by Brian Tokar

In late Spring 2003, amidst the political fallout of “Old Europe's” refusal to support the U.S. invasion of Iraq, the Bush administration threw down a gauntlet that threatened to permanently aggravate transatlantic hostilities. As a political favor to its agribusiness allies in the Midwestern farm belt, the administration filed a complaint with the World Trade Organization (WTO) seeking to overturn Europe's de facto five-year moratorium on approval of new genetically engineered crop varieties. The governments of Argentina and Canada also signed on to the complaint. Together, these three countries grow roughly 80% of the world's genetically engineered crops.

In the first week of February 2006, the substance of the WTO's decision on this case was submitted directly to the parties involved and almost immediately leaked to the press. The WTO's anonymous three-judge panel ruled that some of Europe's restrictions on genetically modified organisms (GMOs) violate global trade rules, and that any attempt to regulate this technology requires strict compliance with the trade body's exacting, and often industry-biased, scientific risk assessment procedures. Perhaps more than any previous WTO decision, the ruling confirmed many people's fears about the role this secretive and unaccountable trade body would play in today's world.

The response to the decision from both sides of the global GMO debate was immediate. Supporters of genetic engineering technology were quick to declare victory, as well as to denounce European concerns about the long-term effects of using that technology as mere protectionism for European agricultural products against American competitors. They predicted that the WTO would impose penalties of over a billion dollars to compensate U.S. companies for lost European exports, and claimed this decision “proved” that opposition to GMOs had no scientific basis. 

Critics of the biotech industry denounced the WTO's violation of people's right to make their own choice about their food and how it is grown, and pointed out that Europeans would not begin consuming genetically engineered corn or soybeans as a result of this decision. Its main impact would be on other countries still struggling to address the implications of this technology. “[T]he WTO suit is clearly an effort to chill other nations from pursuing any regulations on GE foods,” explained an alliance of 15 U.S.-based NGOs in a statement that immediately preceded the ruling. African and Asian governments are by far the most conspicuous targets.

On one hand, the WTO panel ruled against the European Union in each of the three substantive areas addressed by the US complaint. First, the unnamed trade judges declared that Europe had indeed imposed a sweeping moratorium on new genetically engineered crop varieties, in violation of the international trade agreement on “Sanitary and Phytosanitary Measures.” Second, they ruled that approvals of 24 specific GMO crop varieties had been illegally delayed. Third, the judges declared that additional prohibitions imposed by six countries — Austria, Belgium, France, Germany, Italy, and Luxemburg — are inconsistent with these countries' obligations as members of the global trade body.

On the other hand, the WTO officials were careful to point out that they had dismissed most aspects of the U.S. complaint. This is clear from the concluding 22 pages of the 1050 page decision, the only portion that the organization publicly released. The decision, for example, explicitly does not address the safety of biotech products, their similarity to (or difference from) conventional crop varieties, countries' right to require pre-market approval of GE varieties, or even the European Union's specific regulatory procedures. The WTO panel affirmed that member countries have the right to consider all possible hazards of GMOs in their risk assessments, even those that are perceived to be “highly unlikely to occur.” 

The defending countries’ principal violation was a “failure to complete individual approval procedures without undue delay,” no more, no less. Other aspects of the U.S., Canada and Argentina's complaints were largely rejected. The EU's action was found to be inconsistent with a single clause of the international sanitary measures agreement, one having to do with the timeliness of GMO approvals. In six other areas, including the scientific validity of Europe's regulations, the decision refutes U.S. assertions that Europeans acted inconsistently with their WTO obligations. The claim that European regulations discriminated against U.S. imports in a protectionist manner was explicitly rejected, and the panel upheld European regulators’ non-approval of three GMO varieties developed by Aventis Crop Science, which is now part of Bayer.

The WTO declared that the six countries with additional prohibitions on GMOs violated WTO rules by enacting measures that trumped EU risk assessment protocols. In this way, the WTO implicitly endorsed the principle of pre-emption: that no member state can impose regulations more stringent than those of the European Union as a whole. There is no claim that countries introduced invalid or insufficient scientific evidence; their only offense was to enact a political decision that the interests of their people are best served by keeping many genetically engineered foods out of the country. It is precisely these kinds of precautionary political decisions that international trade rules aim to prohibit, even though the parties to the United Nations’ Cartagena Protocol on Biosafety have endorsed such a precautionary approach.

European officials’ defense was that there was never an actual moratorium on GMOs, but rather that biotech companies were not complying with the existing approval process, which led to unanticipated delays. The trade officials apparently rejected this argument. However, during the three years that this case has been pending, EU officials clarified and streamlined their approval processes for engineered crop varieties. One new genetically engineered sweet corn variety has already been approved, though it is not likely to be grown or marketed in Europe. The EU has also implemented detailed GMO labeling and traceability rules designed to conform to WTO requirements. These protections still go far beyond anything seen in the US, and the Bush administration has repeatedly threatened issuing a new complaint to challenge them. But first, according to Friends of the Earth, the EU will have 30 days to file a response to the WTO ruling, and is entitled to seek a “reasonable period of time” to comply, followed by another six-month review.

What does this decision mean for people whose principal desire is to know what's in their food? That still depends on where in the world one lives. In Europe, genetically engineered ingredients have been virtually eliminated from processed foods, even products imported by U.S. companies and sold under U.S. brand names. Any ingredient that is more than 0.9% genetically engineered must be clearly labeled as such. European countries import engineered soybeans from the U.S. and Brazil for animal feed, but there is growing pressure on meat processors and retailers to curtail this practice. Some 3,500 cities, towns and regions in Europe have declared themselves GMO-Free Zones, and in November 2005, Swiss voters endorsed a measure that prohibits the growing of engineered crops for five years.

In the U.S., new varieties of genetically engineered corn, soy, canola and cotton continue to be marketed and approved for sale with only a cursory, and often voluntary, examination of company data by federal regulators. Most Hawaiian papayas are now genetically engineered, as are a few varieties of summer squash. (For more on GM agriculture in Hawaii, please see “Protect What is Here Now”). Milk from cows injected with Monsanto's recombinant Bovine Growth Hormone also continues to be sold in many regions of the country. Nearly 100 New England towns have voted in favor of a moratorium on GMOs, along with labeling measures, and four California counties have banned the raising of engineered crops or livestock. But attempts to regulate this technology more comprehensively have languished under the pressure of Monsanto’s potent political influence, especially at the federal level.

The rest of the world may be up for grabs now. People throughout Asia, Africa and parts of Latin America have raised determined opposition to GMOs, viewing the technology as a fundamental threat to food sovereignty and the survival of traditional agriculture. Numerous countries have labeling and testing requirements that reach far beyond what is acceptable to Monsanto or the Bush administration. One hundred and thirty countries (excluding the U.S.) have ratified the UN’s Biosafety Protocol, which requires prior informed consent before seeds or other living engineered organisms can be shipped into any country. It is in the developing world that the pressure from the WTO’s decision may be most felt. This is particularly true in Africa, where Zambia and other countries have steadfastly resisted the introduction of GMOs, especially in the form of U.S. food aid. “We made a decision based on facts and those facts have not changed,” Zambian Agriculture Minister Mundia Sikatana told Reuters, “We do not want GM foods [and we] hope no one in Africa feels they have to change their views based on that ruling.”

Brian Tokar is a faculty member at the Institute for Social Ecology. His latest book is Gene Traders: Biotechnology, World Trade and the Globalization of Hunger. Please seewww.genetraders.org.

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