dangerous.

The WTO subsequently approved U.S. and Canadian retaliatory tariffs for US $116.8 million and CDN $11.3 millionbecause of the EC decision not to reverse the ban. [FN156] The EC eventually passed Directive 2003/74/ EC, aimed atsatisfying the requirements of the WTO ruling and including a more narrow independent risk assessment of the hor-mones. [FN157] However, the United States and Canada disagreed and contended that the new directive still provided aninadequate scientific basis to justify the ban. [FN158] The tariffs remain in place, and the EC continues to apply the pre-cautionary principle-- upholding the ban while it “seeks more complete scientific information to clarify the present stateof knowledge of these substances.” [FN159]

The EC decision to keep the ban in the face of the tariffs reflects political pressure from within the EC, indicatingthat decisions on food safety are not easily resolved by the WTO. The Europeans' pressure on their governments has ledto continued resistance, which is likely to be repeated with GM foods. If so, the decision in EC Biotech will not advancethe WTO goal of reducing trade barriers; instead a more market-friendly solution is needed. The concluding section sug-gests that strict labeling and traceability of GM foods by companies exporting to the EU offers that solution.

*366 D. Labeling as an Alternative

The conflict seen in EC Biotech will not be easily resolved under any scenario--those opposed to GM foods will con-tinue to resist, creating the political and market difficulties described above, and those who profit from GM foods willcontinue to demand market access. As we have seen, the WTO does not have the institutional capacity to assess trademeasures in light of cultural factors that play an important role in European regulations of GM foods.

No Panel decision will entirely resolve the debate over GM food, but the WTO could have restructured the debate byencouraging a compromise in which labeling is a condition for market access. [FN160] Labeling would bracket safety is-sues, allowing people to assume the government's role as gatekeeper and thereby advance an important free market value.[FN161] In addition, an international labeling program would settle the controversy without further litigation costs anddelays, which both sides would like to avoid. [FN162]

The Codex Alimentarius Commission, created by the U.N. Food and Agriculture Organization (FAO) and the WorldHealth Organization (WHO) to establish international food safety standards, is currently developing guidelines for la-



beling of GM foods. [FN163] In particular, labeling requirements would apply when one of three conditions were met:(1) food that is no longer “equivalent” to the conventional non-GM counterparts; (2) food that contains protein or DNAresulting from gene technology; or (3) food that is produced from, but does not contain, GM organisms or protein orDNA from gene technology. [FN164] The labeling would describe the genetic modification, including possible allergens.In a paper written for the FAO Legal Office, Glowka summarizes the benefits of labeling in minimizing potential risksfrom GM foods:

As a risk management tool, the information that labels can provide to end-users can refer to a GMO or GMOproduct's food toxicity or environmental safety. Consequently, with this information, the end user can take appro-priate steps to minimize or avoid the risks specified for example by following the instructions on the la-bel. Labelling and associated documentation may also provide important information to intermediate handlers ofGMOs, for instance when *367 they are in transit through the postal system. In the biosafety context, this latterrole is being further examined under the Biosafety Protocol pursuant to article 18(2) in cooperation with otherfora. [FN165]

The Codex takes the position that all GM foods are not consistent with the requirements of “organically producedfoods.” [FN166] This is a key point because the process of genetic modification, and not the product, defines how thefood is categorized. [FN167] This distinction is also seen in the U.S. approach to organic food labeling and genetic modi-fication; once again, the process, not the end product, is definitional. [FN168]

Not labeling GM foods creates difficulties for the consumer; if they lack the information to determine which food isgenetically modified, some consumers will refuse to buy any food they suspect to be genetically modified. This could re-duce the market share of all imported food from countries such as the United States. On the other hand, labeling GMfoods might allow people to express preferences for certain types of GM food but not others. It would also allow thefood to be marketed more efficiently, and thus, enable the market to eventually set prices that accurately reflect the de-mand for these goods. Additionally, labeling modified foods will put them into the market more quickly and allow pref-erences to be better expressed in market behavior.

In the current trade regime, European citizens lack sufficient information about whether imported foods are genetic-ally modified. While the EU requires labeling and traceability of GM foods, the United States only requires labeling ofGM foods if the product is “significantly different from its conventional counterpart, for example in terms of its nutri-tional value or because it introduced a known allergen . . . .” [FN169] Thus, the only way for European consumers toavoid modified foods is to avoid imported foods, particularly from nations such as the United States, Canada, and Argen-tina that regularly export GM foods without labeling or traceability mechanisms. This consumer pressure translates intomarket pressure; inefficiency in the political sphere results from the need for more attenuated choice concerning GMfoods. Secondly, the EU and individual Member States are forced to act as gatekeeper when citizens lack the necessaryinformation to make informed choices that reflect their cultural identity and values. In this way, EU political pressure re-quires more than the WTO decision has offered if the EU is to avoid conflict. As it is, the EU operates in a zero-sumgame, and therefore it must choose to work with either domestic interests, or trade partners. It cannot work with both.

*368 VI. Conclusion

The EC Biotech case makes clear that the WTO has failed to resolve the debate over GM foods. Food regulation iscomplex--it is tied to cultural values that are not adequately captured by the market. The WTO's commitment to freetrade principles, as seen in the EC Biotech decision and the Hormone case, prevents it from sufficiently considering cul-tural values. As a result, the decisions do not resolve the conflict.



