The International Consortium on Agricultural Biotechnology Research (ICABR)


"Trade restrictions for genetically engineered foods under the TBT Agreement"

Dirk Heumueller,
Tim Joslin,
University of Standford,

Domestic policy makers are under pressure to restrict trade in genetically engineered foods in order to manage risks which some foresee as linked with these foods. However, within the WTO system trade restrictions must meet the conditions of the WTO Agreements. Much discussion has focused on the SPS Agreement, as that relating to regulations implemented for plant, animal and health reasons. But the TBT Agreement covers regulations where objectives are not based on specific health grounds. Considering the multifaceted character of the issue of genetically engineered foods, the TBT Agreement might prove to be the decisive measure if regulations are a response to diffuse fears and abstract objections.

This paper would provide an interpretation of the WTO Agreements that stresses the role of the TBT Agreement for the issue of genetically engineered foods. It aims at clarifying the ambiguous language of Article 2 of the TBT Agreement based on the WTO jurisdiction. It argues that the TBT Agreement opens up the opportunity to tackle the issue of genetically engineered foods within a human rights/market oriented approach that goes beyond the often discussed precautionary approach.

Part one will briefly analyze the role of the TBT Agreement within the system of WTO agreements with respect to genetically engineered foods. It analyses in particular the scope of the precautionary approach under the SPS and the TBT Agreement taking account the Biosafety Protocol. Part two examines whether trade restrictions for genetically engineered foods can be justified to prevent deceptive practices or to protect public morals in the sense of Article 2.2 of the TBT Agreement. Especially with respect to the issue of labeling of genetically engineered foods, it proposes allowing countries to justify broad labeling if this corresponds with the needs and preferences of their people. To avoid disguised protectionism for trade related measures, it suggests requiring sufficient empirical evidence regarding what people want and why. It also examines the case for some type of structured economic reasoning to be incorporated in a communicative and participatory approach.

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