"Tell me what kind of food you eat, and I will tell you what kind of man you are. '
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) foods violated trade obligations.2 In 2006, the WTO dispute settlement body agreed with the Complaining Parties that the EC had not adequately justified its restrictions on genetically modified foods.1 However, unlike many international matters before the WTO,4 decisions about food and food choice cannot easily be resolved, and it is likely that this dispute will not end with this decision.5 Food has complex social and cultural meanings integral to the way legal 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 difficult for the EC to comply with the WTO ruling. The Comment then proposes mandatory labeling as an alternative solution advancing free market principles while respecting cultural considerations. Part II provides an overview of GM foods, including potential risks and benefits. Part III lays out the respective United States and European Union regulation of GM foods, outlining the historical development of GM foods and the attitudes underlying the differences in regulation. Part IV discusses the EC Biotech decision. In particular, it looks at the Panel finding that the EC violated the WTO Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement)6 and at the EC's claim 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 and considers the likelihood that the decision will resolve the dispute between the United States and the European Union. The section assesses the Report in light of the underlying cultural aspects of European regulation, and it contends that the WTO fails to adequately account for cultural values and therefore will have difficulty implementing the decision. The Comment concludes by defending labeling as an alternative resolution-one that better accounts for cultural values 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 might be wary of them. Genetically modified foods are derived from organisms whose DNA has been altered through the insertion of genes from one organism into a second organism in order to suppress, encourage, or otherwise alter particular genetic traits in the second organism.7 One example of a genetic modification is the creation of an herbicide-resistant cotton plant-a gene increasing herbicide resistance is isolated in one plant, removed, replicated, and then reinserted into the DNA of the target plant. The process often uses bacteria to carry the selected DNA and antibiotic marker genes to identify altered cells. Genes can be transferred between plants, animals, or microorganisms-both plants and animals have been genetically modified."
GM food comes primarily from four crops that dominate GM agriculture: soybeans, maize (corn), cotton, and canola.10 Within commercial GM crops, the predominant modification is herbicide resistance, followed by insect resistance." 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.12 The above traits affect plant growth, or "input," characteristics." Traits affecting the characteristics of the food itself, or "output" characteristics, are less common14 and have had less commercial viability.15
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 GM foods. 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.16
Because GM foods are relatively new and the techniques that create them are complex, fears abound that GM foods may carry serious risks both to human health and to the environment. Two human health risks associated with GM foods are potential allergies to novel proteins that appear in the GM food17 and the risk that antibiotic resistance could be spread through GM organisms." In addition, there are serious environmental concerns regarding the release of genetically modified organisms (GMOs) into the environment." These concerns include negative and unintended consequences to the biosphere, as demonstrated in U.S. field trials.20
Balanced against the risks are the potential benefits of GM foods,21 including reduced usage of pesticides and herbicides, better yields, foods with better nutritional value, foods altered to be less allergenic, production of vaccines within foods, and even the production of alternative fuels.22 These potential benefits offer strong justifications for further research by biotechnology companies.23 However, the difficulty remains in determining how to assess the potential benefits and risks and whether regulation can adequately manage the risks.24
As a result, two approaches to GM food regulation have emerged from the different opinions concerning the role science should play in determining food safety. The first approach assumes that GM foods are safe after limited testing because they are equivalent to foods that have not been genetically altered. The second approach assumes that more extensive testing on a broader scale is required to prove the safety of GM foods. These competing approaches to regulation 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's regulation of food is strong, although not absolute." In general, there has been limited response to GM foods in the marketplace. The United States is the largest producer of GM foods, and estimates of the amount of GM food in the domestic food supply are quite high.26 Canada and Argentina also produce significant percentages of GM food.27 None of the three nations requires any traceability28 or specific labeling29 for GM foods. Instead, the modified foods are treated in the same manner as unmodified foods on the basis that they are "substantially similar" to unmodified products.30 In the United States, the adaptation of existing regulatory rules to biotechnology has resulted in gaps that allow GM foods to pass into the food supply: once GM food has left the grower, no regulation exists requiring identification of the GM food, nor is there any traceability of the food.31