Further, by framing the GM debate in terms of safety--as defined by the restrictive definitions of risk assessment al-lowed in the SPS Agreement--the EC's concern that it must have a right to exclude food that is not culturally acceptableor adequately proven safe is lost. Because the decision in EC Biotech does not account for these values and interests, thecontroversy over GM food regulation is unlikely to end with this decision. More likely, Europe will resist because ofpolitical pressure that, in part, reflects the European perception that their values are not respected. Labeling would allevi-ate the tension in a way that would solve the trade issues--without having to resolve the debate over safety. This is be-cause labeling provides information that allows citizens of the EC and Member States to act consistently with their val-ues, and thus perceive that their values are respected.

While labeling provides a way around the immediate trade conflict, the institutional inability of the WTO to considernon-market values would remain. This underlying problem indicates the need to reconsider how to frame trade disputesinvolving values outside of the market, and what institutions are the appropriate arbiters of such disputes. Ultimately, thedebate must be addressed through international reforms that are able to take adequate account of the cultural factors, suchas those seen in the GM food debate.

[FNd1]. 2007 J.D. Candidate, University of Texas School of Law. The author would like to thank Professor ThomasMcGarity, Ken Ward, Chris Hammock, and Patricia Hudson for helpful comments and suggestions on various drafts. Theauthor would also like to thank Ruth Karper and Skye Masson of the Texas International Law Journal.

[FN1]. Jean-Anthelme Brillat-Savarin, The Physiology of Taste (1825).

[FN2]. See Reports of the Panel, European Communities--Measures Affecting the Approval and Marketing of BiotechProducts, at 1, WT/DS291/R (U.S.), WT/DS292/R (Can.), WT/DS293/R (Arg.) (Sept. 29, 2006) [hereinafter EC BiotechReports of the Panel], available at http://www.wto.org/english/tratop_e/dispu_ e/cases_e/ds291_e.htm (incorporating theComplaints by the United States, Canada, and Argentina). In this Comment, I use the term genetically modified (GM);the WTO employs the term biotechnology (biotech) rather than genetically modified or recombinant DNA. However,these terms are often used interchangeably.

[FN3]. Id. (issuing one report for the dispute but listing the respective dispute number for each complaint).

[FN4]. Many trade disputes do not involve, at least on the surface, deep disagreements about the nature of the product, itssafety, or its desirability; as a result, compromises are easier to make, based on the agreed upon rules of the internationaltrade regime and the WTO. For example, determining the regulation of specific electronic components is unlikely to cre-ate debate. However, as the disagreements move closer to issues involving conflicting values, making determinations be-comes increasingly difficult. For example, agricultural tariffs are difficult to negotiate because agriculture and agricultur-al products have different values in different countries, and those values can come into conflict with the principles of afree market. We see similar problems when we consider negotiations over language.

[FN5]. Similar cases in front of the WTO have been difficult to resolve. A parallel case involves an EC ban on the im-portation of meat from the United States and Canada that may contain certain artificial hormones. The WTO found thatthe ban was in violation of trade rules and, eventually, authorized the United States and Canada to impose retaliatorytrade tariffs. A key aspect of the decision was that the EC had not satisfied the requirements that they provide scientificproof of harm that could result from the use of the hormones in meat. See Recourse by the United States to Article 22.2of the DSU, European Communities--Measures Concerning Meat and Meat Products (Hormones), WT/DS26/19 (May18, 1999) [hereinafter United States Recourse to Article 22.2, EC Hormones]; see also Recourse by Canada to Article



22.2 of the DSU, European Communities--Measures Concerning Meat and Meat Products (Hormones), WT/DS48/17(May 20, 1999) [hereinafter Canada Recourse to Article 22.2, EC Hormones].

The EC has subsequently modified the ban and conducted an independent scientific assessment of the danger;however the EC ban remains in place. Commission Background Paper (EU), The “Hormone” Case: Background andHistory, MEMO/00/27 (May 24, 2000), available at http://www.foodlaw.rdg.ac.uk/eu/doc-20.htm.

[FN6]. See generally EC Biotech Reports of the Panel, supra note 2. The SPS Agreement addresses food safety and an-imal and plant regulations among WTO member nations concerning “measures necessary for the protection of human,animal or plant life or health, provided that such measures are not inconsistent with the provisions of this Agreement.”Agreement on the Application of Sanitary and Phytosanitary Measures art. 2.1, Apr. 15, 1994, Marrakesh Agreement Es-tablishing the World Trade Organization, Annex 1A, Legal Instruments - Results of the Uruguay Round, 1867 U.N.T.S.493 (1994) [hereinafter SPS Agreement], available at http://www.wto.org/English/docs_ e/legal_e/15-sps.pdf; see alsoMarrakesh Agreement Establishing the World Trade Organization, Apr. 15, 1994, Legal Instruments - Results of the Ur-uguay Round, 1867 U.N.T.S. 154, reprinted in 33 I.L.M. 1125 (1994) [hereinafter WTO Agreement], available at ht-tp://www.wto.org/english/docs_e/legal_e/04-wto.pdf.

[FN7]. Biotechnology can introduce genetic traits wholly different than those naturally occurring in the plant. SeeEuropean Community Report, Harnessing the Potential of Modern Microbiology, at 4 (1999).

