Unlabel Their Frankenstein Foods! Evaluating a U.S. Challenge to the European Commission's Labeling Requirements for Food Products Containing Genetically-Modified Organisms

Beginning of article

ABSTRACT

The recent development of genetically-modified agriculture has been accepted enthusiastically by the U.S. agricultural producers, but the European public has expressed fear that the so-called "Frankenstein Foods" may be harmful to health and the environment. Faced with this public outcry, the European Commission passed regulations, which mandated that food products containing genetically-modified agricultural products be labeled as such. Although the European Commission appears to have passed its labeling requirements without express or hidden protective intent, the regulations stand to make U.S. producers less competitive in the European market than their European counterparts. This Note contends that the United States should challenge the European Commission's labeling requirements before the World Trade Organization (WTO). It concludes that the WTO would most likely find that the labeling requirements violate the 1994 Uruguay Round of the General Agreement on Tariffs and Trade and force the European Commission to repeal the requirements.

I. INTRODUCTION

The development of genetically-modified agriculture in recent years has provided benefits that had been unachievable during the "green revolution" era of Mendel-derived plant breeding. Genetic engineering is responsible for crops with greater resistance to herbicides and pests, foods with longer shelf lives, and enhanced nutritional properties.(1) Consumers in the United States have accepted genetically-modified agriculture with little dissent.(2) On the other side of the Atlantic Ocean, however, their European counterparts have expressed fear that the "Frankenstein Foods" will cause health and environmental problems.(3) That fear has spurred several European nations to regulate genetically-modified agriculture and agricultural products(4) and motivated the European Commission (EC) to pass legislation requiring that food products with genetically-modified material be labeled as such.(5) Such regulation, in turn has potentially negative consequences for U.S. food producers that rely on genetically-modified agriculture for a significant share of their output.(6)

The Uruguay Round of the General Agreement on Trades and Tariffs (GATT) created the World Trade Organization (WTO) to provide member nations with an arena for challenging the actions of other member nations that place an undue burden on international trade.(7) Since the Clinton Administration has expressed a willingness to challenge trade-burdening actions,(8) it is possible that it may be motivated to bring a complaint before the WTO against the EC's regulations of genetically-modified agriculture.

This Note contends that the United States should use the WTO's dispute-settling process to challenge the EC's labeling requirements.(9) Part II reviews the development of genetically-modified agriculture and the European backlash against it. Part III details the procedure for challenging a perceived restriction on trade in the WTO. Part IV discusses the relevant provisions of the GATT. Finally, Part V evaluates whether the labeling requirements would survive WTO scrutiny. It concludes that the WTO would find that the requirements violate the GATT mandates.

II. DEVELOPMENT OF GENETICALLY-MODIFIED AGRICULTURE AND THE EUROPEAN BACKLASH

The presence of genetically-modified organisms (GMOs) in agriculture and agricultural products has become commonplace and accepted in the United States in recent years. Genetic engineering has enabled scientists to circumvent a constraint of traditional, Mendel-derived plant breeding: the impossibility of cross-fertilization between species.(10) Now genes may bypass the obstacle of sexual incompatibility and cross the species barrier.(11) A foreign gene that has been engineered into a variety can then be passed into hybrids, just as in traditional breeding.(12)

Since it approved the first marketing of a genetically-modified crop in 1994,(13) the U.S. Food and Drug Administration (U.S. FDA) has given its blessing to over thirty GMOs.(14) Today, sizable proportions of certain crops grown in the United States and Canada contain genetic modifications.(15) Moreover, the U.S. food producers' reliance on GMOs stands to increase. According to one projection, almost all U.S. crops will be genetically-modified in ten years or will be mixed with genetically-modified products.(16)