The StarLink corn32 incident demonstrated weaknesses in the U.S. regulatory system-providing an example of the unexpected migration of GM foods into the human food supply, even when a scientific basis exists for a regulatory decision to keep the GM food from human consumption.33 Due to questions about the allergenicity of an altered protein in the corn, GM corn was approved for animal feed but not for human consumption.34 However, subsequent testing by an anti-GM organization found the GM corn to be present in Kraft taco shells on grocery store shelves.35 Aventis voluntarily withdrew the corn,36 but it had already been consumed domestically and shipped abroad.37 While subsequent research failed to show any allergic reaction, the fact remains that the product had not been proven safe or approved for human consumption.38
Mistakes such as these cast doubt on the ability of the U.S. government to properly regulate GM foods.39 Outside the United States, such events have led to calls for labeling and traceability of GM products, particularly from trade partners that regulate GM products more stringently.40
Since the late 1990s, GM food regulation by the European Union, and many Member States, has become increasingly stringent. Thus, the European Union has been caught between domestic pressure to regulate and international trade pressure 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 stricter than in the United States.41 However, the gap has widened since an authorization process for GM foods was established by the European Union.42 In addition, political pressure from citizens of Member States subsequently led the EU to reevaluate its procedures for accepting GM foods in an attempt to harmonize different regulatory regimes within the EU.43 The EU did not approve genetically modified food from 1999 to 2003, while they were determining the risks and benefits of such food.44 Finally, the EU passed a directive that made labeling mandatory for all GM foods that contain more than 0.9% of GM ingredients and GM foods that contain more than 0.5% of GM ingredients from GMOs not approved by the EU.45 In addition, Regulation 1829/2003 centralized authorization of GM food and crops in the European Food Safety Authority (EFSA), which is responsible for the scientific assessment of genetically modified food and feed.46
These labeling and traceability requirements allow for increased citizen choice, and, this in turn, may alleviate some of the pressure to ban GM foods, although it is still unclear how easy it will be for GM foods to be approved in practice.47 The EC's policies reflect an uncertain compromise between the concerns of its citizens and those of its trading partners, such as the United States, and now the WTO. Resistance to GM foods continues, accompanied by claims that the EC was motivated by market concerns to push the regulations on Member States without having satisfactorily resolved health concerns.48
IV. CASE DISCUSSION
In 1998, the European Communities responded to political pressure for stricter regulation of GM foods by reviewing their approval processes; no approvals of biotech products were completed during the review and six individual Member States implemented restrictions on certain GM foods already approved by the EC.49 On May 13, 2003, the United States and Canada requested WTO consultations with the European Communities, claiming that the EC and individual Member State actions regarding GM foods were inconsistent with WTO trade agreements.50 The United States and Canada, joined by Argentina, brought a complaint claiming that: 1) the EC's failure to approve any GM food for five years was a de facto moratorium violating obligations under WTO Agreements;51 2) a moratorium on approvals of specific products also existed, in violation of WTO Agreements;52 3) certain EC Member States had imposed limits on specific biotech products already approved by the EC, violating EC obligations under the WTO Agreements.53 On August 29, 2003, after consultations failed to resolve the issues,54 the WTO established a panel to consider the complaints.55 This Panel issued an interim decision in February 2006, after extended delays due to the complexity of the case.56 In late 2006, the final Panel decision was circulated and then accepted by the members of the WTO.57
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 which requires measures be based on scientific principles and supported by scientific evidence.58 Canada and Argentina also alleged that the moratoria and bans were inconsistent with the Agreement of Technical Barriers to Trade (TBT Agreement) and the General Agreement on Tariffs and Trade (GATT).59