[FN8]. See U.N. Food & Agriculture Organization [FAO], Electronic Forum on Biotechnology in Food and AgricultureConference 9, Apr. 28-June 1, 2003, Background Document, § 2(c) (2003) [hereinafter FAO Background Document],available at http://www.fao.org/biotech/C9doc.htm.

[FN9]. Id. § 1.

[FN10]. Id.

[FN11]. Genetically Engineered Food Methods and Detection 31 (Knut J. Heller ed., 2d ed. 2006).

[FN12]. See id. at 41-46.

[FN13]. Id. at 40.

[FN14]. The Flavr Savr tomato was largely unsuccessful in the market due in part to a decline in quality related to themodification. U.N. FAO, Genetically Modified Organisms, Consumers, Food Safety and the Environment 12 (FAO Eth-ics Series 2001) [hereinafter FAO Ethics Series], available at ftp:// ftp.fao.org/docrep/fao/003/X9602e/X9602e00.pdf.

[FN15]. See Consumer Acceptance of Genetically Modified Foods 95-110 (R.E. Evenson & V. Santaniello eds., 2004)(stating that many consumers remain reluctant to use biotech products that primarily benefit agribusiness by reducingproduction costs; however, if biotech created products that directly benefited consumers, reluctance might be overcome,lessening both economic difficulties and the amount of regulation).

[FN16]. Rice that was genetically modified to produce vitamin A (“golden rice”) has been successfully created in thelaboratory. There are currently plans to distribute the rice without charge when it serves humanitarian needs; however,there remain significant issues, including intellectual property challenges and concerns over how the rice will perform ona wide scale. See Quirin Schiermeier, Designer Rice to Combat Diet Deficiencies Makes its Debut, 409 Nature 551(2001), available at http:// www.nature.com/nature/journal/v409/n6820/pdf/409551a0.pdf; see also Nina Schnapp &Quirin Schiermeier, Critics Claim ‘Sight-Saving’ Rice is Over-Rated, 410 Nature 503 (2001), available at http://



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[FN17]. The risk of antibiotic resistance stems from the use of antibiotic-resistant genes that enable modified products tobe identified by saturating cell samples with antibiotics. As a result, resistant genes--modified genes-- survive. If the res-istance could be transferred from the biotech food to other organisms it encounters, particularly microorganisms in di-gestive systems of stock or humans, the efficacy of antibiotics could be threatened. See Andrew Rowell, Don't Worry, it'sSafe: The True Story of GM Food, BSE and Foot and Mouth 126-27, 130-38 (2004). But see Alan McHughen, Pandora'sPicnic Basket: The Potential and Hazards of Genetically Modified Foods 186 (2000) (arguing that resistance is as likelyto develop by natural means as from biotech use of antibiotic marker genes).

A key concern is that altered food could reach the market with no warning of potential food allergies, either becausethe gene had unknowingly spread to other crops, or because the protein was not identified as present in the biotechfoods. The risk of allergy is best illustrated by the StarLink corn incident, where corn approved for crop use was foundto be present in Taco Bell taco shells. Another allergy scare occurred when DNA from Brazil nuts, a common allergen,was used in biotech experiments. See Saturday Morning News: Kraft Recalls Taco Bell Shells (CNN television broad-cast Sept. 23, 2000) (transcript available at http:// transcripts.cnn.com/transcripts/0009/23/smn.08.hmtl); McHughen,supra, at 119-21.

[FN18]. See McHughen, supra note 17, at 186.

[FN19]. The environmental risks of living modified organisms (LMOs) play an important role in European regulation.LMOs are regulated under the Convention on Biological Diversity (CBD); in EC Biotech, the European Union raised theprotocol as an alternative forum for the debate over GM food regulation. See generally Convention on Biological Di-versity, opened for signature June 5, 1992, 1760 U.N.T.S. 142, reprinted in 31 I.L.M. 818 (1992) [hereinafter CBD],available at http://www.biodiv.org/doc/legal/cbd-un-en.pdf; see also McHughen, supra note 17, at 249 (discussing con-flicts that arise from differing regulatory bodies applying intellectual property law to biotechnology).

[FN20]. This occurred in the United States where biotech corn pollen, containing B.t. (Bacillus thuringiensis), a commonpesticide used in traditional organic farming, produced by the modified plants, killed the larvae of Monarch butterflies.Sharon Guynup, Homeless Butterflies - Destruction of Habitat for Monarch Butterfly in Mexico; Concerns of Bioengin-eered Plants on Butterflies, Science World, Nov. 27, 2000. But see McHughen, supra note 17, at 186-91 (arguing thatB.t. would have the same effect). In the EC, there is a concern that biotech crops will negatively influence bird popula-tions if GM crops become common, since a large percentage of European land is farmed. McHughen contends that thereduction in bird population is due to the intensification of land use, and that the affects of GMOs on bird populations isunknown but could provide a solution by improving crop yield and thus reducing the total land needed for production. Id.at 107-09.

[FN21]. Nuffield Council on Bioethics, Genetically Modified Crops: The Ethical and Social Issues 3 (1999) (stating thatconcern over risks “may distract both the public and governments from giving proper attention to the benefits they couldbring”).

[FN22]. Id. at 2-3.

[FN23]. Id.

[FN24]. Id. at 6.

[FN25]. Thomas O. McGarity, Seeds of Distrust: Federal Regulation of Genetically Modified Foods, 35 U. Mich. J.L.




Reform. 403, 430-31 (2002).

