Abstract
A recurrent criticism of the SPS Agreement and related jurisprudence has been the importance accorded to scientific evidence in determining the compliance of sanitary measures with WTO rules. A reliance on technical risk assessments to determine the necessity of a Member’s SPS measure could prohibit policies that respond to legitimate public concerns over certain types of food. This chapter evaluates whether the Agreement proffers an approach to science which excludes social value judgements in setting SPS measures and assesses the extent to which this may constrain domestic regulators. It first analyses whether the Agreement necessitates a particular approach—technical or socio-cultural—to food risk. It suggests that the Agreement’s demands in this respect are more ambiguous than sometimes contended, but acknowledges notable limitations in the permitted interpretation of scientific evidence. The chapter then explains, using a diagrammatic characterisation of risk management scenarios, why the tensions identified may have limited implications for domestic regulators. It anticipates SPS rules to be strained only where international consensus on the technical safety of a given food coincides with a sharp divergence on social-value judgements. The chapter finally scrutinises this sensitive area of policy making with reference to a range of EU policies. It finds that, in practice, the EU has adopted measures that reflect citizens’ concerns in spite of potential challenge under the SPS Agreement. The chapter concludes that criticism of the SPS approach to science and proposed remedies should be rethought in light of this assessment.
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Notes
- 1.
E Pilkington, ‘If this Meat was from a Cloned Animal, Would You Eat It?’ The Guardian (21 April 2008) www.guardian.co.uk/science/2008/apr/21/genetics.gmcrops.
- 2.
F Macrae, ‘“Grey Goo” Food Laced with Nanoparticles Could Swamp Britain’ Daily Mail (8 January 2010) www.dailymail.co.uk/news/article-1241506/Britain-maybe-swamped-nanoparticle-grey-food.html 2011.
- 3.
G Skogstad, ‘The WTO and Food Safety Regulatory Policy Innovation in the European Union’ (2002) 39 JCMS 484, 488. The term reflects well the delicate balancing act both between institutions and stakeholders required in the EU.
- 4.
J Scott, ‘On Kith and Kine (and Crustaceans): Trade and Environment in the EU and WTO’ in JHH Weiler (ed), The EU, the WTO and the NAFTA: Towards a Common Law of International Trade (Oxford, OUP, 2000) 158. For comparable views by other commentators, see discussion in s 4.2.2 below.
- 5.
E Stokes, ‘Book Review: EU Regulation of GMOs: Law and Decision Making for a New Technology. By Maria Lee’ (2010) 22 Journal of Environmental Law 163, 165.
- 6.
Regulation (EC) 178/2002 of the European Parliament and of the Council laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety [2002] OJ L31/1 (GFL).
- 7.
See discussion in s 2.2 below.
- 8.
In Codex Alimentarius, following a debate on the role of science in the body’s work, it was agreed in 1995 to limit other legitimate factors to those ‘relevant for the health protection of consumers and for the promotion of fair practices in food trade’. See Joint FAO/WHO Food Standards Programme, Codex Alimentarius Commission Procedural Manual (Rome, FAO/WHO, 19th edn, 2010) (Codex Manual) 180. The EU objected to this definition and requested (in vain) for the words ‘health protection of’ to be removed. Codex Alimentarius Document ALINORM 95/37, para 24–25.
- 9.
This was the expression chosen by the parties in the Hormones dispute. See EC—Measures concerning Meat and Meat Products (Hormones), Panel Report (adopted 18 August 1997) WT/DS26/R/USA, WT/DS48/R/CAN, para 8.94.
- 10.
See respectively EU GFL (n 6) Art 3 and the Codex Manual (n 8) 86–91.
- 11.
In European law, risk assessment is defined as ‘a scientifically based process consisting of four steps: hazard identification, hazard characterisation, exposure assessment, and risk characterisation’. Risk management is a process ‘of weighing policy alternatives in consultation with interested parties considering risk assessment and other legitimate factors, and, if need be, selecting appropriate prevention and control options.’ EU GFL, Arts 3(11) and 3(12) respectively.
- 12.
In the European context, risk communication also comprises how risk is conveyed to other parties e.g. industry and consumers. EU GFL, Art 3(13).
- 13.
The Appellate Body rejected attempts by the Panels in both the Hormones and US—Continued Suspension disputes to argue that factors pertinent to risk management and not risk assessment should be excluded on the basis that only risk assessment is mentioned. See respectively EC—Measures concerning Meat and Meat Products (Hormones), Appellate Body Report (adopted 16 January 1998) WT/DS26/AB/R, WT/DS48/AB/R, para 181 and United States/Canada—Continued Suspension of Obligations in the EC—Hormones Dispute (US—Continued Suspension), Appellate Body Report (adopted 31 March 2008) WT/DS320/R, WT/DS321/R, paras 538–542.
- 14.
- 15.
For an early exposition that very much captures the essence of contemporary debate, see AM Weinberg, ‘Science and Trans-Science’ (1972) 10 Minerva 209 (noting that problems arising from the relationship between society and technology ‘are unanswerable by science; they transcend science’). For a helpful summary of the different schools of thought, see A Arcuri, ‘Food Safety at the WTO after Continued Suspension: A Paradigm Shift?’ in A Antoniadis, R Schütze and E Spaventa (eds), The European Union and Global Emergencies–A Law and Policy Analysis (Oxford, Hart Publishing, 2011) 209–212.
- 16.
JF Short, ‘The Social Fabric at Risk: Toward the Social Transformation of Risk Analysis’ (1984) 49 American Sociological Review 711.
- 17.
KS Shrader-Frachette, Risk and Rationality—Philosophical Foundations for Populist Reforms (Berkeley, University of California Press, 1991) 39–41.
- 18.
EA Rosa, ‘Metatheoretical Foundations for Post-Normal Risk’ (1998) 1 Journal of Risk Research 15, 54.
- 19.
- 20.
Rosa (n 18) 21. The term ‘social constructivist’ in fact brings together a diverse range of orientations towards risk. For an accessible overview, see also Lupton (n 19) 28.
- 21.
