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

By Fredland, John Stephen | Vanderbilt Journal of Transnational Law, January 2000 | Go to article overview

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


Fredland, John Stephen, Vanderbilt Journal of Transnational Law


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. …

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