[FN26]. FAO Background Document, supra note 8, § 2(a).

[FN27]. Id.

[FN28]. Traceability of food means that each step in the food's history can be traced in order to determine the origin andsubsequent handling of the food. See generally European Commission, From the Farm to the Fork (2005), available at ht-tp://europa.eu.int/comm/food/resources/publications_en.htm (stating that each step of production should record where thefood came from and where it goes); see also EC Biotech Reports of the Panel, supra note 2, at D4-6 (discussing U.S. reg-ulation of GM foods).

[FN29]. Labeling would require that any food or feed containing genetically modified food or processed from geneticallymodified food, would have to disclose that information on the label; labeling depends on traceability. See generally FarmFoundation, Food Traceability & Assurance in the Global Food System (Traceability and Assurance Panel Report July2004), available at ht-tp://www.farmfoundation.org/projects/02-66/documents/FINALFULLREPORTwCover8-5-04_000.pdf; see also EC Bi-otech Reports of the Panel, supra note 2, at D4-6.

[FN30]. See FAO Ethics Series, supra note 14, at 14-17.

[FN31]. The United States has not established GM-specific requirements; rather, modified foods are regulated under theexisting framework of the FDA, EPA and USDA. See Rebecca M. Bratspies, The Illusion of Care: Regulation, Uncer-tainty, and Genetically Modified Food Crops, 10 N.Y.U. Envtl. L.J. 297, 311-14 (2002). For an overview of the roles ofU.S. agencies in the regulation of GM foods, see the United States Regulatory Agencies Unified Biotechnologies Web-site, http://usbiotechreg.nbii.gov/roles.asp (last visited Apr. 7, 2007).

[FN32]. Starlink corn was engineered by Aventis CropScience to contain an insecticidal protein. Starlink Official Web-site, Starlink History, http:// www.starlinkcorn.com/History/What%20is%C20StarLink%20corn.htm (last visited Apr. 7,2007).

[FN33]. See Rebecca M. Bratspies, Myths of Voluntary Compliance: Lessons from the StarLink Corn Fiasco, 27 Wm. &Mary Envtl. L. & Pol'y Rev. 593, 596 (2003).

[FN34]. Id. at 620.

[FN35]. Id. at 628-29.

[FN36]. The U.S. government exerted significant effort controlling damage to trade; additionally, the costs of trying toremove Starlink corn from the food supply were very high. Aventis Corporation was also found liable for damages toTaco Bell, the name under which the taco shells were marketed, for damages to the company's reputation and lost sales.See id. at 623-27.

[FN37]. Id. at 623.

[FN38]. Andrew Pollack, Study Raises Doubt About Allergy to Genetic Corn, N.Y. Times, Nov. 10, 2003, at C10, avail-able at http:// query.nytimes.com/gst/fullpage.html? sec=health&res=9a06e5d91139f933a25752c1a9659c8b63.



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[FN39]. Bratspies, supra note 33, at 645-46.

[FN40]. David Barboza, As Biotech Crops Multiply, Consumers Get Little Choice, N.Y. Times, June 10, 2001, at A1,available at http:// query.nytimes.com/gst/fullpage.html?res=9806E0DF153EF933A25755C0A9679C8B63&sec=health&spon=& partner=permalink&exprod=permalink.

[FN41]. See Genetically Modified Food and Feed (GMOs) (2006), http:// europa.eu/scadplus/leg/en/lvb/l21154.htm(summarizing EU regulations of GM foods).

[FN42]. Council Regulation (EC) 258/97, Concerning Novel Foods and Novel Food Ingredients, art. 7, 1997 O.J. (L 43)1, available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31997R0258:EN:HTML.

[FN43]. Joanne Scott, European Regulation of GMOs and the WTO, 9 Colum. J. Eur. L. 213, 226 (2003). For further dis-cussion of member state regulations, see Franz Xaver Perrez, Taking Consumers Seriously: The Swiss Regulatory Ap-proach to Genetically Modified Food, 8 N.Y.U. Envtl. L.J. 585 (2000), which provides a good case study on one of thefirst nations to require labeling on GM foods, where the concern over GM foods is based on social and environmentalconcerns, including a concern for the “dignity of creation.”

[FN44]. Request for Consultations by the United States, European Communities--Measures Affecting the Approval andMarketing of Biotech Products, WT/DS291/1 (May 13, 2003) [hereinafter U.S. Request for Consultations], available athttp://www.worldtradelaw.net/cr/ds291-1(cr).pdf..

[FN45]. Council Regulation No. (EC) 1829/2003, On Genetically Modified Food and Feed, arts. 12, 47, 2003 O.J. (L268) 11, 22, available at http://eur-lex.europa.eu/LexUriServ/site/en/oj/2003/l_268/l_26820031018en00010023.pdf.

[FN46]. Id. at 2.

[FN47]. For a discussion on food labeling reform in the EU, see generally Ignacio Carreño, The New European Com-munity Rules on the Labeling of Allergen Ingredients in Foodstuffs, 60 Food & Drug L.J. 375 (2005).

[FN48]. European Member States still had domestic restrictions on GM foods at the end of 2005. See EC Biotech Re-ports of the Panel, supra note 2, at 31, 631.

[FN49]. Id.