Most critics of technical risk assessments nevertheless acknowledge their valid place in risk analysis. As Renn notes, they ‘help decision makers to estimate physical harm [and] provide the best knowledge about actual damage that is logically and empirically linked with each possibility of action.’ Renn (n 19) 54.
- 22.
Shrader-Frechette (n 17) 39–41; D Winickoff et al., ‘Adjudicating the GM Food Wars: Science, Risk, and Democracy in World Trade Law’ (2005) 30 YJIL 81, 94 (giving the example of the zero value placed in risk assessment on protecting non-humans). In the specific case of European food policy, Chalmers claims that European Food Safety Authority (EFSA) ‘is presenting a particular ideological model of politics’. D Chalmers, ‘“Food for Thought”: Reconciling European Risks and Traditional Ways of Life’ (2003) 66 MLR 532, 543. However, one must wonder how this could be the case, given the wide cultural and disciplinary diversity of scientists engaged in EFSA’s work.
- 23.
See VR Walker, ‘The Myth of Science as a “Neutral Arbiter” for Triggering Precautions’ (2003) 26 Boston College International and Comparative Law Review197, 201; A Scherzberg, ‘EU-US Trade Disputes about Risk Regulation: The Case of Genetically Modified Organisms’ (2006) 19 Cambridge Review of International Affairs 121, 125; O Wolf, D Ibarreta and P Sørup (eds), ‘Science in Trade Disputes Related to Potential Risks: Comparative Case Studies’ (IPTS Technical Report Series EUR 21301 EN 2004) Chap. 4, ipts.jrc.ec.europa.eu/publications/pub.cfm?prs=1203.
- 24.
L Levidow and S Carr, ‘How Biotechnology Regulation Sets a Risk/Ethics Boundary’ (1997) 14 Agriculture and Human Values 29, 30. The Food and Agriculture Organization of the United Nations (FAO) has described ‘the triggering of a risk analysis [as] one of the most deeply value-lead dimensions of risk management’. FAO, ‘FAO Expert Consultation on Food Safety: Science and Ethics’ (September 2002) 21, www.fao.org/docrep/006/j0776e/j0776e00.htm.
- 25.
Stirling’s view, for example, is that ‘[i]t is better to be roughly accurate in [the] task of mapping the social and methodological context-dependencies, than it is to be precisely wrong in spurious aspirations to a one-dimensional quantitative expression of technological risk’. Andrew Stirling, ‘On Science and Precaution in the Management of Technological Risk. An ESTO Project Report’ (Report to the EU Forward Studies Unit, IPTS, EUR 19056 EN May 1999) 16, ftp.jrc.es/EURdoc/eur19056en.pdf.
- 26.
J Peel, ‘Risk Regulation Under the WTO SPS Agreement: Science as an International Normative Yardstick’ (Jean Monnet Working Paper 02/04) 54, www.jeanmonnetprogram.org/archive/papers/04/040201.pdf. See also Walker (n 23).
- 27.
A number of authors construe the SPS Agreement to advocate ‘sound science’ although the term does not appear in the text of the Agreement. See G Goh, ‘Tipping the Apple Cart: The Limits of Science and Law in the SPS Agreement after Japan—Apples’ (2006) 40 JWT 655, 677; Maruyama (n 14).
- 28.
Rather, they suggest that in interpreting the SPS Agreement ‘[t]he temptation will be to invoke a singular conception of sound science in order to achieve harmonisation’ (emphasis added). Winickoff et al. (n 22) 106. Indeed, their analysis of Hormones rather reveals the AB’s ‘sympathetic view towards value-infused scientific policy making’ (at 96).
- 29.
Scherzberg (n 23) 133.
- 30.
J Bohanes, ‘Risk Regulation in WTO Law: A Procedure-Based Approach to the Precautionary Principle’ (2002) 40 Columbia Journal of Transnational Law 323, 367. Similarly, Foster describes this as ‘an implicit systemic determination to view the [risk assessment as] excluding considerations relating to public opinion.’ CE Foster, ‘Public Opinion and the Interpretation of the World Trade Organization’s Agreement on Sanitary and Phytosanitary Measures’ (2008) 11 JIEL 427, 431.
- 31.
Scott (n 4) 157.
- 32.
An extensive review of risk-management frameworks for human health and environmental risks singles out food standards for their categorical approach on this issue. CJ Jardine et al., ‘Risk Management Frameworks for Human Health and Environmental Risks’ (2003) 6 Journal of Toxicology and Environmental Health 569, 590.
- 33.
EL Anderson, ‘The Contrast Between Risk Assessment and Rules of Evidence in the Context of International Trade Disputes: Can the US Experience Inform the Process?’ (2004) 24 Risk Analysis 449, 452.
- 34.
P van Zwanenberg and E Millstone, ‘BSE: A Paradigm of Policy Failure’ (2003) 74 The Political Quarterly 27, 34.
- 35.
For an insight into the rationale behind the creation of EFSA, see P James, F Kemper and G Pascal, ‘A European Food and Public Health Authority: The Future of Scientific Advice in the EU’ (Report commissioned by the European Commission 1999) 10, ec.europa.eu/food/fs/sc/future_food_en.pdf.
- 36.
For example, Commission officials do attend the EFSA Committee, Panel and Working Group meetings in order to ‘clarify the mandate and sometimes change the terms of reference’. E Vos and F Wendler, ‘Food Safety Regulation at the EU Level’ in E Vos and F Wendler (eds), Food Safety Regulation in Europe (Antwerp, Intersentia, 2006) 120.
- 37.
As the European Commission’s then Director General for Health and Consumer Protection reaffirmed in May 2007: ‘This principle provides an important safeguard for the independence of the scientific advice by ensuring that it is not influenced by the policy preferences of the operational departments’. R Madelin, ‘How Can We Make Food Safety Governance In Europe More Inclusive?’ (Keynote speech, Safe Foods Conference, Brussels, 11 May 2007).
- 38.