In response, the EC asserted that the general moratorium did not exist and argued that the lack of approvals did not qualify as a formal or informal measure under the SPS Agreement regulations on how measures can be applied.60 Next, the EC argued that failure to complete product-specific applications did not qualify as measures either.61 As to the Member State bans, the EC argued that because they were temporary, they did not violate WTO obligations.62
Additionally, the EC claimed that the contested moratoria and bans primarily addressed environmental, and not health, concerns; consequently, they fall outside of the SPS Agreement.63 According to the EC, the Cartagena Protocol on Biosafety (Cartagena Protocol) applies instead.64 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, the EC argued that the appropriate WTO agreement is the TBT Agreement, not the SPS Agreement.65
The decision found that the de facto moratoria and bans were measures as defined by the WTO and that the measures fell within the SPS Agreement.66 The Panel did not consider the EC claim that Cartagena Protocol should govern.67 Additionally, the Panel considered only one of the GATT claims by Canada and Argentina, and none of the TBT claims was successful.68
1. The General Moratorium
The Complaining Parties alleged that the EC maintained a general moratorium on biotech products between June 1999 and August 2003 (the latter being the date the Panel was established), in violation of the SPS Agreement.69 While under the SPS Agreement WTO Members are allowed to maintain independent approval procedures for biotech products, these procedures must be conducted without undue delay, which the Complaining Parties claim the EC failed to do in creating a de facto moratorium on approvals of GM foods.70
The EC claimed that the moratorium did not exist and would not constitute a measure under the SPS Agreement if it did exist.71 The Panel disagreed, finding that a moratorium on the approval of biotech products did indeed exist between June 1998 and August 2003, and that the moratorium violated Article 8 and Annex C(l)(a) of the SPS Agreement.72 Because the moratorium had ended by the time the Panel issued its Reports, the Panel did not make a recommendation regarding the moratorium.73
2. Specific-Product Moratoria
The Complaining Parties also claimed that undue delays in approval of specific GM products violated the SPS Agreement.74 The Panel found that EC actions violated Article 8 and Annex C(l)(a) of the SPS Agreement by allowing unnecessary delays in the approvals of two of the twenty-seven products specified by the Complaining Parties.75 As a result, the Panel recommended that the Dispute Settlement Understanding (DSU) ask the EC to "bring the relevant product-specific measures into conformity with its obligations under the 5PS Agreement."76
The Complaining Parties were less successful in their claim that the EC's product-specific moratoria were not based on risk assessment and thus did not satisfy WTO obligations.77 As was the case with their challenge to the general moratorium,78 the Complaining Parties failed in their challenge to the productspecific moratoria under other SPS provisions; the Panel rejected all claims other than those under the SPS Agreement.79
3. Member State Bans
Finally, the Complaining Parties challenged the EC-approved restrictions that maintained import or marketing bans for GM products in six Member StatesAustria, France, Germany, Greece, Italy, and Luxemburg.80 Each of the countries had justified the measures as protecting human health; consequently, the Complaining Parties argued that the SPS Agreement, governing human safety issues within measures, be justified by scientific risk assessments as defined by the SPS Argreement.81 The SPS Agreement requires that restrictions in the name of human health be based on scientifically supportable risk assessment following appropriate procedures.82 The Complaining Parties argued that the bans did not meet this standard.83
The EC contended that the actions were justified by environmental concerns, and therefore should be allowed regardless of the SPS requirements.84 Further, the EC argued that each ban fell under the Article 5.7 exception, which allows for temporary precautionary measures when there is insufficient scientific information to adequately assess the risk.85 Finally, the EC argued that because the measures were based on some scientific knowledge, the requirements of Article 5.1 were satisfied.86
The United States claimed that the bans did not qualify for the Article 5.7 exception because the scientific information available was in fact sufficient to show that GM foods were safe. It contends that rather than consider this information, the six countries attempted to justify their bans by using non-human studies that do not meet the standards for scientific assessment established in the SPS Agreement.87
The Panel found that the bans fell under the SPS Agreement and failed to satisfy the risk assessment requirements under that Agreement, violating Articles 2.2 and 5.1.88 The Panel further found that because there was sufficient information with which to assess risk, the temporary exception under Article 5.7 was not applicable.89 It also found that the available information did not establish that the restrictions protected human health or the environment and were therefore not justified.90 The Panel determined that the bans must be lifted in order to comply with WTO trade obligations; if the EC-or more likely an individual Member State-unreasonably delayed, the Complaining Parties would be able to impose retaliatory tariffs.91 The EC has already asked for more time to determine how to bring Member States and EC law into compliance with the WTO trade obligations as established in Reports of the Panel.92