[FN50]. In particular, the United States claimed the following violations: Articles I, III, X, and XI of GATT; Article 4 ofthe Agricultural Agreement; Articles 2 and 5 of the TBT Agreement; and Articles 2, 5, 7, 8 as well as Annex B and An-nex C of the SPS Agreement. See U.S. Request for Consultations, supra note 44. Canada claimed the following viola-tions: Articles I:1, III:4, X:1, XI:1 and XXIII:1(b) of GATT; Articles 2.1, 2.2, 2.8, 5.1 and 5.2 of the TBT Agreement;Article 4.2 of the Agricultural Agreement; and Articles 2.2, 2.3, 5.1, 5.6, 7, and 8 as well as Annex B and C of the SPSAgreement. See Request for Consultations by Canada, European Communities--Measures Affecting the Approval andMarketing of Biotech Products, WT/DS292/1 (May 13, 2003) [hereinafter Canada Request for Consultations], availableat http:// www.worldtradelaw.net/cr/ds292-1(cr).pdf. Argentina claimed the following violations: Articles I, III, X,XI ofGATT; Articles 2, 5, and 12 of the TBT Agreement; Article 4 of the Agricultural Agreement; and Articles 2, 5, 7, 8, and10, as well as Annex B and Annex C of the SPS Agreement. See Request for Consultations by Argentina, EuropeanCommunities--Measures Affecting the Approval and Marketing of Biotech Products, WT/DS293/1 (May 14, 2003)[hereinafter Argentina Request for Consultations], available at http:// www.worldtradelaw.net/cr/ds293-1(cr).pdf.




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[FN51]. U.S. Request for Consultations, supra note 44; see also Canada Request for Consultations, supra note 50; seealso Argentina Request for Consultations, supra note 50.



[FN54]. Request for the Establishment of a Panel by the United States, European Communities--Measures Affecting theApproval and Marketing of Biotech Products, at 2, WT/DS291/23 (Aug. 8, 2003), available at http://www.worldtradelaw.net/pr/ds291-23(pr).pdf; Request for the Establishment of a Panel by Canada, European Communit-ies--Measures Affecting the Approval and Marketing of Biotech Products, at 1, WT/DS292/17 (Aug. 8, 2003)[hereinafter Canada Request for the Establishment of a Panel], available at http://www.worldtradelaw.net/pr/ds292-17(pr).pdf; Request for the Establishment of a Panel by Argentina, European Com-munities--Measures Affecting the Approval and Marketing of Biotech Products, at 2, WT/DS293/17 (Aug. 8, 2003)[hereinafter Argentina Request for the Establishment of a Panel], available at http://www.worldtradelaw.net/pr/ds293-17(pr).pdf.

[FN55]. EC Biotech Reports of the Panel, supra note 2, at 2.

[FN56]. Id. at 3.

[FN57]. Id.

[FN58]. U.S. Request for Consultations, supra note 44; see also Canada Request for Consultations, supra note 50; seealso Argentina Request for Consultations, supra note 50; see also SPS Agreement, supra note 6, arts. 1-2 (allowing sig-natories to regulate products as necessary to protect human, plant, and animal health, provided that the regulations arebased on scientific principles and supported by scientific evidence); see also, infra note 73 and accompanying text.

[FN59]. Canada Request for the Establishment of a Panel, supra note 54; Argentina Request for the Establishment of aPanel, supra note 54.

[FN60]. First Written Submission by the European Communities, European Communities--Measures Affecting the Ap-proval and Marketing of Biotech Product, at 64, DS/291, DS/292, DS/293 (May 17, 2004) [hereinafter First Written Sub-mission by the European Communities], available at http:// trade.ec.europa.eu/doclib/docs/2004/june/tradoc_117687.pdf.

[FN61]. Id.

[FN62]. Id.

[FN63]. Id.

[FN64]. Id.; see also Cartagena Protocol on Biosafety to the Convention on Biological Diversity, adopted Jan. 29, 2000,1760 U.N.T.S. 9, reprinted in 39 I.L.M. 1027 (2000) [herinafter Cartagena Protocol], available at ht-tp://www.biodiv.org/doc/legal/cartagena-protocol-en.pdf. The Cartagena Protocol is a supplementary agreement to theConvention on Biological Diversity, which established international environmental standards, including the protection ofspecies and environmental preservation across borders. CBD, supra note 19.




[FN65]. See EC Biotech Reports of the Panel, supra note 2, at 140-42.

[FN66]. An alternative defense was made by the EC: its actions were not measures because they were not explicit or offi-cial decisions but rather informal inaction. See id. at 172.

[FN67]. See id. at 127-28.

[FN68]. Id. at 866. The Panel did not assess the overall safety of GM food and did not rule as to whether GM productswere substantially similar to other products. Further the Panel did not address whether the EC had a right to require pre-marketing approvals, whether the EC approval procedures violated WTO Agreements, whether the EC evaluations of thesafety of biotech products were correct, or whether the EC regulatory scheme was in accordance with WTO obligation0s.Id. at 127-28, 1067.

[FN69]. See id. at 1067.

[FN70]. See EC Biotech Reports of the Panel, supra note 2, at 624.

[FN71]. See id.

[FN72]. See generally Interim Reports of the Panel, European Communities-- Measures Affecting the Approval and Mar-keting of Biotech Products, at 2, WT/DS291/Interim, WT/DS292/Interim, WT/DS293/Interim (Feb. 7, 2006) [hereinafterInterim Reports of the Panel], available at http:// www.foei.org/media/2006/WTO_report_descriptive.pdf (discussing theUnited States, Canadian, and Argentinian complaints).