More recently, Codex Alimentarius has emphasised the need for a ‘risk assessment policy’ implying a more self-conscious framing of the work of risk assessors. For a discussion of this ‘remarkable’ development, see T Hüller and ML Maier, ‘Fixing the Codex? Global Food-Safety Governance under Review’ in C Joerges and E-U Petersmann (eds), Constitutionalism, Multilevel Trade Governance and Social Regulation (Oxford, Hart Publishing, 2006) 281–286, and especially 284.
- 39.
Under SPS Agreement Art 5.1, WTO Members’ assessment shall ‘tak[e] into account risk assessment techniques developed by the relevant international organizations’.
- 40.
Peel (n 26) 54.
- 41.
Wolf, Ibarreta and Sørup (n 23) 32. The quote comes from an interview with a WTO official who goes on to comment: ‘[A]ll of this is very new to us, and we are struggling to deal with it… Understanding the nature of science is a key issue at WTO.’ This is a naivety that is deemed to extend in a general way to the majority of international trade lawyers. See SD Harlow, ‘Science–Based Trade Disputes: A New Challenge in Harmonizing the Evidentiary Systems of Law and Science’ (2004) 24 Risk Analysis 443, 444–445 (arguing that insights into science garnered from lawyers engaged in civil and tort law are not widely understood in the international trade arena).
- 42.
S Charnovitz, ‘The Supervision of Health and Biosafety of Regulation by World Trade Rules’ (2000) 13 Tulane Environmental Law Journal 271, 272.
- 43.
The role of scientific expertise lay at the heart of a controversial GATT dispute settlement panel in a case relating to salmon fishing between US and Canada in 1989 at the time the SPS drafts were under negotiation. See DA Wirth, ‘The Role of Science in the Uruguay Round and NAFTA Trade Disciplines’ (1994) 27 Cornell International Law Journal 817, 845–847. Moreover, heated exchanges on the scientific evidence behind the use of growth hormones had already formed a major element of attempts to resolve the EU–US dispute under the GATT Standards Code. See AR Halpern, ‘The US–EC Hormone Beef Controversy and the Standards Code: Implications for the Application of Health Regulations to Agricultural Trade’ (1989) 14 North Carolina Journal of International Law and Commercial Regulation 136, 149–150.
- 44.
GATT Doc MTN.GNG/NG5/WGSP/W/22 (31 May 1990) 3 (reporting that ‘[c]oncerns about misunderstanding of the term of risk assessment and a preference for using ‘acceptable level of protection’ were again raised’).
- 45.
See MTN.GNG/NG5/WGSP/W/24 (2 July 1990) 2.
- 46.
MTN.GNG/NG5/WGSP/W/6 (17 October 1989) 3.
- 47.
See MTN.GNG/NG5/WGSP/W/2 (14 November 1988) 3.
- 48.
Even the US, later vigorous proponents of ‘sound science’ arguments, did not have illusions about the definitive role science could play. The US Uruguay Round Statement of Administrative Action argued that the SPS Agreement ‘recognises … that scientific certainty is rare and many scientific determinations require judgments between differing scientific views’. Cited in Maruyama (n 14) 663.
- 49.
For examples of the type of methods that can be employed, see A Ely and A Sterling, ‘The Process of Assessment’ in M Dreyer and O Renn (eds), Food Safety Governance: Integrating Science, Precaution and Public Involvement (Berlin, Springer, 2009) (Food Safety Governance).
- 50.
Hormones, Appellate Body Report, para 187.
- 51.
US—Continued Suspension, Appellate Body Report, para 591.
- 52.
Hormones, Appellate Body Report, para 187 (establishing that SPS Agreement Art 5.2—referring to the ‘available scientific evidence; relevant processes and production methods; relevant inspection, sampling and testing methods; prevalence of specific diseases or less; existence of free areas; relevant ecological and environmental conditions’—is not a ‘closed list’).
- 53.
US—Continued Suspension, Appellate Body Report, para 685.
- 54.
See respectively Hormones, Appellate Body Report, paras 187 and 194.
- 55.
See s 4.2.2 below.
- 56.
US—Continued Suspension, Appellate Body Report, para 534. Arcuri cautiously points to this decision as a possible ‘paradigm shift’ in the AB’s treatment of science away from a more technical understanding of risk. Arcuri (n 15) 219.
- 57.
Goh (n 27) 669.
- 58.
E Vos and F Wendler, ‘Legal and Institutional Aspects of the General Framework’ in Food Safety Governance (n 49) 108–109.
- 59.
The actual impact of science in this process is viewed by many to be minimal. Wirth contends that the public-health goal of legislation ‘reflects societal values as to which science may provide little, if any, guidance’. Wirth (n 43) 833. Trebilcock and Soloway concur that ‘[s]cientists in scientific risk assessment have little or nothing to offer on the appropriate regulatory response to a given risk, which entails risk management decisions involving socio-political judgements.’ M Trebilcock and J Soloway, ‘International Trade Policy and Domestic Food Safety Regulation: The Case for Substantial Deference by the WTO Dispute Settlement Body under the SPS Agreement’ in DLM Kennedy and JD Southwick (eds), The Political Economy of International Trade Law: Essays in Honour of Robert E. Hudec (Cambridge, CUP, 2002) 562.
- 60.
EFSA, ‘Opinion of the Scientific Panel on Dietetic products, nutrition and allergies [NDA] related to a notification from FEDIOL and IMACE on fully refined peanut oil and fat pursuant to Art 6 paragraph 11 of Directive 2000/13/EC’ (2004) 133 EFSA Journal 1.
- 61.
EFSA, ‘Opinion of the Scientific Panel on food additives, flavourings, processing aids and materials in contact with food (AFC) to review the toxicology of a number of dyes illegally present in food in the EU’ (2005) 263 EFSA Journal 1.
- 62.
In the UK, for example, products containing Para Red were withdrawn from sale, see UK Food Standards Agency website: www.food.gov.uk/news/newsarchive/2005/may/parared.
- 63.
Wirth (n 43) 858.
- 64.
Atik (n 14) 740.
- 65.