In conclusion, the Panel found that the EC acted inconsistently with its obligations under specific articles of the SPS Agreement but not under any of the other WTO trade agreements. The moratoria against GM foods existed and created unnecessary delays inconsistent with the SPS Agreement. The Panel found that Member State measures were not adequately justified by a scientifically based risk assessment as defined in the SPS Agreement. Of particular interest, the Panel read the Article 5.1 exception narrowly, rejecting the EC's claim that precaution was justified because of insufficient scientific information.93
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 preserve market access and free trade. This is especially apparent hi its treatment of scientific evidence about risk. The Panel narrowly defines an acceptable risk assessment, following the requirements of the SPS Agreement.94 The Panel read the Article 5.1 exception as placing the burden on the EC to prove GM foods unsafe and rejected the EC claims that risk assessments were not adequate in the face of insufficient scientific data.95 It also failed to consider the EC's claims of environmental safety brought under alternative Environmental treaties, such as the Convention on Biological Diversity (CBD).96 In so doing, the Panel's process did not respect the cultural values that underlie the EC's actions 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 resulting from citizen mistrust of biotech foods and demands for more stringent oversight." This citizen reaction was rooted in cultural considerations existing outside the market and helped structure the EC's determination that GM products were not proven safe.98 Given its unwillingness to incorporate the broader scope of international law regarding biotech decisions or to separately consider non-market values, the WTO decision will not resolve the biotech debate between the EC and the producers of biotech products (primarily the United States, followed by Canada, Argentina, and China). This section outlines three cultural variables motivating the EC regulations-variables the opinion fails to 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, involving foot and mouth disease, food-borne illnesses, and, most significantly, BSE (Mad Cow Disease), undermined consumers' trust in their governments." BSE is a lethal disease in cattle that, if transmitted through certain meat consumption, can cause a related disease in humans.100 When the first mad cow cases were discovered, the British government downplayed the significance and denied that there was a connection between the diseased cows and a human health threat.101 This was later determined to be untrue-BSE had spread from cows to humans who had eaten tainted meat.102 The revelation created a panic, and British beef was rejected throughout Europe.101 Public trust in the British government eroded.104 The British resumed eating beef, but the distrust of the British government remained.105 In a recent poll, more than half of Europeans were still concerned about BSE.106 Further, more than one in three Europeans polled thought that the government should do more to regulate food, expressing particular concern that regulation favored industry over the protection of human health.107
The initial risk assessments of BSE were based on scientific information incorrectly thought to be sufficient at the time.108 This failure of science eroded confidence in governmental regulations, as illustrated by the public reaction to the potential threat caused by artificial hormone use in American beef.109 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.110
2. The Precautionary Principle
The European attitude about food safety is characteristic of Europe's broader concern with risk and safety issues, as expressed in the precautionary principle. While there is no single definitive statement of the precautionary principle, the Rio 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 shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation."1
Europe has wholeheartedly embraced the principle and played a large part in its creation. The principle originated in German domestic law, emerging internationally at the 1987 London Conference of the North Sea under the term "precautionary principle."112 The precautionary principle is in the treaty forming the EU and is employed both in EU law and in European domestic law.113
The precautionary principle has gained acceptance in the area of environmental protection during the last few decades. Yet the principle has not taken hold in the WTO, where it justifies only a temporary exception that allows a nation to impose stricter measures protecting health and safety only when significant uncertainty exists.114 The exception is quite limited: it must be temporary in nature, based on a lack of sufficient information, and new information must be sought actively during the time the exception is in place.115 Therefore, the differences between the WTO precautionary approach and the EU precautionary principle are significant.