[FN73]. See Understanding on Rules and Procedures Governing the Settlement of Disputes [Dispute Settlement Under-standing] art. 3.8, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 2, Legal In-struments--Results of the Uruguay Round, 33 I.L.M. 1125 (1994), available at ht-tp://www.wto.org/english/docs_e/legal_e/28-dsu.pdf (“where there is an infringement of the obligations assumed under acovered agreement, the action is considered prima facie to constitute a case of nullification or impairment”).

[FN74]. Each country had a separate list of products, including twenty-five U.S. products, four Canadian products, andten Argentinean products. See U.S. Request for Consultations, supra note 44; see also Canada Request for Consultations,supra note 50; Argentina Request for Consultations, supra note 50.

[FN75]. See EC Biotech Reports of the Panel, supra note 2, at 849.

[FN76]. Id. at 1072-73, 1078, 1084.

[FN77]. SPS Agreement, supra note 6, arts. 5.1-5.7 (requiring that all measures follow appropriate scientific protocols,including scientifically supportable risk assessments).

[FN78]. Relevant provisions include, Annex C(1)(a) (forbidding any undue delay in processing applications), Article 8(requiring that applicants be kept informed of the progress of their applications), Annex C(1)(b), and Annex B(1)(requiring that SPS measures be promptly published). Id. art. 8 & Annexes C(1)(a), C(1)(b), B(1).

[FN79]. EC Biotech Reports of the Panel, supra note 2, at 1067-69.

[FN80]. Article 12 of Council Regulation 258/97 allows Member States to institute a measure to restrict or ban a productif the Member State has a justifiable reason for considering it a danger to human health or the environment. Council Reg-




ulation 258/97, supra note 42, art 12.

[FN81]. U.S. Request for Consultations, supra note 44; see also Canada Request for Consultations, supra note 50; Argen-tina Request for Consultations, supra note 50.

[FN82]. SPS Agreement, supra note 6, art. 5.1 (“Members shall ensure that their sanitary or phytosanitary measures arebased on an assessment, as appropriate to the circumstances, of the risks to human, animal or plant life or health, takinginto account risk assessment techniques developed by the relevant international organizations.”). The risk assessmentsmust consider, based on sufficient scientific data, whether the likelihood and severity of potentials dangers exceed whatmember States determine to be an adequate level of protection of human health; this consideration must allow for a suffi-cient margin of error and the level of protection must not be more trade-restrictive than necessary. See id. arts 5.1, 5.5 &Annex 1.

[FN83]. EC Biotech Reports of the Panel, supra note 2, at 75 (containing the First Oral Statement of the United States).

[FN84]. Id. at 328.

[FN85]. Id. at 97.

[FN86]. Id. at 626.

[FN87]. Id. at 36-38.

[FN88]. Id. at 1074.

[FN89]. EC Biotech Reports of the Panel, supra note 2, at 956.

[FN90]. Id. at 1069.

[FN91]. Id. at 1087.

[FN92]. See WTO Summary of the Dispute DS291, European Communities--Measures Affecting the Approval and Mar-keting of Biotech Products, http:// www.wto.org/english/tratop_e/dispu_e/ cases_e/ds291_e.htm (last visited Apr. 8,2007) [hereinafter EC Biotech Summary].

[FN93]. See EC Biotech Reports of the Panel, supra note 2, at 937-45.

[FN94]. Id.

[FN95]. Id.

[FN96]. See id. at 328-35.

[FN97]. See generally Theofanis Christoforou, The Precautionary Principle and Democratizing Expertise: A EuropeanLegal Perspective, 30 Sci. & Pub. Pol'y 205 (2003) (discussing the process of European risk assessment).

[FN98]. Culture is not an aspect of markets; rather, culture defines markets and preferences. Culture determines whatgoods are valuable, and thus what goods are offered for sale. For an illustration of the role of culture in shaping prefer-ences, see Theodore Bestor's discussion of the recent emergence of sushi in Western markets. Theodore C. Bestor, How



Sushi Went Global, Foreign Policy, Nov.-Dec. 2000, at 54, 54-63 available at http://www.globalpolicy.org/globaliz/cultural/2001/1201sushi.htm.

[FN99]. Marion Nestle, Safe Food: Bacteria, Biotechnology, and Bioterrorism 250 (2003).

[FN100]. Nicols Fox, Spoiled: Why Our Food is Making us Sick 291 (1998).

[FN101]. See Nestle, supra note 99, at 252.

[FN102]. See id. at 252-53.

[FN103]. See id. at 253.

[FN104]. See id.

[FN105]. See Claude Fischler, The ‘Mad Cow’ Crisis: A Global Perspective, in Food in Global History, 207, 207-13(Raymond Grew ed., 1999).

[FN106]. Eur. Comm'n, Special Eurobarometer 225: Social Value, Science and Technology 99 (June 2005) [hereinafterSpecial Eurobarometer 225: Social Value, Science and Technology], available at http:// mokslaspli-us.lt/lms/files/active/0/ebs_225_report_en.pdf.f

[FN107]. Id.

[FN108]. Fox, supra note 100, at 307.

[FN109]. Id. at 100-01.

[FN110]. Id. at 101.