DG Victor, ‘The Sanitary and Phytosanitary Agreement of the World Trade Organization: An Assessment After Five Years’ (2000) 32 New York University Journal of International Law and Politics 865, 872. This is a view shared by Barceló who claims that ‘[i]t is difficult to see how any good faith [sanitary and phytosanitary] measure could fail to meet this test’. JJ Barceló, ‘Product Standards to Protect the Local Environment—The GATT and the Uruguay Round Sanitary and Phytosanitary Agreement’ (1994) 27 Cornell International Law Journal 755, 765.
- 66.
See Hormones, Appellate Body Report, para 245.
- 67.
J Tait and A Bruce, ‘Globalisation and Transboundary Risk Regulation: Pesticides and Genetically Modified Crops’ (2001) 3 Health, Risk and Society 99, 105.
- 68.
Hüller and Maier (n 38) 28. See also A Alemanno, Trade in Food: Regulatory and Judicial Approaches in the EC and the WTO (London, Cameron May, 2007) 396 (asserting that by ‘exalting the role of science, the SPS Agreement tends to rule out all non-scientific factors from standard setting’); Peel (n 26) 85 (concurring that ‘legitimate policy or social concerns … tend to be screened out’).
- 69.
Quick and Blüthner support the scientific focus, warning that ‘it will be extremely difficult to replace the “scientific” route chosen by the SPS Agreement with a new approach taking socio-economic considerations into account without opening Pandora’s box and allowing WTO Members to introduce protectionist measures’. R Quick and A Blüthner, ‘Has the Appellate Body Erred? An Appraisal and Criticism of the Ruling in the WTO Hormones Case’ (1999) 2 JIEL 603, 639.
- 70.
Scott (n 4) 157.
- 71.
Bohanes (n 30) 363.
- 72.
Hormones, Appellate Body Report, para 172.
- 73.
Australia—Measures Affecting Importation of Salmon (Australia—Salmon), Appellate Body Report (adopted 20 October 1998) WT/DS18/AB/R, para 125.
- 74.
SPS Agreement Art 3.3.
- 75.
See s 4.2.1. above.
- 76.
This example was put forward by the US in Hormones, Panel Report, para IV.51.
- 77.
In the Hormones dispute, the US, EU and Australia all appeared to concur on this point. See Hormones, Panel Report, respectively paras IV.51, IV.90 and V.9.
- 78.
US—Continued Suspension, Appellate Body Report, para 536 (emphasis added).
- 79.
Hormones, Appellate Body Report, para 193.
- 80.
ibid.
- 81.
Hormones, Appellate Body Report, para 189.
- 82.
Hormones, Panel Report, para 8.139.
- 83.
Hormones, Panel Report, para 8.153.
- 84.
Hormones, Appellate Body Report, para 186.
- 85.
US—Continued Suspension, Appellate Body Report, para 572 (emphasis in original).
- 86.
Australia—Salmon, Appellate Body Report, para 138.
- 87.
In this instance, the absence of a risk assessment under Art 5.1 to underpin the ‘relative certainty’ is not significant. The AB has argued that a regulatory intervention concerning natural hormones in meat would be an ‘absurdity’. One can assume that a risk assessment of natural hormones would be equally so. See Hormones, Appellate Body Report, para 221.
- 88.
This is the definition of ‘sufficient science’ in Art 2.2 provided by the Appellate Body in Japan—Measures Affecting Agricultural Products (Japan—Varietals); Appellate Body Report (adopted 22 February 1999) WT/DS76/AB/R, para 73.
- 89.
Scott therefore justifiably describes the AB’s presumption that a breach of Art 5.1 implies inconsistency with Art 2.2 as ‘surprising’. J Scott, The WTO Agreement on Sanitary and Phytosanitary Measures. A Commentary (Oxford, OUP, 2007) (SPS Commentary) 83. Perhaps future dispute-settlement bodies may rule that while the implication was correct in the given circumstances of the Australia—Salmon case, it may not always be so.
- 90.
Hormones, Appellate Body Report, para 199 (emphasis added).
- 91.
Concerns about pesticides, for example, may manifest themselves in terms of public-health issues, but at their roots reflect anxiety about ‘intensive farming systems and the sustainability or otherwise of such systems’. Tait and Bruce (n 67) 105. Likewise, fears about biotechnology could be considered not so much a food-safety issue, but an underlying unease about the cavalier and profit-driven exploitation of nature. See e.g. Levidow and Carr (n 24) 33.
- 92.
General Agreement on Tariffs and Trade, opened for signature 15 April 1994, 55 UNTS 194, 1867 UNTS 187 (entered into force 1 January 1995) (GATT).
- 93.
Agreement on Technical Barriers to Trade, opened for signature 15 April 1994, 1868 UNTS 120 (entered into force 1 January 1995) (TBT Agreement).
- 94.
In a dispute relating to gambling, the dictionary definition of ‘public morals’ adopted was ‘standards of right and wrong conduct maintained by or on behalf of the whole community or nation’. United States Measures Affecting the Cross-Border Supply of Gambling and Betting Services (US—Gambling), Panel Report (adopted 10 November 2004) WT/DS285/R, para 6.465.
- 95.
Indeed, Art XX(a) was invoked by Saudi Arabia during accession to the WTO with a view to prohibiting foodstuffs containing animal blood. See H Gao, ‘The Mighty Pen, the Almighty Dollar, and the Holy Hammer and Sickle: An Examination of the Conflict between Trade Liberalisation and Domestic Cultural Policy with Special Regard to the Recent Dispute between the United States and China on Restrictions on Certain Cultural Products’ (2007) 2 Asian Journal of WTO and International Health Law and Policy 313, 325. A non-religious example is provided by Kysar, pointing to the requirements of vegetarians to know whether food may have been inserted with animal genes. DA Kysar, ‘Preferences for Processes: The Process/Product Distinction and the Regulation of Consumer Choice’ (2004) 118 Harvard Law Review 525, 616.
- 96.