3. Food as a Distinct Cultural Value in Europe
Additionally, the European attitude toward food is an expression of European culture. Throughout Europe, cuisines are associated with particular nationalities and regions. The EC protects the association of place with traditional food through regulations restricting the identification of particular regions to foods legitimately produced there.1'6
Indeed, anthropologists often study food in order to learn about culture-food and culture are closely linked."7 Roland Barthes has argued that food can convey cultural authenticity118 and signify national cultural continuity.1" Thus, food is rooted in culture in such a way that it not only reflects national identity, but also creates and validates it. Moreover, distinctive cultural characteristics arise in nations whose people primarily earn their living through agriculture and thus have particular interactions with food and its cultivation.120 This is why it makes sense to distinguish nations based on their agricultural development, and why we associate certain cultural characteristics with agrarian nations.121
Regional food and food habits in Europe are likewise tied to culture. For instance, Rick Fantasia discusses how French 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 la Reynière published the first of his annual Almanack des Gourmands chronicling the development of French gastronomy, a "way of life" that was to become enshrined by Anthelme Brillat-Savarin in 1825 in his Physiology of Taste, a book of "meditations" on taste, the senses, the preparation of meals, the social character of dining, and the philosophy and aesthetics of food, the table, and the body.122
The French public has created political pressure to preserve their culture through the protection of French cuisine.123 Moreover, links between protest over globalization and fast food illustrate the ties between food and culture in France: "McDonaldization" has become synonymous with cultural homogenization, and McDonald's has been the source of many protests.124
B. WTO Process Lacks the Institutional Capacity to Consider Non-Market Values
Free market international trade is a cornerstone of the current international structure.'2' As the main body for coordinating trade among nations, the WTO126 attempts to facilitate trade between its members in three main areas: goods (including agricultural products), services, and intellectual property.127 The WTO holds itself out as "a rules-based, member-driven organization-all decisions are by the member governments, and the rules are the outcome of negotiations among members."128 The objective of the WTO is to encourage the free movement of goods and services across international boundaries through a systemic and stable framework of trade rules.129
Based on a modern economic approach to free markets, the WTO emphasizes free access and trade across borders without discrimination or protectionism.'30 However, the WTO has had difficulty regulating agricultural products, as loyalty and identification with local agriculture have proven to be deeply rooted.131 In particular, when policing the use of subsidies for local producers and differentiating between legitimate concerns and artificial trade barriers, the WTO has no mechanism in place to consider social values or preferences. Allowing only limited restrictions based on food safety premised on scientific assessments, the WTO has favored market access. More often than not, it has found trade barriers to exist.132 The central problem is that the food safety determinations are framed as questions of science and disregard social considerations or values. The EC Biotech Reports of the Panel reveals the limitations of the 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 precautionary principle in a meaningful way; rather it highlighted the temporary nature of the precautionary-based exception in the SPS Agreement. The Panel placed the burden of proof on those who want to regulate, which in turn gave greater preference 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 alongside free trade. The opinion rejects alternative justifications of the national bans-justifications that have grounds in public international law, such as the Cartagena Protocol, and in European cultural values.133
The WTO's decision provides an example of markets undermining important cultural values. Michael Walzer criticizes such market imperialism in his book Spheres of Justice, in which he offers a compelling argument for allowing government to protect important social practices from market influences.134
Walzer contends that the market does not adequately capture important values in society and tends to undermine these values.135 For Europe, eating has such social significance; the price people are willing to pay for food does not reflect the importance that locally produced food and an agrarian existence has to the culture they share.136
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 so on. Conceivably, there is a limited sense in which the first of these is primary, so that if there were twenty people in the world and just enough bread to feed the twenty, the primacy of breadas-the-staff-of-life would yield a sufficient distributive principle. But that is the only circumstance in which it would do so; and even there we cannot be sure. If the religious uses of bread were to conflict with its nutritional uses-if the gods demanded that bread be baked and burned rather than eaten-it is by no means clear which use would be primary.137
Democracy provides a more nuanced measure of how we value goods that have cultural significance. Social understandings of these goods shape democratic decision-making, As a consequence, democratic regulation of markets accounts for the cultural significance of food in a way that the free market principles of the WTO ignores.138