[FN111]. United Nations Conference on Environment and Development, June 3-14, 1992, Rio de Janeiro, Brazil, Rio De-claration on Environment and Development, U.N. Doc. A/Conf.151/5/Rev.1 (June 14, 1992), reprinted in 31 I.L.M. 876(1992), available at http:// www.unep.org/Documents/Default.asp?DocumentID=78&ArticleID=1163.

[FN112]. Michael Pollan, The Year in Ideas: A to Z; Precautionary Principle, N.Y. Times, Dec. 9, 2001.

[FN113]. Treaty Establishing the European Community, arts. 130r-130t, Nov. 10, 1997, 1997 O.J. (C 340) 3, reprinted in31 I.L.M. 253. See generally Theofanis Christoforou, The Precautionary Principle in EC Law and the WTO Legal Sys-tem, in The Precautionary Principle 99, 116 (Georges Kremlis, Yiorgos Balias & Antonis Sifakis eds., 2004).

[FN114]. SPS Agreement, supra note 6, art. 5.7. The SPS Agreement defines the limits of the exception in Article 5.7:In cases where relevant scientific evidence is insufficient, a Member may provisionally adopt sanitary or

phytosanitary measures on the basis of available pertinent information, including that from the relevant international or-ganizations as well as from sanitary or phytosanitary measures applied by other Members. In such circumstances, Mem-bers shall seek to obtain the additional information necessary for a more objective assessment of risk and review the san-itary or phytosanitary measure accordingly within a reasonable period of time.

Id.

[FN115]. Id.






[FN116]. Certain regional names for wines and cheeses are thus restricted; for example, sparkling wine cannot be labeled“champagne” unless produced in that region. See generally National Council of Culinary Arts website, http://www.culture.gouv.fr/culture/min/services.htm (last visited Apr. 8, 2007) (the Council was established by the FrenchMinistry of Culture in 1989 to protect the culinary patrimony of France).

[FN117]. See Carole Counihan & Penny van Esterik, Introduction to Food and Culture: A Reader 1, 1 (Carole Counihan& Penny van Esterik eds., 1997).

[FN118]. Roland Barthes, Image, Music, Text 32-51 (Stephen Heath trans., 1977).

[FN119]. Roland Barthes, Toward a Psychosociology of Contemporary Food Consumption, in 5 Food and Drink in His-tory 166, 166-73 (Elborg Forster & Patricia M. Ranum, trans., Robert Forster & Orest Ranum eds., 1979).

[FN120]. Counihan & Esterik, supra note 117, at 1.

[FN121]. Michael R. Dove, The Agronomy of Memory and the Memory of Agronomy: Ritual Conservation of ArchaicCultigens in Contemporary Farming Systems, in Ethnoecology: Situated Knowledge/Located Lives 45, 45-66 (VirginiaD. Nazarea ed., 1999); see also The Association for the Study of Food & Society, http:// www.food-culture.org (last vis-ited Apr. 8, 2007). See generally National Council of Culinary Arts website, supra note 116.

[FN122]. Rick Fantasia, Fast Food in France, 24 Theory & Soc'y 201, 201-02 (1995) (citation omitted) (discussing theidentification of cuisine and French culture since the 19th century).

[FN123]. See Jose Bove & Francois Dufour, The World Is Not for Sale: Farmers Against Junk Food 4-5 (2001)(discussing Bove's famous protest against a McDonald's restaurant and subsequent public support).

[FN124]. Id.; George Ritzer, The McDonaldization of Society 9-11 (1997).

[FN125]. In the wake of WWII, Breton Woods created three means of promoting international stability in a trade context:establishing the International Monetary Fund (IMF), the World Bank, and the General Agreements on Tariffs and Trade(GATT). The GATT established a system of managing tariffs and trade in order to encourage access to the market un-hindered by protectionism, and established a system of equal treatment (most-favored-nation status) among all membersto the Agreement. The mechanisms of enforcement, including the WTO, depend primarily on the desire of nations to par-ticipate in the international system. General Agreement on Tariffs and Trade, Oct. 30, 1947, 61 Stat. A-11, 55 U.N.T.S.194, art. III, para. 8(b) [hereinafter GATT]; see also Marrakesh Agreement Establishing the World Trade Organization,Apr. 15, 1994, Legal Instruments--Results of the Uruguay Round, 1867 U.N.T.S. 154, reprinted at 33 I.L.M. 1144 (1994).

[FN126]. According to the WTO Member list, the WTO was composed of 149 nation members at the end of 2005. Mem-bers and Observors, Understanding the WTO: The Organization, ht-tp://www.wto.org/english/thewto_e/whatis_e/tif_e/org6_ e.htm (last visited Apr. 8, 2007).

[FN127]. See WTO, The World Trade Organization in Brief (2005), available at, ht-tp://www.wto.org/english/res_e/doload_e/inbr_e.pdf.

[FN128]. WTO: What is the WTO?, http://www.wto.org/english/thewto_e/thewto_ e.htm (last visited Apr. 8, 2007).

[FN129]. WTO, The World Trade Organization in Brief, supra note 127.




[FN130]. Id.

[FN131]. United Nations University-Institute of Advanced Studies [UN-UIAS] Report, Trading Precaution: The Precau-tionary Principle and the WTO 3 (2005), available at ht-tp://www.ias.unu.edu/binaries2/Precautionary%20Principle%C20and% 20WTO.pdf.

[FN132]. Id. at 11.