J Pauwelyn, ‘The GMO Debate Under the Rules of the World Trade Organization’ (GMOs in European Agriculture and Food Production conference, The Hague, November 2009). Switzerland would be particularly well placed to make such a claim, having amended its Constitution to reinforce the ‘dignity of creation’ in response to GM regulation. See FX Perrez, ‘Taking Consumers Seriously: The Swiss Regulatory Approach to Genetically Modified Food’ (2000) 8 New York University Environmental Law Journal 585, 591–592. For a counter view, see P Bentley, ‘A Reassessment of Article XX, Paragraphs (b) and (g) of GATT 1994 in the Light of Growing Consumer and Environmental Concern about Biotechnology’ (2000) 24 Fordham International Law Journal 107, 128 (claiming that GM foods do not incite ‘moral depravity’, which the author believes to be the objective of Art XX (a)). For more detailed examination of these issues, see discussion on the compatibility of animal cloning technology with Art XX in Chap. 5 below, s 5.4.4.
- 97.
D Morgan and G Goh, ‘Genetically Modified Food Labelling and the WTO Agreements’ (2004) 13 Review of European Community and International Environmental Law 306, 317. TBT-related jurisprudence is limited, but in Sardines at least, there appeared to be no questioning of the legitimacy of the EU’s chosen objectives, namely market transparency, consumer protection, and fair competition. See European Communities—Trade Description of Sardines, Appellate Body (adopted 26 September 2002), WT/DS231/AB/R, para 263.
- 98.
See A Alemanno (n 68) 312.
- 99.
Art 1.5 of the TBT Agreement explicitly excludes sanitary or phytosanitary measures, therefore limiting parallel SPS analysis of the measures. SPS Agreement Art 2.4 establishes that measures conforming to the Agreement are presumed to be compliant with GATT.
- 100.
See G Marceau and JP Trachtman, ‘The Technical Barriers to Trade Agreement, the Sanitary and Phytosanitary Measures Agreement, and the General Agreement Tariffs and Trade—A Map of the World Trade Organisation Law of Domestic Regulation of Goods’ (2002) 36 JWT 811, 816.
- 101.
For example, imagine a dispute were to arise in relation to imported food containing pesticide residues in excess of EU pesticide limits. The SPS focus would be confined to the immediate scientific evidence relating to the individual limit and would not question the policy framework—socially and environmentally driven EU preference for a reduction in pesticides—that gave rise to these limits. This would involve a dispute body artificially dissecting regulation into manageable pieces.
- 102.
See discussion by J Peel, ‘A GMO by Any Other Name … Might be an SPS Risk!: Implications of Expanding the Scope of the WTO Sanitary and Phytosanitary Measures Agreement’ (2006) 17 EJIL 1009, 1021–1024.
- 103.
Among the more worried are AT Guzman, ‘Food Fears: Health and Safety at the WTO’ (2004) 45 VJIL 20; D Kalderimis, ‘Problems of WTO Harmonisation and the Virtue of Shields over Swords’ (2004) 13 Minnesota Journal of Global Trade 305; HS Shapiro, ‘The Rules that Swallowed the Exceptions: The WTO SPS Agreement and its Relationship to GATT Articles XX and XXI: The Threat of the EU—GMO Dispute’ (2007) 24 Arizona Journal of International and Comparative Law 199; Winickoff et al. (n 22); Walker (n 23).
- 104.
Winickoff et al. (n 22) 93.
- 105.
In particular, there is a growing consensus on the need for greater sensitivity by panels to public opinion, for example, by taking into account scientifically-based analysis of public perceptions or limiting the standard of review in cases where social value judgements are contested. See A Alemanno, ‘Public Perception of Food Safety Risks Under WTO Law: A Normative Perspective’ in G van Calster and D Prévost (eds), Research Handbook on Environment, Health and the WTO (Cheltenham, Edward Elgar, 2012); J Peel, ‘Of Apples and Oranges (and Hormones in Beef): Science and the Standard of Review in WTO Disputes under the SPS Agreement’ (2012) 61 ICLQ 47; Foster (n 30).
- 106.
MM Slotboom, ‘The Hormones Case: An Increased Risk of Illegality of Sanitary and Phytosanitary Measures’ (1999) 36 CML Rev 471, 490.
- 107.
After all, it is necessary to take into account ‘the particular circumstances of the case, including the characteristics of the major issue in quality and quantity of the scientific evidence’. Japan—Varietals, Appellate Body Report, para 84. See also Hormones, Appellate Body Report, para 79.
- 108.
US—Continued Suspension, Appellate Body Report, para 735.
- 109.
In particular, the AB rejected the Panel’s claim that the EU could not require a different level of scientific evidence due to the higher ALOP adopted, and dismissed the notion that the EU required a ‘critical mass’ of new scientific evidence in order to call into question the sufficiency of previous evidence. See respectively, US—Continued Suspension, Appellate Body Report ss V.I.E.1 and V.I.E.3.
- 110.
Japan—Varietals, Appellate Body Report, para 73. In the case in question, the measure was found to be disproportionate to the ‘negligible risks’ demonstrated. See s V.II.B of the AB report.
- 111.
Admittedly, this view may be overly benevolent. Scott suggests the contrary, that ‘[a]s the dispute settlement bodies move further down the road towards substantive assessments of right and wrong in risk regulation, they curtail the range of acceptable regulatory outcomes.’ Scott, SPS Commentary (n 89) 79.
- 112.
The lower-profile SPS cases involving Japan involved a lack of deference paid to Japan’s judgment of risk comparable to that of the more sensitive cases of Hormones and Australia—Salmon. Yet, the appraisal of the Appellate Body’s judgment of these cases has generally been positive. See ML Miller, ‘Does the WTO Substantially Limit the Ability of Countries to Regulate Harmful Nonindigenous Species? (2003) 17 Emory International Law Review, 1059, 1085; JP Whitlock, ‘Japan-Measures Affecting Agricultural Products: Lessons for Future SPS and Agricultural Trade Disputes’ (2002) 33 Law and Policy in International Business 741, 776.
- 113.
Goh (n 27) 671.
- 114.
Guzman (n 103) 20.
- 115.