Echoing Walzer, David Bollier contends that markets can co-opt cultural values, stating: "We too easily adopt the default language of the market, which usually translates into that joke about the Golden Rule - 'He who has the gold, rules.' Culture becomes a pawn of the market."139 He goes further to define alternative social and cultural values in terms of a cultural commons:
The commons is not just an inventory of marketable assets. It consists of social institutions and cultural traditions that define us as people and enliven us as human beings. The commons consists of lots of inalienable resources that belong to us all-resources that are "not for sale" because we consider them more important to us than any market price can capture.140
In other words, people who share a commons share more than a section of grass. Something important would be lost if the land was divided and grazing rights were subsequently sold to those 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 effectively-this does not mean that the values are not worthy of recognition. However, the role of culture in defining the market for particular foods is not recognized by the WTO, whose interest is in advancing trade. This results in goods stripped of whatever cultural associations they might have. The act of trade, isolated from an understanding of cultural interactions, threatens ways of life that people have an interest in protecting. By failing to acknowledge these cultural values, the WTO threatens its own goals-large protests against the WTO are occurring, and people are taking political action to protect themselves and others from the costs of free trade.'1"
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 biotech products.142 As a result, the WTO was thrust into the public eye with a large number of protesters showing up during talks over trade agreements. What had been a relatively anonymous organization came under heavy criticism for its strict free trade focus, possible bias towards the interest of large corporations, and its lack of transparency and democratic process.141 Critics of the WTO claim that it imposes a set of liberal market-based values on the rest of the world.144
Marion Nestle identifies two problems that follow from globalization: (1) a "potential loss of national identity and autonomy" to corporations;145 and (2) a threat that those who regulate food at an international level will give preference to agribusiness over consumer safety.146 This is particularly relevant to GM food, where the cost of measures, such as labeling, would be initially borne by the industry. Thus the cost to agribusiness is the largest obstacle to 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 attitude towards the WTO's EC Biotech interim decision was negative. In a press release following the February decision, the European Consumers Organization stated:
BEUC favours a global rule-based trading system, but it is not the solution to every problem. This recent WTO decision will not make European consumers accept GMOs any more than they do at present. Indeed, it is more likely to have the reverse effect, if consumers feel that GMOs are being forced upon them. We applaud and support the Commission's statement that "every country has the sovereign right to make its own decisions on GMOs in accordance with the values prevailing in its society."147
Before the EC Biotech opinion, similar WTO opinions encountered a cold reception in Europe. When the WTO found that an EC ban on hormone-grown cattle 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.148 The protest over these decisions reflects a broader negative attitude towards the WTO, 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 when he was arrested at a demonstration at a McDonald's construction site in France.149 He was later voted the most popular man in France for 1999,150 as his protest captured a sentiment against McDonaldizationthe movement towards not only fast food but also a standardized, global production method for food and, in particular, the spread of American culture through this production of fast food.151 Americanization thus takes place not only in the spread of American food, but also in the American manner of production and McDonald's business model.152
This resistance to American means of food production emerges again in the dispute over American beef treated with hormones. In 1996, the United States, joined by Canada, requested consultations before the WTO over EC prohibitions on the import of meat containing specific hormones, claiming that EC measures were inconsistent with the SPS Agreement.1" Just as in the decision for EC Biotech, the Panel found that the EC had not proven a scientifically demonstrated risk to health justifying stricter food regulation, as required by the SPS Agreement.154 The core finding that the EC was acting without the requisite showing of scientifically demonstrated risk was upheld,155 and the EC 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 million because of the EC decision not to reverse the ban.156 The EC eventually passed Directive 2003/74/EC, aimed at satisfying the requirements of the WTO ruling and including a more narrow independent risk assessment of the hormones.157 However, the United States and Canada disagreed and contended that the new directive still provided an inadequate scientific basis to justify the ban.158 The tariffs remain in place, and the EC continues to apply the precautionary principle-upholding the ban while it "seeks more complete scientific information to clarify the present state of knowledge of these substances."159
The EC decision to keep the ban in the face of the tariffs reflects political pressure from within the EC, indicating that decisions on food safety are not easily resolved by the WTO. The Europeans' pressure on their governments has led to continued resistance, which is likely to be repeated with GM foods. If so, the decision in EC Biotech will not advance the WTO goal of reducing trade barriers; instead a more market-friendly solution is needed. The concluding section suggests that strict labeling and traceability of GM foods by companies exporting to the EU offers that solution.
