GeneWatch UK, April 2004
On 21st April, the USA made its first submission to the WTO's dispute panel in its case challenging Europe over its moratorium on commercial GM food and crop approvals which the European Union introduced in 1998. Canada and Argentina are also bringing the case against Europe. These three countries are the largest producers of GM crops and have the most to lose from restrictions on trade in GM crops, and they are claiming that Europe's approach discriminates against them unfairly. They have made their challenge at the World Trade Organisation (WTO) and the outcome of the case will not only have impacts on Europe, but also on whether other countries can regulate GM crops and foods as they see fit .
This background note explains and examines the US case. There are two clear messages that emerge from the 118 page document:
- The US has no interest in the wishes of European people to introduce improved rules protecting human health and the environment and to provide choice whether or not to eat GM foods and grow GM crops. As such, it illustrates how the US simply wants to bully countries into accepting the technology on terms favourable to the biotech industry and US farmers.
- Whilst stating that Europe had no scientific justification for its moratorium, the legal argument is not based on the substantive issues surrounding safety and choice, but on whether Europe followed proper procedures. In effect, the US is using technicalities to push its agenda forward.
The challenges for the WTO as it arbitrates in the case are enormous. As an institution already suffering from a lack of credibility, will it bow to the self-interested bullying of the US based on whether correct procedures were followed, or will it recognise that Europe and all other countries should be able to introduce measures to handle GM crops and foods as they feel fit? Will the WTO recognise that these can take time and rightly involve negotiation and respect for the public's views.
The US submission
III. Statement of facts
Following an introduction and procedural background, the US opens its case by making a statement of 'facts'. Here, the US makes claims about the precision of the technology, its special role in addressing world hunger, increasing yields, making food more nutritious and bringing environmental benefits. Despite a lack of monitoring and data, it speaks of the 'proven' safety record of GM crops and foods.
This part of the submission also reviews how the approvals process has been stalled in Europe since 1998 and the bans on certain GM crops approved before that time by some Member States. This includes comments that herbicide tolerant oilseed rape applications 'languished'with the French authorities for over five years and others were not advanced by the Commission despite scientific committees saying there was ‘no evidence' of harm to human health and the environment. The US make no reference to the scientific studies conducted during this period which have shown the potential for harmful effects on farmland wildlife of growing such crops.
IV Legal discussion
This section spells out the underlying justification the US believes it has for bringing the case. It is entirely based on the WTO's SPS Agreement. The SPS Agreement (Agreement on the Application of Sanitary and Phytosanitary Measures) provides for restrictions on trade in relation to food safety and animal and plant health if scientifically justified.
For legal reasons, the US spends time arguing that the moratorium is a 'measure' under the SPS and so should be subject to the procedural requirements of the agreement. Having done this, the US argues that there was:
- 'undue delay'- Europe simply did not assess applications quickly enough under the existing European GM rules (which were under revision at the time). Under the SPS Agreement, 'undue delay' is an unjustified barrier to trade.
- Europe did not 'publish promptly' details of its moratorium as required under the SPS Agreement.
- the moratorium is inconsistent with 'procedural requirements' of Article 8 and Annex C(1) (B) of the SPS because Europe has not produced and the moratorium is not based on a formal 'risk assessment'.
- the moratorium makes an arbitrary distinction between GM crops and foods and food processing aids (such as enzymes extracted from GM micro-organisms grown in a factory).
- Member State bans on certain GM crops are maintained without a proper risk assessment or sufficient scientific evidence.
What is left out
The USA, pays no attention to the changes in regulation and scientific research taking place during the moratorium period which were required to improve the scientific quality of the risk assessment and management of GM crops and foods in Europe. It also neglects the wishes of the European public in this respect. The US fails to acknowledge that the lack of demand for GM products, not any regulatory delays, has led to the loss of international trade in GM crops. And, whilst it makes great claims for the safety and importance of GM crops, there is scant evidence presented.
The consequences for Europe if it had not had a moratorium
If Europe had not suspended its approvals process in 1998, these would have been some of the consequences:
- The indirect effects of growing GM herbicide tolerant (HT) crops on farmland wildlife would not have been taken into account. GM HT sugar/fodder beet and spring oilseed rape now known to be damaging to farmland wildlife would have been grown commercially in Europe.
- No requirement for monitoring of environmental or human health effects would have been introduced, maintaining the 'no evidence of harm' claim for safety.
- Consumers would not have been able to make a choice not to eat products derived from GM crops as the new labelling laws now allow for.
- There would have been no traceability requirement for GM foods. If an adverse effect had emerged, it would have been impossible to withdraw the product from the market quickly and easily. Following BSE, traceability is a cornerstone of European food safety systems.