For information on all trade concerns raised by WTO Members, see the SPS Information Management System: spsims.wto.org.
- 116.
For the EU’s notification of measures related to vitamin and mineral supplements and additives respectively, see WTO Docs G/SPS/N/EEC/87 (16 June 2000) and G/SPS/N/EEC/291 (10 August 2006).
- 117.
Only one requirement within the guidelines, that salmonid products are ‘consumer-ready’ before being released from quarantine, was found to violate the SPS Agreement. In other respects, the new guidelines enhanced consumer protection by introducing more stringent rules for non-salmonid products and have been rendered WTO-compliant by removing previous discrepancies in treatment of the different fish. See Australia—Measures Affecting Importation of Salmon, Article 21.5 Panel Report (adopted 18 February 2000) WT/DS18/RW, paras 7.144–53. For a review, see MD Taylor, ‘The WTO Panel Decision on Australia’s Salmon Import Guidelines: Evidence that the SPS Agreement Can Effectively Protect Human Health Interests’ (2000) 9 Pacific Rim Law and Policy Journal 473.
- 118.
Goh (n 27) 678.
- 119.
Victor (n 65) 918 (explaining that ‘there must be a strong and apparent trade effect for a complaining country to justify the cost of raising and prosecuting a dispute’).
- 120.
KC Kennedy, ‘Resolving International Sanitary and Phytosanitary Disputes in the WTO: Lessons and Future Directions’ (2000) 55 Food and Drug Law Journal 81, 103.
- 121.
It is this type of calculation and the risk of provoking clarification of GATT Arts III and XX that led the EU to retreat from a prohibition of animal-tested cosmetic products. See G de Búrca and J Scott, ‘The Impact of the WTO on EU Decision-Making’, in G de Búrca and J Scott (eds), The EU and the WTO, Legal and Constitutional Issues (Oxford, Hart Publishing, 2001) 10–11.
- 122.
Winickoff et al. (n 22) 104–105.
- 123.
A similar response to the work of Winickoff et al. also led Jaqueline Peel to seek a more refined understanding of risk situations, although resulting in four rather than six scenarios. Peel (n 105) 47.
- 124.
MD Masson-Matthee, The Codex Alimentarius Commission and its Standards (The Hague, TMC Asser Press, 2007) 107.
- 125.
ibid 124.
- 126.
Commission Regulation 178/2010 amending Regulation (EC) No 401/2006 as regards groundnuts (peanuts), other oilseeds, tree nuts, apricot kernels, liquorice and vegetable oil [2010] OJ L52/32.
- 127.
For example, in the case of pesticides mentioned above (in text to n 125) Codex’s recommended methods were ones that ‘the Community supported and endorsed’. Commission Directive 2002/63/EEC repealing Directive 79/700/EC [2002] OJ L187/30, rec 4. Indeed, the EU is perceived to be particularly successful in enforcing national preferences at an international level. See ‘EU Rebuffs US Claims of Standards “Internationalisation”’ EU Food Law (23 April 2010).
- 128.
T Berg and D Licht, ‘International Legislation on Trace Elements as Contaminants in Food: A Review’ (2002) 19 Food Additives and Contaminants 916, 923.
- 129.
For a review of EU and US policy approaches to this issue, see M Ingram, ‘Raw Deal: Trade Implications of the US Food and Drug Administration’s Pending Review of Unpasteurised Cheeses’ (2003) 12 Minnesota Journal of Global Trade 461. A further example is the European approach to cured meats, such as Italian and Spanish hams and sausages, permitted in the EU but temporarily prohibited in the US, albeit in this instance to prevent the spread of animal diseases rather than for food-safety purposes. See MA Echols, ‘Food Safety Regulation in the European Union and the United States: Different Cultures, Different Laws’ (1998) 4 Columbia Journal of European Law 525, 531.
- 130.
For a discussion of these rules and Denmark’s maintenance of derogations in the interests of consumer health, see A Szajkowska, Regulating Food Law: Risk Analysis and the Precautionary Principle as General Principles of EU Food Law (Wageningen, Wageningen Academic Publishers, 2012) 123–127.
- 131.
M De Rosa et al., ‘Risk Analysis-Based Food Safety Policy: Scientific Factors Versus Socio-Cultural Factors’ (2008) 133 Tijdschrift voor Diregeneeskunde 746, 746–748.
- 132.
This is of course not the case where a WTO Member attempts to export products governed by this policy.
- 133.
As Howse explains, the ‘psychological security’ gained by seeing governmental action on an issue is valuable regardless of any real risk reduction that may occur. R Howse, ‘Democracy, Science, and Free Trade: Risk Regulation on Trial at the World Trade Organisation’ (2000) 98 Michigan Law Review 2329, 2350. For a counter-view, see CR Sunstein, ‘Probability Neglect: Emotions, Worst Cases, and Law’ (2002) 112 Yale Law Journal 61, 70 (arguing that responding to irrational fears produces wasteful, ineffective regulations).
- 134.
Thus, for example, the US’s offer to label hormone-treated meat was not considered sufficient to alleviate EU citizens’ fears. See MD Carter, ‘Selling Science under the SPS Agreement: Accommodating the Consumer Preference in the Growth Hormones Controversy’ (1997) 6 Minnesota Journal of Global Trade 625, 654.
- 135.
See n 6.
- 136.
EFSA has provided over 2000 scientific opinions since its establishment in 2002. See ‘Commissioner Dalli speech to EFSA’ (Parma, 12 March 2010) ec.europa.eu/commission_2010–2014/dalli/headlines/speeches/docs/100312_efsa.pdf.
- 137.
Cited in L Phillips, ‘EU Commission Approves Cultivation of First GM Crop in 12 Years’ euobserver.com (3 March 2010).
- 138.
See, eg Commissioner A Vassiliou, ‘Introductory Speech for the 1st International Conference on Risk Assessment: A Global Risk Assessment Dialogue’ (Brussels, 13 November 2008) (stating: ‘The EU is fully committed to science-based risk management. Scientific risk assessment provides the necessary basis for effective and efficient risk management measures’) ec.europa.eu/health/archive/ph_risk/documents/s08_riskassessment.pdf.