D. Labeling as an Alternative
The conflict seen in EC Biotech will not be easily resolved under any scenariothose opposed to GM foods will continue to resist, creating the political and market difficulties described above, and those who profit from GM foods will continue to demand market access. As we have seen, the WTO does not have the institutional capacity to assess trade measures 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 by encouraging a compromise in which labeling is a condition for market access.160 Labeling would bracket safety issues, allowing people to assume the government's role as gatekeeper and thereby advance an important free market value.161 In addition, an international labeling program would settle the controversy without further litigation costs and delays, which both sides would like to avoid.162
The Codex Alimentarius Commission, created by the U.N. Food and Agriculture Organization (FAO) and the World Health Organization (WHO) to establish international food safety standards, is currently developing guidelines for labeling of GM foods.163 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 DNA resulting from gene technology; or (3) food that is produced from, but does not contain, GM organisms or protein or DNA from gene technology.164 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 risks from GM foods:
As a risk management tool, the information that labels can provide to end-users can refer to a GMO or GMO product's food toxicity or environmental safety. Consequently, with this information, the end user can take appropriate steps to minimize or avoid the risks specified for example by following the instructions on the label. Labelling and associated documentation may also provide important information to intermediate handlers of GMOs, for instance when they are in transit through the postal system. In the biosafety context, this latter role is being further examined under the Biosafety Protocol pursuant to article 18(2) in cooperation with other fora.165
The Codex takes the position that all GM foods are not consistent with the requirements of "organically produced foods."166 This is a key point because the process of genetic modification, and not the product, defines how the food is categorized.167 This distinction is also seen in the U.S. approach to organic food labeling and genetic modification; once again, the process, not the end product, is definitional.168
Not labeling GM foods creates difficulties for the consumer; if they lack the information to determine which food is genetically modified, some consumers will refuse to buy any food they suspect to be genetically modified. This could reduce the market share of all imported food from countries such as the United States. On the other hand, labeling GM foods might allow people to express preferences for certain types of GM food but not others. It would also allow the food to be marketed more efficiently, and thus, enable the market to eventually set prices that accurately reflect the demand for these goods. Additionally, labeling modified foods will put them into the market more quickly and allow preferences to be better expressed in market behavior.
In the current trade regime, European citizens lack sufficient information about whether imported foods are genetically modified. While the EU requires labeling and traceability of GM foods, the United States only requires labeling of GM foods if the product is "significantly different from its conventional counterpart, for example in terms of its nutritional value or because it introduced a known allergen... ."169 Thus, the only way for European consumers to avoid modified foods is to avoid imported foods, particularly from nations such as the United States, Canada, and Argentina that regularly export GM foods without labeling or traceability mechanisms. This consumer pressure translates into market pressure; inefficiency in the political sphere results from the need for more attenuated choice concerning GM foods. secondly, the EU and individual Member States are forced to act as gatekeeper when citizens lack the necessary information to make informed choices that reflect their cultural identity and values. In this way, EU political pressure requires more than the WTO decision has offered if the EU is to avoid conflict. As it is, the EU operates in a zero-sum game, and therefore it must choose to work with either domestic interests, or trade partners. It cannot work with both.
The EC Biotech case makes clear that the WTO has failed to resolve the debate over GM foods. Food regulation is complex-it is tied to cultural values that are not adequately captured by the market. The WTO's commitment to free trade principles, as seen in the EC Biotech decision and the Hormone case, prevents it from sufficiently considering cultural 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 allowed in the SPS Agreement-the EC's concern that it must have a right to exclude food that is not culturally acceptable or adequately proven safe is lost. Because the decision in EC Biotech does not account for these values and interests, the controversy over GM food regulation is unlikely to end with this decision. More likely, Europe will resist because of political pressure that, in part, reflects the European perception that their values are not respected. Labeling would alleviate the tension in a way that would solve the trade issueswithout having to resolve the debate over safety. This is because labeling provides information that allows citizens of the EC and Member States to act consistently with their values, 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 consider non-market values would remain. This underlying problem indicates the need to reconsider how to frame trade disputes involving values outside of the market, and what institutions are the appropriate arbiters of such disputes. Ultimately, the debate must be addressed through international reforms that are able to take adequate account of the cultural factors, such as those seen in the GM food debate.
[dagger] 2007 J.D. Candidate, University of Texas School of Law. The author would like to thank Professor Thomas McGarity, Ken Ward, Chris Hammock, and Patricia Hudson for helpful comments and suggestions on various drafts. The author would also like to thank Ruth Karper and Skye Masson of the Texas International Law Journal.…