The European Communities Biotech Dispute: How the WTO Fails to Consider Cultural Factors in the Genetically Modified Food Debate
Zurek, Laylah, Texas International Law Journal
"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. …