Although these developments have met little resistance in this country,(17) the European reaction differed dramatically. Signs of European disfavor with GMOs have been widespread. Polling data has revealed that high percentages of European citizens desire the complete segregation of genetically-modified foods from organically-grown products, and some of those polled favor banning GMOs altogether.(18) Protest groups of "eco-warriors"(19) have applied tactics both mild--filling supermarket carts with food and demanding that cashiers tell them which brands contain GMOs(20)--and destructive--tearing up test fields of genetically-modified crops.(21) The Prince of Wales has even lent his voice to the anti-GMO movement; Prince Charles's June 1998 newspaper commentary proclaimed that such modification "takes man into realms that belong to God, and God alone."(22)

In addition to bioethical considerations, opponents of GMOs have expressed more concrete fears about the so-called Frankenstein Foods. Two currents of concern can be identified. One stems from fear of the ecological consequences of introducing strange organisms into an ecosystem.(23) An incident in the fall of 1998 served to heighten this concern: the British Agriculture Ministry ordered the destruction of an experimental field of herbicide-resistant oilseed rape because the crop had pollinated nearby plants.(24) Such pollination, if unchecked, threatened to create a new breed of "super weeds," invulnerable to normal chemicals and capable of rendering fields sterile of plantlife.(25)

GMO opponents also point to potential health risks for consumers. These putative risks include the possibility that GMO foods would expose consumers to new allergens and the chance that they might upset the natural balance of microorganisms that live in the human digestive system.(26) Europe's recent maladies with the effects of science on its diet, such as mad-cow disease, contribute to this wariness.(27) Underlying all of these fears seems to be the notion that the corporations responsible for GMOs may be inclined to ignore ecological and health concerns in favor of increasing profits.(28)

No scientific study offers evidence that consumption of the three genetically-modified agricultural products accepted for sale in the EC--Monsanto's pest-resistant maize, AgrEvo's herbicide-resistant maize, and Novartis's pest and herbicide-resistant maize(29)--is hazardous to human health.(30) The fact that all of the organisms at issue have passed the demanding tests of the U.S. FDA bolsters claims that products are safe.(31) Nevertheless, some scientists have challenged the alleged safeness of GMOs. The findings of Dr. Arnpad Pusztai have drawn the most attention.(32) After he fed genetically-modified potatoes to rats, Dr. Pusztai discovered internal organ damage, weight loss, and immune-system problems.(33) Dr. Pusztai, who was forced to retire from the Rowett Research Institute after his disclosure sparked charges of high meddling, further contended that he could find scant scientific proof supporting the safety of the GMOs.(34) Additionally, some scientists have expressed nagging fears that the available studies, while vouching for short-term GMO safety, provide no proof that the GMOs will not bring adverse long-term consequences.(35)

In response to the anti-GMO pressures, several European governments have passed legislation regulating, or even banning, the production and sale of food products containing GMOs. Austria and Luxembourg have prohibited the production of the three strains of EC-approved genetically-modified maize, while Norway has banned all products from crops containing antibiotic-resistance marker genes.(36) Britain has introduced a program of "managed development," which involves a ban on insect-resistant crops and strict scrutiny of any others.(37) France has adopted a "go-slow" policy for approving any new varieties for sale.(38) The coalition government in Germany, which includes members of the Green party, has agreed to labeling requirements.(39)

Although these unilateral regulations could harm the export success of GMO-reliant U.S. food producers, any Europe-wide restrictions passed by the EC would stand to cause greater harm. Having approved just three genetically-altered food plants for commercial growth within its borders,(40) the EC has been more lukewarm than the United States in accepting GMOs. In May 1998, the EC adopted regulations requiring the labeling of all foods and food ingredients "produced, in whole or in part, from ... genetically modified soya beans [or] genetically modified maize."(41)

The regulations asserted that their purpose was to provide uniform labeling rules for foods and food ingredients containing GMOs.(42) In the EC's view, uniformity was necessary because "certain member states" had adopted individual measures for labeling the products, and any differences were "liable to impede the free movement of those foods and food ingredients and thereby adversely affect the functioning of the internal market."(43) Additionally, the regulations sought to inform consumers of "any characteristic or food property" that "renders a food or food ingredient no longer equivalent to an existing food or food ingredient."(44) Absent from the regulations was any explicit acknowledgment that the requirements were motivated by a desire to protect human health or the environment.(45)

