CSPI International
Center for Science in the Public Interest

Diet & Health/Food Labelling & AdvertisingFunctional FoodsFood Safety StandardsIACFOCodex Alimentarius CommissionWorld Trade OrganizationNAFTAGeneration ExcessSafe Food International

National Research Council

Conference on Incorporating Science, Economics,
Sociology and Politics in
Sanitary and Phytosanitary Standards and International Trade

The WTO Agreement on
Sanitary and Phytosanitary Measures - Weakening Food Safety Regulation to Facilitate Trade?

Bruce Silverglade
Director of Legal Affairs
Center for Science in the Public Interest

* * *

January 25, 1999

Irvine, California

     Good morning. I am delighted to have this opportunity to address you today. For those of you who are not familiar with Center for Science in the Public Interest, let me tell you just a little bit about us. We’re a consumer advocacy organization based in Washington, D.C. We are supported by one million subscribers to our magazine, Nutrition Action Healthletter, which reports on food safety and nutrition issues. We were formed in 1971 and over the last two decades have campaigned for the elimination of hazardous food additives such as sulfiting agents, worked to improve meat and poultry inspection, exposed the fat content of restaurant foods, and fought for mandatory nutrition labeling requirements.

     It was actually after Congress passed mandatory nutrition labeling legislation in 1990 that we began to open our eyes to international issues. After the nutrition labeling law took effect, the European Union began to complain that the new law was a trade barrier. We felt that as an organization, we better start looking into international trade issues to see if some of our biggest consumer victories in the United States could become the victim of trade disputes.

     At the same time, our organization was becoming more international in scope. We now have 100,000 members in Canada and we have a Canadian advocacy office based on Ottawa. One of our responses to trade attacks on mandatory nutrition labeling requirements has been to start campaigning for nutrition labeling in other countries, and so we’re working with the Canadian Parliament to get nutrition labeling legislation in that country. We’re also working with consumer groups in Europe and in places as far away as Singapore to achieve the same objectives. Consumers in these areas of the world need nutrition labeling to improve their diets and protect their health and if other countries establish nutrition labeling requirements, the U.S. law will appear less and less to be a maverick regulatory requirement.

     To further our role in international issues, we have become a recognized observer at the Codex Alimentarious Commission and have formed a new organization called the International Association of Consumer Food Organizations (IACFO), which is an international coalition of consumer groups that work primarily on food safety and nutrition issues. Our charter members are the Food Commission U.K. based in London, and the Japan Offspring Fund based in Tokyo. IACFO has filed comments with various governments on the labeling of genetically engineered foods, issued a report on the regulation and marketing of “functional foods,” and has participated in Codex committee meetings.

     Now, what I’d like to do is reflect on some of the topics that have been discussed, particularly the process of international harmonization under the SPS agreement, and raise the question of whether we are harmonizing “upward” or in some other direction? I’d then like to touch on the role that science and other factors play in SPS decisions, and lastly draw some conclusions from our experience to date.

     Now, let me say first that my remarks should not be construed in any manner as an attack on free trade. We recognize the benefits of free trade. Free trade promotes an efficient allocation of resources. It increases the variety of goods available to consumers and it lowers the prices of those goods. And free trade certainly encourages better world citizenship by facilitating peaceful cooperation and exchange. We recognize that we’re in a global economy to stay and that international harmonization of regulatory requirements is necessary. But are we harmonizing “upward” or “downward” — In what direction are we going?

     To the extent that international harmonization elevates health and safety regulations to a consistent level of excellence, consumers worldwide are well served. However, if harmonization tends to reduce standards to some acceptable international norm, then consumer health and safety may be jeopardized regardless of the economic benefits brought about by free trade. President Clinton has recognized this and in his speech last summer to the World Trade Organization he has called for a “leveling up,” in his words, of consumer protection regulations and not a “leveling down.”

     But what is in fact happening? In our view, there are numerous instances of leveling down that have occurred during the international harmonization process. We believe this is happening for at least three different reasons.

     First, under the SPS agreement, international standards serve as a ceiling not a floor. They’re a maximum not a minimum. And there’s nothing in the SPS agreement that requires the setting of a minimum floor that countries can exceed. It’s really just the opposite. So there’s an implicit pressure for downward harmonization built into the SPS agreement.

     Second, the SPS agreement was adopted to facilitate trade, not to raise health and safety standards. The SPS is not a public health agreement, it is a business oriented trade agreement that is supposed to reduce regulation and make it easier for companies to trade internationally. And, in fact, many of the processes involved with the SPS agreement, particularly the proceedings of the Codex Alimentarious Commission, have become forums for deregulation.

     Third, public participation by consumer groups, environmental groups and others in International proceedings is limited for obvious reasons related to resources and logistics. Hopefully that will start to change. But at the present time, lack of consumer input is certainly one of the factors that we believe is leading to downward harmonization. Let me give some examples.

  • Codex has a proposed standard scheduled for approval this June that does not require pasteurization of cheese. Pasteurization has been a hallmark of food safety in the United States. However, the Codex proposal is based on practices common within the European Union. The likely adoption of this proposal at the full Codex Commission meeting in Rome this summer will represent an example of downward harmonization.

