The International Consortium on Agricultural Biotechnology Research (ICABR)
Trade Restrictions on Genetically Engineered Foods:
The Application of the TBT Agreement
By Dirk Heumueller and Tim Josling*
A growing number of consumers want to know more about how their food is produced, in particular whether or not it has been subject to genetic engineering. Labeling requirements, pre-market approvals, and even bans are on the agenda of many countries throughout the world. Domestic policy makers argue that they restrict trade to manage risks that might be linked with these foods. However, within the WTO system, trade restrictions must meet the conditions of the GATT, SPS and TBT Agreements. Considering the multifaceted character of the issue of genetically engineered foods, this paper suggests that the TBT Agreement will often provide the decisive measure for these and similar restrictions on trade in genetically engineered foods.
The paper analyzes the role of the TBT Agreement within the WTO system with respect to trade restrictions on genetically engineered foods, in particular those related to labeling. It explores the relationship between the TBT Agreement and the SPS Agreement and the GATT. The TBT Agreement applies to technical regulations, standards and conformity assessments. It does not cover import bans, which are come under the provisions of the GATT (94), another part of the WTO. It does not apply to sanitary and phytosanitary measures that are introduced for plant, animal or human health reasons alone, which are fully covered by the SPS Agreement. The TBT Agreement covers all technical regulations that are not covered by the SPS Agreement, including measures with multiple objectives even if one of those objectives is related to health. In addition it provides some guidance for judging whether the measures concerned are appropriate.
Unlike the SPS Agreement, no scientific risk assessment is explicitly required to justify measures, though scientific evidence is one of a number of conditions that can be taken into account when judging the appropriateness of measures. Moreover, no acceptable level of risk for comparing across measures is required. But this does not imply that the TBT Agreement is lacking in substance. To conform to the TBT Agreement technical regulations must meet certain requirements that constrain government activities. These measures must conform to the basic principles of the GATT, non-discrimination among members and equal treatment of domestic and imported goods (like products). The measure (such as a labeling regime) has to fulfill a legitimate objective and there has to be no other measure which would be less trade restrictive, taking into account the risks of not meeting the objective.
The range of legitimate objectives is not only wide, including national security, prevention of deceptive practices, health and safety concerns and the protection of the environment, and even open-ended, which does not necessarily mean unlimited.
The injunction that technical regulations be no more trade restrictive than necessary introduces the possibility of requiring some form of cost-benefit approach in examining the measures. The requirement that the risks of non-fulfillment be taken into account implies that there is some place for scientific evidence even if this does not preclude other factors from being considered. In formulating their technical regulations, countries are encouraged to bring them into conformity with international standards, or to recognize foreign standards, and to use product rather than process regulations where appropriate.
With respect to the issue of labeling, the paper examines whether the TBT Agreement would allow countries to justify broad labeling regimes if this corresponds with the needs and preferences of consumers. The problem usually raised with respect to the flexible use of precaution and labeling is that it quickly leads to a misuse of such regulations to protect domestic suppliers.
The paper concludes with suggestions of ways to require sufficient empirical evidence regarding what people want and why, so as to avoid the misuse of the substantive TBT rules as disguised protectionism.
Paper presented at the 5th International Conference on Biotechnology, Science and Modern Agriculture: a New Industry at the Dawn of the Century", held at Ravello, Italy, from June 15 to 18, 2001. The authors are, respectively, JSD student, School of Law, Stanford University and Professor and Senior Fellow, Institute for International Studies, Stanford University (contact via e-mail at firstname.lastname@example.org and email@example.com)