- 139.
The Commission’s room for manoeuvre is probably overstated. Lee, for example, claims there is ‘considerable power in the hands of the Commission’, while it can alternatively be argued that the institution is simply proceeding in accordance with adopted EU legislation. See M Lee, ‘EU Regulation GMOs: Law and Decision-Making’ for a New Technology (Cheltenham, Edward Elgar, 2008) 71.
- 140.
A broad civil society project conducted under the EU’s Sixth Framework Programme concluded that ‘GMOs may be unique in terms of mobilisation of public opinion, but exactly for that reason it is a good case study for probing into possible avenues for enhancing participation in science.’ PSx2, ‘Participatory Science and Scientific Participation: The Role of Civil Society Organizations in Decision-Making about Novel Developments in Biotechnologies’ (2010) 6, cordis.europa.eu/publication/rcn/13368_es.html.
- 141.
Lee (n 139) 103.
- 142.
Euro Coop, ‘Position Paper, Euro Coop Statement Labelling: Making the Non-GM Alternative Possible’ (December 2007) www.eurocoop.org/index.php?option=com_content&view=article&id=200%3Aeuro-coop-statement-labelling-making-the-non-gm-alternative-possible&catid=42%3Afood-policy&Itemid=189&lang=en. See also Friends of the Earth and Greenpeace, ‘Briefing Note on The EU’s GMO Reform Debate’ (August 2008) (calling for independent expertise evaluating the socio-economic impact of GM as an integral part of the assessment process) www.foeeurope.org/sites/default/files/press_releases/GP_FoEE_200808_Briefing_Adhoc_GMO_workinggroup_FINAL%5B1%5D.pdf.
- 143.
‘Other legitimate factors’ may be taken into account in the authorisation process under Art 7.7 of Regulation (EC) 1829/2003 of the European Parliament and of the Council on genetically modified food and feed [2003] OJ L268/1.
- 144.
Consider, for example, the questionnaire prepared by an external consultancy for the Commission sent to Member States with the purpose of evaluating current GM legislation. Respondents were asked to give their views (in the autumn of 2009) on the preferable operation of risk assessment and management. The option ‘socio-economic criteria should not be considered’ was inaccurately, but tellingly, described as the ‘status quo’. See ‘Evaluation of GM food and feed legislation. Survey of Competent Authorities by the Food Chain Evaluation Consortium’, ec.europa.eu/food/food/biotechnology/evaluation/docs/gmo_evaluation_survey_competent_authorities.doc.
- 145.
BMJ van der Meulen, ‘Science Based Food Law’ (2009) 4 European Food and Feed Law 58, 60. See also A Szajkowska (n 130) 77 (contrasting the limited demands on the EU legislator to produce risk-assessment based measures compared to the EU Treaty constraints on Member States).
- 146.
Regulation (EC) 1333/2008 of the European Parliament and of the Council on food additives [2008] OJ L354/16, Art 6.1(b) (EU Food Additive Regulation).
- 147.
Council Regulation (EEC) 315/93 of 8 February 1993 laying down Community procedures for contaminants in food [1993] OJ L37/1, Art 2.2.
- 148.
For a discussion of the WTO-compatibility of pre-market authorisation procedures, see ns 60–67 in Chap. 5 below and related text.
- 149.
See, e.g. D Roberts, ‘Preliminary Assessment of the Effects of the WTO Agreement on Sanitary and Phytosanitary Trade Regulation’ (1998) 1 JIEL 377; WA Kerr and JE Hobbs, ‘The North American-European Union Dispute Over Beef Produced Using Growth Hormones A Major Test for the New International Trade Regime’ (2002) 25 The World Economy 283–296; G Skogstad, ‘The WTO and Food Safety Regulatory Policy Innovation in the European Union’ (2001b) 39 JCMS 485; Slotboom (n 106).
- 150.
A solution to the dispute and phasing out of sanctions was negotiated in May, 2009. See European Commission, ‘Memorandum on Beef Hormones Dispute Signed with the United States’, MEMO/09/239 (13 May 2009).
- 151.
For an overview of how this movement grew, see L Caduff, ‘Growth Hormones and Beyond’ (Centre for International Studies, Working Paper 2–2002) www.ib.ethz.ch/docs/working_papers/wp_2002_08.pdf.
- 152.
Regulation (EC) 853/2004 of the European Parliament and of the Council laying down specific hygiene rules for food of animal origin [2004] OJ L139/55. For a comprehensive review of the measures taken by the EU with regard to pathogens in poultry, see US Department of Agriculture Foreign Agricultural Service, ‘GAIN Report’ (E48148, 19 December 2008) www.fas.usda.gov/gainfiles/200812/146306944.pdf.
- 153.
For an overview, see DP Fidler, ‘Legal Challenges Posed by the Use of Antimicrobials in Food Animal Production’ (1999) 1 Microbes and Infection 29.
- 154.
Council Decision 98/258/EC on the conclusion of the Agreement between the European Community and the United States of America on sanitary measures to protect public and animal health in trade in live animals and animal products [1998] OJ L118/1.
- 155.
See EFSA, ‘Scientific Opinion of the Panel on Biological Hazards, Assessment of the possible effect of the four antimicrobial treatment substances on the emergence of antimicrobial resistance’ (2008) 659 EFSA Journal 1; EFSA Scientific Committee on Health and Environmental Risks and Scientific Committee on Emerging and Newly Identified Health Risks, ‘Environmental impact and effect on antimicrobial resistance of four substances used for the removal of microbial surface contamination of poultry carcasses’ (adopted on 12 March and 2 April 2008 by the respective Committees) ec.europa.eu/health/archive/ph_risk/committees/04_scenihr/docs/scenihr_o_015.pdf.
- 156.
European Commission, ‘Proposal for a Council Regulation implementing Regulation (EC) No 853/2004 as regards the use of antimicrobial substances to remove surface contamination from poultry carcasses’ (COM(2008) 430 final). (‘Commission Proposal on poultry contamination’).
