Bureau of National Affairs | July 30, 2001 | By Daniel Pruzin
GENEVA - Efforts by the European Union to inscribe food safety issues on the agenda of a new trade round is emerging as a potential hurdle to the launch of a round at a World Trade Organization ministerial conference later this year. The problem center on EU efforts to seek a clarification among members on the application of the "precautionary principle," the idea that governments should be allowed to impose trade-restrictive measures to protect public health or the environment even in the absence of firm scientific evidence supporting such a measure.
The EU put forward a proposal during a July 23-27 negotiating session on agriculture at WTO headquarters in Geneva which calls for an "understanding" among WTO members on the application of the precautionary principle based on the WTO Appellate Body's interpretation of the term in the 1998 beef-hormones dispute between the EU and the United States as well as its 1999 ruling in the U.S. complaint on Japanese varietal testing requirements for certain fruit and nut imports.
"Consumers have the right to be assured that WTO rules will not be used to place onto the market food products on whose safety there are legitimate concerns," declared David Roberts, deputy director-general for international affairs with the EU's agriculture directorate, in a prepared statement. "It is an issue which all members should have an interest in seeing addressed, and one which is already enshrined in the domestic legislation of many WTO members."
The issue has taken on increased importance in light of European Commission proposals unveiled July 25 imposing strict new traceability and labeling rules for any food and animal feed products that contain or are derived from a genetically modified plants. The new rules are expected to increase trade tensions between the EU and the United States, particularly since food products derived from a GM plant will have to be labeled even though they register no detectable trace of a GMO.
Some senior trade diplomats have expressed increasing concern that the EU's insistence on bringing issues such as food safety, product labeling and other "environmental-agricultural" issues into the WTO discussions could be one of the toughest issues for negotiators to resolve as they try to reach a consensus on the agenda for a new trade round at the November ministerial meeting in Doha, Qatar.
EU, Allies 'Isolated,' Says Johnson
Bringing the precautionary principle onto the WTO agenda is fiercely opposed by the United States and many developing countries, who say the precautionary principle is already inscribed in Article 5.7 of the WTO's Agreement on Sanitary and Phytosanitary Measures (SPS Agreement). These countries also claim that the EU's version of the precautionary principle could lead to the imposition of protectionist trade barriers based on political rather than scientific considerations. Allen Johnson, the U.S. Trade Representative's chief negotiator on agriculture, said July 26 the EU and its European allies "were clearly isolated in efforts to clarify SPS provisions and to insert the use of the precautionary principle into the WTO."
Article 5.7 states that in cases where relevant scientific information is insufficient, "a Member may provisionally adopt sanitary or phytosanitary measures on the basis of available pertinent information, including that from the relevant international organizations as well as from sanitary or phytosanitary measures applied by other Members. In such circumstances, Members shall seek to obtain the additional information necessary for a more objective assessment of risk and review the sanitary or phytosanitary measure accordingly within a reasonable period of time."
Johnson said Article 5.7 is enough to meet the legitimate concerns of consumers regarding the safety of their food. But the EU said in its proposals that the provisions need clarification, not only to protect consumers but also to ensure that the precautionary principle is not used for protectionist purposes.
Citing its own experience with the foot-and-mouth crisis, when more than 90 countries slapped bans on EU agricultural imports because of the spread of the disease from the United Kingdom to other EU member states.
European countries "have been subject to measures against some of its exports by other (WTO) members which did not, in its view, respect the provisions of Article 5.7 if the SPS Agreement because they went well beyond what was justified ..."
The EU said that the Appellate Body's ruling in the beef-hormone dispute "usefully clarified they way in which this (precautionary principle) should be interpreted." Although the Appellate Body ruled against the EU's ban on hormone-treated beef on the grounds that it was not based upon a proper risk assessment, Brussels highlighted the Appellate Body's finding that the SPS Agreement "does not require that the risk assessment must necessarily only embody only the view of a majority of the relevant scientific community ... responsible and representative governments may act in good faith on the basis of what, at a given time, may be a divergent opinion coming from qualified and respected sources."
The EU also referred to the ruling on Japanese varietal testing requirements as setting the limits on the use of the precautionary principle. Brussels noted that the Appellate Body said the application of Article 5.7 is dependent on four conditions being met: 1) there must be insufficient relevant scientific information; 2) the measure must be adopted on the basis of pertinent information; 3) the government must seek to obtain additional information necessary to make a more objective assessment, and 4) the measure must be reviewed accordingly. If any one of those criteria are not met, the measure is inconsistent with WTO rules.
Roberts Defends EU Decision
Roberts noted that an understanding among WTO members on their intent to observe these findings is necessary, since the Appellate Body's rulings are only binding on the parties in the dispute. By reaching an understanding, members will not only avoid conflicting interpretations on how the precautionary principle should be applied but also avoid members having to initiate new dispute settlement proceedings on the issue. Roberts also defended the EU's decision to bring the issue within the WTO context rather than settling it within the Codex Alimentarius, the global food standards organization jointly run by the United Nations' Food and Agriculture Organization and World Health Organization. The governing body of Codex agreed at a biannual gathering in Geneva July 2-7 to elaborate a "code of practice" on the application of the precautionary principle in risk analysis. The decision was seen as a setback for European countries who want to enshrine the principle in Codex policies.
"Food safety is a very important issue in relation to trade in agricultural products," Roberts argued. "We're not trying to do anything here which is separate or in conflict with Codex."
Although voluntary, Codex standards have taken on increasing importance in recent years because of their potential impact on trade. Under the SPS Agreement, countries applying SPS measures which conform to Codex standards are presumed to be in compliance with WTO rules.
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