  • I mentioned earlier that mandatory nutrition labeling in the United States has been attacked as trade barrier. Proponents of this view frequently cite the Codex standard for nutrition labeling, which only requires disclosures of such information if the manufacturer makes a nutrition claim. Because the U.S. requirement exceeds the Codex standard, there have been proposals that the United States permit imports of foods that have some other, lesser form of nutrition information on the label as opposed to the full list of nutrients mandated by the U.S. Well, those of you who work in the area of consumer education know that label disclosures have to be standardized in order to be effective. Organizations like the American Heart Association can’t teach people to use the label if it doesn’t look the same on each product. So allowing in imported products with some other country’s nutrition label would jeopardize the objectives of the U.S. law and represent another example of downward harmonization.

  • Codex has adopted standards for natural mineral water opposed by the United States that allow greater levels of contaminants than permitted under Food and Drug Administration regulations. The adoption of the Codex standard was quite a loss for the FDA which fought for years to set stringent bottled water standards in the U.S. and now may be confronted with demands to permit the import of products that fall below those standards.

     Certainly there’s a potential that international harmonization can raise standards. As David Vogel’s book points out, we can “trade up” but whether that’s really happening in our view is questionable. Now, I’d like to comment on two specific areas that are the subject of this particular panel, which is focusing on veterinary issues. The first is the WTO growth hormones case and the second is equivalency agreements concerning HAACP requirements and salmonella testing. The downward harmonization problem is illustrated by both of these matters.

     The hormone decision is obviously a very important decision under the SPS agreement. CSPI has not campaigned against the use of hormones in the United States. We recognize that there is a significant percentage of Americans who want to buy organic or natural beef and dislike hormones as much as the Europeans, but in general, we have not made an issue about it. And for the sake of this discussion, let’s just assume that there is no human health risk posed by hormone use in the United States.

     Yet the European Union doesn’t want to buy our beef, and if you speak to European consumers, you will see that this is simply not a protectionist issue. Certainly there’s a degree of trade protectionism in the European Union position, but that position is supported by the European public for other reasons. And, in fact, it would be difficult for the European Union to maintain such a protectionist stance if it wasn’t the subject of popular support. That popular support for the hormone ban in Europe can be traced to various historical experiences and cultural values. We know that there were problems in Italy with the use of hormones. The European consumer remembers that disaster and distrusts government authorities even more in the wake of the mad cow disease fiasco. And in regards to cultural values, there is the view that America is trying to “McDonaldize” the food supply.

     So based on different historical experiences and cultural values, most European consumers have come to fear the use of hormones in cattle. My point here is the fear is real and simply dismissing it as trade protectionism, as many U.S. officials do, is not useful because it doesn’t get the response that we’re looking for from the European Union. Moreover, simply trying to force our agricultural products down their throats at the WTO is counter productive and threatens to de-stabilize the entire world trading system. The stance that the U.S. has taken could jeopardize the whole system if the European Union decides to ignore the WTO decision.

     We are concerned about the hormone decision from another standpoint. The decision could be interpreted as limiting the right of a nation to establish a zero risk standard when there is scientific uncertainty. And in the United States, we have the Delaney Clause to the Food, Drug and Cosmetic Act which sets a zero risk standard for cancer-causing food and color additives. We support the Delaney Clause, not because it’s science based, but because it represents an insurance policy against weak regulation in times of budget crunches or competing priorities. It forces the FDA to make certain policy decisions when the agency might be pressured by industry to look the other way and ignore certain risks. But to argue before the WTO that it’s science based, we’d be hard pressed.

     The WTO’s decision in the hormone case could have a boomerang effect and come back to haunt us by jeopardizing consumer protection requirements like the Delaney Clause. And again, I think that was because the SPS agreement was essentially written as a business document to increase agricultural exports, not to protect the public health, and insufficient thought was put into it at the time it was drafted as to how it might hurt us in certain areas that we believe are important.

     Let me touch on one other area — equivalency agreements — where the process of downward harmonization seems to be at play. I would like to discuss two points here. First, the Codex Alimentarious Commission approved over the objections of the U.S. government guidelines for the establishment of import/export inspection and certification systems that do not require the use of government employees to inspect meat. In the U.S., we have long relied on government employees to inspect meat. The Codex standard approved in 1997 could be interpreted as sanctioning the use of company employees to inspect meat. It was pushed very heavily by Australia, which has a conservative government in power, and is deregulating quite actively and favors the use of company employees, as opposed to government employees, to conduct inspections. The Codex standard that was adopted could certainly be used to pressure us to accept imports from countries like Australia that are increasingly relying on company employees for inspection responsibilities.