[FN133]. See generally EC Biotech Reports of the Panel, supra note 2, at 328-35.

[FN134]. See generally Michael Walzer, Spheres of Justice xi-xvi (1983).

[FN135]. Id. at 6-10.

[FN136]. Dave Toke, The Politics of GM Food: A Comparative Study of the UK, USA and EU 94-95 (2004).

[FN137]. Id. at 8.

[FN138]. See generally id. at 16.

[FN139]. David Bollier, Remarks, Globalization and Diversity, UNESCO and Cultural Policymaking: Imperatives forU.S. Arts and Culture Practitioners and Organizations 3 (Jan. 11 2005) (transcript available at http://www.bollier.org/pdf/SmithsonianremarksJan2005.pdf).

[FN140]. Id. at 4.

[FN141]. See Sam Howe Verhovek, Seattle Will Drop Most of Trade Protest Cases, N.Y. Times, Jan. 5, 2000, at A15.

[FN142]. Nestle, supra note 99, at 237.

[FN143]. Verhovek, supra note 141.

[FN144]. Id. at A15-16.

[FN145]. Nestle, supra note 99, at 236.

[FN146]. Id.

[FN147]. Press Release, Bureau Européen des Unions de Consommateurs [The European Consumers' Organisation],Force-Feeding Never Works (Feb. 8, 2006), available at http://www.beuc.org (followPress Room hyperlink and locate bydate).

[FN148]. EC Biotech Summary, supra note 92.

[FN149]. See Bove & Dufour, supra note 123, at 12.

[FN150]. See Ben Taylor, Food in France: From la nouvelle cuisine to la malbouffe, in French Cultural Debates 52 (JohnMarks & Enda McCaffrey eds., 2001).

[FN151]. McDonald's is the poster child for globalization. The fast food chain has spread around the world, from France



to China, and has generated books, articles, and protests. Since 1972, McDonald's has become the most prolific fast foodrestaurant in France. J.M. Normand, McDonald's critique mais toujours frequente, Le Monde, Sept. 24, 1999, at 29.

[FN152]. Ritzer, supra note 124, at 55.

[FN153]. United States, EC Hormones Report, supra note 5; Canada, EC Hormones Report, supra note 5.

[FN154]. United States, EC Hormones Report, supra note 5; Canada, EC Hormones Report, supra note 5.; see also ECBiotech Summary, supra note 92.

[FN155]. WTO Summary of the Dispute WT/DS26, European Communities--Measures Concerning Meat and MeatProducts (Hormones), http:// www.wto.org/english/tratop_e/dispu_e/cases_e/ds26_e.htm (last visited Apr. 8, 2007)[hereinafter EC Hormones Summary].

[FN156]. United States Recourse to Article 22.2, EC Hormones, supra note 5.

[FN157]. Council Directive 2003/74/EC, Concerning the Prohibition on the Use in Stockfarming of Certain Substances,2003 O.J. (L 262) 17-21, available at http://eur-lex.europa.eu/LexUriServ/site/en/oj/2003/l_262/l_26220031014en00170021.pdf (amending Council Directive 96/22/EC) (limiting livestock hormone usage).

[FN158]. EC Hormones Summary, supra note 155.

[FN159]. Press Release, European Union, EU Complies with WTO Ruling on Hormone Beef, Calls on US and Canada toLift Trade Sanctions, No. 61/03 (Oct. 15, 2003), available at http:// www.eurunion.org/news/press/2003/2003061.htm.

[FN160]. See Special Eurobarometer 225: Social Value, Science and Technology, supra note 106.[R]esults show that in cases of potential conflict between a scientific application and the individuals' ethic sys-

tem, public authorities' regulation and control are essential. From this perspective, the European Commission could playan extremely important role as three in four citizens believe that its work in regulating on science and technology for allEU countries has a positive effect on society.

Id.

[FN161]. While the case discussed here did not center on a labeling issue, I suggest that a case is likely to do so in thenear future.

[FN162]. SeeFAO Ethics Series, supra note 14.

[FN163]. See generally Codex Alimentarius Commission, FAO & World Health Organization [WHO], Report of theThirty-Fourth Session of the Codex Committee on Food Labelling, Ottawa, Canada, May 1-5, 2006.

[FN164]. Lyle Glowka, Food and Agriculture Organization, Law and Modern Biotechnology: Selected Issues of Relev-ance to Food and Agriculture 78 (2003) (quoting Codex Proposed Draft Guidelines for the Labeling of Foods ObtainedThrough Certain Techniques of Genetic Modification/Genetic Engineering § 1, para. 1.1), available at ftp://ftp.fao.org/docrep/fao/006/y4839E/y4839E00.pdf.

[FN165]. Id. at 45.

[FN166]. Codex Alimentarius Commission, FAO & WHO, Guidelines for the Production, Processing, Labelling andMarketing of Organically Produced Food (1999), available at http://



www.codexalimentarius.net/download/standards/360/CXG_032e.pdf.

[FN167]. Id.

[FN168]. See Nestle, supra note 99, at 197-207 (discussing the U.S. regulation of bovine growth hormones in milk).

[FN169]. Alan S. Levy & Brenda M. Derby, Introduction to U.S. Food & Drug Administration, Report on Consumer Fo-cus Groups on Biotechnology (2000), available at http://www.cfsan.fda.gov/~comm/biorpt.html.42 Tex. Int'l L.J. 345

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