After indicating that the labeling requirements had to be "based on a scientific evaluation," clear to enforce, and "no more burdensome than necessary but sufficiently detailed to supply consumers with the information they require," the regulations concluded that making distinctions based on the presence of protein or DNA resulting from genetic modification would satisfy those requirements.(46) The regulations then declared that food and food ingredients produced from genetically-modified soya and maize are not equivalent to any existing foods and food ingredients and, for that reason, should be subject to labeling requirements.(47) These regulations excluded food additives, flavorings for use in foodstuffs, and extraction solvents used in the production of foodstuffs from the labeling requirements.(48)

To satisfy the labeling requirements a producer must include the words "produced from genetically modified soya" or "produced from genetically modified maize" in the list of ingredients, a footnote to the list of ingredients, or some other clear location on the product.(49) The regulations indicated that the labeling requirements were minimum requirements and were not to be interpreted as barring producers from including any additional information about the properties of their products.(50)

Five months later, the EC announced its intent to remove the exemption for food additives, flavorings for use in foodstuffs, and extraction solvents used in the production of foodstuffs.(51) Observers regarded the change as a response to increased consumer pressure.(52) Officially, the impetus for the change was Austria's attempt to pass a unilateral measure that surpassed the EC's regulations by requiring labeling of all products containing GMOs.(53) Asserting that such regulatory variance "would be sure to hinder intra-Community trade,"(54) the EC required Austria to suspend the adoption of its regulation for twelve months.(55) The Commission pointed out, however, that "it is important" for consumers "to be informed about the use of additives or flavourings genetically modified or produced by genetic engineering,"(56) and resolved that "the most satisfactory solution ... will be to draw up a Community [labeling] provision."(57) With this amendment, all foods with GMOs would be included in the labeling requirements.(58)

While the EC regulations apply to food produced within the European Union only, it is likely that products produced elsewhere will be forced to follow these requirements.(59) When European-produced products are labeled, GMO-conscious consumers will be unwilling to purchase a food product with a label that contains no information on GMOs or one that makes vague references to the possibility that GMOs are present.(60)

This creates several problems for U.S. agricultural producers and food makers that rely on GMOs for a large percentage of their output. Foremost, any labeling requirement forces them to brand their products in a fashion that will be certain to repulse a significant portion of the European populace. Moreover, it is difficult for the food producers that use GMOs to certify that a given food product contains GMOs.(61) Because the altered crops look the same as "normal" ones, segregating the two groups during harvesting, storage, and transport is difficult.(62) To overcome this problem, one U.S. producer desiring to avoid the "Contains GMO"-label developed an "Identity Preservation System" that tracks its soybeans from the farm to the store.(63) Nevertheless, developing the system was expensive,(64) and most U.S. farmers--many of whom can cite financial benefits from GMOs--lack a mechanism to separate genetically-modified products before exporting their output.(65) Finally, as originally promulgated, the GMO-labeling legislation stood to create confusion for even those producers that would be able to segregate their products.(66) The confusion can be blamed on the EC's failure to set a minimum level of genetically-modified ingredients below which no labeling would be required and to specify a specific criteria for testing for GMOs.(67)

The Clinton Administration has expressed a willingness to challenge trade measures that it considers unfair burdens on U.S. producers; it has also professed a desire to encourage the development of biotechnology.(68) In the past, the possibility of European regulation of GMOs prompted threats of trade battles.(69) Although the Clinton Administration has not spoken on the labeling requirements, it is possible that it would challenge them if it felt they impaired U.S. trade interest significantly. Considering that the GMO-labeling requirements stand to force U.S. agricultural producers to choose between incurring substantial expenses to prove to European consumers that …