     Second, the U.S. has new HAACP rules which require salmonella testing by government employees. The rules took effect in January 1998 for producers that have 500 or more employees. Fifteen countries who import meat to the United States have factories that employ 500 or more employees. These nations will agree to do the salmonella testing but in most cases, intend to have company employees perform the test. We met with USDA officials and they said very plainly that under the equivalency provisions of the SPS agreement, they were not telling other countries that they have to use government employees to do the salmonella testing. And so this does set up a double standard that I think not only consumer groups, but U.S. producers as well, should be concerned about. Certainly ask any American business person — they would prefer not to have a government inspector looking over their backs. They’d prefer to have one of their own employees doing the work. That will be the case overseas. It won’t be the case here. And so we believe that equivalency agreements under the SPS are yet another example that can lead to downward harmonization.

     It doesn’t have to be that way. Through equivalency agreements, we can certainly learn how to improve food safety requirements. The U.S. does not necessarily have the strongest requirements in every area. The U.S. food industry likes to say we have the safest food supply in the world, but that’s no longer true across the board. So we can certainly learn from equivalency agreements if they’re used to raise consumer protection standards. Unfortunately, they are currently being used to merely facilitate trade at the cost of lowering consumer protection requirements. It’s an issue that concerns us very much and I can assure you that we will be working a great deal on it.

     Before concluding, I would like to briefly address another matter that was discussed this morning which is the role of science in policy making under the SPS agreement. Obviously science has to take a leading role, but science has its limits when it comes to risk management decisions and it’s not value free. Risk assessments are based on assumptions, and we’ve heard that these can be cultural assumptions. Just the decision to do a risk assessment on a particular substance, but not on another substance, is a subjective judgment that may be based on cultural and other values. And while science has to play the leading role in informing policy decisions, other factors certainly enter into the equation. And this happens everyday at the Codex Alimentarious Commission which plays such a leading role under the SPS agreement. How else can one explain such close votes at Codex approving the use of growth hormones in cattle but disapproving the use of BST in dairy cows. If Codex was proceeding strictly on a scientific basis, these matters wouldn’t be the subject of close votes. There would be consensus decision making or perhaps lopsided votes, but there wouldn’t be close votes. So other factors besides science are definitely coming into the decision making process in scientific organizations like the Codex Alimentarious Commission.

     And I’ll name one of those factors which is so obvious that perhaps we don’t see it — it’s trade concerns. So we can debate the extent to which consumer and environmental concerns should be considered along with scientific factors, but trade concerns are already being taken into account in what are purportedly scientific decisions. And so if we are considering trade concerns at Codex, then we should certainly be considering consumer concerns as well.

     And I would agree with the speakers from earlier this morning that cultural difference play a very key role in explaining what some may think are just protectionist attitudes or what some may say is the misuse of science by the press or politicians. To economists, cross-cultural disputes simply look like trade protectionism. Every time a SPS dispute arises, they say, “Well, it’s just disguised protectionism.” It’s actually much more complicated as we are seeing. To scientists, these disputes may be attributed to consumer activists just trying to generate publicity or politicians just trying to garner votes. Those parties certainly play a key role here, but SPS disputes can’t simply be chalked up to protectionist attempts to grab media attention, or politics.

     Lawyers may tell you that SPS disputes are essentially legal disputes. Now I know there are a lot of scientists in the audience who may not like lawyers. In fact, the joke at the National Institutes of Health back in Washington is that they’re starting to use lawyers for experiments because there are some things that even rats won’t do [laughter]. Yes, the SPS agreement is a law, but even though I am a lawyer, I won’t tell you that these disputes are only over the meaning of legal terms. Cultural differences play a very, very big role. Let me tell you a personal story.

     As my organization established relationships with consumer organizations in Japan, we had an opportunity to travel back and forth and observe different eating customs. I was hosting some of my Japanese colleagues in Washington, D.C., and when we decided to go to a restaurant for dinner, one of them ordered a bowl of ravioli. And after the meal was served, the first thing they did is to start placing the pile of ravioli in rows, lining them up in a straight line, and then putting little bits of the green herbs that were on the plate in the center of each ravioli. And what started out looking like a plate of ravioli ended up looking amazingly like a sushi platter [laughter].

     You may think that was funny, but when I was in Japan and couldn’t find a regular restaurant, I went into a fast food type place and ordered a hamburger. Now in Japan, rice is consumed in place of bread. The hamburger came out in a paper wrapper and as I unwrapped it, what I found was a hamburger patty with a rice cake above and below it meant to be eaten as a sandwich. But, of course, the first thing I did was take it apart and put the rice on one side and chop it up into a little pile. And then, of course I knew that if they could see me, my Japanese colleagues would be laughing. So the moral of this story is that if we can’t even agree on how to serve food and put it in our mouths, then it should be no surprise that we have difficulty agreeing on setting safety standards for food production. Regardless of whether we are dealing with simple issues, like how to serve a meal, or complex issues, like how to ensure the safety of the food supply, cultural differences play a profound role. No doubt, culture will continue to play a key role in what some may regard as purely scientific or economic issues.

     To close, let me say that international harmonization can be a positive experience. It can lead to the adoption of international standards that embody the best consumer protection policies from around the world. The potential is there. As we proceed with the global economy, we really have only one option — to harmonize upward. Any other course of action will be seen by the public as a sellout. The challenge is there and how we meet it will not only affect the future of food regulation, but whether public support for the world trading system will grown or diminish.