- 157.
ibid rec 8.
- 158.
S Poulter, ‘“Dirty” US Chicken Washed with Chlorine Heading for British Shops as EC Seeks to Improve Relations with America’ Daily Mail (29 May 2008) www.dailymail.co.uk/news/article-1022821/Dirty-US-chicken-washed-chlorine-heading-British-shops-E-C-seeks-improve-relations-America.html.
- 159.
European Parliament, ‘Resolution on Authorisation of Chlorinated Chicken’ (B6–0309/2008, 19 June 2008) point 4.
- 160.
‘US Requests WTO Panel in Poultry Processing Dispute With EU’ Inside US Trade (9 October 2009).
- 161.
J Farkas, ‘Irradiation for Better Foods’ (2006) 17 Trends in Food Science and Technology 148.
- 162.
SE Pickett and T Suzuki, ‘Regulation of Food Safety Risks: The Case of Food Irradiation in Japan’ (2000) 1 Journal of Risk Research 95 (summarising the conclusions of the WHO, FAO and IAEA on food irradiation). One of the major concerns is that irradiation may mislead the consumer about the freshness of the product.
- 163.
See C Hunter, ‘Changing Attitudes to Irradiation Throughout the Food Chain’ (2000) 57 Radiation Physics and Chemistry 239 (recounting deep-seated industry and consumer doubts about irradiation).
- 164.
European legislation sets out four basic conditions for the use of the food irradiation. Irradiation is permitted where there is a ‘reasonable technological need’, when it presents no health hazard, if it is ‘of benefit to the consumer’, and finally, provided that it is not used as a substitute for good hygiene and manufacturing practices. Directive 1999/2/EC of the European Parliament and of the Council on the approximation of the laws of the Member States concerning foods and food ingredients treated with ionising radiation [1999] OJ L66/1 (EU Irradiation Directive), Annex I.
- 165.
Directive 1999/3/EC of the European Parliament and of the Council on the establishment of a Community list of foods and food ingredients treated with ionising radiation [1999] OJ L66/24.
- 166.
Seven Member States have maintained national authorisations, as they are permitted under Directive 1999/2/EC, for certain food and food ingredients. In general, irradiation remains limited to specific sectors, primarily frog’s legs, herbs and spices and poultry. European Commission, ‘Report from the Commission on food irradiation for the year 2007’ [2009] OJ C242/02, para 1.2.
- 167.
European Commission, ‘Communication from the Commission on foods and food ingredients authorised for treatment with ionising radiation in the Community’ [2001] OJ C241/6 (‘Commission Irradiation Communication’) Conclusions.
- 168.
ibid.
- 169.
EU Irradiation Directive, Annex I.
- 170.
Codex Alimentarius, General Standard for Irradiated Foods, Codex Stan 106–1983, Rev1-2003, point 4.1.
- 171.
See Farkas (n 161) 150 (outlining the positive effects of the process for US beef).
- 172.
Favourable SCF opinions have been provided on a number of foodstuffs including fruit, vegetables, cereals, fish, shellfish, egg white and rice flour. ‘Commission Irradiation Communication’ (n 167) para 3.
- 173.
G/SPS/GEN/265 (10 July 2001).
- 174.
UK FSA, ‘Committee on Toxicity of Chemical in Food, Consumer Products and the Environment, Statement 2007/04’ (September 2007) cot.food.gov.uk/pdfs/colpreschil.pdf.
- 175.
UK FSA, ‘Agency Revises Advice on Certain Artificial Colours’ (11 September 2007) www.food.gov.uk/news/newsarchive/2007/sep/foodcolours.
- 176.
EFSA, ‘Assessment of the Results of the Study by McCann et. al. (2007) on the Effect of Some Colours and Sodium Benzoate on Children’s Behaviour’ (2008) 660 EFSA Journal 1.
- 177.
For a detailed account of the UK FSA’s management of azo dyes risk, see R Lofstedt, ‘Risk Communication and the FSA: The Food Colourings Case’ (2009) 12 Journal of Risk Research 537.
- 178.
UK FSA Chair Deidre Hutton called for ‘mandatory action by the EU’ to phase out the use of food colours. Comments cited in ‘Europe-wide Colour Ban Call’, BBC News (10 April 2008) news.bbc.co.uk/2/hi/7340426.stm.
- 179.
‘Azo Dyes: MEPs Take a Strong Line’, EU Food Law (9 May 2008).
- 180.
Commission Regulation (EU) No 238/2010 of 22 March 2010 amending Annex V to Regulation (EC) No 1333/2008 of the European Parliament and of the Council with regard to the labelling requirement for beverages with more than 1, 2 % by volume of alcohol and containing certain food colours [2008] OJ L75/17.
- 181.
At the time of writing, the issue has not been formally raised in a WTO context.
- 182.
See Lofstedt (n 177) 549–550.
- 183.
European Commission, ‘Draft Commission Directive amending Directive 2008/84/EC laying down specific purity criteria on food additives other than colours and sweeteners’ (SANCO/2010/10035).
- 184.
‘SANCO Challenged over Glue Meat Additive Authorisation’, EU Food Law (11 February 2010).
- 185.
European Parliament, ‘Resolution on the draft Commission directive amending the Annexes to European Parliament and Council Directive 95/2/EC on food additives other than colours and sweeteners and repealing Decision 2004/374/EC’ (RSP/2010/2679).
- 186.
‘MEPs Vote to Block Meat Glue Approval’, EU Food Law (30 April 2010).
- 187.
The example is of particular interest because of the Parliament’s explicit invocation of ethical concerns making it something of a ‘test case’ in the eyes of Green MEP Carl Schlyter. ibid.
- 188.
De Rosa et al. (n 131) 751.
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Downes, C. (2014). Is Science Really the Only Thing that Counts? An Evaluation of the SPS Agreement’s Expectations of Science in the Context of EU Food Policy. In: The Impact of WTO SPS Law on EU Food Regulations. Studies in European Economic Law and Regulation, vol 2. Springer, Cham. https://doi.org/10.1007/978-3-319-04373-9_4
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